Scottish Court of Session Decisions

Subject_1 FORFEITURE.

Duncan's Claim on Kinloch

1754, Feb. 28.
Case No. No. 25.

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One Duncan claimed on an accepted bill on Sir James Kinloch the attainted person lor L.100 Scots dated 28th August 1745. Objected, That it was after 24th June where the estate was vested in his Majesty. Replied, That it was for the remains of a prior bill for a larger sum dated several years before. Drummore, Ordinary, having allowed a proof, two witnesses deponed that such a prior bill had been assigned to the claimant in spring 1745, and this claimant,, and the attainted person, (who is now pardoned) told them that it was transacted, and a bill given for the balance. The case was reported to us, and I had some diffioulty both as to the proof and the point of law, for that here there was really no other evidence than the words of the claimant himself and attainted person, and when they told so the witnesses did not say,—and in point of law no claim could lie for this bill though there might for the former if extant,—and this was raising up a debt of borrowed money by witnesses; and supposing that were legal evidence of the former bill, yet there is still some difficulty, for in the case of York-Buildings Annuitants we altered our first interlocutor., and found that annuitants who were secured upon the estates, but who or their assignees had given up their bonds and taken new bonds, had not the real security due to their first bonds,—and although there was great equity in sustaining every claim of debt contracted bona fide before the debtors engaged in the Rebellion, yet that equity could not operate against the statute, unless the claimant was creditor in a debt in law or equity prior to 24th June 1745. The Court sustained the claim renit. Strichen, Kilkerran, et me.—28th February, We adhered, when also our new President joined,* as did I likewise in consideration of the smallness of the sum, which removed any suspioion of deceit; but we all, almost, agreed that had it been a large sum we would have thought the proof insufficient.

*** The case of Barisdale is referred to by Lord Elchies in his Dictionary, as in his Notes. It relates chiefly to a misnomer, and is mentioned along with the cases of Pitsligo and Lochiel, but without date. The Editor has not yet found it. See Superior and Vassal. See also Tailzie.

* President Craigie was admitted on 2d February 1754.