By the vesting act, the Crown was not liable for expenses due by a forfeited person; yet the cautioner for such a person was found liable to the creditor for expense of diligence.
Click here to view a pdf copy of this documet : PDF Copy
Upon the 18th November 1743, Lord Balmerino and Henry Allan became bound, conjunctly and severally, to Hugh M'Leod, for the sum of 2000 merks.
The estate of Balmerino was afterwards forfeited to the Crown.
Hugh M'Leod entered a claim in terms of the vesting act; which was sustained to the extent of the principal sum and annualrents only, in regard no expenses were considered as due by the Crown in terms of that act.
Hugh M'Leod brought an action against Henry Allan, for the expense he had laid out in the Court of Session for ascertaining his claim, and afterwards in Exchequer, at receiving payment, amounting to L. 16: 6s.
Henry Allan objected to this claim, and argued, That he was only cautioner for Lord Balmerino, as was proved by a bond of relief; that the expenses claimed are cut off by act of Parliament, and therefore cannot be effectual a-against him; for if he should be decerned to pay them to the pursuer, he would have relief against the Crown, having duly entered his claim for securing that relief; and therefore the judgment of the Court, upon Hugh M'Leod's claim, finding him not entitled to expenses from the Crown, must be considered as a judgment, finding also that he can have no claim against the cautioner.
Answered, Although expenses were refused upon M'Leod's claim, it does not follow that they will be refused to Allan, when he claims upon his relief; for that in a former case, of a debt paid by Allan to Ross of Culrossie, it was found, That Allan was entitled to relief in terms of his claim, so far as he had already paid, or should afterwards, upon distress, as cautioner, be obliged to pay. At any rate, it was optional for the pursuer to have at first demanded his debt from Allan instead of the Crown; in which case, the expense now claimed must have been laid out by Allan, in order to recover his relief out of the forfeited estate; and it cannot vary the case, that, out of favour to the defender, he first endeavoured to recover the debt from the Crown, as in place of the principal debtor.
‘The Lords found Henry Allan liable for the sum claimed. See Forfeiture.
Act. Swinton.Alt. Rae.
Fol. Dic. v. 3. p. 116. Fac. Col. No 17. p. 28.
