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SCOTTISH_HoL_JURY_COURT

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(1720) Robertson 263

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 57.

The Commissioners and Trustees of the forseited states, Appellants

v.

Kenneth Mackenzie of Assint, a minor, by Colonel Alexander Mackenzie, his Curator. Respondent

10 February 1719– 1720.

Subject_Act of Parliament, 5 Geo. 1 c. 22. Papist attainted of Treason. —

The Act 5 Geo. 1 c. 22. having limited a certain time for preferring exception, against a forfeiture, a person who presented his exceptions as protestant heir of a trustee could not, after expiration of the time limited reply as protestant heir of those for whom the trust was created.

Subject_Trust Estate held for a Papist. —

An estate held in trust for the Earl of Seaforth, a papist, was forfeited to the public by his attainder, and could not be cases up, by the protestant heir.

About the year 1650, George, then Earl of Seaforth, having contracted very large debts, many of his creditors obtained apprisings against his estates. Afterwards George Earl of Cromarty, and other friends of the family compounded with some of the creditors who had recovered the apprisings that were prior and preferable; and these apprisings were transferred to them in trust for the family. These apprisings not being redeemed within ten years, the absolute property of the estate became thereby vested in them, and many of the creditors were excluded. And the apprisings in the persons of the Earl of Cromarty and others were conveyed to one Kenneth Mackenzie, and by him again made over to Isabel Countess of Seaforth, as trustee for the family. This Isabel afterwards made a conveyance thereof to Kenneth Mackenzie of Grunziard, and died in 1715.

Isabel Countess of Seaforth, had three sons, Kenneth Earl of Seaforth, who died before her in 1701, father of William late Earl of Seaforth, John, father of the respondent Kenneth, and Colonel Alexander Mackenzie, Kenneth's curator. William Earl of Seaforth was a professed papist; the respondent was next protestant heir of the family.

1 G. 1.

c. 42.

1. G. 1. c. 50.

4 G. 1. c. 8.

By act of Parliament 1 G. 1. c. 42. the said William, Earl of Seaforth, was among others attainted of high treason, from the 24th of June 1715; and by an act 1 G. 1. c. 50. the estates whereof any person attainted was seised or possessed on the 24th of June 1715, were vested in his majesty for the use of the publick; and these estates were afterwards vested in the appellants, to be sold for the use of the publick by the act, 4 G. 1. c 8.

The appellants caused the estate of Seaforth to be surveyed as one of the estates forfeited, and vested in them; but in this they were opposed by the respondent. After the attainder of Earl William, the respondent, Kenneth Mackenzie of Assint, was, by his curator Colonel Alexander Mackenzie, served nearest protestant heir to the said Isabel Countess of Seaforth, on the ground of

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the attainted Earl's being a papist; and claimed the estate of Seaforth as belonging to him in property upon that right, exclusive of the right of the said William late Earl of Seaforth attainted.

5 G. 4. c. 22

700. c. 3.

It being enacted by the act 5 G. 1. c. 22. that it should be lawful to every person pretending right to any estate surveyed by the said trustees in Scotland, for the use of the publick to present their exceptions on or before the 1st of August 1719, to the Court of Session in Scotland, two several exceptions were presented to that Court against the survey of the estate of Seaforth. The first of these was in the name of the respondent and his curator, setting forth that the estate belonged to him in property as protestant heir to Isabel Countess of Seaforth; and that William the attainted earl had no manner of title to it. In Support of this exception he sounded upon the act of Parliament 1700, c. 3., intituled “Act for preventing the growth of popery”; by which it is inter alia enacted,“that no person or persons, professing the popish religion, past the age of 15 years shall hereafter he capable to succeed as heirs to any person whatsomever,” &c. And if any person or persons educated in the popisn religion shall happen to succeed as heirs to their predecessors before the said age of 15 years, they shall be obliged to purge themselves of popery by taking the formula by the act directed before they attain to the said age. And, “if the succession devolve to any papist after the age of 15 years; or any conveyance shall happen to be made in their favours to any person, whom they might have succeeded, or the right be devolved to them by succession or other conveyance before that age, and they neglect or omit to renounce popery as aforesaid; then and immediately thereafter, their right and interest in, or by the aforesaid succession or conveyance shall become void and null, and shall devolve and belong to the next protestant heir or heirs, who would succeed, if they and all the intervening popish heirs were naturally dead,”&c.

The other exception was in the name of Kenneth Mackenzie of Grunziard, the disponee of Countess Isabel; the appellants made answer to this last exception, that the disposition to this Kenneth Mackenzie could be of no avail; because Countess Isabel's own titles were trust rights for the behoof of the family of Seaforth and of the late attainted Earl, as heir of the family, and that therefore she could make no conveyance in prejudice of the family, or in breach of trust; and that the appellants could now, as come in the right of the attainted Earl compel the heirs of Countess Isabel, or her disponee to divest themselves of the estate, and of their titles which were intrust only. On the 15th of August 1719, the Court found “that the right to the nine apprisings in the person of the said Countess Isabel was a trust for behoof of the heir of the family of Seaforth; and that she could not dispone in favour of a third party in prejudice of the said trust; and therefore dismissed the exception of the said Kenneth Mackenzie of Grunziard.” So far the judgment of the Court was acquiesced in.

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In the course of the debate upon the other exception presented by the respondents, it was contended by the appellants that it new fell to be dismissed being founded upon the service as protestant heir to Countess Isabel and that all further exception was barred after the first day of the then current month. The Court on the said 15 th day of August 1719, “found the right of the nine apprisings in the person of Isabel Countess of Seaforth was a trust for the behoof of the heir of the family of Seaforth, ^(a) and found that the exceptant's service as protestant heir to the said Isabel Countess of Seaforth, was a sufficient title to found his exception on, he being apparent protestant heir to the family of Seaforth; and found that the exceptant might reply on his right of apparency as protestantheir of the family of Seaforth, though it were not expressly set forth in his exception.”

And after subsequent proceedings, the Court, on the 18th of the same month of August 1715, “found it relevant and proven, that William late Earl of Seaforth, was not seized or possessed of, or interested in, or entitled unto the estate of Seaforth in his own right, or to his own use or any other person in trust for him on the 24th June 1715 years, or at any time since; and that the publick, by his attainder, has no right nor interest in the said estate of Seaforth; and therefore sustained the exception presented by the said Kenneth Mackenzie of Assint as protestant heir, and found, decerned, and declared accordingly.”

Entered 151 Dec. 1719.

The appeal was brought from “part of an interlocutory sentence or decree of the Lords of session of the 15th of August 1719, and from the whole interlocutory sentence of the said Lords the 18th of the same month.”

Heads of the Appellant's.

The exception presented for the pretended protestant heir ought to have been dismissed, because it was founded only upon that pretended title of protestant heir to Countess Isabel the trustee, not of protestant heir to any of the Earls of Seaforth, for whose benefit the Countess had undertaken the trust, heir to Countess Isabel he could carry no more than the trust estate, which was only a name or the office of trustee, but he could not carry the right of property, which remained in the heir of the family, and so was forfeited by the treason of the late Earl William who was the heir of the family.

The service of the respondent as nearest protestant heir to Countess Isabel was void, as not being warranted by the said act: 1700, in regard that, by that act a service as protestant heir to the true proprietor is only allowed; but not a service as protestant heir to a person vested in an estate merely in trust for the behoof of another.

_________________ Footnote _________________

(a) So far the interlocutor not appealed from.

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Though by the act 1700, a professed papist is declared incapable of succeeding to an estate, yet that is not an absolute incapacity taking place in all events, but is a benefit introduced only in favour of the protestant heir, upon the condition that he claim it by serving heir; and if such protestant heir do not make use of the privilege, the full right to the estate remains in the person of the popish heir, who enjoys the profits, can charge it with debt, or alienate it at pleasure. The respondent, the pretended protestant heir, never having claimed before the attainder, the right to the estate was on the 24th of June 1715, in the person of William late Earl of Seaforth, attainted, at least of Countess Isabel, her heir or assignee, in trust for the said late Earl, and so remained forfeited by his treason. And the respondents claiming the estate after the attainder was a direct fraud contrived to exclude the right of the publick; since if the late Earl of Seaforth had not been attainted he might have barred the pretensions of the protestant heir by swearing the formula contained in the act 1700; but he being now attainted, cannot have an opportunity of swearing that oath, and so it must remain uncertain whether he would have sworn it or not; and of consequence whether or not he was incapacitated by the act 1700.

Admitting, but not granting that the respondents pretended title of protestant heir to the Earls of Seaforth were good, yet it is plain that these two titles of heir to Countess Isabel, and heir to the Earls of Seaforth, were entirely separate rights to separate estates, the one a trust estate, the other a right of property. The exceptant therefore was bound either to have laid his exception upon both titles as consistent; or otherwise he could claim no more upon that title of heir to Countess Isabel, but what she herself was vested with, and possessed of, which was nothing more than a nominal right of trust; so the other right, which is the true right of property, must remain with the publick, since no exception was presented on, or before the first day of August 1719, upon any title that could carry that property.

The pretended notoriety of the late Earl of Seaforth's being a papist is good for nothing in tills case, since notwithstanding of such notoriety, it was in his power fully to have secured his own right, and to have excluded this protestant heir by swearing the oath recited in the act 1700; and therefore, it was not only necessary to adduce some other proof of his being a papist than a pretended notoriety : but even such a proof cannot be sufficient now that the late Earl is excluded from an opportunity of swearing the said oath by his attainder, in as strong a manner as if he were naturally dead.

If the exceptant's reasoning be good, the act of parliament 1700, in place of being an Act for preventing the Growth of Popery, would prove the greatest encouragement to papists, and the encrease of popery; for papists in a good correspondence with their nearest protestant kinsmen, might thereby enjoy their estates to the full extent, commit treason at pleasure, without a possibility of forfeiting such estates by their treasons, but would always have a security

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for them by the intervention of the pretended protestant kinsmen, and their claiming the estate though after an attainder.

Heads of the Respondent' s Argument.

The act 1700 expressly declares, that if the popish heir do not renounce popery before his age of 15 years, his right and interest shall become void and null and shall devolve and belong to the next protestant heir; to whom likewise the rents and profits of the estate from and after the popish heir's incurring the irritancy are declared to belong. So the very same clause which makes the popish heir's right void and null, at his age of 15 years, grants the rents and profits of the estate from that period to the protestant heir; and though the act declares that the protestant heir's right shall be burdened with the debts of the popish heir, yet that proviso is to be understood only of such debts of the popish heir as were contracted before his exclusion from the succession that is before the 15th year of his age. Any other construction must render the act of no use, for if the popish heir had a power to charge the estate with debts, after that period. the design of the act might be utterly avoided by the papist's contracting debts to the value of the estate.

The appellants contended that there was no evidence offered that the attainted person was a papist; but besides the notoriety of the fact, the verdict of the jury, who served the respondent protestant heir to his grandmother Countess Isabel, is a legal proof that the late Earl was a papist otherwise such verdict could not have been returned.

They also contended, that the respondent could not be served protestant heir because the late Earl had two children alive : but the act provides that infants, the issue of popish parents, shall be deemed popish; therefore the service is still good, for the children are infants, and under the education of popisn parents, begotten and born after the rebellion, and their blood attainted.

With regard to the late Earl's power of taking the formula prescribed by the act within 10 years, this could not be forfeited, it being a personal act, which nobody but he could perform.

Countess Isabel was infeft, in this estate, her right was upon record, nor did there appear any trust in the deeds under which she claimed; since then, she was the only apparent owner of the estate, the respondent must have served heir to her in order to establish his right. The trust was only declared by the judges, after the exceptions were presented; and though she was but a trustee, and though the respondent stood only in her right, yet that trust could not be for the benefit of the late Earl of Seaforth; for, by the act 1700, he could not possibly have any right whatsoever in his person, and consequently the appellants could have none. The trust was only for the benefit of the heir of the family capable to take, which is the respondent; and as the late earl could not have compelled Countess Isabel to divest herself of the trust in his favour, so neither could the appellants : and as the trust was not declared till after the exceptions were presented, and consequently could not be taken notice of therein, so that will not

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bar him still from insisting that though this was a trust, yet it was a trust for himself, and he was the only person who could claim the benefit of it.

With regard to the alleged collusion, all services are connected with the death of the party served to, and drawn back accordingly; and the intervening attainder cannot alter the case, feeing before Earl William was attainted he was by the act 1700, disabled from having any right whatsoever in his person; and all appearances of collusion are excluded by the following facts: That the respondent's father had long since taken out briefs to serve himself nearest protestant heir to Earl Kenneth, which were advocated to a higher judicatory by the late Earl William and after. Wards dropt by reason of the death of the respondent's father, which happened soon after : that the respondent was a minor: that his curator was out of the country in the service of government: that the minor's briefs were taken out shortly after the Countess's death: and that the service could not be sooner compleated, because, before the attainder, the shire of Ross, where the Estate lies was unaccessible, being at that time the seat of the rebellion.

Judgment, 10 Feb. 1719–20.

After hearing counsel, the question was put whether the said deceees shall he reversed; it was resolved in the affirmative. Ordered and adjudged, that so much of the decree or interlocutory sentence of the Lords of Session, of the 15th of August 1719 whereby they found “the respondent the exceptant's as protestant heir to Isabel late Countess of Seaforth a sufficient title to found his exception on, and that the exceptant might reply on his right of apparency as Protestant heir of the family of Seaforth, though it were not expressly set forth in his exception;” and also the whole interlocutory sentence of the said Lords of Session of the 18th of August, whereby they “found it relevant and proven that William late Earl of Seaforth was not seised, or possessed of, or interested in, or entitled unto the estate of Seaforth in his own right, or to his own use, or any other person in trust for him on the 24th of June 1715,or at any time since and that the public by his attainder had no right or interest in the said estate of Seaforth,“be reversed : and it is further ordered that the respondents be removed from all possession of the estate in question which they have obtained and from the receipt of the rents and profits thereof; and that the said commissioners and trustees for the forseited estates take possession and receive the rents and profits thereof, and proceed to execute the powers and authorities in them vested with respect thereto, any right, title, or claim of, the respondents, or either of them, notwithstanding.

Counsel: For Appellants, Ro. Dundas, Tho. Reeve.
For Respondents, Robert Raymond. Dun. Forbes. Will. Hamilton.

1720