United Kingdom House of Lords Decisions

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Cite as: [1720] UKHL Robertson_280

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SCOTTISH_HoL_JURY_COURT

Page: 280↓

(1720) Robertson 280

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 61.

The Commissioners and Trustees of the Forfeited Estates, Appellants

v.

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

1st March 1719– 1720.

Vide No. 57 of this Collection.

Subject_Act of Parliament 5 Geo. 1. c. 22. — Popist — Trust. —

Estates forfeited by vassals were acquired by the trustees for a Papist superior, but were forfeited again by the Papist's treason.

The respondent, the minor, had obtained the judgment of the Court of Session, decerning to him in his character of protestant heir, the estate of Seaforth, upon the attainder of the late earl for high treason, but that judgment was reversed upon appeal (No. 57 of this Collection.) He had also made a claim before the Court of Session, founded upon a clause in the act 1 Geo. 1. c. 20. “for encouraging all superiors,” &c. for the estates of fix of the vassals of the late Earl of Seaforth, who were attainted of high treason, viz. John Earl of Mar, Sir John Mackenzie

Page: 281↓

of Cowll, John Mackenzie of Avoch, Alexander Mackenzie of Applecross, Alexander Mackenzie of Devockmaluack, and Rory Mackenzie of Fairbairn. The ground of his claim was, that he the respondent as nearest protestant heir was the superior of these vassals; and having remained dutiful and loyal to his majesty, he had right to the estates of the vassals attainted in virtue of the said act of parliament.

The Court of Session pronounced fix decrees in favour of the respondent, decerning the estates of the fix vassals to belong to him.

Entered, 11 Feb. 1719–20.

The appeal was brought from these fix “several interlocutory sentences or decrees of the Lords of Session, pronounced the 3d day of September, and 28th and 29th days of October 1719.”

This appeal was the same in its merits as the former; for if the respondent was entitled to the estate of the Earl of Seaforth, he was also entitled to the estates of the attainted vassals, as a superior remaining dutiful and loyal. And the same arguments which were used in the former appeal, applied with equal force to the present.

Judgment, 1 March 1719–20.

After hearing counsel, .

In this appeal there appears to have been a dispute whether or not a seventh judgment relative to the estate of Sir Donald Mackenzie, attainted, had been pronounced by the Court of Session; the respondent produced an affidavit of Colonel Alexander Mackenzie, bearing that he had passed from and withdrawn his exception relative to that estate before any judgment was pronounced. The House of Lords dismissed the appeal as to that exception, “there being in reality no decree pronounced thereupon.”

This case shews, that notwithstanding the ipso jure clause of devolution in the act 1700, c. 3. in favour of the protestant heir, that the papist, where there was no declarator, was entitled to acquire by forfeiture of his vassals, and to lose such acquisitions by his own forfeiture.

_________________ Footnote _________________

(a) Here the other lands, and the several former proprietors of them, are enumerated.

1720

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