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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Commissioners and Trustees for the Forfeited Estates v. Sir George Stewart of Balcasky Bart. Heir of John Stewart Esq; of Grantully, deceased [1720] UKHL Robertson_337 (21 December 1720)
URL: http://www.bailii.org/uk/cases/UKHL/1720/Robertson_337.html
Cite as: [1720] UKHL Robertson_337
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SCOTTISH_HoL_JURY_COURT
Page: 337↓
(1720) Robertson 337
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 73.
v.
Subject_Forfeiture for Treason. — Recognition to a loyal Superior. — 1 G. 1. c. 20. —
An act of parliament gave to superiors, continuing dutiful and loyal, the estates of attainted vassals: to a separate claiming the estate of his vassal, it is objected, on the 12th of September 1719, that he had not continued dutiful and loyal, but had corresponded with the Pretender, entertained him at his house, and given him a present of plate; the Court of Session, on the 29th of October, two days before their powers expired, granted the objectors a proof; and no proof being adduced on the 31st, circumduced the term against them; and decerned in favour of the claimant: the judgment is reverted.
John stewart, late of Kynachin, attainted, was seised and possessed of the lands of Borlick, and Mill thereof, which he held of John Stewart of Grantully, as his superior.
Page: 338↓
John Stewart of Kynachin being attainted of high treason in 1716, John Stewart of Grantully as superior, in terms of the act of parliament 1 G. 1. c. 20. “for encouraging all superiors” &c., claimed the said lands of Borlick and Mill thereof as recognosced and returned into the hands of the superior, and that the property was consolidated with the superiority, in the same manner as if they had been resigned in the hands of the superior ad perpetuam remanentiam. He also obtained himself infeft in the premises, and did diligence in manner pointed out by the act, by means of which he attained possession.
The estates of all persons attainted having been by act of parliament vested in the appellants, for the use of the publick, they caused seize and survey the said lands of Borlick and Mill thereof, as belonging to Stewart of Kynachin the attainted person. John Stewart of Grantully, the superior thereupon in pursuance of the act 5 Georgii, c. 22. intituled “an act for enlarging the time for determining claims on the forfeited estates” presented his exceptions to the Court of Session against such seizure and survey, insisting upon his right to the lands in question, in terms of the act for “encouraging all superiors,” &c. The appellants on the 12th of September 1719, put in their answers to these exceptions, admitting John Stewart of Grantully's right of superiority, and that he had done diligence in the terms prescribed by the act; but they contended that he was not entitled to the premium contained in the act for “encouraging all superiors,” &c., which was only intended for superiors continuing “dutiful and loyal;” whereas, as the appellants insisted, John Stewart of Grantully had not continued dutiful and loyal, but had corresponded with the pretender, entertained him at his house when in Scotland, and sent him a present of plate, &c.
7 G. 1. c. 29.
When the cause came to a hearing, the counsel for John Stewart of Grantully denied the several facts charging him as undutiful and disloyal, and contended that he had always behaved as became a good subject; but they insisted further, that though the facts stated by the appellants had been true, yet that no proof could be taken of them, as they inferred the crime of high treason, which could only he tried by a jury; they also pleaded that a proof and prosecution for these alleged facts was barred by the act of indemnity, in none of the exceptions to which the exceptant was named. On the 29th of October 1719, the Court found, that such facts as may infer undutiful and unpeaceable behaviour to his majesty, may still be proved by the publick, notwithstanding of the indemnity, in order to debar the said John Stewart of Grantully from the premium allowed to dutiful superiors by the act 1 mo Georgii, intituled “an act for encouraging all superiors, vassals,” &c. and before answer granted warrant for letters of first and second diligence for the publick to prove the facts alleged in their answers, or any other that can import undutiful and unpeaceable behaviour of the said John Stewart of Grantully to his majesty, to be reported against Saturday next the 31st of October.” By act of parliament
Page: 339↓
The cause being accordingly called on the 31st of October 1719, and no proof having been produced for the appellants, the Court “circumduced the term against them for not proving in terms of their former interlocutor; and found that in virtue of the acts of parliament referred to in the exceptions, the respondent has right to the property of the lands of Borlick and others contained in the exceptions and vouchers thereof, which were holden of the said John Stewart of Grantully, by John Stewart late of Kynachin now attainted; and found that the said John Stewart of Grantully had right to the rents, profits, and issues payable for the said lands and others from the said 24th of June 1715, and in time coming, with the burden of the debts in terms of the late act of parliament, anno 5to Georgii, intituled “an act for enlarging the time for determining claims upon the forfeited estates.”
Entered, 21 Dec. 1719.
The appeal was brought from an interlocutory sentence or decree of the Court of Session of the 31st of October 1719.
Heads of the Appellants' Argument.
The Court of Session did not admit the appellants to the proof of the disloyalty of John Stewart of Grantully, when they gave in their answers upon the 12th of September 1719, but delayed giving their judgment till the 29th of October, and they then gave the appellants only two days time to prove the several facts of disloyalty insisted upon, when at the same time, they could not in that space bring evidence of these facts from a remote county, where Stewart of Grantully lived.
Heads of the Respondent's Argument.
Though John Stewart of Grantully thought he had very good reason to appeal against such part of the judgment as allowed any proof of the facts insisted upon, which was in a manner proving treason against him in an irregular way after the indemnity, and after the three yeats limited for such prosecutions; yet he, conscious of his own innocence submitted to this irregular mode of inquiry. But when that liberty was granted, the appellants did not aim at examining one witness, or take out any order for that purpose; though doubtless there were at that time in Edinburgh abundance of people thoroughly conversant with Stewart of Grantully's behaviour during the whole time of the rebellion. As to the shortness of the time the appellants complain of it without any ground, for when this cause was first under the consideration of the Court, the appellants did not pray for a commission to examine witnesses; and when the Court, after an adjournment, met again on the 22d of October, yet the appellants never endeavoured to bring on the cause, or prayed for such commission, though they knew that the Court was limited to determine all these cases before the 1st of November. When the cause was at length heard, the Court indulged the appellants With the commission
Page: 340↓
Judgment, 21 Dec. 1720.
After hearing counsel, The question was put, whether the said decree shall be reversed: it was resolved in the affirmative.
Counsel: For Respondent. Sam. Mead. Will. Hamilton.
The report of this cause was taken from the printed case for the respondents only; that for the appellants could not be found, after a search in several publick and private libraries.