United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Paterson, eldest Son and Executor of John Archbishop of Glasgow, deceased v. The Commissioners and Trustees of the Forfeited Estates [1721] UKHL Robertson_349 (20 March 1721)
URL: http://www.bailii.org/uk/cases/UKHL/1721/Robertson_349.html
Cite as: [1721] UKHL Robertson_349

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 349↓

(1721) Robertson 349

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 79.

John Paterson, eldest Son and Executor of John Archbishop of Glasgow, deceased, Appellant

v.

The Commissioners and Trustees of the Forfeited Estates, Respondents

20th March 1720– 1721.

Subject_Forfeiture for Treason. — I Geo. I. c. 20. — Personal debt claimed on a forfeited Estate. —

The acts relative to forfeiture for treason having solved the rights of creditors innocent, dutiful, and loyal; a claim on a forfeited estate, by virtue of a personal bond, (which had been given up in the inventory by the claimant when confirmed to his fathers) is made by a person who had been confined in prison upon suspicion, but liberated without trial; this claim is rejected by the trustees and Court of Delegates, but their judgment is reversed.

In February 1681 Charles Earl of Marr, deceased, as a principal, and George Earl of Panmure deceased, as cautioner, granted a bond to the appellant's father for 2000 merks Scots.

Page: 350↓

In September 1700, James late Earl of Panmure, attainted, executed a bond of corroboration of the former, obliging himself to pay the sum therein contained to the appellant's father, with interest from that date.

After the archbishop's death, the appellant was confirmed his executor, and exhibited an inventory of all his effects, wherein, inter alia, was mentioned the bonds in question, their dates, and the interest then in arrear; and this inventory was recorded in the commissary court-books, where the testament was confirmed.

1 G. 1. c. co. 50.

4 G. 1. c. 8.

John late Earl of Marr, son and heir to the said Earl Charles, and the said James late Earl of Panmure being by act of parliament attainted of high treason, the appellant, in pursuance of the act 1 G. I. c. 50. intituled, “ An act for appointing commissioners to inquire,” &c. and of the act 4 G. 1. c. 8. intituled, “ An act for vesting the forfeited estates in trustees to be sold for the use of the publick,” entered his claim before the respondents upon the said bonds, to obtain satisfaction of the said sum of 2000 merks, with the interest thereon then in arrear, out of the estates of the said attainted earls of Marr and Panmure.

1690, c. 33.

After hearing counsel for the appellant, and consideration of memorials in writing given in on both sides, the respondents, on the 31st of August 1719, pronounced judgment, by which they found, “that the foundation of the claim being a personal bond, not upon record before the attainder of the debtor attainted, the claimant has no right to the principal sum and interest claimed, either by the laws of Scotland before the Union of Great Britain or since, unless he had continued in peaceable and dutiful allegiance to his majesty during the late unnatural rebellion: and therefore that the claimant, before his claim can be affirmed, ought to produce testimonials either from justices of the peace, or deputy lieutenants of the county where he resided, or from other persons of credit in his neighbourhood, bearing that to the best of their knowledge and information the claimant had continued dutiful and loyal to his majesty during the said rebellion. And the claimant having insisted by his counsel that he ought to be presumed innocent, and the commissioners and trustees having further considered of the said memorial relative thereto, are also of opinion, primo, that the bond, on which the claim is founded, not having been recorded before the treason and attainder of the debtor, it is not saved even by the act of parliament 1690; and that it cannot be binding against the public, (notwithstanding of its having been confirmed in a testament prior to the said attainder,) in respect that such confirmation, being only to establish a title of succession, could give it no force, nor be the foundation of any diligence or execution against the debtor, without the said bond's being entered in the proper record, and its being otherwise valid in law. Secundo, That whatever was the extent of the said act 1690, as to saving of personal debts from being extinguished by the attainder of debtors, yet that the said actions from whence a want of duty and loyalty might be inferred,

Page: 351↓

cannot be presumed, but must be proved by a regular and legal trial; are of opinion that a presumptive evidence of duty and loyalty, founded on testimonials, such as are above mentioned, may easily be obtained without any trouble or proof of particular actions by all who, according to the most favorable opinion, or the most extensive charity, are to be reckoned to have continued dutiful and loyal: and that the criminal actions, because the weight of the punishment which attends the proof of them, as to criminal and penal effects, require a very strict and regular proof by a jury of peers before they can have any penal effect; yet as to a civil effect they may and ought to be presumed, where testimonials (so easily obtained by the really innocent) cannot be obtained; especially in a case where there is so great notoriety, as is in that of the claimant, it consisting with the knowledge of many thousands that the claimant was taken prisoner at Preston with the others then in rebellion, and was carried to London, where he lay in prison till by the clemency of the government he was delivered from the punishment of rebellion and treason. Upon all which the said commissioners and trustees do find, that the claimant is not entitled to the benefit of the act for encouraging all superiors, vassals, &c. and do therefore disallow of the said claim; and the same is by this Court dismissed accordingly.”

Against this decree of the respondents the appellant presented his appeal to the Court of Delegates ^(a) established in Scotland; the Lord Advocate made answers to it; and after a hearing of the cause, and considering memorials for both parties, the Court of Delegates, on the 20th of December 1720, by a majority of one, “ordered and adjudged, that the decree complained of be affirmed, and the said appeal dismissed.”

Entered, 19 Jan. 1720–1.

The appeal was brought from “a decree of dismission of the 31st of August 1719, made by the commissioners and trustees of the forfeited estates, of the appellant's claim, put in before them, and an affirmance thereof by the Lords Delegates in Scotland the 20th of December 1720.”

Heads of the Appellant's Argument.

As every man ought to suffer for his own fault, so it is the highest justice, that no creditor should suffer by the rebellion of his debtor, nor any thing be forfeited to the Crown but what the forfeiting person had deductis debitis; and therefore the appellant's claim being for a debt admitted to be just, it ought to have been sustained, and the same decreed to be paid out of the estate of the debtors, which are admitted to be much more than sufficient to satisfy the debts upon the same.

This rule seems more agreeable to the law of Scotland, by which all estates descending to an heir are subject to the payment of all

_________________ Footnote _________________

( a) This Court of Delegates was appointed by the act of parliament 4 G. 1. c. 8 to hear appeals taken to judgments of the commissioners for forfeitures. They consisted of five of the Judges in Scotland appointed by his majesty.

Page: 352↓

debts, even those by simple contract; and there seems to be the same reason, that the estates should be equally subjected to debts in the hands of the Crown.

1690, c. 33.

It is expressly enacted, by the act 1690, c. 33. that forfeited estates shall be subject to all debts whether real or personal. The words are, “ That all estates forfeited shall be subject to all real actions and claims against the same to all true and lawful creditors, whether personal or real.” This certainly comprehends the appellant's case. It is true, in one part of the act are these words, “ so as the debts be upon record, or diligence done thereupon;” but as that exception or proviso is not in that part of the act where the forfeited estates are subjected to all debts in general, and where its proper place was, if any such restriction had been intended, so the words insisted on are inserted in a place where no mention is made of debts, but leases to tenants, and before any thing is mentioned with respect to creditors, and the judges have always so construed this act, and never thought recording necessary.

But if recording were necessary, that part of the law is sufficiently answered by the claims being upon record in the Commissary Court, and the intention of the law was sufficiently attained; because it can have no other view than to avoid fraudulent demands. Now the record of this debt does as sufficiently answer that, as if the bond had been registered.

The act of the first of the king, for encouraging all superiors, vassals, &c. enacts, “That no conviction or attainder shall exclude the right or diligence of any creditor remaining peaceable and dutiful for security or payment of any true, just, and lawful debt contracted before the commission of the crime.” The appellant's debt is entirely within this description, and so far appears to be a true debt, that it is contracted, not between the forfeiting persons and the appellant, but between the fathers of the forfeiting persons and the appellant's father; it is not disputed but the debt is still owing, and no part of it paid.

Nor will it alter the case, that the respondents pretend, that the appellant does not come under the description of this act, in regard he was not peaceable and dutiful, because nothing of that is proved, nor any attempt made to prove it: a crime is never to be presumed; but innocence is, till the contrary be proved.

The case of the appellant and other creditors is still more supported from the distinction made by the legislature itself between the cases of superiors and creditors; in the first, they have in very distinct lines set forth the description and character of such as were to have the benefit of the privileges introduced in favour of superiors, vassals, and tenants, in these words:

“provided always, that none of his majesty's subjects, whether superior, or vassal, or tenant, shall have the benefit of this act, excepting such who being lawfully called out or required to join with his majesty's host, in opposition to the said Pretender or his adherents, shall do the same, or who (not being so called out or required) shall continue peaceable and dutiful to his majesty.”

Thus the law

Page: 353↓

having introduced a reward, and (which was purely such in favour of superiors) very reasonably excluded such as did not sail within the particular description; but they have made no such particular provision in the case of creditors, where they were doing justice rather than a favour. Nor can it be expected, that the appellant should bring any proof of his not having acted undutifully or unpeaceably, nor is it possible for him to prove it, unless he could bring evidence of every action of his life, during the whole course of the late unnatural rebellion.

It has still been looked upon as a hardship to inflict the least censure or suspicion on bare suggestion; but harder must be the fate of the appellant to be involved in the forfeiture of his debtors, and be deprived of his just debt, for no other reason but because he did not adduce a proof that every moment of the rebellion he was in the practice of such duties as are incumbent upon a dutiful subject, which is not only impossible, but has hitherto been thought unnecessary, since innocence and dutiful behaviour are always presumed. If this doctrine be established, that every subject must be presumed to be disaffected, if he cannot by undoubted vouchers shew the contrary, it is too obvious how fatal the consequence may be.

Heads of the Respondent's Argument.

According to the plain words of the proviso in the act 1690, no debt can be set up against the forfeiture, or charged upon the estate forfeited, but such as is recorded by being registrate, or diligence done upon it, that is, suit or process carried on against the debtor or his estate; neither of which was done in the appellant's case. And the mentioning the debt in a lift of the defunct's debts at the time of confirming his testament is no registration of the debt, since the obligations themselves were not so much as produced in those cases; indeed, the executor commonly is not master of them, he gives up in the lift whatever he suspects may be owing, sometimes debts that never were in being, and frequently debts that are extinguished or satisfied by payment.

If the appellant could have any benefit from this act, it would only save his claim as to the capital sum, but not as to bygone interests, feu-duties, and all other annual prestations, which are expressly excepted in the act, and declared not to affect the estates forfeited.

This act, 1690, being made only in favour of creditors innocent and dutiful, the Appellant can have no benefit by it, who himself was in the rebellion.

7 Ann. c. 21.

But this act is not now the rule for judging in questions of this king, after the act 7 Ann. c. 21., intituled, “Act for improving the Union of the two Kingdoms;” by which the laws of England in relation to treason, in so far as may concern the nature of the crime, the form of trial, and the punishment, are extended to Scotland; and persons committing treason in Scotland are declared subject to the same pains, penalties, and forfeitures, that

Page: 354↓

persons committing treason in England are subject to. From whence it must follow, that as estates in England are forfeited to the Crown, without being charged with debts merely personal, estates in Scotland must be forfeited in the same manner.

1 Geo. 1. c. 20.

The act 1 Geo. c. 2.0., for encouraging all superiors, vassals, &c., seems likewise to make a material alteration in the said act 1690, (if that act 1690 can be understood as the appellant explains it); for this act 1 G. c. 20. provides only for the security of creditors remaining peaceable and dutiful, which supposes that a creditor not remaining peaceable and dutiful can have no claim of debt out of a forfeited estate.

The appellant contended, that he must be presumed to be innocent, and that the lapse of three years, and the act of grace did bar all probation of guilt. But since the appellant claims the benefit of acts of parliament introducing privileges to persons peaceable and dutiful, contrary to the strict nature of forfeitures, and beyond what was competent by anterior laws, he must bring himself under the description and intent of those acts, by giving some evidence of his remaining peaceable and dutiful. The lapse of three years, and the act of grace free him only from the punishment of his own treason; they do not put him in the condition of a man who was never criminal; nor can they be construed so as to afford him any privilege, thereby to hurt the public, and lessen the effects of the forfeiture of the late Earls of Marr and Panmuire.

The appellant entered his claim, and was by law obliged to do it, both before the act of grace and the lapse of the three years; but he was at that time incapable of entering any such claim, not having remained peaceable and dutiful; and if the claim was bad at the time of entering it, and at the time these forfeited estates were vested in the respondents for the use of the public, it is to be considered as if no claim had been entered at all: and no after-act of grace or lapse of three years can give life to a claim which was dead and useless at the time it was entered, and the estates so vested in the respondents.

Judgment, 20 March 1720–1.

After hearing counsel, It is ordered and adjudged, that the decrees of dismission complained of in the said appeal be reversed; and it is further ordered, that the appellant shall have a satisfaction for the principal sum and interest due upon the bonds in question out of the forfeited estates in question.

Counsel: For Appellant, C. Talbot. Will. Hamilton.
For Respondents, Ro. Dundas. Richard West.

On the printed Cases, from which this report was taken, it is stated in manuscript that a division of the House took place upon this judgment, the numbers being 21 to 11.

1721