United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

Page: 518↓

(1725) Robertson 518

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 119.

The Commissioners and Trustees of the Forfeited Estates, Appellants

v.

Elizabeth Stevenson, Widow of Archibald Pitcairn of that Ilk, Doctor of Medicine, Respondent

13th Feb. 1724– 1725.

Subject_Treason. — Obligations granted in Prison before Trial. —

The Earl of Winton, while in prison previous to his trial and attainder for high treason, granted receipts bearing to be for money advanced to him, but these are not allowed in whole.

It is found, however, that he was entitled to be alimented out of his estate at that period, and to apply money to the expences of his trial, and for his maintenance in prison for three months 5 and for such expences a sum of money (2972 l. 3 s.) is modified.

George, late Earl of Winton, was taken prisoner, amongst the rebels, at Preston, on the 13th of November 1715; and committed to the Tower on the 10th of December following. Upon the 21st of January 1716, the earl, while in confinement in the Tower, granted a factory to the respondent for levying the rents of his estate; in virtue of which she, according to her own acknowledgment, received to the amount of 1135 l.5 s. 10 d. sterling. The earl also delivered to the respondent two receipts for money, the one for 1000 l. bearing date the 6th of February, and the other for 4000 l. bearing date the 16th of same month; and obliged himself to allow those sums to the respondent at compting. He was afterwards attainted of high treason, upon an impeachment before the Lords in Parliament, and his estate was vested in the appellants for the use of the public.

The respondent afterwards entered a claim as a lawful creditor before the appellants, in terms of the act 1 G. 1. “appointing commissioners to inquire,” &c., charging herself with the said sum of 1135 l. 5 s. 10 d. as received of the rents of the Earl of Winton's estate, and claiming the sum of 3879 l. 14 s. 2 d. as the balance remaining due upon the said receipts of cash advanced by her to the earl. This claim being heard before the appellants, they, on the 17th of Semptember 1719, “Found that the said receipts or bills were given to the respondent by the late Earl of Winton, after the articles of impeachment were exhibited against him, and during the time of his trial, whereon he was convicted and attainted, and no proof offered of the valuable consideration; and therefore dismissed the said claim.”

The respondent presented her appeal to the Court of Delegates against this judgment of the appellants; and, after a hearing of the cause, the Delegates, on the 1st of March 1723, “Reversed the judgment of the appellants, and found that the said late earl was, during the time of his imprisonment at London, entitled to be maintained and supplied out of his means and estate

Page: 519↓

forfeited, in so far as was necessary for his said maintenance and defence in the criminal prosecution for high treason carried on against him; and remitted the respondent's claim to the appellants in order to take further evidence of the respondent's having advanced money to the said late earl, and to consider what sum or sums of money should be modified as the necessary maintenance and supply of the said late earl, during his said imprisonment and criminal prosecution aforesaid; and in so far as they should find the same equitable, to state that sum as a debt upon the means and estate of the said late earl attainted.”

The respondent now brought evidence on her part of the furnishings to the earl, and the appellants, upon considering the same, on the 14th of October 1723, “Found that the respondent did, during the imprisonment of and criminal prosecution against the said late Earl of Winton, remit and pay to his use several sums of money; but that the sum of 2059 l. 1 s. 8 d. sterling was sufficient for his necessary maintenance during such his imprisonment, and for his defence in the said criminal prosecution for high treason carried on against him; and as it appeared to them that the Lords Delegates by their decree, dated the 14th of December 1722, made upon the appeal of Charles Menzies, the said late earl's solicitor in parliament, against a decree of the appellants, which they thereby reversed, had found the said Charles Menzies a just and lawful creditor on the said estate for the sum of 216 l. 3 s. sterling; and that the respondent by her said claim had acknowledged the receipt of 1135 l. 5 s. 10 d. sterling, after deduction of her charges, and exchange of remittances, which sums of 216 l. 3 s. and 1135 l. 5 s. 10 d. they decreed to be deducted out of the said sum of 2059 l. 1 s. 8 d., which reduced the same to 707 l. 12 s. 10 d. which they decreed to the respondent in full of her said claim, and of all demands she had against the said late earl's estate.”

The respondent presented a second appeal to the Court of Delegates; and after sundry proceedings, they, on the 9th of March 1724, “Found that to the sum of 707 l. 12 s. 10 d. of balance found due to the respondent, there be added the sum of 913 l. 1 s. 4 d. in lieu of her expences on the said late earl's trial, and maintenance whilst in prison, both which sums extended to 1620 l. 14 s. 2 d. sterling; and found that this sum of 1620 l. 14 s. 2 d. is to hear interest from the 2d day of August 1716; and remitted to the respondents to issue debentures accordingly.”

Entered, 25 March 1724.

The appeal was brought from “a decree of the Court of Delegates in Scotland of the 9th of March 1724.”

Heads of the Appellants' Argument.

By the decree of the Delegates the Earl of Winton's estate is charged, to the prejudice of the public, with no less than 2972 l. 3 s. sterling for his maintenance in prison for three months, and

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the expences of his trial, without any evidence that any such sum was applied in that way; and the appellants conceive, that the sum of 2059 l. taxed by them, was more than sufficient for these purposes.

The Court of Delegates has decreed to the respondent the sum of 2756 l. counting what she levied out of the estate; whereas by her own evidence, lame as it is, no more appears to have been advanced by her to the earl than the sum of 1312 l.

It does not appear, that the money in question was advanced for the earl's maintenance before his attainder, or his defence on his trial; but from the circumstances of the case, it is more probable, that it was taken up by him to bring about his escape, and to support him abroad after his attainder.

The real estate of the forfeiting person is by act of parliament vested in his majesty from the 24th day of June 1715; and the power given by that act of entering claims to charge such real estate, is only for rights, debts, or incumbrances affecting the same, before the day whereon it is vested in his majesty: but the debt claimed in this case, is not pretended to have been incurred till several months after that day.

Heads of the Respondent's Argument.

The appellants admitting that the late earl was entitled to be supplied out of his estate during his imprisonment, so far as was necessary for his maintenance and defence, it is not material that the said receipts bear date after the 24th of June 1715, from which period the estate was to be vested in his majesty, or the 13th of November 1715, from which period the earl was to stand attainted. It appears by sufficient evidence, that the said receipts were executed by the earl, before his attainder, at the times they respectively bear date.

The respondent has brought as sufficient evidence, as the nature and circumstances of this affair would admit of, that she really and truly advanced more money than is decreed to her; and her evidence was such as fully to satisfy the Court of Delegates. And since the earl's maintenance and expences of his trial mud have amounted to a very considerable sum, and as the remittances are proved to have been made to him on that account by the respondent only; there can be no doubt but that the money was truly applied to that use.

The respondent, also, having advanced all the said money claimed by her in the beginning of the year 1716, and being herself obliged to pay interest for what she still stands indebted, there was just ground for the Court of Delegates giving her interest for what she so advanced.

Judgment, 13 Feb. 1724–5.

After hearing counsel, It is ordered and adjudged, that the decree of the Court of Delegates complained of in the appeal, whereby the said Court found and adjudged, that the sum of 913 l. 1 s. 4 d. sterling should be added to the sum of 707 l. 12 s. 10 d. sterling, decreed to the respondent by the appellants the said 14 th day of October 1723, be reversed; and that the said judgment and decree

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given by the appellants, allowing the said 707 l. 12 s. 10 d. be affirmed.

Counsel: For Appellants, P. Yorke. Ro. Dundas.
For Respondent, Will. Fraser. C. Talbot.

1725