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SCOTTISH_HoL_JURY_COURT

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(1751) 1 Paton 503

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

No. 96.

Thomas Drummond of Logie Almond, Appellant

v.

The Lord Advocate, Respondent

30 April 1751.

Subject_Forfeiture. — Act 19, Geo. II. c. 26.—

A person being attainted by virtue of the act, which declared that if he did not surrender himself before the 12 July following, he should stand attainted of treason from the 18 April preceding;—it was found that the forfeiture did not operate retro to the effect of incapacitating him to succeed to property in the interval.

Subject_Writ.—

Circumstances under which a deed was not considered a delivered evident.

[Elchies voce Forfeiture, No. 15.—Falc.—Mor. 4875.]

By the act 19 Geo. II. it is enacted, That if certain persons therein mentioned, and among

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others James Drummond, (commonly called Duke of Perth,) and John Drummond his brother, should not respectively surrender themselves to justice, on or before the 12 July 1746, they should stand attainted of high treason from and after the 18 April 1746.

By the vesting act of the 20th of Geo. II. all lands, &c. which any person, attainted of high treason within the time therein limited, was possessed of or interested in on the 24th June 1745 or at any time afterwards, were forfeited to the crown. In pursuance of this act, the estates of the said James Drummond being surveyed by order of the Court of Exchequer, a claim to them was given in upon the part of Mr. Drummond of Logie Almond, (the appellant) in virtue of a trust-disposition executed by James Drummond in his favour in June 1743. Objections (to be noticed immediately) were stated to this deed; but it being proved that James Drummond had died on the 11th May 1749, the Court (July 29, 1749) found, “that James Drummond (taking upon himself the title of Duke of Perth) having died upon the 11th May 1746, before 11th July 1746, on or before which day he was allowed by the said act of attainder to render himself and submit to justice, he, the said James Drummond, was not attainted by the said act; and therefore find, that this Court has no jurisdiction to proceed further in judging of the validity or effect of the disposition from the said James Drummond to Thomas Drummond, the claimant, in hoc statu, leaving the claimant to follow forth his right thereon as accords.” ^*

_________________ Footnote _________________

* Elchies voce Forfeiture, No. 7. Mor. 4874.

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This judgment was acquiesced in; but a second survey was made of the estate as forfeited by the attainder of John Drummond, to whom it was alleged that it had devolved upon the death of James, his brother, without issue; the said John Drummond being included in the act of attainder, and having failed to surrender himself before the specified day. The appellant then anew entered his claim, founding on the above disposition in 1743 by James Drummond in his favour, and maintained that in consequence thereof John Drummond was not possessed of the estate, nor in any way entitled to it on the 24th June 1745, or at any time afterwards. Although the deed had never been in the actual possession of the claimant, it had been put by the granter into the hands of Mr. Graham of Airth, advocate, for the purposes of infeftment and registration.

Answered—1st, That the deed in question not dispensing with delivery, and never having been delivered, was void and ineffectual. Mr. Graham was the ordinary legal adviser of the granter, and therefore the deed must be held to be still in his custody while in the hands of Mr. Graham. 2dly, That even if it had dispensed with delivery, yet from its terms, from the whole circumstances of the case, and particularly the fact that the possession of the estates had been always retained by James Drummond, it was evidently the sole intention of this latent personal deed to evade the eventual forfeiture of the granter and his brother; and therefore that it could not be effectual to frustrate the claim of the crown.

The appellant further maintained,—That John Drummond, upon his failure to surrender himself

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in terms of the act, became attainted of high treason from and after the 18th April 1746, and therefore on the 11th of May, when his brother died, he was incapable to take the estate as his heir, or consequently to forfeit the same to the king. But, that in respect of his attainder, it fell to the superior or overlord, as an escheat propter defectum hæredis; so that the survey of the lands, as being forfeited by John's attainder, was erroneous.

Answered—1st, That the objection was jus tertii to the appellant, who did not pretend to be the overlord of whom the estate was held; that in fact the king himself was in this case superior, and so having both titles, a twofold claim was competent to him; one by forfeiture, and the other by escheat; and he had the option of using either. ^* 2dly, That the survey of the estate as forfeited by John Drummond was proper, because on the 11 of May, when the succession opened to him, he was not attainted, (in the same way as it had been decided that his brother James was not then attainted,) and therefore there was nothing in law to have hindered him from entering into the possession of the lands, or from levying the half-year's rent payable at Whitsunday 1746, or from completing his title to the estate as heir to his brother; his conditional attainder not taking place for two months afterwards, viz. on the 12 July.

Entered, Feb. 1, 1751.

The Court (1 Dec. 1750) “find, that John Drummond, (second son to the late Lord Drummond,)

_________________ Footnote _________________

* A claim was afterwards made, under the clan act, by the Duke of Atholl, who was superior of part of the lands. The claim was dismissed, (Nov. 26, 1760) on the ground that the rebel had not been vassal during the continuance of the treason, or prior to the attainder.— (Fac. Col. Mor. 4766.)

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now attainted of high treason, was upon the 11 May 1746, when James Drummond, his elder brother, died, capable to take by descent from his said elder brother, and that the estate of Drummond in question did then descend by James's death to John Drummond, now attainted, and was forfeitable, and forfeited by the treason and attainder of the said John Drummond; and that the trust-disposition to Thomas Drummond of Logie Almond, now claimed upon, is not sufficient to exclude the forfeiture of the said John Drummond, and therefore find the estate acclaimed, forfeited by his attainder; dismiss the claim, and decern accordingly.”

The appeal was brought from this interlocutor.

“After hearing counsel, the judges were directed to give their opinion on the following question, videlicet, “Whether, by the law of England, John Drummond, second son of the late Lord Drummond, was on the 11th of May 1746, capable of taking lands by descent? and, whether, by his not rendering himself to justice, on or before the 12th July 1746, according to the act of the 19th year of his present majesty, such descent became divested or avoided, so as to prevent the forfeiture in prejudice of the crown?” Whereupon, the Lord Chief Baron of the Court of Exchequer, having conferred with the judges present, acquainted the house, “that they were unanimously of opinion, that the said John Drummond was capable at that time of taking lands by descent; and that, by his not rendering himself to justice, on or before the 12th July 1746, according to the aforementioned act of the

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19th year of his present majesty, such descent did not become divested or avoided, so as to prevent the forfeiture in prejudice of the crown.”

Judgment, 30 April 1751.

“And, upon due consideration had of what was offered on either side in this cause, it is ordered and adjudged, &c. that the said petition and appeal be, and is hereby dismissed, and that the said judgment be affirmed.”

Counsel: For Appellant, A. Hume Campbell, Alex. Lockhart, C. York.
For Respondent, D. Ryder, Wm. Grant, Wm. Murray.

1751