The Commissioners appointed by his Majesty for managing the forfeited estates in Scotland, annexed to the crown, v. Alexander Duke of Gordon — Information, 18 Nov 1771

Untitled November 18. 1771. IN F O R M A T I O N F o r The C ommissioners appointed by his Majesty for m ana- ging the forfeited estates in Scotland, annexed to the crown, A G A I N S T Alexander Duke of Gordon. I AND S, the property of several persons attainted for theiraccession to the rebellion 1745, were held of subject-su- periors; and being understood to be forfeited, were sur- veyed, as vested in his late Majesty by the 4 1st act, made in the 20th year of that reign. Several of the subject-superiors entered claims to the property o f the lands held of them, founded upon the act of Geo. I. com- monly called the Clan-act. And it being objected on behalf of the public, That the act was a temporary and occasional law, not then in force, the question was brought to trial by the late Duke of Gordon, and judgement was given for him by this court; a- gainst which an appeal was taken. It was a part of the public police of thole days, that the clan- act should be repealed, to avoid all dispute in time coming, and that a final judicial determination upon the claims entered by the subject- superiors should be avoided.------The clan-act was ac- cordingly repealed; and it was made a part of the system in the annexing-act, That the claims entered by subject-superiors under the clan-act, to the property of the lands held of them, and in- tended by that act to be annexed, should be transacted or com- pounded, and that the superiority of these lands should be purcha- sed; sed; and his Majesty is impowered by the act, to appoint persons to transact the claims, and purchase the superiorities. After the claims shall be transacted, and until the superiorities should be purchased, it is enacted, “ That it shall and may be lawful to his Majesty, his heirs and successors, to veil, in such manner as shall be agreeable to the laws of Scotland, the said lands and estates held of subject- superiors, or such parts of the lands, and others the premisses herein before annexed to the crown, as shall appear to have been formerly held of subject- su- periors, in one or more trustee or trustees, their heirs and suc- cessors, to be renewed from time to time by his Majesty, his heirs and successors; and which trust ee or trustees, their heirs and successors, shall, according to the forms of the law of Scot- land, be from time to time entered and received vassals in the lands, and others the premisses, by the respective superiors thereof, and shall hold the same in trust for the uses and pur- poses of this ac t; and the said lands and estate, with all the rents, issues, and profits thereof, shall be disposed of and ap- plied to the uses and purposes in this act mentioned, and to none other; and shall be under the same management, and subject to the same rules, orders, and directions, and the same provisions for payment of the lawful debts thereon shall take place, that are by this act made concerning the other lands and estates hereby annexed to the imperial crown of this realm.” “ Provided always, That the heir of such trustee or trustees, by making up titles to such trust-e states, shall not incur the passive titles, nor represent their predecessors universally, any law or custom to the contrary notwithstanding.” “ Provided also, That his Majesty, his heirs and successors, may change such trustees at his or their pleasure, and present new ones from time to time, who shall be received by the im- mediate superiors respectively for the time being, without pay- ment of a year’s rent, or any other composition.” The claims entered by all the subject-superiors to the lands held of them, and comprehended in the act, have been transacted, and the superiorities of many of them have been purchased: but the Duke of Gordon, and some others of the superiors, have refused to fell their superiorities. This refusal made it necessary for his Majest y to appoint tru- stees for holding the lands held of these superiors, in pursuance of the the above-recited clauses of the annexing-act, until they should be disposed to sell the superiorities; and the commissioners of the annexed estates have been nominated trustees for that pur- pose. Precept under the quarter seal having been issued from the chancery, presenting the commissioners to, and requiring these superiors to enter and receive the said commissioners as vassals in the lands held of them, they have refused to do it without being paid a year's rent of the lands: And having expede bills of suspen- sion in order to have the question tried, they came, by consent, to be discussed upon the bills before Lord Kames; who, after hearing counsel for all parties concerned, has taken the case of the Duke of Gordon to report; and it is understood, that the judge- ment given upon it will determine the others. The suspender grounds his claim of a year’s rent upon an idea, that the informants are to be considered as purchasers, or singular successors; and therefore ought to pay a year’s rent, agreeable to the usage of the country. After due consideration of the case, several reasons occurred to induce the commissioners to refuse payment of the year’s rent de- manded: and these reasons shall be stated. 1mo, Supposing the crown’s right was to be considered to re- semble, in some respects, a purchase by a voluntary conveyance, it occurred, that even in that case, no year’s rent would be due; because the superior’s claim to a year’s rent was merely statutory, and only competent against apprisers and adjudgers; but that no such claim lay against a purchaser either by statute or common law. By act 36. parliament 1469, if a creditor could not recover pay- ment of his debt by the brief of distress out of the moveable e- state of his debtor, the sheriff was impowered to apprise, by a ju- ry of thirteen persons, the lands of the debtor, in value to the a- mount of the debt; and to assign the same to the creditor, in case another buyer could not be found: And it is enacted, “ That the over-lord shall receive the creditor, or any other buyer, ten- nant till him, payand to the over-lord a zeir’s mail, as the land is fet for the time; and failzieing thereof, that he take the said land till himself, and undergang the debts.” The fame thing is introduced with regard to adjudgers, by act1 18. pari. 1669: But that statute shows, that a year’s rent was not even even payable by an adjudger prior to the act. And so it was ad- judged in a case collected by Durie, 2 1 st of July 1636, Grier con- tra Clossburn; where the argmuent is stated thus: “ The Lords found the letters orderly proceeded, notwithstanding of the rea- son, and that they could not compel the creditor to pay a year’s duty to the superior, as is used in comprisings: for albeit there may be alike and the same reason for adjudications in this case as for comprisings; yet seeing there are express laws and acts of parliament for comprisings, which are not for adjudications, the Lords found, That they could not extend the acts which made only mention of comprisings, that the superior should have a year’s duty for entry of the compriser, and doth not make any fuch mention of adjudications.” It is indeed true, that superiors do frequently receive a years rent, or a compounded sum in place of it, from purchasers of lands held of them, before receiving them as their vassals, by pro- curatories of resignation. But this practice is founded upon su- periors not being obliged to accept of resignations in favorem; by which means they have it in their power to compel purchasers to complete their rights or conveyances by adjudications in imple- ment, by which they come, in terms of the statute 1669, to have right to a year’s rent and thus superiors having it in their power to refuse the receiving of purchasers as their vassals, until they come in the predicament which intitles them to a year's rent, it came naturally into practice, and to be understood, that they should have a year’s rent, or a compounded sum in place of it, upon receiving purchasers, by resignation, as their vassals. But the commissioners in this case, nor no donatar of the crown to lands forfeited, held of a subject-superior, could ever be com- pelled to adjudge or apprise. The law has prescribed a different method for compelling the superiors to receive them, which is re­ peated charges, and the sheriffs being authorised to grant infeft- ment in cafe of refusal. And indeed from the nature of the right intended to be vested in the informants, or of that of a donatar to a forfeiture, they are incapable of being completed by appri- sings or adjudications; and therefore the reason which has indu- ced the practice of disponees paying a composition upon their en- try, can never exist with regard to them. 2do, It has ever been understood in the law of Scotland, that subject-superiors are bound to receive the donatars of the crown to to l ands forfeited, who shall be presented to them by the sove- reign, without payment of any composition whatever; and so it was expressly decided in a case collected by Lord Stair, 25th June 1 680, Laird of Blair contra Lord Montgomery. The Laird of Blair, donatar to wadset lands which were for- feited in the person of Ker of Kersland, and were held by him of Montgomery of Hezelhead, having obtained a presentation from the King, pursued Hezelhead's heir to receive him as his vassal; and for not obedience, obtained decreet against him, declaring, that Hezelhead’s heir had lost the superiority during life. There- after the donatar pursued Lord Montgomery, Hezelhead's fupe- rior in the lands, to infeft him; who in defence maintained, that he was not bound to enter the donatar, until he received a year’s rent from him: But the court found, “ That there was no year’s rent due upon presentation; but that the superiors, mediate or immediate, were obliged to receive them gratis, by virtue of the act of parliament 1584.” It is probable from the argument, as stated by the collector, and from the words of the statute 1584, c. 2. referred to, that the judgement, or interlocutor of the court, is inaccurately reci- ted, in so far as it bears, that superiors, mediate or immediate, were obliged to receive the donatars of the crown gratis, by virtue of the act 1584; for the chief argument maintained up- on the part of the donatar seems to have been, that a subject- superior was only intitled to a year’s rent from apprisers and ad- judgers. The act 1584 is intitled, “ Possession be the space of five zeirs, is sufficient to the King or his donatour of lands, tacks, teinds, cum in his lands by forefaultour.” The preamble of the sta- tute is declaratory of the law, so far as respects the present que- stion, and is as follows: “ Forsameikle as be the Common law of this realme, the lands and heretages of all persons convict of treason, halden immediately of our Soverreign Lord, are ad- judged to pertane to his Hienes, and to return as propertie to his crown, and also his Hienes hes right and power to dispone quhatsummever uther lands and heretages pertaining to the persons convict of lese-majestie, quhilks are immediately hal- den of any of his subjects, be presentation of an heretable ten- nent to the over-lord.” The argument upon the statute is thus stated in the decision: " That the King has right to dispose of “ the the heritable right of his vassal forfeited, be presentation, which therefore obliges the subvassal’s superior to receive him; and yet mentions no years rent for his entry." The argument is forcible; because if the legislature had understood a year’s rent to have been due by the presentee of the crown, it would have been so declared or mentioned in the statute: But it is likely that the court would not rest their judgement upon the statute, when there was st ill a more forcible reason for the decision, viz. That a year’s rent was only due by apprisers or adjudgers; and that the presentee of the crown could never be considered as such. Agreeable to this decision, Lord Stair, b. 2. tit. 4. § 13. and Lord Bankton, b. 3. tit. 3. § 5 1. in their Institutes, have laid it down as law, That subject-superiors are bound to receive the do- natars of the crown as their vassals gratis; and as no instance has or can be given, where the donatar or presentee of the crown did pay a year’s rent, or any composition whatever in place thereof, the question must be held as settled, and cannot now be contro- verted. 31��� The commissioners in this question are even in a better and more favourable situation than donarars of the crown in com- mon cases of forfeiture; because the lands in question are vested in the sovereign by an act of parliament; and it is no part of the operation or intendment of presenting commissioners, that his Majest y should be diverted of the lands of which a year’s rent is claimed. By the vesting-act, the lands in question are declared to be vested in, and to be in the actual and real possession of his Majesty, without office, inquisition, or declarator of forfeiture; and by the annexing-act, the lands are annexed to the crown un- lienably for certain uses: and the informants are only trustees appointed under the authority of the last-mentioned act; because of the impropriety or presumptive legal imposib ility of the sove- reign’s being the vassal o f any of his subjects. Now, although the law had stood, that subject-superiors were intitled to demand a year’s rent from the donatars of the crown, under the idea of their being singular successors, and in the same predicament with voluntary purchasers; yet it would not even from thence have followed, that the suspenders would have been intitled to demand a year’s rent from the informants, who are certainly not singular successors, but who have been named by the crown to hold the lands for the sovereign, who takes them by act act of parliament, because of the inconsi stency of his Majesty holding them of the suspender. 4to, If it had been intended, that the suspender, or any others of the subject-superiors who did not chuse to fell their superiori- ties, should be intitled to a year’s rent upon receiving the com- missioners who should be appointed by the crown, some notice would have been taken of the matter in the vesting or annexing acts, and provision would have been made for payment of the money. But nothing of this fort is done; on the contrary, the claim made by the suspender, is adverse to and inconsi stent with the whole system of the vesting and annexing acts. In opposition to those reasons, it has been said, in the first place, That although anciently the casualty of a year’s rent was proba- bly not demanded by subject-superiors from donatars of the crown to forfeited lands; because the King’s presenting a vassal to the superior was understood to be a favour done to him, and because likely it was held to be the law, That the casualty of a year’s rent could only be demanded from apprisers or adjudgers; yet that the case is now very different. The presenting a vassal to a superior is not now held to be any favour; and it is now universally esta- blished by the practice of the country, that superiors do receive a year’s rent, or a composition in place of it, from all singular suc- cessors. And it was argued, That in the case of a gift of bastardy, where the King exercises his right with regard to lands held of subject-superiors by a donatar, as in the cafes of forfeiture, a year’s rent would be due; and therefore a year’s rent ought to be paid in the present case. The King’s presenting a vassal to a superior in forfeited lands, being anciently a favour, but not in these days, is merely a mat- ter o f speculation, which can have no operation whatever in the present case. I f it is once admitted, and which indeed cannot be denied, that the superior’s claim of a year’s rent was anciently merely statutory, and limited to apprisers and adjudgers, it will have no effect or operation whatever, that, by the modern prac- tice of the country, it has been understood, that superiors are in- titled to a year’s rent, or a composition for it, upon receiving purchasers as their vassals; because the reason of the practice is very apparent, and has already been explained. Superiors are not bound to receive purchasers, and might compel them to take the circuit of an apprising or adjudication to obtain an entry; which which would bring them within the statutory rule; and therefore purchasers came naturally to do voluntarily what ultimately they might be compelled to do. But that is not the case of donatars to lands forfeited. Superiors are bound to receive them; and they could not complete their right by the circuit of an apprising, or an adjudication. And far less is it the case of the informants, who are only appointed to hold the lands for the sovereign, in whom they stand vested by a special act of parliament. If the suspender’s ideas of the law in this case were just, or if his claim to a year’s rent was founded in law, he certainly would have been able to have given some instances of a year’s rent ha- ving been paid by a donatar of the crown to forfeited lands. But no such instance has been given, or ic is believed can be given, or otherwise the suspender would not, in support of his proposi- tion, have appealed to the cases of bastardy, or ultimi hæredes, in which the crown exercises its right by a donatar, when the lands are held of a subject. And even with regard to the cases of ba- stardy and last heirs, it is believed the suspender will not be able to discover an instance where the grantee of the crown has paid a year’s rent to a superior for receiving him as his vassal. But if such an instance even could be given, it would not be conclusive in this case, as the cafes stand upon different ground. Although by the clan-act, made for the rebellion 1 7 15, loyal subject-superiors were intitled to claim the lands of their forfeit- ed vassals; yet where the superiors did not claim, or were not within the description of the statute, the lands of the forfeiting vassal were sold, in pursuance of the laws made for that purpose. And the informants have never heard or understood, that when the purchasers came to enter with the subject-superiors, any com- position, or a year’s rent, was either demanded or paid; and yet the claim against such purchasers would have been infinitely strong- er than in the present case. 2dly, The suspender argued, That although the decision of 1680 had proceeded upon a sound constru ction of the law, and of the act 1584; yet that it could have no influence in the present que- st io n; because the law was altered by the statute 1690, c. 33, in- titled, " Act for security of the creditors, vassals, and heirs of en- tail, of persons forfeited: " And which enacts, “ That forfeit- ed estates shall likewise be subjected and liable to all the casualties “ due due to the superior, either before the forfeiture or thereafter, by opening the fee; and that in the fame manner and way as if the said tacks, actions, debts, and casualties, had been set, raised, contracted, due, and confirmed under the great seal, before committing of the crime for which the forfeiture is deduced.” The ju stice of the act 1690 must be admitted by al l; but the suspender’s argument, grounded upon it, admits of several satis- fying answers. 1mo, At the time of making the statute, nor at no preceding period, was there any such casualty existing in the law, as the donatar to a forfeiture paying a year’s rent to the su- perior of the forfeited lands, upon his being received; and there- fore such a claim could not be intended by the statute to be saved; nor is it, by the words of- the statute, saved to subject-supe- riors. 2 do, The object of the statute was, to save creditors, supe- riors, vassals, and heirs of entail, such claims as they would un- questionably have been intitled to, i f no forfeiture had taken place; and which taking the words of the statute in their utmost extent, can mean no more with regard to superiors, than that the nature of the holdings of them should be preserved, and that they should not be deprived of any of the casualties arisin g from such holdings; but which can never lay a foundation for their claiming a year’s rent from a donatar to a forfeiture, not only be- cause no such perquisite or casualty did exist prior to that period, but likewise because the utmost extent of the statute was not to put superiors in a worse situation than they would have been if there had been no forfeiture; and as there would have been no donatar, i f there had been no forfeiture, so therefore there could be no reason for giving a year’s rent upon the entry of a donatar. 3tio, I f it was necessary to say more, it might be argued, That the statutes touching the rebellions 1715 and 1745 form a distinct system of law from what formerly obtained in Scotland, with re- gard to the veiling estates in the crown, and the saving the rights of all parties interested in them; and therefore that it is incum- bent upon the suspender to show, that his claim is founded in those laws. 3dly, The suspender has attempted to shew, that his claim is founded in those statutes. He says, That by act 6th George I. cap. 24. made for the purpose of explaining the nature of the conveyances to be granted to the purchasers of forfeited estates, it is enacted, “ That the indentures to be executed by the commis- “ sioners, sioners, or barons, should contain procuratories of resignation, for new infeftment to be given to the purchaser; and where the estate was held of a subject- superior, such superior should accept of a surrender, and grant charters to be holden of him, in the same manner as the estate was holden of the forfeiting person: and where the forfeiting person did enjoy such estate in virtue of a personal right only, upon which no infeftment followed, the said commissioners and trustees residing in Scot- land shall make over, by alignment to the buyer, such perso- nal right, with the procuratories of resignation, and precepts of livery of seisin therein contained, that the buyer may be in- feft thereon, in the same manner as any voluntary purchaser might have done.” And from this he argues, that the purcha- ser was bound to pay the same composition to the superior, that any purchaser would have been bound to pay in the ordinary cafe of a sale. The history of the statute referred to is well known. By a preceding statute, the purchasers of these forfeited estates were, by recording the conveyances in the chancery, declared to be in the ac- tual seisin and possession of the lands purchased. This was anoma- lous, and inconsi stent with the principles of the law of Scotland; and therefore the statute referred to was made to enable a purchaser to establish a title agreeable to the principles of the law, and forms tiled in Scotland; but from thence it does not follow, that pur- chasers came to be subjected to the payment of a year’s rent by the last statute, which it is clear they would not have been subjected to by the former; and if it even was understood, that voluntary purchasers under these statutes would have been bound to have paid a composition upon being received by the subject-superiors of the lands purchased, it would not from thence follow, that the King is bound to pay a composition for the estates retained and veiled in him for the benefit of the public. 4thly, The suspender has further argued, That as by the annexing- act, in the case where a superior of the lands forfeited shall not sell his superiority, the lands are to be held by trustees, and re- newed from time to time, agreeable to the forms of the law of Scotland, it must therefore follow, that these trustees must pay a composition, as if they were purchasers: And it was said, that this argument was strengthened, by its being provided in the sta- tute, that his Majest y might present new trustees from time to time, time, who should be received by the superiors for the time be- ing, without the payment of a year’s rent, or any other compo- sition; from whence it was inferred, that a composition ought to be paid for the first entry of the trustees. The conclusion in the first part of this argument does not follow from the premisses. The legislature, to avoid any infraction in the principles or forms estab lished in the law of Scotland for the holding of lands, did, as had been done in the act of the 6th of George I. direct, that the trustees to be named by the crown should hold the lands agreeable to the forms of the law of Scotland: and if it had been intended that any composition should have been paid for doing fo, it is impossible to imagine that notice would not have been taken of it; and that part of the statute which enacts, that no composition shall be paid upon the appointment and receiving o f new trustees, appears to have been made of purpose to avoid any dispute, as the superiors might otherwise have refused to re- ceive such new trustees. The first trustees appointed were proba- bly considered by the person who penned the law, in the light of donatars of the crown, whom a subject-superior was bound to re- ceive gratis; and therefore it was unnecessary to make any enact- ment for that purpose. But with regard to the alteration of tru- stees, and introducing new ones, it was a new matter, unprovi- ded for in the law; and therefore it was proper to remove all doubt, by enacting that they should be received gratis. Lastly, It has been said, That as the act an. 20. George II. cap. 20. authorises an heir, or purchaser having a procuratory of resigna- tion, to charge the superior with horning to receive him; but that by the act no superior is bound to give obedience to the charge, unless there is tendered to him, “ such fees or casualties “ as he is by law intitled to receive upon the entry of such heir “ or purchase r;" it must therefore have been understood by the legislature, that a subject-superior was intitled to a composition upon the entry of a purchaser. The informants have no occasion to dispute this proposition. As superiors are not bound to receive voluntary disponees, and might secure to themselves a year’s rent, by compelling purcha- sers to make up a title by adjudication, so the legislature might very probably have it in view, to save that composition or casu- alty to subject-superiors, in the case of voluntary purchasers; but it it is impossible it could be in the view of the legislature by that statute, to subject either the sovereign, holding by trustees or a donatar, to a forfeiture, to the payment of a year’s rent, or anv other composition whatever. If such had been the intendment of that law, it would have been done in apt and proper words, and would not have been left to have been inferred by artificial reasoning, from which, when taken in its utmost latitude, no kind of satisfactory conclusion can be drawn. The Noble suspender has pleaded the favour of his case; and says, that it is very hard, if he shall be obliged to receive the com- missioners, and such others as his Majesty shall think proper to appoint from time to time, without payment of any composition; by which he is put in a worse case than he was before the rebellion, by being deprived of the chance of his vassal’s selling, and he be- ing intitled to a composition upon receiving a purchaser. In cases of this sort, which must be governed by settled prin- ciples, or the clear enactment of statute, courts of ju stice are not at liberty to listen to pleas of favour, or to allow the possibility of remote losses unprovided for to operate in their judgements. And the informants shall only further add, in answer to this plea of favour, that if it is ju st or lawful for the Noble suspender, who has refused to sell to the crown his superiority, to claim a year’s rent for receiving the informants, other superiors equally noble, and well intitled to ju stice from the crown, and who were pleased to sell their superiorities to the crown, in conformity to the spirit and intendment of the laws made upon occasion of the last rebellion, have met with great injustice, in only receiving one year and a quarter’s rent, as the full price and value of their superiorities: In respect whereof, &c. J A. M O N T G O M E R Y.