Alexander Duke of Gordon v. John Duke of Argyle — Answers, 12 Feb 1772

Untitled February 12. 1772. A N S W E R S F O R John Duke of Argyle, and other trustees named and presented by his Majest y to be infeft in the forfeited estates of Lochiel and Callart, holden of the Duke of Gordon, T O The P E T I T I O N of his Grace Alexander Duke of Gordon. L 1 72. A the property of several persons attainted for theiraccession to the rebellion 1745, were held of subjedt-su- periors; and particularly the lands of Clunie, Callart, and part of Lochiel, called Mamore, were held of his Grace the Duke of Gordon. These forfeited lands were surveyed, as vested in his late Maje- st y by the 41 st act made in the 20th year of that reign. The late Cosmo Duke of Gordon, the petitioner’s father, did, in virtue of the act the 1st of George I. commonly called the clan-act, enter claims to the property of the estate of Clunie, and that part of Lochiel which held of him. The Dukes of Argyle and Athol, in the same manner entered claims to the property of such of the forfeited estates as held of them; and these claims were objected to on behalf o f the public, in respect the act was a temporary and occasional law, hot then in force; but the question being brought to trial by the late Duke of Gordon, judgement was given for him by this court, and an appeal taken against it. It was part of the public police of those days, that the clan-act should should be repealed, to avoid all dispute in time coming; and that a final judicial determination upon the claims entered by the sub- ject-superiors should be avoided. The clan-act was accordingly repealed; and it was made a part of the sy stem in the annexing- act, that the claims entered by subject-superiors under the clan- act, to the property of the lands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 intended by that act to be annexed, should be transacted or compounded, and that the superiority of these lands should be purchased; and his Majesty is impowered, by the act, to appoint persons to transact he 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 vest 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 sub- ject-superiors, in one or more trustee or trustees, their heirs and successors, to be renewed from time to time by his Majesty, his heirs and successors; and which trustee 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 there- of, and shall hold the same in trust, for the uses and purposes of this act: and the said lands and estate, with all the rents, issues, and profits thereof, shall be disposed of, and applied 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 lame provisions, for pay- ment of the lawful debts thereon, shall take place, that are by this act made concerning the other lands and estates hereby an- nexed 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 pas- five 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 mediate superiors respective ly for the time being, without pay- ment of a year’s rent, or any other composition.” Under the authority of this statute commissions were issued for compounding with the subject- superiors, both for their claims to the property, and likewise for their rights of superiority of the several lands which held of them; and several of the superiorities have been purchased: but the petitioner, and some other of the superiors, having refused to sell their superiorities over the for- feited estates holding of them, the treaty with them respected on- ly their claims to the property founded upon the clan-act; and in the agreement with them, there is a special reservation of their right of superiority as mentioned in the petition. 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 above-recited clause of the annexing-act, until they should be disposed to sell the superiorities; and his Majest y nominated the respondents as his commissioners and trustees for that purpose. Precepts under the quarter-seal were accordingly issued from the chancery, presenting the respondents to, and requiring these su- periors to enter and receive them as vassals in the lands held of them; and the result of these precepts was, a litigation betwixt these superiors and the donatars of the crown; the superiors, on the one hand, expresin g their willingness to receive the King’s donatar, but insisting that they were at the same time intitled to receive the composition of a year’s rent usually paid by a singular successor; whereas the respondents contended, that they, in the same manner as every other donatar of the crown, were intitled to be received, without any composition whatever. This dispute came before the Lord Karnes Ordinary, by bills of suspension; and his Lordship having reported the case, upon informations, to the court, judgement was given in favour of the donatars of the crown, by an interlocutor bearing date 2 1 st of December 177 1. This interlocutor is brought under review, by a very long, and a very elaborate, reclaiming petition; but the respondents are ad- vised they shall still be able to satisfy your Lordships, that the principle of the judgement already pronounced stands firm, not- withstanding the considerations which have been suggested against it. And in this view it is humbly proposed to maintain, That as a subject superior is bound to receive the donatar of the crown as his vassal in lands holding of him, the donatar is not obliged to pay pay any composi tion for such entry; such composition being only clue in the cases where the statute-law of the land has given it as a compensation or s olatium to the superior, where he is compel- led, by the authority of statute, to accept a singular successor. But as the subject-superior was never at liberty to refuse the pre- sentee of the crown, the enactment of those statutes, giving a year’s entry to the superior in thole cafes where his former right of refusal was incroached upon, cannot apply to the case of the donatars of the crown, claiming an entry, upon a presentation from the crown. And this proportion the respondents shall endeavour to establish, not only upon the principles of law, and judgements of your Lord- ships, but also upon the authorities of our lawyers. And with regard to the f irst of those views, it is an admitted point, That by the ancient Feudal law of Scotland, the superior was not bound to receive any other person as his vassal, excepting the vassal created by himse lf; the consequence of which was, that lands could not even be attached by the creditors of the vassal, for their payment, without the consent of the superior. So great hardship could not fail to be remedied so soon as any ideas of ju stice, or of commerce, came to be understood in the country. And accordingly the remedy is provided so early as the statute 1469, cap. 36.; which provides, “ That where the debtor has no moveable goods but his lands, the sheriff before whom the said sum is recovered by the brief of distress, shall gar sell the land, to the avail of the debt, and pay the creditor; and if there cannot be found a buyer to the said lands, the sheriff of that shire, or any other where he has land, shall chuse of the best or worthiest of the shire, and least suspect to any of the parties, to the number of thirteen persons, and apprise the said lands, and assign to his creditor to the avail of the said sum, within six months after the said sum be recovered before the she- riff; and also the overlord shall receive the creditor, or any o- ther buyer, tenant till him, paying to the overlord a year’s mail as the land is set for the time; and failing thereof, that he take the said land to himself, and undergang the debt." This is the first statute which made any incroachment upon that right of negative formerly competent to the superior or overlord, against receiving any other vassal in the fee, except the heir of the investiture investiture granted by himself; but as there was much ju stice in the principle adopted by the act of parliament 1 469, it so hap- pened, that when adjudications came to be introduced into the law of Scotland, for the satisfaction or security of creditors, in the fame manner as apprisings formerly were, an attempt was made to extend the equitable rule established by the ad 1469, in favour of apprisers, to the case of adjudgers. This is evidenced by a deci- sion 2 1st July 1636, Grier contra Closburn, collected by Durie; where the argument is stated thus: “ T he Lords found the letters orderly proceeded, notwithstanding of the reason; 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 a like and the same reason for adjudications in this case as for comprisings; yet seeing there are express laws and acts of par- liament 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 the entry of the compriser, and doth not make any such mention of adjudications. But although the wisdom of your L ordships predecessors did not consider themselves at liberty to assume the character of le- gislators, or, ex paritate rationis, to extend the enactments of statutes where the statutes themselves were silent, still the case was too obvious to escape the justice of the legislature itself. And accor- dingly, by the act 18. parl. 1669, the same rule was introduced with regard to adjudgers, as the ad 1469 had estab lished with re- gard to apprisers. From this short deduction, as to which parties cannot differ, this general conclusion will immediately suggest itself to the con- sideration of the court, namely, That this composition of a year’s rent, acclaimable by a superior, is merely statutory, and applies solely to those cases where, by an apprisin g or adjudication, the su- perior was compelled to admit a change of the vassal. And so st r ictly did your Lordships predecessors, in the 1736, consider this composition as a statutory innovation, that they refused, without an express statute, to extend it, even from an apprisin g to an adju- dication, although there is no one reason could, or did, occur in the one, which was not equally applicable to the other. At the same time the respondents do not mean to controvert the fact alledged by the petitioner, that the indired consequence of these these statutes was, to procure a composition to superiors likewise, in the case of a change of the vassal, by means of the voluntary act of the vassal. But this allegation, so far from hurting the ge- neral proposition held forth by the respondents, does tend, in the strongest degree, to confirm it. For in order to bring this about, it was necessary for the purchaser, or other singular successor, by the voluntary deed of the former vassal, to use an indirect circuit to bring his case within the precise words of the statutory enact- ment. This was done, either by a trust-bond, or by a disposition; in both of which ways it was possible to bring the case of the vo- luntary purchaser within the precise terms of the statutory rule, ei- ther by an adjudication upon the trust-bond, or by an adjudication in implement. In evidence of this, the respondent begs leave to appeal to the very passage from Craig quoted in the petition; wherein, in the warmth of his heart, and from the enthusiastic affection he had for the Feudal law, the subject of his own lucubrations, he ar- raigns, in very strong terms, the practice which had crept in, of bringing all singular successors into the predicament of adjudgers. But without entering into a discussion of the ju stice of his com- plaints, which, it is believed, wi ll not make great impression now- a-days, the respondents desire, as material for the present pur- pose, the attention of your Lordships to this point, that the pas- sage from Craig establishes the following propositions in the history of the law or this country 1mo, That, by the common law of the land, an overlord or superior was not obliged to admit a change of the vassa l; 2 dly, That reason and analogy were not understood to be sufficient to extend the rule to the case of other singular successors, even after the legislature had interposed with regard to apprisers and adjudgers; and, lastly, That in order to gain the end, and to bring the case of other singular successors within the statutory enactment, the device of an adjudication in implement, or an adjudication upon a trust-bond, was under- stood to be necessary, and accordingly introduced into prac- tice. These things being premised and understood, the custom of receiving a year’s rent on occasion of the change of every singular successor, will not appear as any exception from the general pro- position assumed by the respondents, namely, That the payment of a year’s rent, by way of composition to the superior, does only only hold by the law of Scotland, in those cases where an adjudi- cation was requisite to compel the superior to admit the vassa l; and where, of course, the statutory condition, in favour of the superior, behoved to take place: For although, by the common principles of the Feudal law, the superior was not obliged to re- ceive resignations in favorem; yet as, by means or a simulate ad- judication, such resignations, or voluntary changes of the vassal, could be made effectual against the superior, it would have been peevish and absurd in the superior, to have put the vassal to the necessity, or expence, of following forth the circuit, when, by doing so, he could gain no benefit to himself. But still there is no room from thence to argue, that such voluntary acquiescence and agreement betwixt superior and vassal is any proof against the general proposition of the respondent, namely, that the entry, or composition, payable to a superior, is altogether a statutory in- troduction, acclaimable only by the superior, when either, di- rectly or indirectly, an adjudication is necessary, in order to com- pel the entry of the vassal. The application of these principles to the case in hand will rea- dily occur to your Lordships. And the respondents think them- selves warranted to subsume, and say, That before the petitioner can maintain his present argument, it is incumbent upon him to show, that, at any one period in the law of Scotland, it was ne- cessary to have recourse to an adjudication, either real or simulate, in order to compel a feudal vestiture in favour of the donatar of the crown. The petitioner has not alledged any such thing; and the respondents appeal, in support of a contrary proposition, to the act of parliament 1584, cap. 2. The preamble of which is decla- ratory of the law of the land, in this respect, in the following words: “ Forsameikleas, by the commoun law of this realme, the lands and heritages of all persones convict of treason, halden immediately of our Sovereign Lord, or adjudged to perteine to his Hienes, and to return as property to the crown; and als his Hienes hes richt and power to dispone quhatsumever uther landes and heritages perteining to the persones convict of lese Majestie, quhilkis ar immediatly halden of ony of his sub- jectes, be presentation of ane heritable tennent to the overlord." Here the right of the Sovereign, to present a vassal to the subject- superior, is specially declared; and of course the obligation of the subject-superior to receive him clearly implied: so tha the do atar donatar of the crown, neither directly nor indirectly, had occa- sion to have recourse to the benefit, either of the act 1469, or the act 1669; and having no occasion to claim any benefit, under those statutes, he can be tinder no obligation to comply with the condi- tion under which that benefit is granted. And if more was necessary for instructing the principles and a- nalogy of law in this respect, the silence of the act 1584, and of every other act whatever, relative to any composition being exi- gible from the donatar of the crown, is an additional proof of the understanding of the legislature. For if it had been meant or understood, that any such composition was to be exigible from the donatar of the crown, the legislature would not have omitted ex- pressly to have said so, in the same manner it did with regard to apprisings in the act 1469; more especially when, at an after pe- riod, 1669, it was specially under the view of tire legislature, to extend the enactment of the statute 1469, when the courts of law did not think themselves at liberty, from parity of reason or ana- logy, however clear, to extend the benefit of the statute 1469 be- yond what they were expressly warranted to do. Having thus endeavoured to support their argument upon the principles, history, and analogy, both of the statute and common law of the land, it next in order occurs to mention, any of the judgements of the court, which tend to throw light upon this question. And although the species facti is not precisely the same, yet the respondents must think themselves at liberty to draw into their aid, the decision of Grier contra Closburn, collected by Durie, as already mentioned. For your Lordships will be pleased to ob- serve, that it suggests this material consideration to you in this case, that judges are not at liberty, upon vague arguments of a- analogy, or even by equitable construction, to extend the enact- ments of a statute beyond the precise limits pointed out by the le- gislature itself. If there was to be an extension in any case, it was certainly a very natural and obvious one, to extend the law 1469, concerning apprisings, to the case of adjudications, introduced in place of apprisings. But your Lordships predecessors repudiated the idea: and their scruple in that respect was not consid ered to be without foundation; for the legislature 1669 found it necessary ex- pressly to interpole to relieve it. In In like manner, the respondents do submit to your Lordships in this case, that whatever impressions you may have concerning the equity or ju stice of the claim of a superior against the dona- tar of the crown, as well as against any other singular successor, there is no jurisdiction in your Lordships to sustain it, when the law has not done it. And if this was the proper time to enter in- to the discussion, much might perhaps be said with regard to the fundamental injustice of every claim on the part of a superior, calculated to embarrass or obstru ct the free transmission of proper- ty. They are all of them remnants of feudal oppression and bar- barity, which it is the genius of our law to correct. But the re- spondents avoid dwelling upon such general topics; they blame them on the part of the petitioner, and will not themselves split upon the same rock. But the respondents have no occasion to rest solely upon this judgement collected by Durie, however much the principle of it may be applicable to the present case; for they can appeal, in support of their argument, to a solemn judgement of the court, precisely in point, and approbatory of the argument which has been maintained. The case they allude to is that collected by Lord Stair, 25th June 1680, Laird of Blair against Lord Montgo- mery. The Laird of Blair, donatar to wadset lands which were for- merly in the person of Ker of Kerstand, and were held by him of Montgomery of Hazeldean, having obtained a presentation from the King, pursued Hazeldean's heir to receive him as his vassa l; and for not obedience, obtained decreet against him; declaring, that Hazeldean’s heir had loft the superiority during life: thereaf- ter the donatar pursued Lord Montgomery, Hazeldean's superior in the lands, to infeft him; who alledged, in defence, that he ought not to enter him, until he pay a year’s rent; for by the presentation, he being obliged to receive a st r anger vassal, he ought to pay a year's rent, in the same way as if it had been an apprisin g or adjudication. It was answered for the donatar, That, by second act, parliament 1684, it is declared, That the King has right to dispose of the heritable right of his subvassal, forfeit by presentation, which therefore obliges the subvassal's superior to receive him, and yet mentions no year's rent for his entry; likeas none was due in adjudications till the late act of parliament, and a 0 a year’s duty is only due in apprisings by the statute of King James III. anent apprisings. The Lords found, That there was no year’s rent due upon pre- sentation; but that the superiors, mediate or immediate, were obliged to receive them gratis, in virtue of the act of parliament 1 5 8 4. It cannot be controverted, that this judgement is precisely in point, and estab lishes the proposition in jure for which the respon- dents do now contend. And there cannot be a worse answer to it, than to observe, that it is but a single decision: for when your Lordships perceive a proposition of law estab lished by a solemn judgement of the court so far back as the 1 680, and no contrary judgement alledged or produced in opposition to it, and when such judgement is introduced as estab lished authority in our law-books, as shall be immediately shown with regard to this judgement, it is in vain, by slender or captious distinctions, to detract from the force of it. And this leads the respondents to mention the authorities of our law-writers, all tending to confirm the same proposition. Dirleton, in his Doubts, under the title of Pres entation upon for- feiture, states the case as follows. “ Quæritur, I f a composition be due to the superior for receiving a vassal, presented by the King upon a forfeiture? It is thought that it is not due, seeing he is obliged to receive him; and the lands belonging to the King by the forfeiture, he does a favour to the superior, by presenting one in his place?” Stuart answers, “ A superior cannot crave a composition for receiving a vassal presented to him upon a forfeiture; for the lands are forfeited to the King, and he does the superior a fa- vour to present one to be his vassal.” This authority of Lord Stair is likewise express. “ And a su- perior is also obliged to receive a donatar upon the King’s pre- sentation gratis, and without present payment of the non-entry duties till declarator; and if he refuses, he loses his superiority during his life; 25th June 1680, L. Blair." Lord Bankton is equally express. “ For the most part, before the union, forfeitures were in use to be gifted by the King to such persons as he pleased; and the donatary, if the forfeiture was by judgement of parliament, might, without a decree of declarator, and if before the judiciary after declarator, obtain “ himself himself infeft under the great seal, in lands holden of the crown: and when lands or other heritable rights forfeited held of subject superiors, the King of old was in use to grant presen- tation of the same in favour of such donatary: upon such pre- sentation, the superior was bound to receive the donatary as vassal in the lands, without any composition for an entry, by the same manner of holding as the forfeited person held the same.” These authorities require no commentary: they all concur in estab lishing this proposition, That a presentation of a donatar by the crown, on occasion of the forfeiture of a subvassal, cannot be resi sted by the subject-superior, and that such has ever been the law of Scotland. This therefore being the case, the conclusion seems necessarily to follow, that the subject-superior is not intitled to demand the composition of a year’s rent; because that compo- sition can only be demanded, in the cases where the vassal claiming an entry was obliged to have recourse, either directly or indirect- ly, to the benefit of the acts of parliament 1 469 and 1669, and of course behoved to comply with the condition of a year’s rent, under which that benefit is given; but the donatar of the crown by presentation does not stand in such predicament, and is there- fore under no necessity to comply with any such condition. So stands the argument in this case, as applicable to the case of every donatar from the crown. But the respondents must further observe, that they are even in a better and more favourable situ- ation than donatars of the crown in common 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 intend- ment of presenting commissioners, that his Majest y should be di- verted of the lands of which a year’s rent is claimed. By the vest- ing-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 unalienably for certain uses; and the respondents are only trustees appointed under the autho- rity of the last-mentioned act, because of the impropriety or pre- sumptive legal impossibility of the Sovereign’s being the vassal of 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 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 petitioner would have been intitled to demand a year’s rent from the respondents, who are certainly not singular succeffors, but who have been named by the crown to hold the lands for the Sovereign, who takes them by act of parliament, because of the inconsi stency of his Majest y holding them of the petitioner. It now remains, to submit to your Lordships some observations upon the different pleas interspersed throughout the petition, and suggested for the purpose of obviating the defence offered by the respondents. The first and capital argument handled in the petition is, to prove, that, by the ancient law of Scotland, a year’s rent was due to the superior on occasion of the change of every singular succes- sor, in the same manner as in the case of apprisers and adjud- gers; and this proportion is endeavoured to be made out by say- ing, that immemorial and consuetudinary law is equally valid and effectual as the lex scripta; and therefore it being de facto un- doubted, that the superior has been immemorially in the use of exacting a year’s rent on occasion of the change of his vassal, such usage must be sufficent to establish his right to do so. This seems to be the substance of the capital argument handled in the petition. But, with all deference, it must occur to your Lord- ships, to be not only fallacious in itself, but altogether misapplied to the present case. Where-ever a right appears immemorially to have subsi sted, and no vestiges of the origin of such right can be traced, the right becomes a part of the common law of the land, without regard to what ju stice or reason there may have been in the ori- gin of it. But there is no such case before your Lordships; for the respondents have submitted, and do st i ll humbly maintain, that the principles of common law have nothing to do with this right of non-entry. It is altogether a creation of statute, intro- duced as a solatium to superiors, when obliged by the statutes 1469 and 1669 to receive as vassals persons whom they were not formerly obliged to receive; and it has been shown,that the practice of demanding a year’s rent from voluntary purchasers was entirely the produce of the same statutes, by means of a device fallen upon in practice, to bring such voluntary purchasers within the precise words of the statutory enactment. But it is to the respondents incom- incomprehensible, how a practice, arising solely from the supe- rior's receiving a composition with regard to the entry of vassals whom he was not bound formerly to receive, can be pled upon as tending to establish the same casualty with regard to the dona- tars of the crown by presentation, whom, at all periods of our law, the superior was bound to receive. But further, not only does the reason of the thing operate a- gainst the petitioner’s argument, but the conclusion he draws is not supported by the fact upon which it is founded: for although the petitioner could be allowed to plead, that, in virtue of immemo- rial usage, he was intitled, without inquiring into the origin of that usage, to establish a right; the respondents would ask, by what principle he is intitled to extend the right, from a case where the usage did subsi st:, to a case where it is not pretended any such u- sage did ever subsist? Now although it may be true, that su- periors have been immemorially in the practice, upon the foun- dation already mentioned, of demanding a year’s rent from a vo- luntary purchaser, it is not pretended, that any such casualty was ever exacted from the donatar of the crown: and therefore, with regard to the present claim, it does not occur, that there is either law or usage to support it. The next argument in the petition, is founded upon the act of parliament 1690, cap. 33.; and it is said, That although much cruelty and injustice prevailed in the more ancient treason-laws of Scotland, these were all rectified by this act of parliament made at the Revolution, which preserves entire the rights of third parties, and, inter alia, the rights of the superior. But the answer to this argument will readily occur from what has been already suggested. I f the petitioner has been successful in making out this proposition, That the composition of a year’s rent was due to a superior, previous to the aft 1690, on occasion of a presentation of a donatar of the crown, he will then be inti- tled to plead under the authority of this statute: But it is well known, that at the time of making the statute, nor at no prece- ding period, was there any such casualty existing in the law, as the donatar to a forfeiture paying a year’s rent to the superior of the forfeited lands, upon his being received; and therefore such a claim could not be intended by the statute to be saved. Indeed, the prelent claim is altogether foreign to the object of the the statute 1 690. Previous to that statute, the estates of vassals, whole rights were not confirmed by the crown, fell under the for- feiture of their superior; and the creditors of the forfeiting person, whose rights were not confirmed by the crown, were not intitled to recover their payment out of the estate of their forfeited debtor. These, and sundry other particulars ju stly complained of at the Revolution, gave rife to this inestimable act of parliament: and the purport of it was, to lave creditors, superiors, vassals, and heirs of entail, such claims as they would unquestionably have been in- titled to, if 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 from them should be preserved, and that they should not be deprived of any of the casualties or prestations arising from such holdings. But this can never lay a foundation for their claiming a year’s rent from a donatar to a forfeiture; not only because no such forfei- ture or casualty did exist prior to that period, but likewise, be- cause the utmost extent of the statute was, not to put superiors in a worse situation than they would have been had there been no for- feiture; and as there would have been no donatar, if there had been no forfeiture, fo there could be no reason for giving a year’s rent upon the entry of a donatar. 3dly, The petitioner endeavours to draw an argument in his fa- vour from the differents acts of parliament made on occasion of the rebellion 1715 and 1745; and he quotes the opinion of Lord Bankton to show, that the purchasers of lands fold by those in- trusted with the sale thereof were obliged to pay a year’s rent, in order to obtain their entry from the subject-superior. The estates forfeited for the rebellion 1715 were, by 4th Geo. I. cap. 8. § 1. vested in commissioners, as trustees for the public; and by § 14. of that act, purchasers shall be adjudged to be in the actual seisin of the lands bought. But this being contrary to the usage of Scotland, purchasers were scrupulous to rely upon i t; arid therefore, for their encouragement, it was, by statute 6. George I. cap. 24. § 1. ordained, that every indenture of sale made by the commissioners, shall contain a procuratory of resigna- tion, &c. By 9th George I. cap. 19. § 15. the estates then unfold are di- vested out of the commissioners, and vested in the King, for the use of the public; and by 1 3th George I. cap. 27. § 1. the Barons of of Exchequer in Scotland are authorised to sell said estates, and are directed to proceed according to the same rules, and to apply the rents in the same manner as was directed with respect to the com- misioners and trustees. So stand the acts of parliament made on occasion of the rebel- lion 1 715; and with regard to the estates forfeited by the rebel- lion 1745, the act 20th George II. cap. 4 1. § 20. and 21. directs the Barons of Exchequer to sell the estates which the legislature meant should be fold, and by a general reference are directed to proceed in the sale according to the rules laid down in the act the 13th of George I. From all this your Lordships will observe, that in every sale to be made of an estate forfeited either by the rebellion 17 15 or 1745, the person who becomes purchaser, is to make up his titles to the estate purchased upon a procuratory of resignation in favorem, in the same manner as any other voluntary purchaser. And such being the case, there is no room for drawing an argument appli- cable to the present question; for even after the purchaser was possessed of his indenture, or other deed of conveyance, either from the Commisioners or the Barons of Exchequer, still if the superiors should not chuse to receive the resignation, the purchaser had no other method left to make good his titles but by an adjudication, and of course the precise case would occur, where the law had authorised the superior to demand the payment of a year’s rent. And therefore supposing the fact to be true, that these purchasers did pay a year’s rent, which the respondents can by no means ad- mit. and fuppofing the opinion of LordBankton to be well found­ ed, still all this is foreign to the present question. For the utmost length any conclusion to be drawn from those statutes can go, is to prove, that the legislature, or the King, in place of using the privilege of presenting a donatar, which the law would have allowed, purchasers were left to make up their titles in the common course of law, and being left to do s o, the consequence eventually might be, that the superior would have the benefit of the composition: but when the legislature has ex- pressly left to the King his legal privilege of presenting a donatar, and when the King has actually used that privilege, by present- ing trustees to hold the lands for public and salutary purposes, no sound argument can ju stify the superior for insi sting to affix a condition condition thereto unknown in law, and unexampled in such mode of conveyance. 4thly, There is next referred to, and pled upon, some cases of bastardy and ult imus hæres, where it is said a composition of a year’s rent was given to the superior. But, with great submission, the respondents must be pardoned to say, they have never seen so extraordinary condescendence ex- hibited, in order to evidence the practice or understanding of a nation. The whole, supposing them true, amount to no more than four, and all of them within these few years; and there is but one example mentioned, even of a purchaser of a forfeiting estate, paying a years rent to the superior; and therefore, if the respondents have satisfied your Lordships of the justice of the principles upon which they proceed, it would surely be most ex- traordinary to counteract those principles from one or two exam- ples, flowing either from ignorance, or from inattention, or per- haps from chusin g rather to pay than enter into any dispute. But be the cause what it will, it is ludicrous to found upon such a condescendence as available to establish a practice explanatory of the sense of the nation. 5 thly, The petitioner founds upon the clause of the statute the 25th of his late Majesty; which provides, That the trustees, i f changed, shall be received by the immediate superiors, without payment of a year’s rent, or any other composition; and from thence it is argued to have been the understanding o f the legisla- ture, that the composition was to be paid for the first entry of the trustees. But this is a conclusion altogether unwarranted by the pre- misses. For although, to prevent all disputes, or ground of ca- vil, the legislature thought proper expressly to declare, that in the event of changing the trustees, they were not to be consider- ed as singular successors, so as to intitle the superior to rear up a claim for a composition, there is no foundation from thence to ar- gue, that the legislature meant to impinge upon the rules of law, or in that indirect manner, by implication, to introduce a casualty of superior ity formerly unknown in law. 6thly, An argument is endeavoured to be drawn from the act of parliament the 20th of George II; whereby the obligation im- posed upon subject-superiors, of granting entries to purchasers upon upon the resignation of the former vassals, is so qualified, that the purchaser claiming the entry shall, at the same time, pay or tender such casualties as the superior is by law intitled to re- ceive upon the entry of such purchaser. The answers to this argument are plain, short, and satisfacto- ry. In the first place, The Legislature does not determine what are the casualties of Superiority, but leaves that matter open to be determined by the rules of l aw; and therefore it does not even e- stablish, that a superior is intitled to demand a composition from a voluntary purchaser: And if a purchaser was disposed to dis- pute that matter, he might argue, from the analogy of the statute 1469 and 1669, that such casualty was not due, because the le- gislature had not expressly said so. But, 2dly, Supposin g the law shall be construed to infer an obliga- tion upon a voluntary purchaser to pay a year’s rent, because the superior had been in the immemorial usage of receiving it, how does that, in the smallest degree, tend to prove, that the donatar of the crown, upon a presentation, is obliged to pay such compo- sition, when an example cannot be produced where ever he was accustomed to do so? Lastly, The petitioner pleads upon the terms of the contract en- tered into betwixt him and the commissioners appointed by the crown to transact with him, wherein he reserves all his rights and casualties of superiority. The answer to this plea will likewise be anticipated by your Lordships. The respondents do not deny, that in the contract with the Duke of Gordon, all his rights of superiority are reser- ved by him: but such reservation cannot create any new casual- ties of superiority; and therefore, before his Grace can draw any aid to his plea from this reservation, it is incumbent upon him to show, that the composition now claimed by him from the King’s donatar, was any of the rights competent to a superior by the law of Scotland. It cannot be alledged, that such claim was ei- ther understood, or acquiesced in by those acting in behalf of the public; otherwise they have done great injustice to the other su- periors, who have conformed themselves to the ideas of govern- ment, by selling their superiorities, and yet have received no more than one year and a quarter’s rent as the full price and va- lue of their superiorities. The The petitioner concludes with stating a separate plea with re- gard to some of the lands in question. He claims the dupli- cand of the feu-duty for the lands of Nuidmore and Nuid- beg, and a year’s rent of the other lands of Clunie and Gascon- loyne. But it does not occur, that the particulars stated by the peti- tioner can make any alteration upon the general argument. I f in- deed they had been attended to at the time of the transaction rela- tive to the property of the lands, they might have created a doubt, how far the petitioner was intitled to any composition for the property, in respect neither Lauchlan nor Ewan Macpherson were vassals to the Duke of Gordon, both of them having possessed upon titles of apparency. But be this as it will, the peculiar situation of the titles of these lands cannot aid the present claim. For with regard to Nuid- more and Nuidbeg, the titles referred to prove no more than that an heir entering was to pay the duplicand of the feu-duty. But that has no connection with the respondents: for the crown does not take these lands by succession; neither does the King’s do- natary claim an entry as heir of Ewan Macpherson, but they claim as donatars of the crown, who has acquired by forfeiture; and therefore can only be liable in such predations as the law has burdened the donatar with. Again, with regard to the lands of Clunie and Gasconloin, Lord Newhall’s decreet-arbitral says no more but wh at the law would have said, namely, That an adjudger claiming an entry would have been obliged to pay a year’s rent to the superior. But the crown, or its donatar, have no occasion to claim any benefit from Lord Newhall’s decreet-arbitral; neither are they desiring to enter with the superior as adjudgers.. The lands have fallen to the crown by the forfeiture; and the King being intitled to offer a vassal by presentation, that donatar is intitled to an entry, sub- ject only to such claims as the law acknowledges in the case of a donatar. Upon the whole, the respondents flatter themselves your Lord- ships will have no difficulty limply to adhere to your interlocutor, and to refuse the desire of the petition. In respect w hereof, &c. H E N R Y D U N D A S.