His Majesty v. William-Henry Marquis of Lothian — Memorial, 20 Jan 1767

[To be reported by Lord [T Tb y � � �] M E M O R IA L F O R > 4 His o b e r p t d Lp] F O R H b t r i R s A r G b T I R I G Np o b e r p t d S A G A I N S T M NTTNbaqu rsfd Marquis of Lothian. H EN R Y K E R R late of Graden, having been convict ed ofhigh-treason for his accesio n to the rebellion in 1745, his lands and estate, lying in the county of Roxburgh, were seized and surveyed by order of the Barons of the court of Exchequer, in pursuance of the Act of the 20th of his late Majesty, commonly called the vesting-act. Amongst the other claims entered upon the said estate, there was one made by the Marquis of Lothian, who, under the autho­ rity of the clan-act, claimed the property of the estate as supe- rior. The Lord Milton deceased was appointed Ordinary to these claims, and in the year 1756, he, in absence of the King’s coun­ sel, pronounced an interlocutor sustaining the claim; against which a representation was preferred; upon which the Lord Milton gave the following deliverance, “ Ordains this representation to be seen and answered against the 12th June next. A No 'January 20. 1767. No answers were ever given in to the representation, and the claim was allowed to ly over till lately, that the Marquis, after getting the cause remitted to your Lordship upon petition, thought proper to insist for a decree. Your Lordship is acquainted with the nature of the transacti- on, that has long been intended to take place between the Crown and the subject superiors of forfeited estates, claiming the pro­ perty of them upon the clan-act; and which treaty and intend­ ed transaction took its rise from this Court having given an in­ terlocutor in favour of the Duke of Gordon, one of those sub- ject superiors; against which an appeal was taken on behalf of the Crown. The estate of Graden is not annexed; and there­ fore the claimant’s case is not under the very same predicament with that case of the Duke of Gordon. At the same time, it is imagined, that the Government will be inclined to settle in the same manner with all the subject superiors; and however that may be, the memorialist imagines it is in vain for the Mar­ quis to insist in the present action, until at least the subject supe- riors of the annexed estates are concluded with; and which the memorialist is willing to hope may be got done the next summer. The Marquis, unwilling to have the case delayed longer, in- rolled the cause, and insisted for a judgment, as has already been taken notice of.. This laid the Officers of the Crown under the necessity of look­ ing into the proceedings with more accuracy than had been done; and having discovered, by comparing the record of survey in the Court of Exchequer, with the Marquis’s claim, that the claim was not entered within six months of the date of recording in the sheriff-clerk’s books, for that it appeared from the claim, that it was entered upon the 27th April 1749; and that the survey had been recorded by the sheriff-clerk, as was certified by the proper officer in the Court of Exchequer, upon 23d of October 1748; it was pleaded on behalf of the Crown, that there being more than six months betwixt those two periods, the Marquis’s claim was cut off by the vesting-act. The Marquis, not satisfied with the certificate of the officer in the Court of Exchequer, applied for, and obtained a diligence f or recovering the sheriff-clerk’s record; and having accordingly recovered recovered and produced it, he pleaded, that his claim could not be cut off by the elapse of six months; because de facto the record of the sherif-clerk did not bear any date, other than that o f the publication at the market-cross, which was no evidence of the survey being then ingrossed; and therefore, that his claim could not be cut off' by the elapse of time. it was answered on behalf of the Crown, that although de fac­ to the sheriff clerk’s register did not bear any date, yet that evidence might be brought of the survey’s being duly recorded upon the 23d of October, and, that if such proof was not com­ petent, then there was no survey; and consequently the claim could not be proceeded in until a new survey should be made. These points being directed to be stated in memorials, this is offered on behalf of the Crown. By the vesting-act, § 18. it is enacted, That a copy of the re- gister of any real estate entered in the Court of Exchequer, shall be transmitted to the Sheriff of the county where such estate is situated who is required, within twelve days, to cause the same to be published at the market-cross of the head burgh of the shire: “ And to cause to be inserted in a book, to be provided and kept for that purpose by the clerk to such Sheriffs or Stewarts Courts; all which books shall be made open and patent to any persons demanding inspection of the same, upon any lawful day, between the hours of ten and twelve in the forenoon, without fee or reward.” By the 2 1st sect, of the same act, it is enacted, That persons claiming upon personal estates, shall enter their claims within " the space of three months, to be reckoned from and after the date of the entry, that shall be made in the register-book of Exchequer, of any personal estate.’ ’ And, with regard to real estates, the enacting words are: “ And, in case of real estates, within si x months of the entry of the register, to be kept in the county or stewartry where such estates lye, in manner herein before directed.” With a certification, that, in default thereof, the claim shall be null and void. Upon considering these clauses, the Lord Ordinary will judge, 1mo, whether it is not incumbent upon the Marquis, in this case, to instruct, that de facto heentered his claim within si x months months of recording the survey in the Sheriff-clerk’s registe r? O r 2 do, Whether, supposin g the onus probandi to lye upon the memorialist that the Marquis did not enter his claim within the six months, it is not in that case competent for the memoria­ l s to instru ct the date of the recording by the parole evidence of the sheriff-clerk, and such other proofs as can be procured? The memorialist submits these questions to the consideration of the Lord Ordinary without argument, as being unwilling to strain any thing of this kind against the Noble claimant that shall not appear to be clear in law. I f your Lordship shall be of opinion against the claimant in either of those questions, it is well; but if not, the next thing to be considered is, Whether there can be any further proceeding until a new survey is made of the estate? It occurs to the memorialis to be perfectly clear, that in such case there can be no further proceedings before your Lordship until a new survey is made. The Court has no jurisdiction at common law for determining upon claims: it intirely rests upon the jurisdiction, and powers given by the vesting-ac t; and there can be no procedure in this Court, inconsi stent with that statute. The jurisdiction given to the Courty by that statute, is the de- termination of claims entered upon estates surveyed; and the question is, Whether the estate of Graden has been surveyed as the statute directs? And which again hangs upon the two pre­ vious questions already stated. * If it is essentially requisite, that a date should be annexed by the Stewart-clerk, so as to regulate the commencement and ex­ piration of the si x months, within which claims must be entered upon real estates, then there is certainly no survey; because a survey must be compleated in every respect, as the law directs or otherwise it can have no effect whatever. It is a creature of the statute, and can only subsist when executed agreeable to the rules of the statute. The memorialist is unwilling to enter upon a discussion with the Noble claimant, o f the questions above stated; and therefore he he wishes that this matter might be allowed to lye over for some time, until it is known whether there shall be hopes of getting the intended transaction with the subject superiors carried soon into execution; and he prays your Lordship to stay proceedings in the cause till next Summer-session, for that purpose; and he hopes the Noble claimant will be disposed to acquiesce in the Lord Ordinary’s doing so, as, before that time, there is reason to hope that something effectual may be done for having the affair adjusted with the subject superiors. But if neither the Noble claimant nor the Lord Ordinary shall be inclined to stop pro­ cedure till the next Summer-session, then judgment must be gi­ ven upon the questions that have been stated; and which, in whatever way it shall be done, must lead into consequences disa- greeable to the claimant. ':. o ’ 1In respect whereof, & c., JA. MONTGOMERY.