William Henry Marquis of Lothian v. His Majesty's Advocate — Memorial, 20 Jan 1767

J anuary 20. 1 7 6 7 [To be reported by Lord [TTob e r pt M E M O R I A L F O R The Most Honourable d o T T o y L h MsHn Marquis of Lothian; y u y o s a l His q y i M a l n fa U6 1 b e y l M p / U7 bs the 6th day of November 1746, Henry Ker commonlydesigned of Graden, one of the memorialist’s vassals, was convicted at St. Margaret’s, Westminster, of being guilty of such high treason as is mentioned and described in an act of parliament passed in the first year of his majest y King George I. cap. 10. commonly called the Clan Act. 4s pursuance of an act made in the 20th year of his late ma­ jest y King George II. commonly called the Vesting Act, the lands and estate which belonged to the said Henry Ker, held by him of the memorialist his superior, amounting to 143 l. free rent, were surveyed by Mr. Francis Grant, one of the surveyors upon the forfeited estates in Scotland, and the survey reported to the court of Exchequer upon the 1 6th September 1748, and there recorded of that date., yHoM l n of claims for debts due by Henry Ker, were soon thereafter entered in the court of session, according to the di­ rections of the statute; and, among others, the memorialist did, f ' upon upon th e 27th April 1749, enter his claim for the whole estate founding upon the Clan Act, bywhich it is enacted, “ That if any subject of Grcat—B ritain, holding lands or tenements of a subject superior in Scotland, has been, or shall be guilty of such high treason or treasons as are therein mentioned, every such offender, who shall be thereof duly convicted and attainted, shall be liable to the pains, penalties and forfeitures for high treason, and his lands or tenements, held of any subject su- pe r i o r i n Scotland, s hall recognosce and return into the hands of the superior, and the property shall be, and is hereby consoli- dated with the superiority, in the same manner as i f the same lands or tenements had been by the vassal resigned into the hands of the superior ad perpetuam remanentiam, &c. Providing that such superiors shall, within six months, to be reckoned from the time of the attainder of the offenders respectively, obtain themselves insest, or do diligence really or without col- lusion, for obtaining possession; and providing always that- such superior shall continue peaceable and dutiful to his ma- jesty, his heirs and successors, & c." And the c la im set forth that the claimant, who had continued dutiful and loyal, was he­ ritably insest and seized in the barony of Linton, &c. whereof Henry K'stawas a part; that he was superior of these lands; that for attaining possession of them, he was, upon the 14th March 1747, lawfully insest and s eized in them upon his own precept of clare consta proceeding upon the Clan Act and that he had raised, and caused execute summons of declarator and mails and duties before this court, against the tenants and possessors of the lands, all in the month of March 17 47. cmM aeveral claims entered upon this estate, being remitted to be discust before the late Lord Milton as Ordinary, those for debt, which at Martinmas last will amount to within a trifle o f 23 years purchase of the estate, were all tried, and the creditors ranked accordingly upon the several decrees, sustaining their claims, and the decrees of ranking have been extracted. d mMs the memorialist ’s claim came to be heard, and where council appeared for the crown, the Lord Milton, Ordinary upon the debate, as far back as the 7th of February 1756, did find, "That Henry Ker late of Graden, who was convicted of high treason, treason did hold the lands acclaimed of the claimant, at the time of his being convicted, and that the claimant, in virtue of his right to, and insestment in the superiority of these lands is intitled to the benefit of the act of parliament of the first of his late majesty, commonly called the Clan Act, upon which the claim is founded; and therefore sustains the said claim, and ordains the claimant to be put into the possession of the lands acclaimed, with the pertinents, by the sheriff of Roxburgh, in terms of the said act; and decerns and declares accordingly.” U u y o s a l this interlocutor, a representation was offered on behalf of his Majest y ’s Advocate, alledging in general, That the claimant had not verified that he was superior: That it was ne- cessary the attainted person should be insest, and there was no evidence thereof, &c. Lastly, and chiefly, That altho' the court had already decided upon the merits of this question, and found the Clan Act in force in the case of the Duke of Gordon claiming the estate of Lochiel, yet that decision was appealed, and the ap­ peal not discust; and that in the present case, it was not very ad- visable, for the claimant to insist for a decree of this court, before the determination of that appeal. U s a gMH a were given in to this representation, showing, that the memorialist was the undoubted superior, and that there was no ground for altering the interlocutor, or for delaying the cause; yet the same, through Lord Milton's indisposition, never was ad- vised, and the claimant was put off and amused from time to time, in the expectation of the hearing of the appeal in the case of the Duke of Gordon, for which he waited with the great- est patience. ’ v a M H 1 o s u w however, in the year 1765, not a little to his surprize, that the court of exchequer had advertised a sale of the lands, and being informed, that it was upon the supposition that he was not superior of these lands, he immediately applied to that court, and produced to them such satisfactory evidence of his being the real superior, that an order was thereupon issued by the barons, Haying the sale and any further procedure therein, till till the memorialist's claim was determined before the court of session. j Kbs this the memorialist thought it was high time to insist in his claim; and therefore, he presented a petition to the court of session, setting furth the necessity there now was for bringing the claim to a conclusion, and praying the court either to appoint a new Ordinary in place of Lord Milton, or to take the cause un­ der their own consideration, &c. And their Lordships, by inter- locutor, of this date, “ remitted the petition to the Ordinary on the bills, to hear parties procurators on the claim within men­ tioned, and to report.” ’ I this date the cause was called before L ord Elliock Ordinary, when there was produced for the memorialist a condescendence, setting furth his titles, and making it as clear as sun-shine, that he was superior of the whole of the forfeiting person’s estate; and the lawyers for the crown, at an after calling, were ap­ pointed to give in answers betwixt and next calling, with cer­ tification. ~ c mM cause was again called, and the council for the crown re- presented, that it was unnecessary to give in any answer to the condescendence for the claimant, in regard there lay a total ob­ jection against the claim, namely, that by the vesting act, all claims must be lodged within six months of the survey of the e- state being recorded in the county register; but so it was, that this claim was not presented till some days after the six months: For evidence of which, they produced a certificate under the hand of Walter Williamson register of forfeitures, bearing, “ That by the records of forfeited estates kept in exchequer, it appeared, that the report and survey of the rental of the estate of Gra­ den is dated 16th September.02­w recorded in exchequer the 1st of October, published at Jedburgh, the head burgh o f the Shire of Roxburgh, where the said estate lies, the 23d October, and recorded by the sheriff clerk there that same day, all in the year 1748.”—That as the memorialist ’s claim was not present­ ed till 27th April 1749, it was exactly four days too l ate, there being only six months allowed by the statute. •‘ ‘ • ' T h e. c mM memorialist's council, in answer to this, complained with reason against an objection of this sort being made for the first time, after the claim had depended about seventeen years; and that the council for the crown had joined issue upon the me­ rits, upon which Lord Milton had pronounced an interlocutor; and that the memorialist had been induced to delay, merely in the view of the appeal in the cafe of the Duke of Gordon being to be soon brought to a hearing, which, he was given to under- derstand, would be the rule in his case; and they objected that this certificate from Mr. Williamson was not proper evidence of the date of recording in the county book; that the 23d of the day asign ed by Mr. Williamson in his certificate, happened that year to be a Sunday; that the only authority Mr. Williamson had for making out the certificate assigning that day, was a letter from the sheriff substitute of Roxburgh shire, dated the 1st No­ vember 1748, and recorded in exchequer, bearing, that he had received Mr. Moncrieff’s letter on the 23d October, inclosing the duplicate of the rental; and that, in terms of the order there- anent. he had caused proclaim and record the same: So that it was plain, the sense of the letter had been misunderstood, which only bore, that the rental and survey had come to the sheriff's hands upon the 23d October, but he does not say it was published or recorded on that day: That the only proper evidence of the date of recording, was the county book itself, which it lay upon the managers for the crown to produce; but however, for pre- venting delays, that the memorialist would take a diligence for recovering and producing the said county record, as well as the sheriff’s letter to Mr. Moncrief. c mM county record was accordingly, by a warrant from this court, transmitted to this process, where it appears, that an en­ try had been made of the rental and survey, but no date was put to it at all: The entry bears, that Mr. Moncrieff's letter, and the duplicate, had come to the sheriff’s hands upon the 23d October 1748, and had been published at the market cross upon the 25th October. This was demonstration that the entry in the sheriff'’s book could not be on the 23d as certified, and the council for the crown gave it up, and took to another total objection, quite contradictory to their former one, namely, That as this entry in the sheriff’s book had no date at all, therefore the whole proceed­ ings ings were void; the survey was void; and if so, the claim was inept, for there could he no claim till there was a proper survey And upon the 11th December 1766, the Lord O rdinary was pleased to ordain parties procurators to state in mutual memo­ rials, the question with respect to the total objectio n to this claim, & c. and the memorial for his Majest y ’s Advocate having been produced at an after calling, the L o rd Ordinary appointed the procurators for the Marquis of Lothian to give in a counter memorial by way of answer thereto. In obedience to that order, what fo llow s is hum bly o ffered on the part o f the Marquis of Lothian. By the vesting act of the 20th George II. § 17, it is enacted: And to the end that all and every the said estates and interests hereby or otherways vested in his Majesty, whereof the said barons of Exchequer shall, upon enquiry, make discovery and seize or recover the possession, may be duely published so as all persons having interest may have notice thereof in such manner as they may enter their claims upon the same in the manner herein after provided: be it enacted, &c. That the said Barons of Exchequer shall cause the register, or books herein appointed, to be kept, of the names of all persons attain­ ted of high treason, within the times aforesaid, and o f all real and personal estates and interest s by this act or otherwise vested in his Majesty, or an authentick copy or duplicate of such books, to be kept by a proper officer, who shall make the same open and patent to the inspection of all persons who shall demand the same betwixt the hours o f ten and twelve in the forenoon, up- on any law,ul day, without any fee or r e w a r d: And in the said books shall be exprest the dates when the entries o f the se- veral estates, real or personal, that shall be there ingrossed, were made. And the said Barons, or any three or more of them, shall also transmit to the said commissioners of his Ma- jesty's treasury, or the High treasuruer of Great Britain for the time being, an authentick copy of the said regist er or books.” 3 n §. 18 it is fu rther enacted, "That w hen any rea l or heri- table estate shall be entered in the said register, the said Ba- rons shall, from time to time, within the space of one month after such entry, transmit, or cause to be transmitted, an authentick authentick copy or duplicate of every such entry, to the she- riff of the shire, or stewart of the stewartry, within which the lands or other heritable or real estate are situated; and every such sheriff or stewart shall, and is hereby required, within twelve days after he shall receive such duplicate or copy, to cause the same to be published at the market cross of the head burgh of the shire or stewartry, and to cause to be inserted in a book, to be provided and kept for that purpose by the clerk to such sheriff 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." 3 n § 19. it is further enacted, “ That all and every estates and interests which shall be entered in the register, to be kept by the said Barons of the Exchequer, according to the directions of this act, to or upon which no claim shall be entered within the time, and in the manner therein after prescribed, shall be deemed and taken against all persons, and to all intents and purposes, to be vested in his Majest y in virtue of this act; and such estates and interests as shall be so entered in the said regi- sters, and to or upon which claims shall be entered, shall in like manner be deemed and taken to be vested in his Majesty, sub ject only to such burden, diminution, or eviction as shall arise from the determination of the claims that shall be so entered,, and no otherwise.” U s6 by section 22d, It was enacted, “ That all persons, &c. having any estate, right, title, interest, &c. into, or out of, or upon any castles, honours, manors, messuages, lands, te- nements, rents, or hereditaments whatsomever, or to any real or personal estate, &c. herein before, or otherwise vested in his Majest y; and also all persons, &c. pretending to have right or title to any estate which shall have been seized or surveyed by the said barons, for the use of his Majesty, &c. shall. within the space of three months, to be reckoned from and after the date of the entry that shall be made in the register books in the exchequer, of any personal estate; and, in case of real e- states, within six months of the entry of the register, to be kept in the county or stewartry where such estate lies, &c. en­ ter ter all their rspective claims and demands before the court o f session, &c. or, in default thereof, every such estate, right, ti- tle, to be null and void." j Kbs these clauses which are the text, the questions stated in behalf of his Majest y ’s Advocate, are, 1mo, Whether it is not incumbent upon the Marquis, in this case, to instru ct, that, de facto, he entered his claim within six months of recording the survey, in the sheriff clerk’s regifter:—Or, 2do, Whether, sup- posing the onus probandi to ly upon his Majest y ’s Advocate, that the Marquis did not enter his claims within the six months, it is not, in that case, competent for his Majest y ’s Advocate, to in­ st ru ct the date of recording by the parole evidence of the sheriff clerk, and such other proofs as can be procured? No argument is offered in support of these positions which are put by way of quest io n; indeed they will not admit of any: For, by the 18th clause above recited, it clearly appears, in the first place, that no onus probandi can be laid upon any claimant, but barely, that he entered his claim in the form prescribed by the act, which must appear on the face of the claim itself. And in case it is alledged by his Majest y ’s Advocate, that the claim was not lodged within the six months of the entry in the sheriff’s book, he must prove it; affirmanti incumbit probatio. In the s e- cond place, with regard to the mode of that proof, the law as clearly points that out, namely, that it must be by the book it­ self; it is admitted here, that if the survey was recorded in the sheriff’s book upon theJ27th October, or afterwards, the claim was entered in due time. It appears by the sheriff' s record, that the entry could not be made before the 25th, because that was the day of publishing at the market cross. The sheriff'’s letter to Mr. Moncreiff dated 1st November 1748, bears, that the duplicate was then recorded by the sheriff clerk, which was soon enough, as the sheriff had 12 days after the 23d day of October, for accom- plishing these particulars, agreeably to the vesting act; so that, if room were for presumptions, it is more probable the entry was made after than before the 27th; and even in doubt, the favourable presumption would be taken: But the law has left no room for presumption, neither has it left any room for any sort of proof of the date or recording, but one, name- namely, the record itse lf; and if the contrary were allowed it would open a door for much confusion, and be a source of much dispute about the times of the entry of claims. 4l was no doubt for this reason, that no argument is offered on these points in behalf of his Majesty ’s Advocate, and that a ground entirely opposite, is rather now taken up, and a plea main­ tained, that, because the entry in the sheriff 's book is not proper­ ly dated, therefore, there can be no further proceedings until a new survey is made, which is, in other words maintaining, that the survey already made is null and void, and that all the proceed­ ings in the claims upon this estate must go for nothing, so that the several decrees sustaining claims and decrees of ranking which have been extracted, are so much blank paper. d olm respect to this, if there was any thing in the argu­ ment, the memorialist apprehends, that his Majest y ’s Advocate, by joining issue upon the merits of the claims upon this estate, which have been already determined without any objection made to the survey, is thereby barred, in point of competency, from making use of that or any plea against it. But the memorialist apprehends, he has no occasion to argue that point, as, with great submission, the objection seems to rest upon a mistake. It may perhaps be true, that until an estate is seized and surveyed, no claim can be entered upon it by force of the statute; but this is not the case, with regard to the entry in the sheriff's books which is only intended for the benefit of the lieges, by giving them notification. The 22d section, relative to the entry of claims, allows them to be entered on all estates that have been seized or surveyed by the Barons. But the memorialist can discover no part of the statute which provides, that a claim cannot be made, until the survey be recorded in the sheriff s books, far less that no claim can be made, where there is an uncertainty of a few days, as to the date of the entry in the sheriff s book; neither can the memorialist discover any part of the statute, which enacts, " That where the sheriff clerk omits to annex a date to his record; therefore, the previous survey is null and void, and must be made over again.” This is certainly a bad argument; because, in such a case, all that could be required, is only that the survey made should be a- gain inserted in the county books, and for what great end? only that the six months might again begin to run, and all the past proce­ dure be lost, the same claims, and, among others, that of the claim­ ant be entered over again, and an opportunity given to other claims, i f any be who have slipt their time, to enter them duly; what the crown would lose by this is plain, what the crown could gain by it, is not easy to be perceived. c mM memorial for his Majesty's Advocate next mentions a great unwillingness to enter upon a discussion with the claimant of the questions above stated, and therefore prays the court to stay proceedings till next dimmer session. 4l also disclaims all imputation of straining matters hard with the claimant, and regrets that i f judgment must now be given upon these questions, it must lead into consequences disagreeable to the claimant. j Kbs this the memorialist has little occasion to enlarge. The delay which has hitherto been given in this cause, was no way owing to the memorialist. When a representation was given in against Lord Milton's judgment, as far back as the year 1756, he immediately gave in answers thereto, which still remain un- advised. The appeal in the case of the Duke of Gordon was urged as the reason for delaying this cause; he could not help thinking that a very bad reason, even when he did not suspect that any objection was to be made to the regularity of the presenting of his claim, or that his right of superiority was to be seriously chal­ lenged, as in the court of exchequer; but, surely, as these two are the only questions presently under deliberation, the appeal in the case of the Duke of Gordon upon the merits of the question, with regard to the force of the clan act, has not the most distant rela­ tion to either of them. c mMHM is as little weight in the other argument made use of for staying proceedings in this question till next summer session, namely, the view of the crown’s transacting with subject superi- ors. With great submission, what- is said upon this head is rather an argument for hastening proceedings, than delaying them; because, supposing there is a view of transacting with subject su- periors betwixt and next summer session, nothing surely more im- ports the memorialist, as well as the crown, than to have it im­ mediately mediately settled, whether his claim is well founded or not, that it may be known whether he stands in a proper predicament to be transacted with. 3 E l w with very great deference, the memorialist apprehends that all this argument about the crown’s translating with sub- ject superiors bears no relation at all to the present case of the claimant. It is true, that by the act, George II. cap. 41, commonly called the annexing act, the estates of Perth, Lovat, Cromarty, and certain others, all in the Highlands, therein mentioned, were, for particular purposes of civilizing that part of the country, annex­ ed to the crown unalienably, and the King is impowered to com­ pound with the subject superiors of these estates concerning the claims to the property thereof, and also to agree with them for the purchase of the Superiority. But the Lord Ordinary will observe, the estate of Graden was none of these estates: It does not lie in the Highlands; it was not annexed. The statute does not impower his Majest y to compound for the superiority thereof; and, in Short, it neither falls within the words nor the intention of the annexing act: So that any tran­ sactions, with regard to the Superiority of this estate, is a matter merely voluntary, and at no rate can he made a pretence for de­ laying the settlement of any one question in the memorialist’s claim. As to any disagreeable consequenccs that may happen to the memorialist by the decision of this queftion, he is really at a loss to perceive what these can be: And whether matters have, or have not been strained hard with him, or whether he has been impatient, the court will best judge from the narrative that has been given of the proceedings in the cause. In respect whereof, &c. J O H N SW INTON. The Cause called. [■: 13th January 1 767. The Lord Ordinary makes avisandum to the Lords with the mutual memorials, without prejudice to the lawyers for the Crown seeing the within memorial till Thurs day. JA. V E I T C H.