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Scot of Vogrie and his Assignee v Sir Duncan Campbell and the Earl of Balcarras. [1692] 4 Brn 14 (2 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040014-0030.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Scot of Vogrie and his Assignee v. Sir Duncan Campbell and the Earl of Balcarras
Date: 2 December 1692
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Scot of Vogrie, and his assignee, charging Sir Duncan Campbell of Auchinbreck, and the Earl of Balcarras, his cautioner, for a sum contained in their bond; they suspended, that by the act rescissory of fines and forfeitures in 1690, Auchinbreck having been forfeited, had the privilege of the remit to the committee of Parliament there named, how many years annual-rent they would give him down, and how long they would stop execution, either personal or real. And they not having yet determined, the Lords could not proceed.
Answered,—They were content on payment to find him Cautionem Mutianam, that if the commission of Parliament should give down either of principal or annual-rent, they should refund accordingly; but that it was most iniquitous on that pretext, which might never take effect, to keep up both the principal and annual-rents that were owing between the forfeiture and the restitution.
The Lords would not meddle; but finding the act of Parliament run copulatively, that they behoved not only to be forfeited persons who sought the benefit of that clause, but also dispossessed of their effects; therefore, they ordained it to be tried how long he was out of possession; but in regard a forfeited person is presumed also dispossessed, therefore, they burdened the pursuer to prove, that either he, or some for his behoof, possessed for these years. See a parallel case in Stair, 24th June 1664, Duke of Hamilton; even as now the Lords, in such cases, supersede to give answer till the time to which the present current Parliament is adjourned. For to supersede indefinitely, till the Parliament or commission should sit, were hard to delay sine die.
