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Scottish Court of Session Decisions >>
Gordon v The Wadsetter of the Lands of Barscob. [1680] Mor 4722 (15 December 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor1104722-053.html Cite as:
[1680] Mor 4722
Forfeiture of a Sub-vassal. - Effect of Rebellion. - Misnomer.
Gordon v. The Wadsetter of the Lands of Barscob
Date: 15 December 1680 Case No. No 53.
Forfeiture in absence by the Justices being ratified in Parliament, found effectual without declarator. See No 50 p. 4719.
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Gordon of Troquhen being donatar to the forfaulture of the Laird of Barscob, pursues a wadsetter of the rebels to remove, and for mails and duties, who alleged no process, because the forfaulture was not declared via ordinaria et de communi consuetudine; all forfaultures being done by the justices, and not by the Parliament, must be declared, and this forfaulture was by the justices in absence, and was the first that was ever so sustained; and albeit there be an act of Parliament ratifying the same, yet it must be salvo jure, and doth only bear, “That these forfaultures by the justices in absence against the rebels, in anno 1666, shall be as valid by the justices as if the rebel had been present;” but, though they had been forfault by the justices when present, they needed a declarator. It was answered, That this act being a general law, and printed and published as such, and not upon the motion of any private person, it falls not under the act salvo; and this act bears not only, “That these forfaultures, whereof this is exprest as one, shall be as valid as if the forfault person had appeared before the justices,” but bears also, “That it shall be as valid as if the forfaulture had been in Parliament.”
In respect whereof the Lords sustained process without declarator.
Stair, v. 2. p. 816.*** Fountainhall reports the same case:
In the case of Roger Gordon of Troquhen against Cannon, it was alleged, That the gift of forfeiture produced by him as his active title was not sufficient for mails and duties, unless it were declared by a decreet of general declarator; seeing it was only a decreet of forfeiture pronounced in the justice court, and not in Parliament. Answered, The doom of forfeiture is ratified ex post facto in Parliament by the act 1669. Replied, The design of that act was to give the justices power to forfeit in absence, and not to dispense with the other formalities. ‘The Lords found it needed no general declarator.’
