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Lady Mary Bruce against Sir Alexander Bruce of Broomhall
Mr Alexander MacLeod for Lady Mary resumed the grounds of her petition, and added that as the creation of such dignities was a feudal right in the person of acquirers and therefore regularly not to be derived to any other than the descendents of the first vassal, which Sir Alexander in the present case cannot pretend to be, so the dignity of the earldom of Kincardine, having been resigned by Lady Mary's father in favour of himself and his heirs of tailzie, contained in the signature under the king's hand granted thereof, which though never fully issued through the seals, yet did effectually innovate and alter the first gift in favour of the male heir. Secondly, the resignation of the last earl in Lady Mary's favour, though it cannot give her that dignity until her majesty shall think fit to confer the same upon her, yet it was sufficient to deprive the resigner and his other heirs of all pretence to that dignity, as was most solemnly decided on 11 July 1633 in his majesty King Charles I's presence, who was then the fountain of honour in the case of [Laurence Oliphant], lord Oliphant's resignation in favour of his male heir. And thirdly, it's plain that dignities as they are not in exchange, so they require no service to transmit them, and therefore require the less solemnity for depriving the dignified person, so that there can be no more requisite in this case than the disposition and resignation founded upon by Lady Mary and whereupon the lady and her husband have intended a process of declaration of her right, which is now depending before the lords of council and session.
Sir Walter Pringle for Sir Alexander Bruce alleged that the signature in favour of the heirs of tailzie did not alter but rather confirm the destination and right of the male heirs, seeing the first heirs therein are the male heirs, but, secondly, as to that signature, it was a relinquished paper and the titles pretended to be thereby conferred were actually bestowed, particularly the title of Forth bestowed on the earl of Melfort†. Thirdly, the resignation designed thereafter by the petitioner's brother having never been made or issued, it could not deprive that earl in prejudice of his male heir, which is indeed the point in question, and it's notorious that earl did actually sit and vote in parliament after that procuratory in favour of his sister. Fourthly, the act of parliament continuing the validity of procuratories and precepts after the granter's death cannot concern dignities, that act bearing expressly to be for obviating the circle and expenses of the legal remedy, namely: adjudication, which was not imaginable in the case of dignities, which could not nor can be adjudged. And as to the decision alleged on, it is rather an agreement than a legal decision, seeing both parties had new patents given them and cannot therefore be considered as a legal precedent for deciding after cases of a similar nature.
MacLeod replied there are several peers whose rights to their dignities are founded on resignations made after the resigner's death, which could not subsist in law unless the procuratories deprived the granters. And as for the decision, it is a plain legal determination of the right of the parties, and observed and transmitted from that time to us as the fairest precedent in any such case, and therefore of very just weight in all such cases that can occur afterward.
Sir Francis Grant for Sir Alexander duplied that as the declaration concerning this dignity depends before the lords of session, so there are sufficient grounds to annul the pretended procuratory, whereof he now insisted on this: that it was a 'not having possession', the granter being in so far as concerns that dignity interdicted in favour of the sovereign that he could not deprive himself without the sovereign's consent. Secondly, the sovereign, the other peers, the party and the parliament having such interest in the conveyance of such a dignity, unless it had been completed in a fit way by the party and the sovereign, it is impossible it can take any effect whatever, much less so deprive the male heir as to turn him out of the possession of such a dignity without a formal process for taking away his right. And, thirdly, as to the decision cited, the case does not correspond with this, for by a contract with the father of the pursuer of that process, the defender alleged the honour was conveyed and the lords found the pursuer could not quarrel the father's deed, she being liable to warrant it as representing him on the passive titles, which otherwise they had never done, but undoubtedly had found the subject not to be an exchange, and reduced. And therefore this case, being of the highest importance, ought not to be regulated by that decision, especially when it is already depending before the judge competent, and will undoubtedly be determined there by the known and fixed principles of law.
Her majesty's high commissioner and the estates of parliament, having advised the debate, they admit Sir Alexander Bruce to his seat and vote in parliament as earl of Kincardine, reserving Lady Mary's right and declarator as appropriate.
[James Ogilvy, earl of] Seafield, chancellor, in the presence of the lords of parliament