[1661/1/219]*[print] [email] [cite] [preceding] [following]
Anent the supplication given in to the honourable commissioners of parliament appointed for bills by James, earl of Southesk and Robert, lord Burleigh, for themselves and in name and behalf of the noblemen, gentlemen and others bound in the bond underwritten, against the commissioners of parliament for the shire of Fife as representing the said shire, showing that the estates of parliament for the time by their act in the year 1645, taking to their consideration that the commissioners for the shires and burghs there present had undertaken the advancement and payment for their proportional parts of the first month's maintenance for the army for the shires and burghs, therefore, the said estates did assign the commissioners of shires and burghs, and such noblemen and gentlemen as were bound with them, the first month's proportion of the maintenance appointed to be paid for the month of March thereafter 1645, to be uplifted and taken from the shires and burghs proportionally for their relief. Likewise the said estates of parliament declared that the said commissioners and those who bound for them should have annualrent for the monies advanced by them of the shires and burghs from the time of the advance until the repayment thereof, and the supplicants and certain other persons having borrowed from the deceased Sir Thomas Nicolson of Carnock the sum of £6,614 Scots money being the foresaid month's maintenance did pay the same, conforming to the said act, to Archibald Sydserf, then commissary depute, conforming to a declaration given under his hand thereupon, and which sum was accounted for in the general commissary's accounts. Likewise the foresaid month's maintenance being March 1645 was collected from the said shire of Fife and intromitted with by Alexander Inglis, their collector, to the end the said noblemen and gentlemen advancers of the said sum might be relieved thereof, but the committee of war of the shire of Fife, having ordained the said sum so collected to be sent to the army and, therefore, seeing the said advancers were so frustrated of their relief, they and their collectors having intended action against the heritors and others of the said shire of Fife before the commissioners for administration of justice upon 17 July 1658, obtained decreet thereupon decreeing and ordaining them, and also the liferenters and others due for the cess and maintenance within the said shire, to make payment to them of the said sum of £6,642 with the annualrent thereof continually since the borrowing of the said sum from the said Sir Thomas Nicolson and in time coming, until the repayment thereof, and for that effect to convene and stent themselves therein and in 1,400 merks decreed against them mentioned in the said bond, as the said decreet bears. In obedience whereof, the said shire having met and having taken consideration of the said debt principal and annualrent extending in March 1659 to the sum of 18,400 merks money foresaid, and considering that there was resting of deficiency in the hands of several noblemen and gentlemen of the shire the sum of 10,000 merks of the seventeen months' maintenance collected by the said Alexander Inglis in the year 1645, therefore, the said meeting did appoint the same to be uplifted and paid to the advancers of the said sum in part payment of the sums decreed to them according to size, and as for the remainder thereof being 8,400 merks, the said meeting appointed the same to be employed upon and levied with the cess of the months of April, May and June 1659 and, being so collected, to be paid for the relief foresaid of the said advancers as an act thereupon furth of the committee books of the said shire, dated 28 April 1659, bears. And seeing the said shire cannot now agree amongst themselves anent the imposing and proportioning of the said sum of 18,400 merks, in respect it was not collected with the three months' cess above-written because of the sickness of the collector at that time, and that there are no commissioners of cess who might do the same, and therefore, craving that the said commissioners for the shire of Fife presently attending the parliament might be decreed to impose, levy and proportion the said sum of 18,400 merks upon the said shire of Fife with two years' bygone annualrent thereof and, being so imposed and proportioned, that the heritors and others within the said shire subject in payment thereof may be declared liable and decreed to make payment of the same to the supplicants for themselves and in name and behalf foresaid, as at more length is contained in the said supplication. Which supplication, being read in the presence of the commissioners appointed for bills, and the said supplicants compearing personally who, for verifying of the said libel or petition produced in their presence, the foresaid decreet and act of the said shire of Fife of the dates, tenors and contents respectively above-written and Sir Alexander Gibson of Durie and Sir William Scott of Ardross, commissioners of parliament for the said shire of Fife, compearing personally, desiring that Robert Hay, writer in Edinburgh, might see the foresaid bill and instructions thereof who, having seen the same and he and they being fully heard thereupon, who alleged nothing which was sustained except the desiring that the money might be proportioned conforming to the former act of the shire and that the deficients might be ordained to pay their dues in the first place, and the remainder might be laid on equally amongst the heritors by such as the parliament should appoint. Which petition, with the decreet and act foresaid produced for the pursuers for the instructing thereof, with what was alleged by the said Robert Hay in name of the commissioners aforesaid, with the report of the said commissioners of parliament appointed for bills thereupon, to whom the said matter was referred, being all heard, seen and considered by the said estates of parliament, his majesty, with advice and consent of the said estates of parliament, has ordained and ordains the noblemen, gentlemen, heritors, liferenters and others liable in payment of cess within the said shire of Fife to content and pay to the said pursuers, or any whom they shall appoint, the said sum of 10,000 merks of rests and deficients in manner foresaid, each of them for their own parts in so far as they are due thereof and deficient therein, with two years' annualrent thereof, after the form and tenor of the foresaid decreet and act of the committee of the said shire in all points, and further decrees and ordains the said commissioners of parliament for the said shire of Fife and also Sir John Aytoun of that ilk, Sir John Wemyss of Bogie, Sir Henry Wardlaw of Pitreavie, James Arnott of Fernie, Sir Thomas Gourlay of Kincraig, Mr David Wemyss of Balfarg and Sir David Auchmuty of that ilk, as intelligent gentlemen and interested persons in the said shire of Fife or any three of them, one of the said commissioners of parliament being always one, to proportion the said sum of 8,400 merks as the remainder of the said sum of 18,400 merks, or so much thereof more or less as shall be found not to be satisfied and paid by the dues and deficients above-written of the said shire, to whom, or any three of them, as said is, our said sovereign lord, with consent foresaid, gives power and commission for that effect, and being so proportioned by them or any three of them, as said is, decrees and ordains all and sundry the heritors, feuars, liferenters and others liable in cess within the said shire to make payment to the said pursuers, or such person or persons whom they shall appoint, of such parts and portions of the said sum of 8,400 merks as shall not be satisfied and paid by the dues and deficiencies above-written, with two years' annualrent of the same, each of them for their own parts thereof, conforming to the stent roll and proportion to be made by the forenamed persons or any three of them commissioners for that effect in all points, and ordains letters etc.
[1661/1/220]*[print] [email] [cite] [preceding] [following]
Anent the supplication given in to his majesty's commissioner his grace and estates of parliament by James, marquis of Montrose etc. against Archibald, marquis of Argyll etc. mentioning that the supplicant's father James, then earl, thereafter marquis of Montrose, having out of his duty and allegiance to his sovereign lord and master the late king's majesty, of ever glorious memory, deserted and relinquished the pretended estates of Scotland who had invaded his majesty's authority and prerogative royal, the said pretended estates (as a punishment for his foresaid loyalty which they then accounted a crime, and for disabling him to prosecute any of his majesty's royal commands within this kingdom) did upon and by an act of the parliament upon the [8th] day of [March] 1645 declare all his whole lands and estate to have fallen in the estates' hands and, thereafter, by another act of 24 March 1645 they empowered the marquis of Argyll to intromit with the rents of Mugdock as a part of his estate, extending yearly to £7,266 Scots, which he did accordingly, nominating chamberlains therein and exacting the rents thereof, not only from the date of his former commission, but of all the rests (which was almost all the rent) lying unpaid since the year 1641, until the year of God 1647, at which time the said pretended estates did sell and convey a part of the said lands and others to the marquis of Argyll, his heirs and successors, heritably and irredeemably, extending in yearly rent to the sum of £4,200 money foresaid and, by virtue whereof, the said marquis of Argyll continued in possession of the said lands and others until the year 1655, at which time the supplicant, destitute of a house wherein to live, and aggrieved that his ancient inheritance should be possessed by strangers, was necessitated to relieve and redeem his said lands from the said marquis by the payment of £50,000 at the term of Whitsunday [25 May] 1656 as the rights made to him at that time by the said marquis of Argyll would evidence. And now, albeit the said marquis could not but be convinced that his title and possession formerly was unjust, and has likewise been informed that his majesty's commissioner and the honourable court of parliament, by their act the [8th] day of February last, had declared the forfeiture of the supplicant's father, together with all acts that followed thereupon or had relation thereto (whereof the acts foresaid were a part), to have been from the beginning and to be in all time coming void, null and of no effect, yet the said marquis did obstinately and unjustly refuse to refund to the supplicant the duties of the foresaid lands intromitted with by him, as said is, extending to the value of £32,664 3s 4d Scots money foresaid, and to repay the said £50,000 received by him as the price of the said lands; therefore, craving that warrant might be granted to messengers at arms or macers to cite the said marquis of Argyll to compear before the said estates of parliament to hear and see himself decreed to restore and pay to the supplicant all the foresaid duties intromitted with by him, as said is, together with the price of the said lands and interest both of the rents of the said lands and price thereof aforesaid. And seeing it would be necessary for clearing his said intromission that James Stirling, who was his chamberlain for those years, produce in judgement his subscribed accounts fitted between him and the said marquis, that, therefore, order likewise might be given to cite the said James Stirling to produce his accounts judicially before the said estates of parliament, as the said supplication at more length bears.
The said James, marquis of Montrose compearing with Mr George MacKenzie, his procurator, who, for instructing of his supplication, produced a disposition of the date 17 August 1647 granted by the committee of estates to the said marquis of Argyll, defender, whereby the said committee of estates (for payment to the said marquis of Argyll of the sum of £135,000 Scots money due by the public to him and for several other causes and considerations contained therein) sold, transferred and conveyed to the said marquis of Argyll, his male heirs, successors and assignees whatsoever, the lands of Mugdock and Mugdockmitchell, with the parts and pertinents thereof, with several other lands particularly named and bounded in the said disposition, as the same of the date foresaid containing several clauses at more length bears; together with a disposition granted by the said marquis of Argyll, with advice and consent of Lord Neil Campbell, his second lawful son, of the date 20 December 1655 and 8 January 1656, whereby the said marquis of Argyll, with consent foresaid (for the sum of [---] money foresaid paid by the said marquis of Montrose to the said marquis of Argyll) sold and conveyed to the said marquis of Montrose, his male heirs and assignees whatsoever, all and sundry the said lands of Mugdock and Mugdockmitchell, and whole other lands and teinds contained in the former disposition granted by the committee of estates to the said marquis of Argyll, as the same of the date foresaid at more length purports; and together likewise with an act of parliament dated 9 January last whereby the king's majesty, with advice and consent of his estates of parliament, rescinds, retreats and annuls all and whatsoever sentences of forfeiture given against the said deceased lord marquis of Montrose and his adherents in the year 1645, as the same bears. And the said marquis of Argyll, defender, compearing with Messrs George Norval and John Cunningham, his procurators, the said estates of parliament, having considered the said supplication with the writs above-written produced for the said marquis of Montrose, together with the defender's replies and duplies given in for either party in writing in manner underwritten, together also with the several reports given in by the lords and other commissioners appointed for trade and bills in manner after-specified and they therewith, being well and ripely advised, his majesty, with advice and consent of the said estates of parliament, decrees and ordains the said Archibald, marquis of Argyll, defender, to make payment to the said James, marquis of Montrose, supplicant, of the sum of £32,664 3s 4d, as the said defender's intromission with the rents of the lands above-written during the years above-specified, with the sum of £50,000 money above-written as the price the defender received for the same lands from the supplicant, together with the annualrent of the said £50,000 since the time it was paid, or the said defender received annualrent therefore namely, from the term of Whitsunday [3 June] 1655 being the term from which the said defender received annualrent of the same sum, because it was alleged for the said defender that the matter and subject of the bill being merely civil for payment of a debt upon a civil compromise the complaint ought to be remitted to the ordinary judicatories established within the kingdom, and the supreme court not to be troubled therewith conforming to the express laws and acts of parliament unrepealed. 2. There could be no process upon the said bill because the writs which are the pursuer's titles are not produced nor shown to the defender, namely the act of the estates in the year 1645 declaring the lands and estate pertaining to the pursuer's father to have fallen in their hands, the alleged commission and power mentioned in the bill made and granted by the estates to the defender for meddling with the rents, and whereupon the said bill is founded and, by all legal procedure, the same ought before everything at the outset of the lawsuit to be produced and shown to the defender. 3. That there could be no process for the mails and duties of the lands mentioned in the bill (in no way granting the years, quantities nor prices therein or the truth thereof) preceding the death of the marquis of Montrose because there is no active title produced in the pursuer's person to the said mails and duties, namely no title of executory to his deceased father which is the only active title whereby he can crave the same and, as to the quantities of the duties preceding 1647 allegedly intromitted with by the said marquis of Argyll resting almost since 1641, the same is not relevant unless it were made special. 4. No process (in no way granting, as said is) for the mails and duties after the death of the said marquis of Montrose until the year of God 1655 because there is no active title produced in the pursuer's person thereto, neither an infeftment as heir to his father nor any other title, albeit the act of restitution libelled upon declares that he might be served heir to his father, yet until he be actually served and seised he has no title actually in his person, and eldest son to his father is not a legal title. 5. The pursuer could not be heard to seek the mails and duties of the said lands nor quarrel his right thereto because he has acknowledged the same in so far as he has accepted from the defender a disposition to the said right and is infeft thereupon, whereupon he had bruiked and possessed the said estate ever since the year 1655 and so could not quarrel his author's right. 6. The bill so far as the same is libelled upon the act rescissory is not relevant to infer payment to the pursuer of the duties of the lands acclaimed because acts rescissory of their own nature are impediments of right but are not positive titles or rights. 7. The same bill in so far as it is founded upon the act rescissory is in no way relevant to infer that member of the conclusion for payment of the mails and duties preceding the year 1655 (in no way granting, as said is), because by act of parliament James VI, parliament 8th, chapter 135 it is statute and ordained that where any forfeited person or their posterity shall be restored at any time thereafter it should only be granted to them by way of grace. Likewise, by the fourth act of King James VI, parliament 18th, it is statute and ordained that the gracious restitution of forfeited persons shall not prejudge the rights granted to third persons upon the forfeiture, but the same shall remain perpetually with the receivers notwithstanding of the restitution to be obtained by the forfeited persons or their heirs and successors, and so it is that the said act of restitution is by way of grace, not by way of process of reduction of the forfeiture after hearing of all parties having interest and, therefore, it could not prejudge the right granted to any person, especially to the defender, for albeit that restitution may be extended for rehabilitation of persons restored, or that thereby the right might be granted of any right unconveyed, yet it is clear by the foresaid act that it cannot be extended to any other effect, specially to the right acquired by a third party, which is also clear in law and reason, whereas jus cuique quaesitum nemini potest adimi† and therefore all such particular acts made in favour of any other parties without hearing of parties interested, are understood without violating the law, without prejudice of parties interested who had interest, seeing the same is done without calling or hearing of them and this is also clear by the last act of parliament 1633 salvo jure otherwise parties' rights might be taken from them without hearing and the lieges could have no security as to their property. 8. The defender ought to be absolved from the mails and duties of the lands in no way granting, as said is, because of the law that a possessor once with title causes the fruits by their boundaries and consumption and the beginning of a contract to be applied, but so it is that the defender possessed by virtue of a title: 1. as to the mails and duties preceding 1647 by commission and warrant from the estates of parliament to intromit therewith, as is acknowledged by bill and was discharged of his intromission therewith by the committee of estates in August 1647 produced by the pursuer, and that in payment of bygone annualrents due to him by the estates, which was scarcely paid to him by the said intromission, as the said disposition by the committee of estates to him in itself bears, and any intromission he had with the mails and duties thereafter (in no way granting as aforesaid) until the year of God 1655 was by virtue of a disposition and infeftment of the said lands, granted to him by the said committee of estates, for most onerous causes and being in satisfaction of a part of great sums of money due to him by the said estates, which is evident by the said disposition and, therefore, the marquis possessing by a title and for so onerous a cause cannot be accountable for the mails and duties, as said is. 9. It is alleged (in no way granting, as said is) that the disposition and infeftments are ratified by an act of ratification in the parliament of 1649 produced by the pursuer, the acts of which parliament were ratified by his majesty at the treaty in Breda, and the acts of ratification of the said treaty in the parliaments at Perth and Stirling in the years 1650 and 1651 and, therefore, the rights whereby the defender might have uplifted the mails and duties ratified in manner foresaid in law ought to maintain him so that he cannot be compelled to refund what he had uplifted by virtue thereof, paying especial attention to this: that he acquired not the same by donation but for most onerous causes, as said is. 10. The defender cannot be decreed (in no way granting, as said is) to pay the interest of the rents of the said lands because, by the law of this kingdom, annualrents are not due unless by agreement or after horning, and to exact annualrents for rents of lands it is humbly conceived to be an unheard of usury. 11. The defender could not be decreed upon the act rescissory libelled (in no way granting the price) to repay the price of the lands because, albeit the act rescissory bearing the rescinding of whatsoever sentence of forfeiture against the late marquis of Montrose, or any acts or interlocutors, or sentences of parliament, committee or other judicatories relating thereto, yet it in no way bears nor can be extended to the restitution of the pursuer against the voluntary contracts and deeds which he did fully knowing and sensible, but so it is that such was the bargain of the lands of Mugdock being a free, voluntary and perfect emption and vendition, of the which therefore the price could never be repeated, paying special attention to this: that the pursuer not only accepted a right thereof but passed an infeftment and possessed the same by virtue thereof continually since, in respect whereof the defender ought to be absolved from the said bill and whole members thereof, and if the pursuer is damnified by the estates he might seek redress from them but by no law nor reason could the pursuer come back upon the defender, either for bygones or price acclaimed for the reasons aforesaid. Thereafter the defender protested that he might add to or reform his defences seeing the pursuer had not yet produced the writs whereupon the bill is founded, and likewise protested that if James Stirling should appear in the cause and produce either defences or writs that he might have sight and inspection thereof and a competent time to answer thereto.
To which it was replied for the said pursuer. 1. To the first allegation that the said bill is merely civil etc., that the high court of parliament contains in it all the jurisdictions of the nation and the decreet of forfeiture and what had followed thereupon, not being reducible before an inferior court, the same falls not only naturally but necessarily under the cognizance of the parliament, and seeing the parliament had sustained processes far more civil it is hoped they would not deny this common favour to the marquis of Montrose. And to the second allegation, bearing the act of forfeiture in the year 1645 not to be produced, it was replied that the defender who did persecute the late marquis so upon that act of forfeiture is in bad faith to allege this, and it not being the pursuer's evidence it could not be presumed to be in his hands, neither could he be obliged to produce it. As also to evince that there was such a forfeiture, it is sufficient that it is recorded amongst the unprinted acts of the parliament that year, and to the other branch of that allegation, wherein no process is alleged until the commission granted by the committee to the defender is produced, it is replied that the said commission, being Argyll's own evidence, the pursuer could not produce it, neither was it required to be produced by the defender. To the third and fourth allegations, wherein the defect of an active title in the pursuer's person is quarrelled etc., it was replied that the pursuer's father, being forfeited, none could become heir or executor to him and, consequently, no parliament having sat until now wherein the defender might be restored, his not being either heir or executor is not his fault, but ought rather to be charged upon the defender who was an eminent and active member in the parliament wherein the pursuer's father was forfeited. And as to the price he might pursue for the same in his own name in respect the right granted to him by the defender is rescinded, so that at least he should have the price refunded to him seeing he could not bruik the lands made over to him by virtue of the right granted by the said defender, the same being rescinded, as said is. As to the bygones before his father's death, the pursuer has a sufficient title to pursue thereof without finding any caution, and as to the duties since that time he is content to warrant Argyll at all hands and, if need were, he is content that execution is superseded until he is served heir to his father or otherwise have a valid right established in his person, and in the meantime the pursuer craved that the parliament would declare the right. To the 5th assertion it was replied that the same should be answered in the answer to the eleventh, and to the 6th allegation that the act rescissory whereon this bill is founded can be of no ground of a positive right etc., it was replied that the pursuer's predecessors had positive rights standing in their persons before the said act of forfeiture which, being enervated and impeded by the said forfeiture, this act rescissory is not desired to give a positive right but to make the former positive rights be recovered. To the 7th, wherein it is alleged that by the act 135, parliament 8th, James VI all restitutions of forfeitures should be by way of grace etc., it was replied that this restitution is granted by way of justice and not by way of grace, because by the act rescissory the same is declared to have been null from the beginning and, consequently, seeing the forfeiture is declared to have been unjust from the commencement, it cannot fall within the compass of this act of parliament, and the reasons why all restitutions of old were ordained to be by way of grace was because the estates were never so presumptuous as to forfeit any person for adhering to his majesty's service and, consequently, the 4th act, 18th parliament, James VI cited in the assertion, whereby rights made to third persons retain their former vigour notwithstanding of any gracious restitution, this act strikes not against this present pursuit seeing we are not heir in the case of a gracious restitution; and whereas it is inferred by the said allegation that the restitution of this present marquis of Montrose most be accounted a restitution by way of grace because parties concerned were not called and consequently a third party could not be prejudged quia nemini debet addimi jus sibi quisitum,† to this is replied that the present parliament did esteem the said forfeiture so unjust that they did rescind the same without calling of any party, and so this proves rather that the said restitution was by way of justice, and if any had been called it behoved to have been his majesty's officers of state, as is ordinary in reductions of all forfeitures, but so it is that neither the parliament nor they thought fit that any should be called to defend the forfeiture of such an eminent subject, and which was laid against him for doing his majesty's service. As also the nullity and injustice of the said decreet was notorious, and in notorious things there is no need of any formalities whatsoever, neither is there any right taken away here from the defender seeing the said decreet being so unjust could furnish him no right. And to the eighth assertion wherein it is contended that absolvitor should be granted from the bygone mails and duties because they are used up in good faith, it was replied that the defender could not pretend to be in good faith possessor, his rights being reduced from the outset upon grounds of manifest iniquity and injustice whereof he himself was a great part and most instrumental. To the ninth allegation, that the disposition and infeftments are ratified in the parliament of 1649, the acts of which parliament are ratified at Breda etc., it was replied that these ratifications are not shown and, though they were they could only indemnify those who were accessory to the transactions of the time, but do not prejudge parties aggrieved of their lawful remedies, and the ratification of such proceedings cannot import more than if his majesty had been sitting in parliament for the time. In such case both parties aggrieved by unjust sentences may reduce and crave to be restored against the same. To the tenth assertion, wherein it is alleged that annualrents cannot be sought nor are not due unless by agreement or after horning etc., it was replied that in diverse cases annualrent is due as damnum et interest, and non solum ex pacto sed mora and multo magis ex dolo,† as was found in Mr Robert Hodge's case when pursued by the gentlemen of Lothian, and in a pursuit between [Sir Archibald Stirling of] Garden and the Lord [Balfour of] Burleigh, and in effect annualrent is not craved here as usury but the sums acclaimed are craved to be refunded with all cause, and seeing in spuilzies excess profits are granted why should not ordinary profits much more be granted in these cases of oppression. To the eleventh, wherein absolvitor is craved because the marquis of Montrose, pursuer, being in full knowledge and sound mind, did by a free and voluntary emption and vendition pay £50,000 for the lands of Mugdock, and so acknowledged the pursuer's† just right, against which private contract he neither is nor can be restored by the act rescissory, it was replied that the pursuer, being destitute of a house, and all other means of livelihood being taken from him by the said unjust sentence against his father, he was forced to redeem the said part of his ancient inheritance so that the said bargain was not voluntary but an act of necessity, and cannot hinder him that by force and necessity being removed to recover his own, and the marquis of Argyll is in no worse case than if he were still possessor of the said lands, in which case he would be liable to restore the same and the profits, the forfeiture being rescinded from the outset, and now he is only desired to restore the value and price which he has got for the same, and he ought to be upon that account in no better case that Montrose, upon the reason foresaid, was forced to take from him a right of his own lands for the time, and they are both in the same case as if a person excepted by the act of grace had taken from an Englishman who had a donative of his estate and tack of the same for payment of a great duty equivalent to the value thereof for many years yet to run, in which case it could not now be pretended that the Englishman has right, or the heritor is liable to the said duty, because he was forced to make a transaction and take the said tack for the time. The pursuer is not pursuing warrandice but only is craving that he should have the damage and interest sustained by him through the defender's meddling with and disposing upon his estate, and does not import whether the same is transferred to himself or any other, it being all one as to his interest, and as if Argyll had made over the said part of Montrose's estate to a third person, Montrose would have had it in his option either to pursue a real action against the possessor for recovery of his lands or a personal action against Argyll for meddling unjustly with and disposing upon the same and, for refunding the price, he had the same action against him for repetition of the price paid by himself. And whereas it is alleged that no mention is made in the act rescissory of this late bargain, it was replied that the act rescissory annuls the forfeiture together with all that followed thereupon, but so it is that the said bargain followed thereupon and the marquis of Montrose had never been necessitated to buy his own land if it had not been taken from him by the foresaid unjust forfeiture. And seeing the defender in his defences confesses that the beginning of every contract should be principally respected, why should not likewise this vendition be declared null seeing that which gave it first being and was the beginning of all these forced transactions was a null decreet of forfeiture.
Whereunto it was duplied for the defender that the first allegation stands relevant, notwithstanding of the reply above-written made thereto, for this being a private civil action for payment of money, there being acts of parliament standing ordaining private, civil actions to be remitted and these acts of parliament are unrepealed, it lies a necessity in judgement (which even before the parliament is regulated by law so long as they stand) to remit until these acts of parliament shall be repealed for all jurisdiction presupposes the right of the constitution, and in all lawful rule which is not arbitrary, law is given and jurisdiction is exercised according to standing law and, therefore, in justice the said process, being a civil particular action, it ought to be remitted to the judge ordinary to examine upon and judge the same, especially the pursuer adducing no title to infer the conclusion of the summons, neither to prove that he is infeft or that he is heir or executor to his father, as is after alleged. And whereas it is replied that the pursuer cannot be compelled to produce the forfeiture seeing it is not the pursuer's evidence etc., it was duplied that the allegation stands relevant notwithstanding of the reply because these writs are libelled as a part of the pursuer's title and, being a part of his title, whether it be the pursuer's own evidence or not, the pursuer ought to come instructed and, without production thereof, there could be no process, and albeit recorded among the unprinted acts, the defender craves that he might produce the same for being produced it might bear therein such a clause as might secure the defender against this pursuit and, therefore, until these two writs mentioned in the said second assertion are produced the pursuer could have no process. Whereas it is replied to the third and fourth defences that the pursuer, being only restored in this parliament, could not be heir or executor served to his father in so short a space, and so it was not the pursuer's fault etc., it was duplied that the third and fourth defences were only anent the bygones preceding the pursuer's father's death, and the rents since his death, which defences stand relevant notwithstanding of the reply because none could claim right to duties of lands but he who should show right in his person thereto; and offer of caution was not relevant nor was it by the law and practice of this nation ever heard that where there was no shadow of an active title that action should be sustained upon an offer of caution. And seeing the pursuer had not as yet a right in his person, the defender craved that the process might be remitted to the judge ordinary and the pursuer might make up a title in the meantime as he would be served. And whereas it was replied that the pursuer might claim the price in his own name, it was duplied that the same meets not the assertion being only for the bygone mails and duties before the alleged sale, but shall be answered in the duply to the eleventh article. And to the fifth reply, bearing that the same shall be answered in his reply to the eleventh, the defender therefore repeated his duply to the eleventh. And whereas it is replied in the sixth reply to the sixth defence, that the pursuer's predecessors had positive rights standing in their persons before the forfeiture, and by removing of the forfeiture they recover, it was duplied first, that the pursuer could not clothe himself with his predecessor's rights against the defender's, because he had acknowledged the defender's right in manner mentioned in the said defence and, therefore, notwithstanding of the reply, the allegation stands relevant. And until the pursuer makes up and establishes that right in his person, in law nor reason he cannot have place to pursue, as has been duplied to the fourth reply. And to the seventh reply, bearing that the restitution is by way of justice and not by means of grace, because the forfeiture is declared null from the beginning and granting that all restitutions of old were ordained to be by way of grace, because the estates were never so presumptuous as to forfeit any person for adhering to his majesty's service etc., it was duplied 1. That the defender takes instruments that, conforming to the act of parliament, it is acknowledged, as it cannot be denied, that all restitutions of old were ordained to be by way of grace and where it is alleged that the estates were never so presumptuous to forfeit any persons for adhering to his majesty, that is said freely and the acts are general and standing and where law has not distinguished we ought not to distinguish. And where thereafter it is added that the forfeiture was rescinded as being most unjust without calling of any party, that is a reason of a contrary consequence, for our law knows no rescission of forfeitures by way of justice but by way of reduction wherein parties ought to be called, and common law and reason knows no act by way of justice judicially but by way of action and process wherein parties are called judicium being actus tri´ personarum judicis actoris et rei;† and it is further evident that the said act is only by way of grace and not of justice because it does not so much as proceed upon the examining and finding of the decreet of forfeiture to be unjust, but the cause thereof is only in consideration of the service and merits of the late marquis of Montrose and his family and their actings and sufferings for his majesty and his predecessors, which by all law and opinion of lawyers is a restitution by way of grace, seeing the restitution is in contemplation of merits and services and the act of rescission is opposed to this reply which, as it is clear by the words thereof, and proceeds neither upon the nullity nor injustice of the decreet of forfeiture and has not a word neither of nullity nor injustice thereof, neither in the narrative nor rescissory words, but proceeds merely upon the consideration of the merits and service of the marquis, as said is. And whereas it is said that in notorious matters there needs no formalities and the nullity of the decreet of forfeiture was notorious, it was duplied that calling and hearing of parties is no such formality of process as the law says, is not necessary notorious but is so essentially necessary that, without it all, process and all action whatsoever which can be done thereupon in prejudice of any who is not called nor heard, is in so far as those things null and of no effect, but it is clear by the act, as said is, that it proceeds neither upon the notoriety of the nullity or injustice of the decreet but of mere grace and favour and royal remuneration of service and, therefore, could never prejudge the right of a third party, especially the defender. And repeated and argued his defence founded at length upon the said acts of parliament of James VI, parliament 8th, and 4th act of the 18th parliament [---] and act salvo jure of Charles I, whereunto no answer is made and are in effect unanswerable, and as our law is most clear in this so is common law and doctors that such rescissions or restitutions could not prejudge a third party who has acquired rights before the restitution - Damhaud chapter 82. prax: crimi. num. 85, Gregor Tholos. lib. 36. ca. 21. num. 31. citing several texts for it, and that excellent Doctor Gomez; variar. resol. lib. 3 chapter 13 num. 39 - where he is clear and positive that persons, to whom the estates of persons restored are alienate whether it be a lucrative or weighty title, can never be prejudged of their rights be restitution because they have jus quaesitum per L. Rescripta, Cod. de preci imperat. offer. ibi Nisi forte aliquid quod non cadit† alium et prosit petenti L. quotiens, cod. eod.† and several other texts and doctors which he cites, as Bartoll, Bald, Castrencis, Socimus† and others. Especially when parties have acquired rights to such estates by contract from the prince or the public treasury, as in this case, where the defender has a right from the estates and that for onerous causes and considerable sums of money, wherein they were his debtor, and for which they sell and make over to him the said lands, albeit Gomez holds that in no case can a right acquired by a third party be prejudged by any restitution and says, expressly, that the prince's restitution is to be understood with this tacit condition that it be without prejudice of a third party, and of his right, in so far that from plenitude of power a third party's right cannot be taken from him except there be as much given to him to recompense it, from all which it is clear that by common law, by reason and our very express law founded thereupon, the defence stands relevant notwithstanding of this reply, and the defender's right is in no way prejudged by the said act of rescission of Montrose's forfeiture, otherwise if this should be sustained the parliament is to consider what hazard the whole subjects may be in as to their property if upon such a private act of parliament the defender, having a public right clothed with possession which the pursuer has acknowledged by receiving disposition thereof from him, if this right shall be questioned, being a bargain perfected by all due solemnities, without calling or hearing of the defender, and this might concern many of this nation if the act of restitution or rescission shall take away private parties' rights. The earls of Buccleuch and other noblemen and gentlemen who received rights by the forfeiture of the earls of Bothwell and Gowrie, beside many other persons who had received sums of money by forfeitures, might be heavily prejudiced and, seeing this might concern so many in this nation, it is hoped that the parliament will see that no such preparative passes. And whereas it is replied to the eighth assertion that the defender cannot pretend to be in good faith possessor, his right being reduced for iniquity and injustice as said is etc., it was duplied that the pursuer mistakes the defender's allegation which is against the seeking back of the bygone rents because he possessed the same by virtue of a right and does not adduce good and bad faith, so that the defender, having uplifted any rents (in no way granting, as the allegation bears) by virtue of a right, by no law nor reason in the world can he be obliged to refund, and by our law and practice possessor with title is reputed possessor in good faith and he acquires his fruits, which was never controverted in this kingdom. And where it is replied that the defender's right is now reduced not relieved to make the defender accountable for any bygone duties, for it was never heard by our law and practice that because a party's right after the deed was reduced that ever he was made accountable for any bygone duties during the standing of his right, and at most never further than after the lawsuit was proved or after the intending of the summons of reduction. And whereas it is replied that the ratification of the treaty at Breda and acts of indemnity at Stirling and Perth are not shown etc., it was duplied that the first article of the reply does not meet the defence for the defence is that the defender's rights were ratified by the acts of parliament of 1649, and the acts of that parliament were ratified by his majesty, and the ratification of the defender's right whereupon the defence is founded is no indemnity. And as to the second part of the said reply, that any such act of ratification could not prejudge parties of their lawful remedies to be restored against the same, it was duplied that the defence stands relevant notwithstanding of the answer thereto, because whatever restitution parties might crave even against such acts yet the rights thereby ratified were such titles as possessors by virtue thereof faciunt fructus consumptos suos† being uplifted by them by virtue thereof. And as to the reply to the tenth defence, namely that annualrents are due as harm and interest not only from agreement but delay and much more from trickery, it was duplied first, that giving and in no way granting that it were so, yet it is a very ill consequence that annualrents are due in some cases for harm and interest and therefore due in this case; 2. annualrent was never found due in this country only from delay; 3. nor was it ever found that annualrents were decreed as harm and interest for rents of lands, which is this case, for that were fruits of the fruits indeed, and an unheard of usury. And as to the two practices alleged: 1. they shall be answered when produced not quae non sunt et non apparent, idem juditium† and the defender is confident that, whenever the same shall be produced, it shall be found that any annualrent decided was ob sortem aliquam† but was in no way annualrents for rents. And as for a likeness of a spuilzie, it is a wonder how any can compare the possession of lands by virtue of a standing title, and so acknowledged by the pursuer himself, as said is, to a spuilzie, and it is also strange that annualrents of rents of lands should be called ordinary profits. And whereas in the end of the reply it is called a case of oppression, the defender argues his defences upon his legal right and possession, and is confident that the parliament shall find them most relevant to absolve him from all wrong, much more oppression. And to the eleventh reply, it was duplied first, that the defender's assertion is not faithfully repeated by the pursuer in his reply, because the defender's allegation bears (in no way granting the price libelled) which the pursuer repeats unfaithfully to supply probation, which price the defender in no way acknowledges is his defence. And where it is replied that the pursuer being destitute of a house and other means of livelihood, was therefore forced to redeem his father's inheritance and so the bargain was not a voluntary act but of necessity, it was duplied that the defence stands most relevant notwithstanding of this reply because, there being no force nor violence condescended on, notwithstanding of anything argued in the reply, the bargain was voluntary, and whereas it is replied that the pursuer had not a house etc. in this there is neither force nor act of violence, and if the pursuer were pursuing an action of reduction of the said voluntary bargain from the head of force and fear and should libel a force in so far as he had not a house on his father's ancient estate, that reason so libelled and qualified would have no weight and be altogether irrelevant. And whereas it is alleged that the defender is in no worse case than if he were still possessor of the lands, he grants he is so but he is in a much better, as shall be evinced in the duply to the following parts of this reply, but with all, whereas it is alleged that if he were still possessor of the lands he would be liable to restore, he is formally contrary, for if his right be in no way prejudged by the act rescissory, then, though he were in possession still of the lands, yet could he never be compelled to restore the same, but that his right is not prejudged by that act of rescission or restitution he has fully evinced both from our own express law and common law and reason in his duply to the reply to his seventh defence as above and thereof etc. And whereas it is added that he ought to be in no better case upon that account that the pursuer was forced to take a right from him, he grants indeed if he had forced him to take that right he could be in no better condition thereby, but that neither was nor could be qualified that he was forced, and in that the pursuer made a voluntary bargain with him and gave him the price (in no way acknowledging the quantity) that he would now repeat, puts the defender in such a condition that the pursuer could never come against his own bargain and contract made by him in full knowledge and sensibly as has been unanswerably alleged. And as to the likeness of a tack supposed set to one by an English donator of his estate and set for years yet to run, in which case it is alleged the Englishman would not have right to the tack duty because he was forced to make a transaction for the time, it was duplied that this simile is greatly dissimilar because a tack, it is locatio and so concessio usus rei propter mercedem,† it is the granting of the use of land at a certain time for a tack duty, and usus or use has tractum futuri temporis,† so that the tack duty of each year is for the use of the land for that year and, therefore, giving and not granting that the tacksman being excluded from bruiking the lands by virtue of the tack resoluto jure dantis† by taking away the forfeiture he were not liable in the tack duty, yet the reason is clear, because it is causa data causa non secuta.† The tack duty could not be due for these years because the tacksman could not have the use of the land by virtue thereof, which is the cause of the duty, but in selling of lands in emption the property is conveyed (dominium transfertur)† which has no such tract of future time but is done incontinently in a moment, and so, whatever follow thereafter, it cannot be said that causa non est secuta.† But 2. the simile otherwise does not square being but a tack simply set which carries absolute warrandice, with the disposition made by the defender, which carries warrandice from his own proper fact and deed only, and a tack set to a person and the rescission or restitution of the forfeiture in favour of another. But if the likeness is so made as it may fit, that is of a tack set with warrandice from the setter's fact and deed only, and the very tacksman being heritor, the forfeiture rescinded in his favour, the defender in that case is positive that the tacksman would be obliged to pay the tack duty albeit the setter's right were taken away, not by any deed of the setters but because of the express clause of warrandice, and this is the defender's case for by the disposition accepted by the pursuer, in whose favour the forfeiture is now rescinded, he is obliged to warrant the right for the which he received the price from his own proper fact and deed only, and so could not be convened on any eviction but such as is by his own deed, but so it is that the act of rescission is not his deed. And where it is replied that the pursuer is not pursuing warrandice etc., it was duplied that he was now pursuing the defender expressly against the agreed paction of warrandice whereby it is agreed by him that the defender should be held on no other eviction but his own proper fact and deed, and he is now convening him on an eviction in no way on his deed, as said is, expressly contrary thereto, which he can never be heard to do ratione pacti conventi de evictione† nor as to the price of the lands nor damage and interest etc. And whereas it is replied that if the defender had conveyed Montrose's estate to a third person he would have had his option either to pursue the buyer for recovery of his lands or the defender for the price, it is a begging the question and the defender denies both because of the reasons before adduced, why neither can be prejudged of his right nor could any be to whom he had conveyed it, likewise, the pursuer could never be heard to repeat the price after this voluntary bargain, as said is. And whereas it is added that the act rescissory annuls all that followed on the forfeiture, the act rescissory it is argued does not generally annul all that followed on it, for that were without all example but it neither does nor could annul the pursuer's voluntary bargain and contract, nor could it be heard to come against it, far less could the sentence of forfeiture be thought the beginning of any contract and so not of the contract of vendition, for the beginning of all contracts is the free consent of parties, and they are called a principio voluntatis sed postea necessitatis,† that is from the beginning it is free and voluntary to parties of their own free consent to contract or not, but having contracted behoved necessarily to stand to their contract and agreement, and so must the pursuer of the contract of vendition contracted by him freely without any force or violence whatsoever in manner foresaid.
In respect whereof and of the defences notwithstanding of the replies, the defender ought to be absolved from the desire of the said bill and whole members thereof, the said lords appointed for trade and bills, having considered the said supplication, with the defences, replies and duplies above-written given in for either party, as said is, as also the fitted accounts between the said defender and those appointed by the committee of estates for that effect, together also with the accounts fitted between the defender and the said James Stirling, and subscribed with the defender's own hand, returned their report to the said estates of parliament, whereby they found the defender, his intromission with the foresaid duties during the years above-written, all public burdens being discounted, to extend to the sum of £32,664 3s 4d money foresaid, and conceived that the said defender ought to refund the same; as also the foresaid sum of £50,000 money above-written, with the interest thereof since the time it was paid, and that notwithstanding of the said defences and duplies argued for the said defender, and also did conceive that the said defender should be held to have confessed and to have granted the said sum of £50,000 to have been the just and true price of the said lands, because the supplicant,† having referred the same to his oath and [Alexander Falconer], lord [Falconer of] Halkerton, sheriff of Nithsdale and commissioner for Montrose, being sent to the castle to take his oath and deposition thereupon, he refused to give the same unless the parliament would command him until the relevancy of the libel should be first discussed. Which report, being considered by the said estates of parliament, they approved the same (except in so far as relates to that part thereof whereby the said commissioners conceived that he should be held as confessed) and gave their decreet for the said sum of £32,664 3s 4d in manner above-written, and in respect the said estates of parliament did find that, whatever the said defender got for the said lands of Mugdock, he should refund the same to the supplicant with the interest thereof since the time it was paid, and that the said supplicant had referred to and offered to prove by the oath and deposition of the said defender that the said sum of £50,000 was paid to the said supplicant† and to others to his behoof for the said lands of Mugdock; therefore, his majesty, with advice and consent foresaid, appointed the Lord Halkerton, sheriff of Nithsdale and the commissioner for Montrose, to pass to the castle of Edinburgh and there to take the said defender's oath and deposition in the said matter in the presence of such persons as the supplicant should desire to be present, with certification to the said defender if he refused to testify he should be held as confessed, and the said estates of parliament would judge in the said matter. And whatever the said defender should testify thereupon, the said persons commissioned, as said is, were ordained to report the same in writing back to the said estates of parliament that thereafter they might proceed therein as appropriate. According to which ordinance the said persons commissioned as aforesaid did repair again to the castle of Edinburgh and there required the said marquis of Argyll to testify on oath in manner above-written, but he still refused so to do. Upon report whereof made by the said persons commissioned, as said is, to the said estates of parliament they granted certification against the said defender and gave their decreet for the said sum of £50,000 in manner above-specified, with the annualrent thereof since the time it was paid, namely from Whitsunday 1655, being the term from which the said defender received annualrent thereof, as the accounts fitted between the said defender and the said James Stirling, his chamberlain, and subscribed with their hands bears, the said principal sum being paid at Whitsunday 1656, as is contained in the said supplication, and as the said defender would not testify to the contrary, the same being referred to his oath as aforesaid, and ordains letters of horning on 15 days and others to be directed hereupon in form as appropriate.
The lord commissioner continues the parliament until Friday at 2 o'clock in the afternoon, and all summons as above.