Scottish Court of Session Decisions

Subject_1 TAILZIE.

Claims of Captain Gordon on The Estate of Park

1750, Nov. 13.
Case No. No. 39.

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The questions were two, 1st, Whether one of our strict entails duly executed, recorded, and infeftment on it, forfeited by the attainder of Sir William, the heir of entail? 2dly, Whether an irritancy incurred by him, by granting infeftment on a part of the estate, (but which probably he knew not to be part of the entailed estate) before his attainder, but not declared, made the estate to go immediately to the next heir, so as to bar the forfeiture? The President stated a third point, that though entails are not sufficient to bar the forfeiture as to the descendants of Sir William, yet that the claimants claim may be good as a remainder-man. (I think it is rather, speaking properly, agreeably to the English law, a reversion.) First we found that Sir William forfeited only for his own life Renit. President, Justice-Clerk, and Leven. Then found 2dly, he had good claim as a remainder-man, after failure of issue of Sir William Gordon, nemine contradicente; but it was agreed that in extending the interlocutor this second point should be the first part 3dly, We disallowed the claim as founded on the irritancy already incurred. Renit tantum President. Vide full copy of the interlocutor on Lord Advocate's information in fine. But reversed in Parliament 21st May 1751. (Vide the judgment in the the text.) —13th November 1750.

In consequence of the judgment of the House of Peers reversing our sentence marked 13th November 1750, in Captain Gordon's favours, he presented a new claim of the estate, for that Sir William Gordon is now dead, and though he has left issue-male two sons, they are not inheritable, not because of the attainder, but because they were born abroad, and therefore by the act of the 4th of the King aliens. And after answers put in, counsel were heard Friday last, and yesterday and this day, (which two last days I was in the Outer-House,) and the Lords, I am told, (unanimously except Dun) dismissed the claim, because it was Sir William's attainder alone that made them aliens, and had he not been attainted, they would in terms of that act have been natural subjects and inheritable. 6th December adhere, and refuse a bill without answers.— 20th November 1751.

The Captain presented another bill, saying that his brother's two sons would not have been inheritable to the estate though he had not been attainted, because they entered into the French King's service, and were therefore aliens by the act 4to Geo. II.; but admitted that the peace was concluded before either of them was born, which took them out of the purview of that part of the act; 2dly, For that by the same act, the children born abroad, whose fathers are subject to the pains of treason or felony in case of their return, and by the act 9no Geo. II. the entering into foreign service, or enlisting men in it without licence, is made felony, and that Sir William Gordon had both entered himself and enlisted others in the French service. Some of us thought it plain that the act 4to Geo. II. meant only where the fathers returning without licence was made treason or felony, whereas the other was felony whether he returned or not. However we appointed the petition to be answered;—and on answers refused it;—when it was also observed, that the clause respected only things made felony before the date of the act 4to Geo. II.—18th February 1752.