Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

James Scot
v.
Alexander Belches

Date: 29 December 1705

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The cause betwixt James Scot and Alexander Belches, the two sheriff-clerks of Edinburgh, was debated, but the decision of it was prevented by a transaction and agreement betwixt the parties; yet, the case being new and singular, I have shortly abridged the heads of the debate.

The said James Scot, being sheriff-clerk of Mid-Lothian, by a gift ad vitam, was, in 1696, accessory to the slaughter of one Philip Alexander, and thereon fled. The Relict, and King's Advocate, raised an indictment against him before the Lords of Justiciary for the crime; where he neither finds caution to sist himself, nor does he appear at the diet; and so, by an act of adjournal, he is denounced rebel and fugitive. The secretaries, looking on the said office of sheriff-clerkship as vacant, there is a commission and gift of it expede in favour of Alexander Belches that same year, 1696; and, in farther security, he obtains the gift of the said James's single escheat, and gets it declared. After eight years' absence, Mr Scot procures letters of slayns on an assythment paid to the nearest of kin, and then obtains her Majesty's remission in 1704, and gets himself relaxed from the fugitation; and, on the production of his remission, the diet is deserted in the criminal court: and then he raised a declarator against Belches, that he had the sole right to the said office, and had not lost it by his retiring and being denounced; and likewise craving a reduction of Mr Belches's gift. This moved Mr Belches to raise a counter-declarator; which being called, James Scot insisted on thir two reasons of reduction: 1mo, That Alexander's gift was null, as not bearing the modus vacandi, which is essential and necessary to all gifts of places. 2do, That there was truly no ground, cause, or manner of vacation, seeing a criminal denunciation takes not away any liferent-office, but only his moveables; and he might have served by a depute: and so the place not being vacant, there was no jus qucesitum to the secretaries, nor any room for a new gift.

Answered for Mr Belches,—That the expressing the modus vacandi in gifts was a thing very decent and convenient, and borrowed from the canon law in their conveyances of church-benefices, but was not of that necessity as that the omission thereof inferred a nullity: and is only requisite where a declarator is in law to proceed thereupon; as in gifts of escheat, nonentry, and the like. And none will think a charter null, though it want the clause of qua; quidem terra, which is the modus vacandi where they come into the superior's hand by resignations if the procuratory and instrument be clear. And how many gifts are there bearing no such clause ! And the nomination of the Lords of the Session several times does not express the modus vacationis, by the decease of such a person, and yet none will plead the nomination is therefore null.

Replied,—That it has been oft sustained to be essentially necessary. So that, on the 20th of December 1628, Weston, a gift of escheat was cast in a declarator, because it did not express a particular horning by which the escheat had fallen, albeit the donatar offered to support his gift by producing a horning and denunciation anterior to his gift. And, in the competition for teinds betwixt Sir Robert Sinclair of Long formacus and Home of Wedderburn, 24th February 1666, the Lords preferred Sir Robert's gift, because it expressed the specific modus vacandi, viz. the titular's demission, which Wedderburn's did not.

Then Mr Scot insisted on his second reason of reduction, That denunciation for a crime inferred only confiscation of moveables, but nowise deprivation and amission of liferent offices: yea, denunciation for statutory treason of matricide was only found to reach moveables, 22d January 1663, Yeaman: and that offices ad vitam do not fall under a criminal escheat, is evident from this, that when the law intends it should extend to liferents, it requires a special statute; as appears by Act 118, Pari. 12, and Act 219, Parl. 14, James VI, where committers of slaughters within kirks or church-yards, and the assaulters and wounders of persons during the dependence of actions betwixt them, after denunciation, are declared to lose their liferent of all lands, possessions, and offices. Now, if the simple denunciation, of itself, operates that, these acts were both ridiculous and unnecessary; and the certification in the act of fugitation is no more but that he shall lose his moveables; and penal laws are not to be extended. Yea, a a liferent-office will not so much as fall under a liferent-escheat; which will, indeed, carry the perquisites, emoluments, and profits of the place, but does not forfeit the office itself. And, though he retired for a while, that does not always infer guilt, where he has to do with powerful persons, who are ready to translate the crime of themselves upon others.

Answered,—That the committing a capital crime will not, ipso facto, infer the loss of an office because it may be latent; and, though it be known, yet it must be legally cognosced by some judicial procedure before it can have effect in law. But, where the criminal is either convicted, or, on his contumacy for not appearance, is denounced fugitive, he loses his office, till either he be purged and acquitted by an assize or restored per modum justitiæ; none of which Mr Scot pretends. For a person so denounced for a capital crime becomes servus pœnæ, and, in construction of law, is reputed civiliter mortuus, and so rendered incapable to exerce any office, being infamous, et maxima capitis diminutione minutus; and, having his office ad vitum et culpam, his life, fictione juris, is at an end, and the culpa is incurred and declared; and so his right to the office is clearly forfeited and terminated. Yea, our law permits any denounced for a criminal cause to be slain impune, if they resist at their taking; and, by the Roman law, such a person was infamis et intestabilis, and had this sentence pronounced, adnotetur requirendus, and had all his goods sequestrated. And, by the law of the empire of Germany, proscriptus vel bannitus is put under the bannum imperiale, and out of the protection of the law. And, by the customs of England, if a crime be found against one by a grand jury, he is outlawed; and, if he do not compear within the year to undergo his trial, he may be executed, whenever apprehended, as a felon. And that a sheriff-clerkship falls in the King's hands by rebellion, for a capital crime, was already decided by the Lords betwixt Mr Harry Kinross and James Drummond, 27th July 1615; as Hope, tit. Hornings, observes; and Stair, tit. Of Confiscations. And the Lords, on the 6th of February 1686, Archbishop of Glasgow against Logan, Commissary-clerk of Dumfries, found, by his denunciation for a civil cause, his office did not vake. But he gives this reason for it: because the denunciation was sine crimine; which clearly implies, a contrario sensu, that, if it had been for a crime, he might have forfeited his place. And, as to the pretence that, though he could not exerce personally, yet he might serve by a depute, that is impossible; for he being civilly dead, and legally incapable, the depute had no principal to answer for him, and pay the party's damages if he malversed, as our law requires: and that a civil death has all the effects of a natural, see Annagus Robertus, lib. 4. Rer. Judicat. cap. 16. And whereas he denies the crime; the same is notour, not only by his flying and denunciation, but his taking letters of slayns and a remission, which Sir George Mackenzie asserts to be a clear confession and acknowledgment of the guilt.

Vol. II. Page 304.