Blair Collection > Celtic magazine > Volume 2

422 THE CELTIC MAGAZIN^E.
Session in tlie question between the Crown and Mackintosh of IMackin-
tosh, so far as unaltered by the House of Lords. It was there alleged
that Lachlau Macpherson of Clunie had survived the attainder of his sou
Evan, and on a proof of this being allowed, the Court, on 27th July 1763,
found that such was the case, and that accordingly the estate of Clunie
had not vested in Evan Macpherson at the date of his attainder on 1 2th
July 1746.
Upon advising the case on 7th December 1763, the Court of Session,
without giving any special judgment, adhered to their former interlocutor
of 4th August 1761, sustaining the claim of Mackintosh, which judg-
ment, as formerly stated, was reversed by the House of Lords.
Under the Act 26 Geo. II., the estate of Clunie could not faU under
the forfeiture of Evan INIacpherson. True, by coming afterwards to an
attainted, person it was escheat to the Crown oh defectum haercdis, but not
under the Vesting Act, and therefore Butter's commission, in virtue of
that Act, was invalid as to this estate. The Commission set forth "That
we, the Barons, &c., in pursuance of the Act of Parliament made in, the
20th year of his late Majesty, intituled, ' An Act for Vesting,' &c., do by
these presents nominate, constitute, and appoint Mr Henry Butter, factor
and steAvard on the estates, real and personal,, which formerly belonged to
Evan JNIacpherson of Clunie, and the estate of Lochgary, &c., which
estates, by the foresaid Act of Parliament, are vested in His ]\Iajesty, and
by an Act of the 25th of his said Majesty, annexed inalienably to the Im-
perial Crown of the realm."
This Commission is thei'efore limited to such estates as belonged to the
forfeited persons, and were vested in the Crown by the Act 20 Geo. 11.
Kow the lands in question never did, at any period, belong to Evan Mac-
pherson — they belonged, at the date of Evan's attainder, to his father,
Laclilan, and upon the death of the latter they feU to the Crown as escheat,
as Evan was tlie next heir, and he being attainted, they would not belong
to him ; consequently the Commission to manage estates which formerly
belonged to Evan Macpherson could not include lauds wliich never be-
longed to him.
The respondent contended, that estates which fell to the attainted per-
sons, subsequent to the forfeiture, were understood to be in the same
situation, with those that were Avitli him, at the time of the attauider, and
in support of this, relied on the following clause : — " Be it further en-
acted, etc., that all and every the lauds and heritages, etc., and generally
the estates, goods, and etlects, heritable and moveable, real and personal,
descendable to heirs or executors, liferent jurisdictions, rights, or of what
nature or kind soever they be, in that part of Great Britain called Scot-
land, or elsewhere, whereof any person or persons who, since the 24th
day of June 1745, hath or have been attainted, or before the 24th
day of June 1748, shall be attainted by any laws or statutes of this realm,
of* high treason for levying war within this realm, or for conspiring the
death of his Majesty, or for any other high treason whatsoever, committed
before the said 24th day of June 1748, within Great Britain, or else-
where, was, were, or shall have been seized or possessed of, or interested
in, or entitled thereunto, on the 24th day of June 1745, or at any time