His Majesty's Advocate v. Sir Lewis Mackenzie [1756] UKHL 6

UKHL
His Majesty's Advocate v. Sir Lewis Mackenzie
[1756] UKHL 6 · 1756-03-25
A claim of debt was made on the forfeited estate of Cromarty, on an obligation dated in 1705, upon which adjudication against the estate had followed in 1722, for the accumulated sum in the adjudication, and interest. Held the claimant entitled to the accumulated sum, and the annual rents due thereon, from the date of the adjudication. Reversed in the House of Lords.George, first Earl of Cromarty, granted a written obligation to Sir Kenneth Mackenzie, the respondent's grandfather, whereby he “acknowledged to be indebted to the latter in 2500 merks, or 2300 merks, I know not whether.”This document was dated 26th March 1705. The Earl returned to Scotland in the following summer; but though the Earl lived for eleven years after its date, yet, during his life, and for seven years thereafter, no demand appeared to have been made.His son, the second Earl, succeeded him.In 1722, a decree of constitution against the second Earl,

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Upon Earl John's death, he was succeeded by his son, Earl George, who, being convicted and attainted of high treason, his estate was forfeited to the crown.The respondent then produced his claim of debt and adjudication.But the appellant, on behalf of his Majesty, objected to this claim, on the following grounds,—1st, That from the nature of the original obligation, and from the peculiar circumstances, no interest could accrue on this debt. 2d, If interest was due, it could only be for the original principal sum, but not on the new capital accumulated in the decreet of adjudication; for, by the vesting Act, “no decree could be allowed on account of penalties;”and, as giving the creditor compound interest by an adjudication, was a statutory penalty, no decree could be made in the present case for such a penalty.Mar. 17, 1753.

The Lord Ordinary pronounced this interlocutor:—

“Find that the claimant is a just and lawful creditor on the estate, real and personal, of the said George, late Earl of Cromarty, and entitled to payment, furth thereof, of the said principal sum of 2300 merks Scots money, and annual rents thereof, from and since the 26th March 1705, and in time coming until payment, and also to the expenses paid out by him and his predecessors, preceding the forfeiture, in deducing his adjudication; and decerns and declares accordingly.”
July 10, 1753.Mar. 9, 1754.On reclaiming petition, the Court adhered. On further reclaiming petition from the respondent, the Court altered so far as to “sustain the petitioner's claim for the accumulated sum and annual rents thereof, from the date of the adjudication , and decerned accordingly.”Against these interlocutors the appellant brought the present appeal to the House of Lords, contending, that by the vesting Acts, the respondent was barred from the benefit of penalties for failure of payment or for any other penalties whatsoever, against the Crown, and therefore excluded from the interest of his accumulated sum.After hearing counsel,It was ordered and adjudged, that the said interlocutor of the 9th March 1754, complained of be, and the same is hereby reversed; and that the interlocutor of the

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Counsel: For the Appellant, W. Murray, R. Dundas. For the Respondent, A. Forrester, Geo. Brown.Note .—Unreported in the Court of Session.