Page:The Complete Peerage Ed 1 Vol 1.djvu/67

 AIRLIE. 45 made a P.C. In 1693 he was excused from attending Pari., owing to his great age. He »i. firstly, Helen, 1st da. of Georgo (Ooilyy), 1st Loan BWOT [S.], by bis 1st wife Margaret, da. of Sir Alexander Iuvtnk of Drum. He m. secondly, some time after 1653, Mary, Dow. MAKCHIOXKSS of Huntly [S.], da. of Sir John Grant, of Frenehie. He d. about 1 704. Earls [*.]. 1 j, David (Ogilvy), Eahl op Airlie, &b. [&.], s. [ [ [ and h. by 1st wife. Ho was served h. to his father in 1 704. I I-,.,. . He m. Grizel, 1st da. of Patrick (Lyon'l, Earl of Stratbmore Barons TS 1 f ' !lnd Km g"orn [SJ, by Helen, '2nd da. of John (Middletos), 1st I EARL of MrODLETON [S.]. He d. 1717, when, in consequence IX. of the forfeiture of his s. and h., the title became under > attainder,^) and so continued for 109 years. The foilouing & an aecomt tijf the mxesdei heirs to the. Grantee of these Peerages, after the forfeiture .— ' Earh[S.]. ~) 10. J ames Ogilvy, (who, but for the attainder, jy would hare heen) Earl of Airue, &c. [S.], s. and h. He I fy-tiy having, v. p., when styled Loud Ogilvy, taken part in, 111/. thc3 rising of 1715, was attainted by Act, 1 Geo. I, cap. 43, but obtained a pardon in 1725, and returned borne. X. He m., 6 Dec. 1 730 (five weeks before his death), Anne, da. of ' David Euskise, of Dun, co. Forfar. He d. s.p., at Edinburgh, of the small pox, 12 Jan. 1730-1. His widow »;., 3 April 1733, Sir Alexander Mac- donald, of Macdonald, Hart. and d. at Edinburgh, 27 Nov. 1735, in her 27th year. Barons [S.]. Earls [S.] V, or IV. Barons [S'.J 11. dam Oan.Tr, generally considered (as not having been affected by his brother's attainder, and r*on i consequently-) as Eaul of Airue, &c. [S.], br. and b., >1Y30-J. i, Under the Act of 1747 abolishing heritable jurisdictions be was allowed £2,800 for the bailieries of XI, or X. (ho Regalities of Aberbrothock, Coupar, and Brechin. He m. (contract 5 Dec. 1722) Margaret, 1st da. and h. of David Oanyvv of C'luny. He d. at Cortachy, co. Forfar, 24 July 1701. His widow d. 1767. (*) In the Airlie ease it was belli, that, " if the attainted person survived the person in possession of the dignity, the title was forfeited."— See " Hewlett," p. 12. This was the unanimous opinion of the 12 English Judges, to whom the question had been referred, and " it seems clear that, if a Judgment had been asked at the time [IS 14], and the opinion of Sir Vieary Gibbs and his brethren laid before the Committee, it would have been confirmed." — See " Maidment," p. 85-S6. See also " Cruise," p. 131, &'C. ; and " Riddell," p. 724-730. There is great difficulty in reconciling this opinion (for it ib but an opinion) with the ratio decidendi in the earlier ease of Athole. In that case (1764) it was held that the claimant, being sou of the attainted person (Lord George Murray), tho' at common tote be would have, been included in the attainder, came within the statute "de donis " (12 Ed. 1, c. 1, modified by 26 Hen. VIII, c. 13) and that thus (passing over his attainted father, who was never tenant in tail in possession) he could take the dignity, as by gift, directly from his grandfather In the case of Airlie, ou the other Sand, the opinion given was that the statute "de donis" had no application to Honours, and that the common laie principle must prevail, i.e. that every heir, belonging to the same estate-tail as the attainted person, suffers from the attainder, whether descended from him or not j it being only on the extinction of that estate-tail that the honours revive in favour of the representative of the next estate-tail. joi- these observations the Editor is mainly indebted to the acumen (only equalled °v the kindness) of Mr. George Burnett, Lyon King of Arms, to whom (as also to Mr. R. R. Stodart, Lyon Clerk Depute) be is under the greatest obligations na to the Sottish portion of this work. P