72 COMPLETE PEERAGE AIRLIE EARLDOM [S.] 11. BARONY [S.] VIII. .1665. 2 and 8. James (Ogilvy), Earl of Airlie, ^c. [S.], s. and h., l>. about 1 6 1 5. He was a devoted adherent of Charles I, and was twice taken prisoner by the Covenanters. On the last occasion, after his defeat under Montrose at Philiphaugh, 13 Sep. 1645, he was sen- tenced to death, 26 Nov. 1645, ^^^ escaped out of the Castle of St. Andrew, the eve before his execution, in his sister's clothes. On 7 June, and 9 July 1649, two Acts of Parliament were passed in his favour. He was "an excommunicate Papist" in 1650. He was a prisoner in the Tower for several years under the Commonwealth, until Jan. 1656/7. After the Restoration, he had command of a troop of horse, and was made a P.C. In 1693 he was excused from attending Pari., owing to his great age. He m., istly, (cont. 20 Mar. 1628/9) Helen, ist da. of George (Ogilvy), ist Lord Banff [S.], by his ist wife, Margaret, da. of Sir Alexander Irvine, of Drum. She was living Feb. 1663/4. Hem., 2ndly, (cont. 31 Oct. 1668) Mary, Dowager Marchioness of Huntly [S.], da. of Sir John Grant, of Freuchie, by Mary, da. of Walter (Ogilvy), 1st Lord Ogilvy of Deskford [S.]. He d. in 1703. (") His widow was living 25 Dec. 1707. EARLDOM [S.] III. BARONY [S.] IX. 1703 to 1717 Earl of Middleton [S.]. forfeiture of his s. and h. 3 and 9. David (Ogilvy), Earl of Air- lie, &'c. [S.], 2nd, but 1st surv. s. (") and h. by ist wife. He was served h. to his father in 1704. He m. (cont. 17 Apr. and 8 May 1696) Grizel, ist da. of Patrick (Lyon), Earl OF Strathmore and Kinghorn [S.], by Helen, 2nd da. of John (Middleton), ist He d. 17 17, when, in consequence of the the title became under attainder (") and so continued for 109 years. Will dat. 22 Mar. 1716, pr. 17 Aug. 1727. The following is an account of the successive heirs to the Grantee of these Peerages, after the forfeiture : (") " A little, light man. . . . always very loyal, and a great follower of his cousin the great Marquess of Montrose. " V.G. C") His elder br., James, bap. 6 Aug. 1633, at Banff, d. young. V.G. (") In the Airlie case it was held, that " if the attainted person survived the person in possession of the dignity, the title v/zs forfeited.' — See Heiulett, p. 12. This was the unanimous opinion of the 12 English Judges, to whom the question had been re- ferred, and " ;V seems clear that, if a 'Judgment had been asked at the time [1814], and the opinion of Sir Vicary Gibbs and his brethren laid before the Committee, // would have been confirmed.'" — See Maidment, pp. 85-86. See also Cruise, p. 131, i^c. ; and Riddell, pp. 724-730. There is great difficulty in reconciling this opinion (for it is but an opinion) with the ratio decidendi in the earlier case of Atholl. In that case (1764) it was held that the claimant, being son of the attainted person (Lord George Murray), though at common law he would have been included in the attainder, came ivithin the statute "de donis" (12 Edw. I, c. i, modified by 26 Hen. VIII, c. 13) and that thus
