The first gift of escheat, though upon the expenses, and for behoof of the rebel, was preferred to a posterior gift taken against him, he being relaxed before declarator was raised on the last gift.
Click here to view a pdf copy of this documet : PDF Copy
In an action of declarator of John Baillie of St John's Kirk's, escheat, pursued by Thomas Fleming, compeared another called ———, also donatar, and having another gift of the said escheat, and being admitted for his interest, alleged, That the said Fleming could have no declarator, because the other had an anterior gift and declarator intented. It is answered by Thomas Fleming, That the said first gift was null, because it was simulate taken to the behoof of the rebel upon his own expenses, and that he retained the possession of his own gear, likeas Thomas Fleming had obtained his gift before the rebel was relaxed. The Lords found the allegeance upon the first gift relevant notwithstanding the alleged simulation, because the rebel in whose favour the first gift was alleged taken, was relaxed before any declarator intented by Thomas Fleming.
