The gift of escheat is equivalent to an assignation, of which general declarator is the intimation; and, therefore, in a competition with arrestments, the donatar or arrester is preferred according as the general declarator or arrestment is prior in time, provided the arrestment be upon a debt prior to the rebellion.
Click here to view a pdf copy of this documet : PDF Copy
In a triple poinding, pursued by the tenants of Kirkness against Foster, relict of umquhile George Douglas on the one part, Balfour alleging, That umquhile George, by his registrate bond, was addebted to him in sums of money, where-upon he had charged and denounced him, and had arrested the sums, mails, and duties of his lands, for payment of his said debt, and had obtained decreet adjudging the same to have been competent to him on the second part. And Philp, donatar to the said Sir George's liferent of the said lands, constitute by the Earl of Morton superior of the samen, contending for the mails, sums, and duties, of the saids lands, the Lords found, that Balfour should be answerit and obeyed, in respect of his registrate bond, arrestment, and pursuit, to make the sums forthcoming to him, and litiscontestation made in his cause, before the donatar obtained declarator; albeit the corns controverted were of a crop long after the rebel had remained year and day at the horn; and that the donatar had gotten his decreet of general declarator of the said liferent before the arrester, and the corns to be made forthcoming. My Lords President, Chancellor, Nelston, and almost the hail rest, voted all for the arrester, except the Clerk of Register, myself, and one or two more. The direct contrary of this practic was decided betwixt Mellestoun and Archibald Hume of Bassendene.
