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In an action of declarator pursued at the instance of the Lord Borthwick's Bairns, as donatars to their father's escheat, the Lords found the same to be null; seeing it was alleged, That it was simulate, taken to the rebel's behoof, in so far as it was taken to the behoof of his bairns, he remaining rebel, which was alike as if it had been taken to himself; which allegeance the Lords found relevant; but here, the bairns were in potestate patria unforisfamiliate.Vide 20th March 1623, Dalgarno contra Earl Marishal, No 258. p. 11593 where the contrary seems to be done, except that the donatar was not in potestate.
For the Pursuer, Nicolson.
Fol. Dic. v. 2. p. 158. Durie, p. 27.*** Kerse mentions this case thus:
Simulation of an escheat sustained, proving the escheat to be taken to the behoof of the rebel's bairns.
