A gift bearing all that pertained to the rebel at the time of rebellion, was found to extend to nothing that the rebel had alter his denunciation.
A gift bearing all the rebel should acquire till relaxation, was found to extend to what he should acquire within a year after the date of the gift, he remaining unrelaxed. The reverse of this last part of the decision was found in the case of Essilmont against Buckie, No 6. p. 5071.
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In a declarator of escheat, at the instance of the Earl of Kinghorn against Wood, one compearing for another donatar, who had obtained a declarator already upon a prior gift; and the Earl replying, that by a back-bond given by that prior donatar to the Treasurer, the donatar was obliged to use the gift, by the advice of the Treasurer, he being refunded of his charges, to the effect that no creditor of the rebel should be prejudged; whereupon the pursuer subsumed that he was content to pay him his charges, and so having obtained a second gift, he should be preferred; this reply was not sustained, albeit the bond, which was produced, was of the tenor foresaid; for the first donatar was found by the Lords, notwithstanding of the foresaid bond, to have good right to the rebel's goods, as long as there was not a creditor of the rebel's to claim the benefit thereof; in which case, if any creditor should compear and allege right to the bond, eo casu the donatar was holden to use the gift after his own satisfaction, for satisfying of the said creditor compearing, by the advice of the Treasurer: But this was not found to be competent to another donatar, who could never have right by virtue of the second gift, he not being a creditor, to frustrate the first donatar of the benefit of the escheat; neither was it found, that the said first donatar could be compelled to receive satisfaction for his charges, given out for composition and otherways, and, so to quit his right, but at his own pleasure, if he pleased so to do, and no otherways.
In this same process also, the Lords found, that a gift of escheat, granted of all goods, &c. pertaining to the rebel the time of his rebellion, and bearing no other clause, nor extending to other goods which he had acquired since his rebellion, or before the gift, could extend to no more than was specifice disponed, and would not comprehend any goods which the rebel had acquired within the space of a year after his rebellion; for the King might by a new gift dispone the same again: and where the gift bore the disposition of the rebel's goods, which he had the time of the denunciation, or sincesyne, and should acquire thereafter, while he were relaxed; they found, that such gifts of that tenor would extend to all the goods which the rebel had at the time of his rebellion, or at the time of the gift, and also at any time after the rebellion, and before the gift; and sicklike, which he should acquire within a year after the date of his gift, he remaining at the horn unrelaxed all that time; to the which space, the Lords found, that gifts of the tenor foresaid could be extended at furthest, and not any longer, otherways it should confound gifts of simple escheat and liferents.
November 28.—In the above-written declarator of the Earl of Kinghorn, an exception being proponed upon a prior gift granted to another donatar, as is above-mentioned, the same was elided by two replies, the one bearing, “That the gift was taken to the behoof of the rebel, remaining rebel the time of the taking thereof, and also being rebel the time of the granting of the pursuer's gift;” which reply the Lords found relevant, notwithstanding of the defender's, duply, bearing, “That his gift was good, notwithstanding that the same was taken to the rebel's own use, in respect that he was now relaxed from the horn, and no creditor being prejudged by the taking of the same to his own use, he ought to be preferred, for it was lawful to the rebel to take it to himself, there being no creditor thereby hurt, and he now being relaxed.” This duply was repelled, and the said reply sustained, seeing the rebel being rebel and at the horn unrelaxed, the time of the taking of the said gift, granted to the pursuer, his relaxation sincesyne could not hinder the King effectually to dispone the escheat to a second donatar, (if the first was taken to the rebel's own behalf), and which was sustained, albeit there was no creditor thereby hurt; for the gift being taken to the rebel's use, continuing in his rebellion, was alike as if it had been gifted to himself, quo casu there was place to a second donatar to acquire a new gift at any time before the rebel's relaxation, as the gift given to the pursuer was, at the acquiring whereof he was not relaxed: Also this reply was found relevant, viz. that the said prior gift, granted to the excipient, was procured upon the travels and expenses of the rebel himself, which he offered to prove by the officers and members of Court, as use is in such cases, and which the Lords sustained as sufficient per se, without any farther allegeance, that it was taken to the behoof of the rebel, to infer simulation. And the Lords admitted the same in these terms, to the pursuer's probation. See Presumption.
Act. Hope & Rollock.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 346. Durie, p. 237.
