Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Earl of Annandale
v.
Richard Murray

Date: 6 July 1627

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In a general declarator of umquhile the Laird of Cockpule's escheat, at the instance of the Earl of Annandale, donatar thereto, made by the king since the rebel's decease, against Mr Richard Murray of Cockpule, his brother,—the Lords preferred the pursuer to another donatar compearing and alleging that he was made donatar thereto by the king, and had obtained declarator thereupon before the rebel's decease, so that it could not be declared again at the second donatar's instance. Which allegeance was repelled, and the said second gift sustained, because it was replied by the pursuer, the second donatar, that the first gift could not be respected, being taken to the rebel's use, and upon his own charges; and he continuing rebel thereafter unrelaxed, the king had right, by continuing of his rebellion, to gift his escheat or liferent to another donatar, who ought to be preferred to the other. And the defender contending, that the first donatar had right to the rebel's whole goods, which he had then at the time of the said gift, notwithstanding that the gift was taken to the rebel's own use, and notwithstanding he thereafter continued at the horn unrelaxed; because, he alleged, the king might gift the same to the rebel's self, where no creditors compeared to quarrel the same, and where no party was prejudged thereby; for, the king being only interested in that rebellion, his majesty's interest was taken away by his gift, which being once given, there could not (except there had been a new rebellion to make a new cause of vacation to the king's majesty,) be any new gift effectually given to a second donatar. Which allegeance was repelled, for the Lords found, that the first gift could not be effectually given, neither to the rebel's self nor to any other to his use, he remaining still rebel after the gift; and that the rebel, continuing rebel unrelaxed, was not capable to receive the same, albeit no creditor were prejudged thereby, nor compeared to oppone the said gift; but that there was place to confer a new gift to any other donatar, notwithstanding of the said first gift, which second donatar might as lawfully quarrel the said first gift, as any creditor might have done; likeas it was found as relevant, being proponed for the second donatar, as it would have been, being proponed for a true creditor. And also the Lords found, that, although the first gift had been valuably given to a donatar's own behoof, yet, if the donatar should thereafter either dispone, or transact for sums of money, or otherways, the right thereof to the rebel, and that he should, after that disposition, remain unrelaxed,—that the king might dispone valuably a new gift of the same escheat to another donatar, as being acquired, and as a new purchase made by the rebel after the first gift, whereto the king had right by the continuing rebellion, and the acquisition by the rebel of these goods while he was rebel; which being so acquired after the first gift, by the rebel's remaining so, it gave place to the king of new to confer them.

Act. Hope and Burnet. Alt. Nicolson. Scot, Clerk.

Vid. 25th and 28th November, 1626, E. Kinghorn against Wood.

In this same process, the persons who, of law, would have been executors to the rebel, being called, and proponing the exception foresaid upon the said prior gift and declarator; and alleging that the donatar, who had obtained declarator, had made one Grahame assignee thereto, who had transacted with them for the said goods escheatable; and so that this pursuer could not seek a declarator upon that which is declared already, seeing they behoved to be countable to him who had obtained the said first gift, and which was declared;—the Lords found, that this allegeance was not competent to these excipients, to be proponed by them, albeit they were specially called in this process; but the same was only competent to the donatar and his assignee.

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