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A donatar to a liferent having obtained a general declarator, and having arrested, in the rebel's tenant's hands, their mails and duties, pursues them for the same by a special declarator. The tenants allege, That they had paid the mails to their master before the arrestment. It was replied, Their payment before the term could not be allowed.—The Lords repelled the tenant's allegeance in respect of the reply.
Fol. Dic. v. 2. p. 52. Auchinleck, MS. p. 62.*** Durie reports this case:
In a special declarator of L. Cleghorn's liferent, at the L. of Lauchop's in stance, donatar thereto, against the tenants of the rebel's lands, for payment of their farms, the years 1626 and 1627, which farms were arrested in their hands by the donatar long before the terms of payment, viz. before. Martinmas the said years; and the defenders alleging, that they had advanced to their master the said farms, and satisfied him of the prices, convened betwixt him and them therefore, before hand, before the arrestment, which they alleged they might lawfully do, even before the terms of payment, he being then and of before their master, to whom they have been in use to pay their duties, and for whose supply and help in his necessities they might do the same lawfully at any time, nothing being done to hinder them when they transacted and made the said payment. This allegeance was repelled, and the payment advanced before the terms of payment was not sustained to liberate the tenants, seeing before the said terms of payment, the donatar had arrested the same debito tempore; for, if it should be lawful to allow this payment made before hand, before the terms, the donatar and creditors might ever be prejudged; and, therefore, those who pay before they can by law be compelled, must do the the same suo periculo, and not to the hurt of others, and they should provide for their own relief.
