Found in conformity with Kirkness against Forster, No 35. p. 3641.
Click here to view a pdf copy of this documet : PDF Copy
One Nisbet, creditor to the Lady, after sentence obtained against her by him, for payment of the debt, and after arrestment and sentence thereupon against her tenants for the same, the Lady's liferent is, after these decreets, disponed to Sir James Fullerton, falling by her excommunication and horning, whereat she remained year and day before the sentence upon arrestments at Nisbet's instance against her tenants; whereupon, in a double poinding, at the tenants instance against this Nisbet, and the donatar, which of them had right to the farms, the Lords found, that albeit the Lady was rebel year and day, before any sentence obtained by the creditor against her tenants, whereby the donatar claimed to be preferred to the creditor, seeing the King nor his donatar pay no debt, but the debt of the horning, whereupon the escheat is taken, and at the time of the expiring of the year, the duties of the rebel's lands pertain to the King, and not to any creditor thereafter arresting and obtaining sentence therefor: For he alleged, hoc ipso momento, after expiring of year and day instantly without declarator, the duties of the lands pertained to him, and could not be evicted by any other creditor thereafter arresting and obtaining decreet, albeit before the liferent was gifted and declared; seeing the matter ought not to be considered from the time of the gift and declarator, but from the time of the falling of the escheat. And the creditor alleging, That his arrestment and sentence, albeit after the horning year and day, yet being before both the gift and declarator, in respect of his diligence he ought to be preferred, seeing he had recovered sentence also against the rebel for the debt, before she was put to the horn;——The Lords, in respect that the creditor had obtained sentence for his debt against the Lady, before she was rebel, albeit the arrestment and decreet thereon were after the rebellion year and day, whereby the farms controverted were affected, and that the donatar's gift and declarator were long after the sentence upon the arrestment, yet the Lords preferred the creditor in respect of his diligence.
Clerk, Gibson.
Fol. Dic. v. 1. p. 255. Durie, p. 519.
*** See This case by Spottiswood, voce Gift of Escheat.
