Countess of Abercorn's Tenants v. Nisbet and Fullerton
Date: 18 June 1630 Case No. No 22.
Arresting creditors were preferred to a posterior donatar of escheat, although it was pleaded, that the gift and declarator must draw back ad suam causam, which was prior to the arrestment.
Click here to view a pdf copy of this documet : PDF Copy
The Countess of Abercorn's Tenants raised a suspension of double-poinding, alleging that they were distressed for payment of their mails and duties, by James Nisbet on the one part, and Sir James Fullerton, donatar to the Lady's liferent escheat, on the other. Alleged for James Nisbet, He ought to be preferred, because he had obtained decreet against the Lady for L. 3000, upon the which he had arrested the farms in the Tenants' hands, and had recovered decreet against them in foro contradictorio, for making of the same forthcoming long before Sir James's gift; and so he being a lawful creditor, in respect of priority and greatest diligence, must be preferred to the donatar, whose gift is long posterior. Answered for James Fullerton, He must be preferred by virtue of his gift, and declarators general and special following thereupon, against the Countess and her Tenants, notwithstanding of the priority of the said decreet, because his gift and declarator must be drawn back ad suam causam, viz. The Countess her rebellion, whereupon the gift is granted, whereby jus erat acquisitum Domino Regi in such manner, that from the first moment of her rebellion, all that belonged to her pertained to the King, and consequently to his donatar. The Lords preferred the Creditor.
1637. February 24.—The same was found bewixt John Pilmour creditor to Alexander Clerk, and who had arrested some money of the said Alexander's in Nicol Cairncross's hands, and obtained decreet against the said Nicol to make it forthcoming before the Sheriff-depute of Forfar; and Alexander Guthrie of Craigie, donatar to the said Alexander Clerk's escheat, wherein the creditor that had arrested and gotten decreet before the gift and declarator, was preferred.
Spottiswood, (Escheat.) p. 104.
*** This case is reported by Durie, No 38. p. 3643.
