A donatar of escheat is not allowed to renounce after intromission. Neither can he defend himself against payment, by pleading the nullity of the horning. A donatar is not liable for annualrents that became due after denunciation.
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Janet Kid in Dundee being denounced rebel at Fletcher's instance, who was tacksman of the customs, upon general letters raised by the customers, and she being, by virtue thereof, charged to pay a particular sum, contained in the execution against her, and denounced for not payment thereof, the charge being on twelve hours; whereupon one taking her escheat, the said Fletcher pursues the donatar to pay the debt of the horning, whereupon he had taken her escheat; and the donatar alleging the horning to be null, because she was denounced upon general letters, against the act of Parliament, there being no probation nor trial, that she was addebted in that quantity contained in the charge; and, as the party herself could not be compelled to pay the sum libelled, until the time that it had been tried, and she found debtor therein, even so the donatar is far less subject; likeas he renounced that gift of escheat. And it being replied, That the donatar by virtue thereof intromitted, so that he could neither renounce, seeing res was not integra, neither oppone any nullity against that horning, whereupon he had taken the escheat, and intromitted,—The Lords repelled the allegeance, and sustained the horning, in respect of the donatar's intromission, whereby they found, that he could neither quarrel the horning, nor renounce the gift; neither was it respected, that the defender alleged, that, whatever intromission he had, the horning being vitious, as said is, and the debt never constitute, that he would be, in law, forced to pay the same back again to the parties having right to the said Janet Kid's goods, which was repelled.
Item, The Lords found, That the donatar was not liable for the annualrent of the money contained in the horning, since the time of the denunciation, as the pursuer craved, conform to the act of Parliament, which he alleged was alike against the donatar as against the rebel's self, which was not sustained, but absolvitor granted therefrom; for it was found the act of Parliament could not be extended.
Act. Burnet.Alt. Russel.Clerk, Hay.
Fol. Dic. v. 1. p. 253. Durie, p. 581.
