Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Donatar to the Escheat of Andrew Wardlaw of Torrie
v.
Robert Brown of Barhill

Date: 29 January 1635

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In February 1634, Andrew Wardlaw of Torrie, being rebel, and year and day at the horn, causes his tenants of — give bond to Robert Brown of Barhill, his creditor, for payment of their farms and duties 1634, in satisfaction to the said Robert of the sum of 1600 merks, addebted to him by the said Andrew Wardlaw. The said Andrew his escheat and liferent is disponed to a donatar in August 1634; and general declarator obtained the 6th of November thereafter. The tenants being charged, suspend upon double poinding. Robert Brown alleges, He ought to be preferred; because the tenants had given their bond, at their master's desire, for satisfaction of a just debt before the gift or declarator, which is equivalent as if the master had assigned him to the maills and duties for the said debt. To the which it was answered by the donatar, That he ought to be preferred, seeing the bonds were given by a rebel stante rebellione, and the duties were yet in the tenants' hands, and the term of payment was not as yet come, but both the gift and declarator were before the term of payment of their farms. The Lords preferred the donatar.

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