Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. IX.
Effect relative to Donatars of Escheat.
L Hallgreen v. -
Date: 24 February 1635 Case No. No 76.
A donatar of escheat, after general declarator, insisting in a special declarator, for teind-bolls, addebted by the defender to the rebel; retention was sustained upon a liquid debt owing by the rebel to the defender before the rebellion.
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Rait of Hallgreen, as donatar to the escheat of umquhile L. Dunnipace, after general declarator, pursuing a special declarator against certain defenders, for payment of certain bolls libelled, of teinds addebted by them to Dunnipace, of certain years before his decease; and one of the defenders alleging, That the said rebel was debtor to him in sums of money, before the gift granted to the pursuer, so that he had just cause of retention of these teind-bolls libelled, in his own hands, for his own payment pro tanto; for it must be to him in that same case as if he had delivered the same to the rebel, and reported his discharge thereupon, before any declarator specially intented against the defender therefor, quo casu the gift and general declarator could never have put him in mala fide, far less can his retention for a just cause of debt, preceding the gift, be quarrelled. This allegeance was found relevant to liberate the defender. And it being alleged for John Livingston, burgess of Edinburgh, another defender, for another quantity of the teind-bolls acclaimed, That the rebel had disponed the same to him for just debt, owing by the laird to the excipient; which being done before the execution of the summons of special declarator, it must be sufficient to him, who is a distressed creditor of the rebel's, and hath no other means of satisfaction, especially seeing the rebel remained still in possession of his own teinds all this time, which might easily warrant the defender to receive this disposition. This allegeance was repelled, seeing the disposition did neither precede the gift of the rebel's escheat, nor the general declarator, but was made after them both.See Escheat.
Clerk, Gibson.
Fol. Dic. v. 1. p. 163. Durie, p. 758.
