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Marjory Chalmers, as executrix confirmed to Patrick Gray her husband, having pursued the deceased William Keith for payment of a debt, she recovered sentence; and after his death she pursues William Dalgarno, as intromitter with his goods before the English Judges. In which pursuit it was alleged, that the defender was donatar to the defunct's escheat; and so could not be convened as vitious intromitter with the defunct's goods; his goods, by the rebellion, falling to the fisk, and they were not his the time of his decease. This process, in a review, was de novo disputed. It was alleged, that the English Judges did wrong in finding the allegeance relevant, unless it had been also alleged and proven, that the gift was granted before the intenting of the cause, seeing the defender's intromission being ab initio vitious, and the pursuer having intented process against him upon the passive titles, no right acquired ex post facto, could take away the jus and passive title acquired to him by his former citation: And though the rebellion gave jus to the King or his donatar, if the gift had been timeously granted and declared, or legal diligence done at the King or his donatar's instance; but there being no such thing done, and the defender being in culpa immiscere se bonis that were in the defunct's possession, his own fault and vice make him liable. Likeas, an arrestment used of a rebel's moveables will be unquestionably preferred to the donatar by a gift after the arrestment: Yea, though the gift were prior, unless it were clad with possession, or diligence done by a general declarator before the arrestment, the arrestment will be preferred.
The Lords repelled the allegance, and found, that the subsequent gift could not purge the preceding vitious intromission.
