Found in conformity with Kirkness against Forster, No 35. p. 3641.
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Isobel Glen, as assignee to Mr Edward Jamieson, having obtained decreet against the umquhile Earl of Hume, for certain by-run stipends, and thereupon having arrested in my Lord Whitekirk's hands, certain sums due by him, to the Earl of Hume, she now pursues to make forthcoming. Compearance is made for John Hume, who produces an assignation by the Earl of Hume, to the sums due by Whitekirk, and also produces a gift of the Earl's liferent escheat; and alleges, 1st, no process at the arrester's instance, because the Earl of Hume being dead, the debt must be first established by a decreet against one representing him, who must be called principaliter, before the person, in whose hands the arrestment is made, can be decerned to pay that which was the defunct's, 2do, John Hume must be preferred as donatar, because the arrestment was laid on after the Earl of Hume's rebellion, by which his goods belonged to the King, and no sums can be made forthcoming, as belonging to him after the rebellion, because they belonged to the King. It was answered to the first, That if the Earl of Hume had not died at the horn, the pursuer would have either confirmed as executor creditor, or called the Earl's executors; but that is not necessary, seeing the Earl died at the horn, and could not have one to represent him in mobilibus; and that now the donatar who succeeds, compears. To the second, the pursuer, as arrester, ought to be preferred, because albeit the arrestment be after the rebellion, yet it is before the gift or declarator; and it is for a debt due by the Earl, before the rebellion, and so doth exclude the donatar, for which they produced a decision Pilmour contra Gagie, No 39. p. 3644.; in which case the gift was granted by a Lord of a regality, having the benefit of the escheat, whereanent the Lord Advocate represented, that this could not be drawn in consequence, to prejudge the King or his donatar, because the Lord of regality being a subject, debuit invigilare sibi, by declaring the rebellion without delay, but the King cannot so soon know, nor is he prejudged by the neglect of his officers.
Yet The Lords unanimously preferred the arrester, the Advocate forbearing to vote; for they thought the case of creditors for debts before rebellion were not to be prejudged, doing diligence before declarator, or if they should poind, arrest, adjudge, &c.
