Debt contracted after Denunciation. - Alienation after Denunciation.
Lumsden v. Summers
Date: 12 June 1667 Case No. No 44.
A donatar of escheat found to be in no worse case than a creditor poinding or arresting, and therefore not bound to enquire, upon what subsequent account the debt had been diminished.
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In a declarator of escheat it was alleged, That the goods libelled were disponed to the defender.—It was answered, That the disposition was stante rebellione.—It was replied, That in fortification of the disposition, it was offered to be proved, that the disposition was made for the price of corn and straw, and other goods disponed to the rebel; and whereby his Majesty and his donatar had benefit, in respect the same was employed for the entertainment of the beasts and sowing the ground, whereof the encrease fell under escheat.
The Lords repelled the defence, and found, That the rebel being liable only personally for the price of the goods alleged disponed, and the property of the goods in question being his, the same belonged to the King; and the King and his donatar were not obliged to debate upon what account and occasion the rebel was debtor to the defender, or what use he made of the goods disponed to him by the excipient; and is in no worse case than a creditor poinding or arresting, or any other person acquiring right to the property of goods, who would be preferred notwithstanding such pretences, there being no such hypotheck that can be pretended by the law of Scotland. Diverse instances were adduced by me to this purpose, not only in behalf of the King, but of other superiors and heritor, as v. g. if a superior should pursue declarator of a liferent, and it should be alleged that after the rebellion the rebel had disponed a part of his lands, and that it should be offered to be proved that the money for which the disposition was given, was lent for acquiring the right of the lands, so that thereby the superior had benefit thereby; or, if the master were pursuing by virtue of the legal and tacit hypotheck competent to him, and it should be alleged that the tenant was debtor to another for the price of corns furnished for sowing the ground; in which cases the superior and master could not be frustrated upon any such pretences. See Recompence.
Act. Birnie.Alt. Thoirs & Frazer.Clerk, Hamilton.
Fol. Dic. v. 1. p. 555. Dirleton, No 75. p. 30.
