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In a suspension of a decreet of poinding the ground obtained at the said Janet's instance, as infeft in an annualrent out of the lands of Bathgate, at the instance of Crawford, who was donatar to Bathgate's liferent escheat, upon this reason, that Bathgate was denounced rebel before the charger was infeft, and having continued year and day in rebellion, the liferent escheat belonged to the King, as was decided (Wallace against Porteous, voce Litigious,) in a competition betwixt a donatar and a lawful creditor, whose infeftment was after rebellion, but yet in cursu;—it was answered, That the charger, notwithstanding, ought to be preferred, because her infeftment depended upon an heritable bond which was prior to the denunciation, bearing a precept to infeft her in this annualrent and of the same lands, so that she taking infeftment before the donatar was year and day at the horn, could not be prejudged by the donatar of the liferent escheat which did fall long thereafter; and by the simple rebellion, the moveable escheat could only fall; likeas the said practique did not meet this case, seeing the infeftment was given after rebellion, not upon an heritable bond, but to a creditor by a personal bond. The Lords did find the letters orderly proceeded, and preferred the charger to the donatar, seeing her infeftment did not flow from any deed done by the debtor after his rebellion, but long before, and that her forbearance was no ground of law to prejudge her who had a full power to infeft herself when she pleased.
Fol. Dic. v. 1. p. 256. Gosford, MS. No 624. p. 362.
