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The Lords found, that a rebel contracting debt after rebellion cannot assign in satisfaction of the same any debt due to him; and though the assignee should transact with the debtor of the debt assigned, before a gift and declarator, the donatar will be preferable. In præsentia.
For Veitch, Lockhart and Hog.Alt. Cuningham and Seaton.Clerk, Gibson.
And in the same case it was found, that a bond granted after horning, though it did bear that the same was for wines, yet being the rebel's assertion, could not prejudge the King. But it being alleged, and offered to be proved, that the said wines were truly furnished before the rebellion, the Lords found the allegeance relevant to be proved only by the rebel's account-books and by books of entry, and not simply by witnesses, without such adminicles in writ.
The Lords likewise found, that the presumption introduced by the act of Parliament, that gifts of escheat are simulate, in respect that the rebel is suffered to possess, is only in that case where the rebel has a visible and considerable estate of lands or tacks, and is in possession of the same: But when the rebel's estate is either not considerable, consisting only of an acre or two, (which was the case in question) or in nominibus, and not known to the donatar, so that the donatar had reason not to trouble himself, and to look after either that which was inconsidereble, or which was not known to him, there is no ground to presume that the gift is simulate.
Fol. Dic. v. 2. p. 157. Dirleton, Nos 409, 410, & 411. p. 201.
*** Stair's report of this case is No 91. p. 2874. voce Competition.
