A gift of escheat must be restricted to what was due to the rebel at the time of the gift, and within year and day thereafter.
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Cornelius being donatar to the liferent escheat of———, and the rebel five or six years after the gift acquiring the right of a sum of money owing by bond, and the donatar claiming the said sum in a special declarator, as falling under his gift of the liferent; and it being alleged, That it would belong either to the donatar of the single escheat made since the date of that bond, or else be yet at the King's gift and disposal; the Lords found nothing fell under the compass of the liferent escheat, but only his current liferent, and what moveable sums he acquired within year and day after his gift; and for this that there was locus secundo donatorio.
Fol. Dic. v. 1. p. 347. Fountainhall, v. 1. p. 263.*** P. Falconer reports the same case:
Cornelius Neilson as donatar to the escheat and liferent of his brother Craigcassie, having intented an action of special declarator against Kennedy, for the sum of 8000 merks, due by the said Kennedy to the rebel, conform to the rebel's contract of marriage with Kennedy's daughter; it was alleged for the defender, That there could be no process at the pursuer's instance, for payment of this sum, because the pursuer's gift could only extend to what belonged to the rebel the time of the gift, or acquired by the rebel within year and day thereafter; but so it is, that this contract of marriage was long after year and day, and so behoved to fall under a second gift. It was replied for the pursuer, That this gift bore, all that was due to the rebel the time of the horning, or that he should acquire at any time thereafter during his life. 2do, That this allegeance was not competent to the debtor, but to a second donatar. The Lords repelled the first part of the reply, and found it only stile, that notwithstanding thereof the gift ought to be restricted to what was due to the rebel the time of the gift, and within year and day thereafter; and found this allegeance not only competent to the second donator, but also to the debtor, being exclusive of the pursuer's title.
P. Falconer, No 76. p. 51.*** This case is also reported by Sir P. Home:
Cornelius Neilson having obtained a gift of single and liferent escheat of his brother Craigcassie, pursues a special declarator against the Laird of Kinaldie for payment of the sum of 8000 merks due by him to Craigcassie, conform to the contract of marriage with Craigcassie's daughter. Alleged for the defender, That the gift could only be extended to moveables that belonged to him the time of the gift, or acquired by the rebel within year and day thereafter. But so it is, that the contract of marriage by which the sum is due, was long after the pursuer's gift, and so could not fall under the sum, but would belong to a second donatar. Answered, That the gift bearing all moveables due to the rebel the time of the horn, or that should be acquired by him at any time thereafter during his lifetime, albeit the contract of marriage by which the sum is due was not within year and day of the pursuer's gift, yet must fall under the single escheat, which carries all moveable debts that should belong to him any time during his lifetime, and it was jus tertii to the defender, who was debtor, to allege that the sum did belong to a second donatar, seeing there was not a second gift, or any person competing. The Lords found, that the gift bearing all moveables that belonged to the rebel the time of the horning, or that he should acquire at any time during his lifetime, was only stile, and restricted the same to the moveables belonging to the rebel the time of the gift, and within year and day thereafter; and found that defence not only competent to a second donatar, but to the debtor, being exclusive of the pursuer's right.
Sir P. Home, MS. v. 1. No 606.*** Harcarse also mentions this case:
In a special declarator for payment of a sum due to a rebel, at the instance of the donatar of his single escheat; it was alleged, That the money was acquired by the rebel after he had been year and day at the horn, and so fell not under the single escheat.
Answered; The pursuer's gift carries him to all goods and gear that shall belong to the rebel before his decease. 2do, The pursuer has also a gift of the liferent escheat. 3tio, It is jus tertii to the defender, who has no second gift, to propone such an allegeance.
Replied; The clause of all goods and gear that shall belong to the rebel before his death, is but style; and by act of Exchequer, and decisions, such gifts are restricted to the rebel's goods and gear the time of the rebellion, and what he acquires within year and day after, 2do, The liferent escheat cannot carry the sum, but only the annualrent thereof, if any be. 3tio, The defender has interest to quarrel the pursuer's want of title.
The Lords sustained the allegeance and reply made for the defender. See. Jus Tertii.
