Competition Creditors with the Donatar of Forfeiture.
Lord Balcarras v. Walter Denholm and Creditors
1687.
February. Case No. No 35.
Creditors were held to be preferable to a donatar, the rebel having, before the forfeiture, disponed, under the burden of his debts, and the disposition having been confirmed by the superior.
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In an action of mails and duties at the instance of the Lord Balcarras, donatar to the forfeiture of Sir William Denholm of Westshiels;
It was alleged for Sir William's Creditors; That he was denuded by a disposition and infeftment to his brother, with the burden of his debts therein enumerated, and the infeftment confirmed by the president as superior, two years before committing the crimes for which he is forfeited.
Answered; Sir William was cited for the crimes of treason, viz. “harbour and reset,” before the disposition, and thereafter declared fugitive by the Justices; and the committing of the last crime of invading the kingdom with Argyle, was a continuation of the treasonable design, or meditatio criminis; and the effect of the forfeiture ought to be drawn back to the first citation.
Replied; The disposition was before the denunciation, by which nothing falls but the single escheat till after year and day. 2. No sentence hath followed upon that citation for crimes of reset, &c. And if meditatio criminis were sustained to disappoint rights granted and confirmed before committing the crime, (nothing) could be secure.
The matter ended in a transaction, though the Creditors appear to have been well founded in law; but it was considered that they lay under the danger of a new forfeiture of their debtor upon the ground of ‘harbour and reset,’ before the disposition.
