Such casualties as escheat are stricti juris, and not to be extended. When a party's annual rebellion was not whole run in his father's life, creditors were preferred to a donatar.
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Mr Hugh Dalrymple, advocate, as donatar to the liferent escheat of Alexander Hunter younger of Muirhouse, pursues a declarator against the Creditors. Alleged, The Creditors must be preferred to the donatar, because his annual rebellion is not after he was apparent heir by his father's decease, but most of it was run in his father's lifetime; and before year and day expired after the father's death, the Creditors had adjudged and charged the superiors to infeft them; and so they must be preferred to the donatar. Answered, An apparent heir being year and day at the horn, before his father's death, ipso momento that his father dies, the liferent escheat immediately falls to the superior, whether he be infeft or not; as was found 3d July 1624, Muir against Ahannay and the Earl of Galloway, No 33. p. 3638.; and the 32d act of Parliament 1535, requires no such thing. Replied, Both the decision and the act of Parliament must be understood in terminis habilibus, that the rebel must be vassal vel actu vel habitu, which he cannot be till his father's death; and that it must be so, is explained in that parallel case, 9th March 1624, Douglas contra East-Nisbet, No 32. p. 3637., where the reason is given, that he was potentially vassal to the King. The Lords considered these strict casualties are not to be extended, and therefore found the escheat could not take place in this case, and so preferred the other creditors.
Fol. Dic. v. 1. p. 257. Fountainhall, v. 1. p. 788.
