Powers of the Barons of Exchequer with regard to Gifts of Escheat.
Howison v. Bruce
Date: 28 December 1697 Case No. No 36.
The Barons issued a gift burdened with a sum. They issued a second gift, in which the burden was restricted. Found that they were functi by the first gift, which they could not restrict by the second.
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Arniston reported Mr Richard Howison, minister at Musselburgh, and Margaret Darleith his spouse, against Bruce of Kinnaird and his Lady, and Mary Bruce, Lady Thornydikes. When Kinnaird was broke with Clackmannan's cautionry, Mary Bruce, his sister, being a creditor, got the gift of his single and liferent escheat in 1677; but the Exchequer burdened in with the payment of 2000 merks to Kinnaird's Lady, which was the jointure she had by Mr George Norvel her first husband, and which belonged to Kinnaird jure mariti. Mr Howison and his wife being creditors to Kinnaird in the sum of 3000 merks by bond, he obtains a second gift of his debtor's escheat; at the passing whereof Lady Kinnaird compearing, craves it may be burdened with her 2000 merks as the first donatar was. The Exchequer, on debate, restricts her jointure to L. 1000 Scots, and burdens the second gift with the same; so that Mr Howison, the second donatar, had thereby right to the superplus 500 merks of her jointure; and pursuing for the same, the first donatar and the Lady Kinnaird compear, and allege preference, because by the first gift there was a jus quæsitum to her, constituting her aliment, which the Exchequer by no posterior deed could take from her. Answered, It was res judicata, in so far as, after debate, the Lords of Exchequer, at the passing of the second gift, saw reason to restrict her jointure to L. 1000; especially considering, that, by the 147th act 1592, all gifts taken in the name of the rebel's wife, children, and nearest relations, are repute simulate, if he continue in possession; which is the case in hand. Replied, The Exchequer are not judges competent to the decision of rights, nor can they diminish the King's gift once conferred, else they might recall it in toto; and as for the act of Parliament cited, that can be only objected by the creditor in the horning on which the gift proceeds, and takes only place where a gift is fraudulently and clandestinely past, but not when it is done cum causæ cognitione, as here.——The Lords found the Exchequer were functi, and could not restrict the first gift by the second; and therefore preferred the first donatar, with the burden of the Lady's 2000 merks.——See Jurisdiction.
Fol. Dic. v. 1. p. 348. Fountainhall, v. 1. p. 805.
