If probative of its Onerous Cause against Creditors and Donatars of Escheat.
Cranston v. Kyle
Date: 13 January 1697 Case No. No 451.
A donatar of escheat was not excluded by a discharge granted by the rebel when he was incarcerated.
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Cranston, as donatar to the escheat of umquhile James Kyle, pursues Thomas Kyle as his debtor, who alleged, Absolvitor, because he had paid his brother before the gift of declarator. It was answered by the pursuer, Non relevat, because, by the discharge, it appears to have been given when the rebel was incarcerated, which put the defender in mala fide to pay, knowing he behoved to be denounced before caption; 2do, A discharge by a rebel doth not instruct true payment, but it must be otherwise instructed, conform to the act of Parliament against collusions betwixt rebels and their debtors.
The Lords refused to sustain the discharge, unless it were adminiculated by instructions, that it was truly paid.
Fol. Dic. v. 2. p. 254. Stair, v. 2. p. 672.*** Fountainhall reports this case:
The Lords shunned to decide how far the debtor of a rebel was in tuto to pay to him before the escheat was gifted, or the declarator intented, which is a great concernment, especially where he knows he is at the horn. It is like they would sustain the payment not exceeding an aliment, as it uses to be modified to prisoners for debt, which the donatar would be obliged to furnish him.
