William Borthwick of Fallahill, v. Mr Robert Arbuthnot, One of the Accountants in Exchequer
Date: 8 November 1710 Case No. No 53.
A donatar of a defunct's escheat having procured his gift, and several months there after, another creditor confirming before intenting declarator of the gift, the Lords preferred the executor-creditor before the donatar.
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In the competition betwixt Fallahill, executor-creditor to the deceased Colonel William Borthwick of Johnstounburn, and Mr Robert Arbuthnot, donatar of the Colonel's single escheat, for L. 177: 19s Scots, of arrears due to him out of the equivalent, the donatar claimed preference upon this ground, That his gift being duly sealed and registered eight months before the other's confirmation, was a legal assignation to the escheat goods, for payment of the debt due by the rebel to the donatar before the rebellion.
Answered for Fallahill; He ought to be preferred, his debt being constituted by the rebel's bond long before the rebellion, and his diligence for payment completed before declarator of the gift of escheat; because the confirmation is a complete assignation to the executor-creditor, affording jus ad rem, et in re, and immediate access to the subjects confirmed; whereas, on the other hand, it was never pretended that a sealed gift not declared is a complete assignment; seeing gifts of that nature pass periculo petentis, and it is only known by the declarator, that the casuality is duly fallen.
Replied for Mr Arbuthnot; The gift of escheat, after appending the seal to it, is a complete assignment to the escheat goods, requiring no intimation to the rebel's debtors, whom it is not necessary to call in the general declarator, (which nihil novi juris tribuit) but only to call himself or his representatives; and a donatar's gift for payment of his own debt (and such is Mr Arbuthnot's) was preferred to an arrester of the rebel's goods after the gift, though before declarator, 23d February 1623, Thomson against the Laird of Murtle, No 36. p. 3641.
Duplied for Fallahill; Though generally declarators nihil novi juris tribuunt, but only establish, ascertain, and declare what was formerly obtained; yet declarators of escheat are of a separate nature; and other declarators have their own special effects, as in a declarator of non-entry the whole mails fall due to the superior after citation. It is true the rebel, ipso facto, by the rebellion, falls from his own right to his goods; but by our law and custom, a lawful creditor before the rebellion, completing his diligence before declarator of the gift, is preferred to the donatar, Stair, Inst. Lib. 3. Tit. 3. § 16.; Dirleton's Doubts, p. 80.; M'Kenzie's Inst. p. 77. and the Note in the Appendix; 24th February 1637, Pilrmuir against Gagie, No 39. p. 3644.; and our benign princes did ever account id solum nostrum, quod debitis deductis est nostrum.
Triplied for Mr Arbuthnot; The practick between Pilmuir and Gagie is wholly foreign to the present purpose; the question there being betwixt a creditor and a donatar of escheat, whose gift was posterior to the arrestment.
The Lords found, That Fallahill had the first complete right to the Colonel's arrears due by the Commissioners of the Equivalent, which was the subject of the competition; and therefore preferred him to the donatar of escheat.
Fol. Dic. v. 1. p. 255. Forbes, p. 439.*** Fountainhall reports the same case:
The Lady Kersland, relict of Major Bothwick of Johnstounburn, takes the gift of his escheat in the name of Mr Robert Arbuthnot, and pursues the Commissioners of the Equivalent in a special declarator, for his money he had given in to the African Company. Borthwick of Fallahill, who had married the Major's sister, compears and craves preference on this ground, that he had confirmed himself executor-creditor to the defunct, before you raised your general declarator, and so is preferable in law; your gift of escheat, though prior, being only of the nature of the assignment, which is never complete till intimation, which, in this case, is by the general declarator; and I having prevented you by my intervening confirmation, I must carry the subject.—Alleged, In rigore juris, the whole rebel's moveables fall to the fisk, immediately upon the denunciation; and of old the treasurer, (without any declarator) issued out letters of intromission, by which he summarily intromitted with the escheat goods; but the benignity of our princes had somewhat mitigated this rigour, in favour of creditors who had done diligence before the casuality of escheat was gifted; but after the gift, no diligence was regarded, which is the present case in hand, the confirmation being eight months subsequent to the gift. And Durie has observed sundry decisions where donatars to escheats have been preferred to apprises, annualrenters, arresters, assignees, &c. where posterior to the gift; and Stair seems to be of the same opinion. And whatever unfavourableness may lie against lucrative donatars, yet here this gift is for a most onerous cause of debt, and so in pari casu quoad that with the executor-creditor, and preferable to him on that separate ground, that his gift is long before the confirmation; and the declarator nihil novi juris tribuit, but only give the donatar an opportunity to object the nullities of the horning, if any be.—Answered, Whatever stretches our old laws and customs made in favour of donatars, yet the later practiques had wholly receded therefrom, and had preferred lawful creditors doing diligence before declarator, and was so marked by Dirleton in his Doubts and Questions, p. 80. and 146.; and by Sir George M'Kenzie, Tit. Casualties of Superiority; and whose testimonies are the more considerable that they were both his Majesty's Advocates, and would not have decided contra fiscum, had it not been our plain law. See a parallel case supra, 20th June 1710, Erskine, No 45. p. 3649. where are sundry law citations here omitted.——The Lords, by plurality, preferred Fallahill the executor-creditor to the donatar, though his gift preceded the confirmation. If either the debt be contracted after the denunciation, or the diligence done after the declarator, the donatar in both these cases would undoubtedly be preferred, but here the debt was before the rebellion, and the diligence before the raising of the general declarator.
