Scottish Court of Session Decisions

Subject_1 ESCHEAT.
Subject_2 SECT. VIII.

Competition Escheat with Apprising.

Lord Dumfries
v.
Smart

Date: 18 July 1668
Case No. No 55.

The donatar of single escheat was preferred to an appriser of a husband's jus mariti, the apprising being after the rebellion, tho’ prior both to the gift and declarator.

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The Laird of Wamphray being due a yearly annuity to his good-mother, the Lady Wamphray, which now belongs to the Laird of Castlemains, her husband, jure mariti, there is a competition thereanent betwixt ———, factor to the Earl of Dumfries, whose name was used in the gift to Dumfries's behoof, as donatar to the escheat of Castlemains, and Smart, as having apprised from Castlemains the right to this liferent, jure mariti; who alleged that he ought to be preferred to the donatar, because albeit his apprising was after the rebellion, yet it was upon a debt anterior to the rebellion, and was long before the donatar's gift; and therefore, according to the known custom, diligences of creditors being before the gift, or declarator, are always preferred to the donatars of single escheat.—It was answered for the donatar, That that custom was never further extended than to moveables, or moveable sums, poinded or made furthcoming upon arrestments, but never to rights having tractum futuri temporis, which cannot be carried by poinding or arrestment, but by apprising or adjudication, as tacks or liferents, when assigned; so that the jus mariti being a legal assignation, and thereby falling under the husband's single escheat, falls to the King and donatar by the rebellion, and cannot be taken away by an apprising posterior to the rebellion.

Which the Lords found relevant, and preferred the donatar.

Fol. Dic. v. 1. p. 256. Stair, v. 1. p. 554. *** Gosford reports the same case:

In a double poinding raised by Johnston of Wamphray, wherein were called one Smart, who had comprised the liferent of some lands belonging to the Lady Wamphray, who was again married to the Laird of Castlemains, upon a debt due by Castlemains himself; as likewise for the Earl of Dumfries and Ley, who had right to the single escheat of the Laird of Castlemains by gift from the King, under which the Lady's liferent did fall, as belonging to Castlemains jure mariti, the Lords preferred the donatar and his assignee; albeit it was alleged that the compriser was infeft long before any gift granted by the King, or any diligence done thereupon; and found, that by the denunciation of the rebel, his jus mariti did fall under escheat, and the King and his donatars had thereby jus acquisitum, and that right having tractum futuri temporis the donatar might pursue at any time thereafter, notwithstanding of intervening comprisings.

Gosford, MS. No 38. p. 13.