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Scottish Court of Session Decisions >>
Colluthie v Dundas. [1590] Mor 5096 (00 January 1590)
URL: http://www.bailii.org/scot/cases/ScotCS/1590/Mor1205096-026.html Cite as:
[1590] Mor 5096
In a competition between two gifts of escheat, the second, on which declarator was first raised, was preferred.
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The Laird of Colluthie persewit William Dundas fiar of Fregosk to hear and see him to have tynt his liferent of the lands of Fregosk, as being year and day at the horn. It was allegit, That he could not be decernit to tyne his liferent at the instance of the persewar, because there was ane disposition made of his liferent for being year and day at the horn, at the instance of three sundry other persons, to James Colvin of East Wemyss, long before the disposition made to the Laird of Colluthie; the whilk disposition made to the Laird of Wemyss was intimate to the said William Dundas, and sua he could not have two liferents; but the first gift with the first intimation aught to have place, as was the daily practique in gift of wairds, of marriages, and gifts of non-entries, where there proceeds double gifts of them frae the Prince, the first gift and the first intimation following thereupon has place; and the Prince after he has once disponit and made a donatar and ordained composition for the escheat, may not again dispone; for utherwayis it wad be to his disponer quasi crimen stellionatus, eandem rem disponere duobus; et princeps lege contractus tenetur, nec debet laqueum alteri immittere, vel jus alteri acquisitum tollere. To this was answerit, That albeit the Laird of Wemyss had been made donatar before the Laird of Colluthie, and upon other hornings had obtained ane anterior gift, and intimated first to the defender; yet it could not prejudge the latter gift disponit to Colluthie, because the thing that made any gift or disposition of ane liferent to take effect, was the declarator that was sought thereupon; for without ane declaratour of the tynsel of liferent the gift serves for na purpose; but so it was that the Laird of Colluthie had sought the first declarator et primus ad judicium provocavit, ergo his gift, albeit posterior to the other, yet had taken first effect be the summons. The Lords fand the last gift to take effect, because the donatar thereof had pursued.
