Scottish Court of Session Decisions

Subject_1 PAYMENT BEFORE HAND.

John Home
v.
Walter Carncross

Date: 14 January 1602
Case No. No 1.

In a pursuit at the instance of a donatar of escheat against the rebel's tenants, the Lords refused to sustain their exception of payment made to the rebel himself, because it was done before the term.

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John home, master hunter to his Majesty, having obtained the escheat of Walter Cairncross, and general declarator thereupon, pursued certain particular tenants of the said Walter's lands, for payment of the farms of the years 1599 and 1600. It was excepted That the pursuer could have no right to the half farms of the year 1599, because the said Walter's escheat could not fall before the committing of the crime, and the crime being committed in August 1599, or thereby, and he only denounced in October thereafter, he had undoubted right to the farms of that year, at the least to the half farms of that year; for albeit farms be not paid while betwixt Yule and Candlemas, yet they are owing, having respect to Whitsunday and Martinmas; and if the heritor decease before Martinmas, the half farms of that year will appertain to his executors, because he lived after Whitsunday, and so the term of Whitsunday being past before committing of the said crime, and before this denunciation, it was lawful to him to receive payment of the half farms, and give his acquittance thereupon, which may exoner the tenants at all hands. To the which it was replied, That albeit respect be had to the division of the farms according to the time of the decease of the heritors, when the question is betwixt the defunct's executors and his heirs, yet, in other cases, there is no such respect had to the prejudice either of the master's creditors, or the King's donatar; but the terms of Yule and Candlemas are only respected, before the which there can no lawful payment be made by the tenant to his master, or any other in his name, or at his command, of his farms, and if any thing be done in the contrary, it will not stand, nor be found lawful; otherways it should lie in the master and tenant's hands by collusion, and antedated acquittances, to defraud all creditors of their debts, and lawful arrestments and poindings, and the King's donatar of the escheats and profits of the liferent. In respect of the which reply, the Lords repelled the exception, and found, that as the tenant could not be compelled to make payment of his farms before Candlemas, so he could not, by his voluntary payment before the term, prejudge either creditors or his Majesty's donatar.

Fol. Dic. v. 2. p. 52. Haddington, MS. No 665.