Full mails not due till declatator; unless the Superior be already in possession by ward.
Smeiton v. Gowrie's Tenants
1591. Case No. No 19.
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In an action pursued by Smeiton against the Earl of Gowrie's Tenants, to make forthcoming their farms and duties, which he had arrested in their hands, for some annualrents due to him out of Cowsland; excepted by the Lady Gowrie, tutrix testamentar, that they should not be made forthcoming to him, because she had obtained a gift of non-entry of these lands, by virtue whereof she was actually in possession of the uptaking of the mails and duties. Replied, That her gift of non-entry ought not to be respected, unless she would allege that she had obtained declarator thereupon. Duplied, That she needed no declarator being in possession. The Lords found, she behoved to have sought declarator upon her gift and so repelled the allegeance.
