Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. XIV.
A Superior bound to enter the Vassal, reserving his own Right.
Hamilton v. The Earl of Buccleuch
Date: 27 January 1636 Case No. No. 76.
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Francis Hamilton pursuing a special declarator of the mails of the lands of ————— pertaining to Robert Elliot, intromitted with by the Earl of Buccleuch; and he answering, that he being superior of the said lands to the said Robert, and the said Robert being year and day at the Horn unrelaxed, the same pertains to him by his said right of superiority;—and the other answering, that he ought to have done diligence to have obtained declarator upon his liferent as superior; for albeit he might have right, if he had pursued therefore, yet he could not intromit therewith brevi manu, nor stay the King's donatar, who claims as single escheat, the duties owing the time of the horning;—and the defender answering, frustra petitur, quod mox est restituendum; for whenever he intents declarator therefore, he will evict the same, and force him to render the same back again;—the Lords repelled the allegeance, for they found, that the superior could not hinder this special declarator, at the King's donatar's instance, except that he had intented action and declarator thereon.
Act. Craig. & Hart.Alt. Nicolson.Clerk, Gibson.
Durie, p. 792.
