Full mails not due till declatator; unless the Superior be already in possession by ward.
Mr John Harper v. Hamilton
Date: 25 July 1666 Case No. No 23.
In a declarator of non-entry the full rent is due from citation.
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Mr John Harper pursues a declarator of non-entry against Hamilton, his vassal, who alleged, That he was only liable for the retour mails, till the decreet of general declarator was obtained. It was answered, The common custom was, that from the citation in the general declarator, mails and duties were due in the special, because the general declarator declares the non-entry since the date of the summons, and so the mails and duties are not due from the date of obtaining the decreet, but from the years decerned therein, which is from the date of the summons.
The Lords found the mails and duties due since the time of the citation, and not only since the time of the sentence.
Fol. Dic. v. 2. p. 5. Stair, v. 1. p. 402.*** Dirleton reports this case:
In the case of Mr John Harper contra Hamilton his vassal, it was decided, that after the intenting a general declarator of non-entry, the vassal should be liable not only for the retoured duty, but for the ordinary mails and duties of the land; though some were of the opinion, that before sentence the vassal should only be liable for the retoured duty.
Dirleton, No 28. p. 13.*** This case is also reported by Newbyth:
Mr John Harper of Camrathan, advocate, as superior of the land of Netherton, pursues a declarator of non-entry against Patrick Hamilton, for the non-entry duties, and for the mails, farms and duties of the lands; which action being called, it was alleged for the defender, That quoad all terms preceding the citation, there could be nothing decerned but the retoured duties, and quoad the terms subsequent, the defender is content to enter, having already taken out brieves for that effect. To which it was answered, That quoad the Whitsunday's term subsequent to the citation, the defender ought to be liable to the half of the full mails. To which it was replied, That the rent of the lands being victual duly, which is not payable till betwixt Yule and Candlemas, after the separation of the crop from the ground, the defender ought to be admitted to purge at any time before sentence; likeas, the defender is content to enter betwixt and the 1st of November, at least being served, shall do diligence against the superior for that effect; and seeing the pursuer must prove both the quantity of retoured mails, and the number of the terms expired since the decease of the last infeft, and so cannot have sentence this session, he ought to have no more before sentence but the retoured mails; and further, he is content instantly to take a precept of clare constat, and to pay the reasonable expenses of his service and retour. The Lords found, that the superior should have the mails and duties after the raising the summons of declarator, and that they would decide so in all time coming in the like cases.
