Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Master of Gray v. Ramsay
Date: 1 July 1670
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This is a declarator of non-entry at the superior's instance against his vassal. Against which it was alleged, That the lands were full, the years acclaimed; in so far as the defender had comprised the same, and was infeft therein, at least had charged the superior. Which allegeance the Lords sustained for stopping all declarator of non-entry for all years from the date of the infeftment, or of the lawful charge.
Then replied,—That they offered them to prove that that comprising was satisfied by intromission within the years of the legal. This reply was sustained, ad hunc effectum, that declarator might be sought for the non-entry of all years since the extinction of the comprising.
Then alleged,—That thir lands holding feu, all that would befall to the superior by reason of the non-entry, was only the retoured maill, viz. the feu-duty before declarator; but ita est, the feu-duties for the most part of the years acclaimed are paid and accepted of by the superior. This was found relevant to liberate from declaring the non-entry of such years whereof the feu-duty was paid; but prejudice to crave declarator for the years subsequent: notwithstanding that Sir Robert Sinclair represented, that though, by the common practique, the superior, where his vassal is in non-entry, has nothing but the retoured duty before declarator; yet the same seems altogether unreasonable, seeing by that the superior shall be in no better case, the vassal's lands being in non-entry, nor when the vassal is entered; for in both he has only the feu-duty: and therefore Sir Robert thought the superior should have the retoured duty by and attour the feu-duty, (which he gets though the lands be full,) for all years wherein the lands are in non-entry preceding declarator. This was repelled; because the superior's benefit lies properly here, that as soon as the lands fall in non-entry, he may get the same declared, and then he has right to the hail mails and duties of the land.
