Full mails not due till declatator; unless the Superior be already in possession by ward.
Douglas of Kelhead v. The Vassals of the Barony of Kelhead, and Others
Date: 30 January 1671 Case No. No 24.
Found in conformity with Harper against Hamilton, supra.
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The Earl of Queensberry being superior to certain vassals of the barony of Kelhead, who did dispone the feu-duties and whole casualties of the superiority to Kelhead his brother, to the effect that Kelhead might be his immediate vassal, and that the feuers might hold of Kelhead; whereupon Kelhead was infeft holding of Queensberry, and thereupon pursues a declarator of non-entry, both generally and specially in the said summons; it was alleged for the defenders absolvitor, because they were not the pursuer's vassals, for albeit he was infeft holding of Queensberry, to the effect he might become their superior, yet that infeftment was null, because no superior could interpose any person betwixt him and his immediate vassal; likeas, the non-entry could only infer the feu-duty till decreet or declarator were pronounced, which used to be per se, but here both special and general declarator being joint, could only conclude the feu duties for bygones till litiscontestation.
The Lords found that albeit the pursuer's title upon his infeftment, by which he was interposed was invalid; yet seeing it contained a disposition and assignation to the feu-duties, and casualties of the superiority, that the pursuer had sufficient title thereby, as donatar by Queensberry the superior; and found that the non-entry carried only the feu-duty before the citation, but after the citation the whole profits, seeing the vassals did not upon the citation, obtain themselves infeft by Queensberry. See Superior and Vassal. See No 12. p. 9292. & No 36. p. 9318.
Fol. Dic.v. 2. p. 5. Stair, v. 1. p. 710.***Gosford reports this case:
1671. January 29—In the action of declarator, (see No 12. p. 9292.) at Kelhead's instance against his Vassals, it was alleged, That the special declarator for the mails and duties could not be sustained, but from the date of the act of litiscontestation; seeing there was no decreet of general declarator, and that it was found that the pursuer had no right as superior, but as assignee, to the by-gone non-entries. The Lords, notwithstanding, did sustain the special declarator for mails and duties, from the date of citation upon the summons libelled, which was both a general and a special declarator; and found, that the vassals lying out to enter, and thereby having the benefit to be liable only for the retoured duties, ought to be decerned for the mails and duties after the citation, where the summons is a special declarator, or where the summons is both special and general.
