Full Mails not due from Citation, where the Defender has a colourable Excuse.
Stuart v. Lord Forrester
Date: 17 February 1675 Case No. No 35.
A gift of non-entry granted before the casualty fell, and a general declarator thereon, were found a good title, after the casualty fell; but full mails and duties were found due only from the time of the superior's concurrence.
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The deceased Earl of Murray gave a gift of non-entry of certain lands held by him of the Earl to George Stuart, who many years since raised a general declarator, and now insists thereon. The defender alleged absolvitor, because the gift of non-entry was granted when it was not vacant, the lands being then full. The pursuer answered, That albeit the not vacancy be a sufficient reason to annul gifts obtained from the King, as surreptitions, or obreptitious and hurtful to the Crown, by granting of gifts by anticipation, before the casualties be vacant; yet this holds not in the case of subjects, quia debent sibi invigilare; so that the casuality occurring thereafter accreses to the donatar. 2do, This is jus tertii to the defender, and this present Earl of Murray concurs. It was replied, That whatever might be pretended, if the casualty had become vacant during the life of the granter of the gift, it can never be extended to those occuring after his death; and as to the concourse, non relevat, unless this Earl give a new gift; and the defender had good interest to propone this defence because if the gift and declarator should stand, he would be liable for the full mails and duties from the date of the citation, by the space of 15 or 16 years.
The Lords found that the gift or declarator could have no effect until the concourse of this Earl of Murray, and therefore sustained the same only from the time of the concourse, but not to infer mails and duties from the citation.
