Alexander Baillie of Castlecarie v. William Brown of Seabegs
Date: 29 July 1710 Case No. No 38.
Citation upon a summons of declarator of non-entry given to an apparent heir, intra annum deliberandi, found not to entitle the superior to the full rent of the vassal's lands from the citation, although the day of compearance was after elapsing of year and day.
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Alexander Baillie of Castlecarie, who is vassal to William Brown of Seabegs, having within a year after his father's decease, served heir to him, and charged Seabegs by a first and second precept out of the Chancery, to enter and infeft him, upon a charter presented with the bygone feu-duties, and a bond to do what further should be found needful; Seabegs suspended after the last requisition, upon this ground, That the offer of the feu-duties was not sufficient, in respect he had raised a declarator of non-entry, which entitled him to the full rent of the charger's lands since the citation, and till that was paid, the suspender was not bound to enter him vassal.
Answered for the charger; His superior could have no right to the full rent, since the citation in the declarator of non-entry; because the summons was raised within the annus deliberandi.
Replied for the suspender; His vassal was cited within the year, but the day of compearance was after elapsing thereof, which is sufficient, Dewar contra Paterson, No 31, p. 6873. As albeit the act of parliament dischargeth summons to proceed upon charges to enter heir until after elapsing of forty days, yet uniform practice sustains the raising and executing charges to enter heir, and summons thereon simul et semel, when both the forty days and the days of the summons are suffered to expire before calling of the summons.
Duplied for the charger; If a superior might compel his vassal to enter within the year under the pain of a year's rent, he the vassal would thereby have no benefit by the annus deliberandi, but behoved to subject himself rashly to his predecessor's debts, to satisfy the unreasonable desire of his rigorous superior. The practick cited for Seabegs makes against him; for there the Lords found no process till a new citation, in respect the former was given within the year.
The Lords repelled the reason of suspension, and found the letters orderly proceeded.
