Scottish Court of Session Decisions

Subject_1 NON-ENTRY.
Subject_2 SECT. IV

Full Mails not due from Citation, where the Defender has a colourable Excuse.

Captain Chalmer
v.
His Vassals

Date: 29 June 1745
Case No. No 41.

A person having made up singular titles to his predecessor's estate, the vassals were found not liable in non-entry duties preceding the date of his charter, the superior having been uncertain, in respect the estate was affected by many transactions and diligences.

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Captain Chalmer of Gadgirth pursued his vassals for non-entry duties, who answered, They could only be liable from the time he was infeft himself, because the affairs of the family of Gadgirth had been in such confusion, and the rights to the estated so perplexed with diligence and transactions, that it was impossible to know who was superior; and so the vassals, were not in mora of taking infeftment;

The Lord Ordinary, 9th June 1744, “found that, in this special case, the defenders were not liable for either retoured or non-entry duties, preceding the date of the pursuer's charter.”

Pleaded in a reclaiming bill, The retoured duties pay able on nen-entry, ought not to be considered as penal; but as the vassal without infeftment has no right to the restate, the profits of course belong to the superior, which our law has mildly restricted to the retoured duties as the presumed value-of the land; and therefore make them due, it is not consider the vassal as in any fault, or mora. Stair B 2. T. 4. § 23, admits of many exceptions to excuse from the full rents, but reckons the claim for the retoured duties as favourable, where he also, says, “That it is not the negligence of the vassal, but the nature of the right that infers non-entry.” And Craig, L. 2. Dieg. 19, speaking of the entire forfeiture of the subject, which was the sanction of the feudal law, and saying that mitiores pænæ nobis placuerunt, means the claim, when extended to the whole rents, which alone he considers as a penalty.

These duties are due to the superior's heir, though not entered himself, unless the vassal obtain infeftments, by taking the course the law prescribes.

It is affected, to pretend the superior could not be known. It was easy to find out the heir of the family, who could invest them, notwithstanding there might be adjudications against him, or if there were infeftments on any adjudications, the heir could do it, during the legal, and when that was expired, the adjudger.

Answered, If this question were to be determined by the feudal law in its utmost severity, the claim must be excluded, since bona fides is the foundation of the bond between superior and vassal, and a just cause of delay will excuse; and this is mentioned as one, Si domini heres incertus sit, et si controversia sit de hereditate, L. 2. Feud. T. 2. Craig, L. 2. D. 12. § 3. et 7. Cujacius in lib. 5. juris feudalis; Struvius in jus feudale, C. 1. § 8.; and Craig's expression of mitior pæna, means as well the small duties, which are a penalty, though milder, as the whole mails.

The pursuer himself holds his lands blench of the Prince, to whom therefore his non-entry belonged; and he having obtained a charter without any composition, cannot extend it against the respondents.

He has not made up his title as heir to his predecessors, but possesses as a singular successor; and as the superior was absolutely unknown, it was impossible to run precepts; besides, the competency of this method of getting infeftment can be of no influence in a question concerning the non-entry duties, as it was introduced by act 57th Parl. 17d Ja. III. before which this question might have occurred; and then it must either have been admitted as a defence, that the vassal was not in mora, or vassals would have been in a miserable case, who could not get infeftment when they applied for it.

The Lords, 20th June 1745, “found, that whereas the petitioner did not claim the superiority as heir to his predecessor, but as a singular successor; therefore adhered to the Lord Ordinary's interlocutor.”

Pleaded further in another bill; That casualties of superiority, before they are divided from it by declarator, go along therewith; and therefore the Captain having, whether as heir or singular successor, acquired right to the superiority, has right to the casualties thereof incurred and never separated; Dirleton, word, Casualties of Superiority, Stewart's Answers, and a decision 11th July 1673, Robert Faa against Lord Balmerino and Powrie, No 20. p. 5449, voce Heritable and Moveable. See No 25. p. 9307.

Observed on the Bench, That the former interlocutor adhering to the Lord Ordinary's, went on the specialties of the case in the uncertainty of the superior, not solely on the pursuer's being a singular successor.

“The Lords adhered.”

Act. A. Macdoual, W. Grant et Lockhart. Alt. Alex. Boswell. Clerk, Forbes. Fol. Dic. v. 4. p. 19. Falconer, v. 1. p. 111.