Scottish Court of Session Decisions

Subject_1 SUPERIOR AND VASSAL.
Subject_2 SECT V.

Superior bound to enter the heir of his Vassal, but not till he has paid the by-gone Non-entry Duties.

Peebles
v.
Lord Ross

Date: 23 January 1630
Case No. No. 19.

Distinction where the duty is not constituted nor liquidated.

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In a suspension at the Lord Ross's instance, of charges at Marion Peebles' instance, upon a precept out of the Chancellary, upon her retour as heir to her father, to infeft her, the Lords found, that the said charges, and her infeftment by the superior, ought not to be stayed, upon the not payment of the duties of the lands during the terms that they were in non-entry by the retour, seeing the duties of the lands were craved by the said non-entry, being the three terms subsequent to the ward, (the landholding ward) and the same were not liquidated; for if the superior had been in possession of the lands, by virtue of the ward, he might have continued that same possession during the non-entry; but he not being in possession, he had his action therefore, and in the mean time the vassal ought to be received, but prejudice of his right prout de jure; and sick-like the Lords found the reason not relevant to stay the non-entry, bearing, That the lands pertained to him by recognition, by the alienation of the same made by her father, seeing the recognition was not declared; but the Lords found, that the decreet finding the charges orderly proceeded, ought to bear a reservation of whatsomever was the superior's right, which he had, prout de jure, wherein he should not be prejudged by this his necessary obedience in entering of the vassal.

Clerk, Gibson. Fol. Dic. v. 4. p. 407. Durie, p. 485.

*** See Earl of Wigton against Yester, supra.