Non-entry duties how ascertained. - In what holdings does Non-entry take place. Takes place until actual infeftment. But not if the superior be in mora.
The Laird of Kelhead v. Carlyle
Date: 10 February 1671 Case No. No 12.
A superior disponed to a donatar all non-entries. The gift was intimated. The vassal's requisition of the superior to enter him without offering the bygones to him or the donatar, freed him from all subsequent full duties.
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In the action of declarator (See No. 24. p. 9306.) at Kelhead's instance against Carlyle of Brydekirk, it being alleged for the defender, That he having required Queensberry, his superior, to enter him after requisition, he could only be liable for the retour duties; it was replied, That the requisition ought to have been made by presenting a charter and precept, and offering to satisfy all that was due to the superior; at least the bygone non-entries should have been offered to the pursuer, who was donatar, and had intimated his right; and thereupon should have required him to obtain a charter and precept subscribed by the superior his author.—The Lords did sustain the defence to free the defender from the full duties, after the requisition; and found, that the pursuer only having a personal right by assignation to the non-entries, the vassal was only obliged to require his lawful superior, and that the not offering all bygones to him, who had assigned the same to the pursuer, could not prejudge the defender, who was liable to the donatar for bygones, and therefore the superior having no reason to refuse to enter him, nor declaring his unwillingness to subscribe a charter and precept, when it should be presented, the vassal was not thereafter liable ob contemptum to the full duties of the lands.
Fol. Dic. v. 2. p. 5. Gosford, MS. No 333. p. 152.
