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Harry Kerr as donatar by the Earl of Roxburgh, of the nonentry of some lands holden of the Earl of Roxburgh by Henderson, pursues declarator. The defender alleged absolvitor, because he is an appriser, and hath charged the superior to enter him upon an apprising before this pursuit. It was answered, Non relevat, unless he had offered to the superior a year's rent, with a draught of a charter to be signed, as was found in the case of Black donatar to the Duke of Hamilton against Hamilton of Milnburn, No 30. p. 6511, in the case of ward, which is a much heavier burden than the non entry, which reaches only the retour-duties by this declarator.
The Lords found the charge alone, without offering a year's rent, either of land or money, did not exclude the nonentry.
Fol. Dic. v. 1. p. 471. Stair, v. 2. p. 852.*** Fountainhall reports the same case:
Henry Ker against Alexander Henderson, a pursuit of nonentry. Alleged, He bruiked by a comprising on which he had charged the superior. The Lords found the charge did not stop the non-entry except a year's rent had been offered to the superior.
Fountainhall, MS.
*** The like was decided 26th June 1681, Oswald against Cathcart, No 8. p. 5116. voce Gift of Nonentry.
