In a blench, holding the superior before declarator of non-entry, can claim no more than the retoured blench duties.
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Thomas Ogrie, as heir to his good-sir, being infeft in anno 1630, in the lands of Stobo, pursues David Murray of Hallmyre, superior of the said lands, and who had intromitted with the duties thereof, for payment of the same to him for diverse years before his sasine, and since the decease of his good-sir; and the defender alleging, That the lands being in his hands as superior, in non-entry for these years before the pursuer's sasine, he had right thereby to the said duties; and the pursuer answering, That the non-entry was not declared; 2do, That he held the lands blench, so that the superior could have no other duty by non-entry before declarator, but the retour blench-duty; and the excipient duplying, That he being singular successor to the author, of this pursuer's good-sir's right, and, by virtue of his right, in possession of the lands, and neither the pursuer nor his good-sir in possession ever of the land, his possession must be as sufficient to him as a declarator;——The Lords found, That this non-entry in blench lands was not sufficient to exclude this pursuit, seeing the superior by the non-entry could claim no more but the retoured blench duties; for this is not alike, as in an annualrent, which the heritor of the land, out of the which it is payable, may bruik ay and while the entry of the annualrenter; because the retour and extent of an annualrent is quod valet seipsum, and so the superior may bruik it.
Act. M'Gill.Alt. Nicolson.Clerk, ——.
Fol. Dic. v. 2. p. 6. Durie, p. 564.*** Spottiswood reports this case:
In an action pursued by Ogrie against David Murray of Hallmyres, the Lords found, That Ogrie being served and retoured, and infeft as heir to his father in some lands holding of the defender, he had good action to pursue the defender his superior, for the mails and duties of his lands, intromitted with by him, of all years and terms before the pursuer's retour, since his father's decease, in respect the defender had no declarator of non-entry against the pursuer.
