There can be no kindly tenant by bare paying of rent, though for many years; but it is requisite that he have either tack or rental.
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In the action depending between the Tutors of Cassillis and the Laird of Lochinvar, for proving of him that was a kindly tenant, it was alleged for Lochinvar, and he offered him to prove, that the Earl of Cassillis had taken from him, whom he alleged to be kindly tenant, his mails and duties for the space of ten years continually together, whom he had confirmed to be kindly tenant. It was, answered, that the allegeance was not relevant, except he would affirm that he had received the said tenant in tack or rental, and that the taking of the mails and duties, except a title had preceded or followed thereupon, could not infer him to be kindly tenant; the which allegeance was admitted by the Lords, and the other repelled.
