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The Laird of Wedderburn warned the Laird of Blackadder to flit and remove from the lands called the Hilton. It was alleged by Blackadder, That he ought not to flit and remove, because his predecessor's lands of Blackadder, to whom he was lineal heir, and he himself also was and has been in possession, by virtue of the same, by the space of three or four score year. This exception being admitted to probation, and referred to say contra producenda, the Laird of Blackadder produced an instrument of sasine, making mention, how one Andrew Blackadder of that ilk his predecessor was seised in the lands, per preceptum ex capello Domini Regis post inquisitionem debito modo factam; and as to the possession both of his predecessors and himself, it was granted by the party's self. It was alleged contra the instrument of sasine, That it could not prove the exception, because it was null of itself, by reason it was taken away thereafter, by a decreet of recognition for the self same lands of the Hilton, being holden immediately of the King, by the Earl of Glencairn thereafter recognosced; which recognition was instantly produced, together with a reversion made by Andrew Blackadder to the Earl of Glencairn, for the redemption of the said lands, as being wadset by the Earl of Glencairn to Blackadder; and so the two fuerunt incompatibilia, that the Laird of Blackadder's sasine was true in itself, making mention the lands to be holden of the King, and that he had taken them in wadset from the Earl of Glencairn, and they were recognosced and evicted thereafter from the Earl of Glencairn. Many and sundry exceptions were proponed against the sasine; as a gift of non-entry obtained by Blackadder's goodsire thereafter; to which was answered, That this judgment, the sasine standing so long time as the space of fourscore years, with the continual and uninterrupted possession by virtue of the same, could not be taken away by way of exception, but behoved to be reduced ordinaria via et modo, for all the exceptions made against the sasine were not concluding, except there had been an express declarator of the annulling or away-taking of the said sasine. To this was answered, By the act of Parliament anno 1555, cap. 42, that nullities of titles may come in by way of exception, in the same instance that they are proponed, and there was sufficient reason to declare the said instrument of sasine to be null, or at least not sufficient to prove the exception, quia juxta doctores, id quod imperfectum est dicitur, nullum sicuti testamentum imperfectum dicitur nullum nisi quibus modis testatur; and this instrument of sasine was ominino in se imperfectum, for it declared and made mention of a precept directed forth of the Chancery, and the tenor of the precept was not inserted in the body of the same, nor yet was the precept shewn; and it made mention of the retour and inquisition, and nothing shewn; and so there mistered no declarator of the instrument, but its own self; and that it might be decerned not to prove the exception, because it never proved the lands to be holden of the King, and the narrative of the notary's self could not prove, juxta Authen. C. De edendo. To all this was answered, partly at the bar, partly by reasoning among the Lords, That as to the act of Parliament, the express words of the act were of “nullities of the law,” and that is to be called null of the law that is express against an expressed law, vel contra legem regni, aut jus commune, as to a pupil to dispone or contract without the consent of his tutor and curator; as a charter or instrument of sasine of the feu-farm of Kirk-lands to be without a confirmation; an instrument of sasine to be given of a precept direct forth of the Chancery of our Sovereign Lord, by another notary, than the Sheriff-clerk; sasine within burghs to be given by others than the Bailies; these may be called null of the law, as done against the expressed law, but such writs or instruments of sasine that are not against the expressed law, and are authentic of themselves, they can never be called null of the law, sed veniunt annullanda ordinaria via et modo; and also of the law, this action being intented in a removing, et in recuperanda possessione, prius terminandum est possessorium, quam petitorium L. 13, C. De rei vindicatione; et ait Bald in L. Unica, C. Uti possedetis, quod finis retinendi possessorii est initium petitorii, et in retinenda possessione sufficit titulus putativus et titulus bonæfidei; et is dicitur bona fide possidere, qui nec vi, nec clam, nec precario possidebat, et is qui ita possidet non debet a possessione sua removeri nee inqui-etari, nisi proprietate prius discussa, prout in lege unica et titulo unico, C. Uti possidetis; and so the said sasine stood unreduced with the long continual and uninterrupted possession, and behoved to stand at least as titulus putativus, and could never be taken away in this judgment possessory, but behoved to be taken away in the judgment petitory, and by way of reduction; and it was never seen, in any time past, that a title with so long possession, was taken away by way of exception. The matter being, with long continuance of time, reasoned at the bar, and among the Lords themselves, the Lords pronounced definitive that the exception was not proved, and that the said sasine might be taken away by nullity of exception; licet bona pars, &c.
