Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Maxwell of Portrak
v.
-

Date: 27 November 1624

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In an action of removing, pursued by Maxwell of Portrak against ————; the Lords found, that a sasine of the lands libelled, (being of old kirk-lands of the abbacy of Melross, now erected in a temporal lordship,) which sasine, given to the pursuer, proceeded upon the Earl of Melross, who was lord of the erection, his precept of clare constat,—was a sufficient title to produce this action to the pursuer, notwithstanding that it was alleged that the same same was null, being of kirk-lands, not confirmed; which allegeance was repelled; and found, that there was no necessity to reply upon confirmation, seeing, if there was no confirmation, then the right of the lands pertained to the lord of erection, who, by the said precept of clare constat, was denuded; and he opponed not that nullity, and so the right was sustained, without necessity of confirmation, specially against the excipient, who alleged no right in his person of the lands libelled; and which, the excipient contended, he had no necessity to allege, seeing it was sufficient to him to exclude the pursuer's title, upon a nullity statuted by law, and which was not elided by the precept of clare constat granted by the lord of erection, who has not given to the pursuer his right to the lands, by an original security flowing immediately from him, but only has received the pursuer, by a precept of clare constat, as heir to his forebears, which of necessity requires that his forebears should have had a lawful right; and so the defender alleged he might oppone against the lawfulness of that right, in respect of the said defect. Which allegeance was repelled.

Act. Cunninghame. Alt.——. Scot, Clerk.

Page 154.