In a process of poinding the ground proceeding upon an infeftment of annualrent, a sasine produced found not sufficient without a cept of clare constat, and a warrant referred to in it.
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In an action pursued at the instance of James Wylie, son and heir to umquhile William Wylie, writer, against Sir William Bellenden of Broughton, for poinding of the ground for an annualrent, by personal execution against the defender; this pursuit was instructed by production of a sasine of the said annualrent, given to the pursuer, bearing the same to proceed upon a precept of clare constat granted to him, as heir to his father, by the Lady Broughton as commissioner, and having power to receive vassals and tenants, in name of the said defender's son, which precept of that tenor was inserted in the sasine, but nothing was produced but the sasine. The Lords found this sasine was not sufficient to produce this personal action against the defender, seeing it was neilibelled nor replied, that the defender was heir to the person disponer of the annualrents to the pursuer's father, without the which were alleged, albeit the real action might be sustained, yet the personal could not be granted against him; and also, the Lords found, that the said sasine was not sufficient to produce the real action, except the precept of clare constat were produced, and the lady's warrant to grant the same, whereto it was relative, which the Lords ordained the pursuer to produce before process could be sustained upon the sasine.
Act. Mowat.Alt. Primrose.Clerk, Gibson.
Fol. Dic. v. 2. p. 244. Durie, p. 232.
