Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

James Lockhart
v.
Alexander Kennedy

1662. July.

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In a removing, pursued at the instance of Alexander Kennedy against his tenants, compeared James Lockhart; who alleged, There can be no process upon the pursuer's infeftment, because, it being a seasine of lands within the town of Air, it ought to have been given by one of the bailies and town-clerk; whereas it is given by the Sheriff and Sheriff-clerk, by a commission from the English Judges, who had no power. 2. It is given by a precept of clare constat, whereas it should have been given upon a retour, or upon a cognition of sworn neighbours. It was answered, That, the time of this infeftment, there was no magistracy in Air, nor bailies, in regard they refused the tender, and consequently the Judges might very well commissionate the Sheriffs. And as to the 2d, it was answered, That as the bailies might have entered an apparent heir by hasp and staple, without service or cognition, so as well by a precept of clare constat. The Lords repelled the allegeances.

No 51, Page 36.