A sasine within burgh was sustained, though given by a Sheriffclerk, there being no Magistrates or Town-clerk in office at the time.
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Found, That a comprising may be deduced upon an heritable bond, whereupon infeftment had followed, the same being payable without requisition; albeit a charge of horning does not precede, seeing there may be poinding upon such a bond: And there is eadem ratio as to comprisings; and the denunciation is a sufficient intimation, that the compriser intendeth to have his money.
In the same cause, the Lords having sustained a sasine of burgage lands, whereto the Sheriff-clerk was notary, there being no Town-clerk for the time, by reason in the time of the English usurpation, the Magistates and Clerk refused the tender; the Lords found, that the said sasine being within burgh, though not under the hand of the Clerk, was not null upon that ground, that it was not registered; because, though the reason of the act of Parliament for registration of sasines, and the exception of sasines within burgh, be, that sasines within burgh are in use to be registered by the Clerks in the Town's books, yet the said reason is not expressed in the act of Parliament; and the act of Parliament excepting burgal sasines, the party was in bona fide to think that there was no necessity of registration. —See Registration. —Legal Diligence.
Clerk, Hay.
Fol. Dic. v. 1. p. 469. Dirleton, No 22. p. 10.*** Stair reports this case:
1662. July 3.—Thomson and M'Kitrick having apprised some tenements in Dumfries, M'Kitrick, the first appriser, insists for mails and duties. Thomson alleged M'Kitrick's sasine was null, as being within Burgh Royal, and not given by the Bailies and Town-clerk of the burgh, conform to the act of Parliament. The pursuer answered, That his sasine was given by the Provost, and by a notary, whom he employed as Town-clerk, not only in that, but in several other acts; and that because the Town-clerk was excluded from his office, for not taking of the tender; and, upon the same account, there was no Bailie; so that, to complete this legal diligence, he was necessitated to take infeftment by the Provost, which is sufficient in such cases; because, though the act of Parliament mentions the Bailies of the burgh, that it is in opposition to Bailies in that part, but cannot be understood in opposition to the Provost, who has majorem jurisdictionem, quia majori inest minus; and offers them to prove that he was Provost, at least habitus et reputatus Provost, and that he did employ his notary, as Town-clerk for the time.
The Lords sustained the allegeance to prefer M'Kitrick.
1666. July 21. —Mr John Thomson pursues M'Kitrick, for reducing of an infeftment of some tenements in Dumfries, upon an apprising, on these reasons, first, That the apprising was null, proceeding upon a bond without requisition or charge; without which, the heritable bond could not become moveable. 2dly, Infeftment, being within burgh, was not given by the Bailies and Town-clerk. 3dly, That it was neither registered in the Townbooks, nor in the Register of Sasines of the shire. It was answered to the first, That the bond bore no clause of requisition, but bore, on the contrary, to be payable, without requisition, and so, as moveables, the defender might have poinded therefor, without charge, so might lands be apprised. To the second, There being no Magistrates, nor Town-clerk in office at the time of this sasine, and the defender being an appriser, necessitated to do diligence, took sasine by the Sheriff-clerk, which was necessary, and sufficient. To the third, The act of Parliament requires no registration of sasines within burgh; and, albeit they be ordinarily to be found in the Town-books, yet, if that should be neglected, they would not be null.
The Lords repelled the first reason, and found no necessity of a charge; and they had formerly repelled the second reason, in respect of the answer made thereto, and did also repell the third reason.
Stair, v. 1. p. 121. 400.*** This case is also reported by Gilmour.
1662. June. —Mr John Thomson pursues a reduction of a sasine given to William M'Kitrick, of certain tenements in Dumfries, upon the act of Parliament, that it was not given by one of the Bailies, nor by the Town-clerk, and registered. It was answered, That the sasine was given in anno 1653, when the kingdom was under the power of the English, by Thomas M'Birnie, then holden and repute Provost, who then made choice of Robert Neuall, Sheriff-clerk, who was not only notary to this sasine, but to 15 or 16 more, in respect James Cunningham, Town-clerk, had not taken the tender, conform to a public proclamation then emitted; and there is no necessity of registering sasines of burgh lands.
The Lords, in respect of the time, found the allegeance relevant, that M'Birnie was repute Provost for the time, who had made use of this notary as Town-clerk, not only in this, but in other cases. This also found in July 1666.
