Found that sub-vassals being in possession ought to be called in an improbation against the vassal their author, because they could not be unknown, being heritable possessors; but as to tenants bruiking lands by tacks, or heritors bruiking by sub-tacks their own teinds, The Lords thought that it could not be so well known that they had right, and so were not parties necessary to be called.
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The Town of Glasgow having a right from the Bishop to the parsonage teinds, pursued a spuilzie. It was alleged for some of the defenders, That they possessed by sub-tacks from Blantyre tacksman. It was answered, That certification was granted against the principal tack, and that the sub-tacks were void in consequence. It was replied, That the defenders were not called to the improbation; and that they being in possession, the collusion or negligence of their author cannot prejudge them.
The Lords, upon a debate among themselves, thought, that sub-vassals being in possession, ought to be called in an improbation against the vassal their author; because they could not be miskenned, being heritable possessors; but as to the tenants bruiking lands by tacks, or heritors bruiking by sub-tacks their own teinds; they thought, that it could not so well be known that they had right, and so were not parties necessary to be called; and therefore, before answer, they ordained to condescend upon the manner and quality of their possession, and whether it was such as the Bishop could not but know.
Act. Sinclair et Lockhart.Alt. Cunninghame.
Fol. Dic. v. 1. p. 139. Dirleton, No 145. p. 58.
