A sasine within burgh under the clerk's hands sustained without necessity to allege that it was registered in the town's books.
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Mr Robert Burnet, tutor of Leyes, pursues for mails and duties of a tenement in Aberdeen. It was alleged for Swan the defender, Absolvitor, because he stands infeft in the lands, and by virtue of his infeftment, in possession; and albeit the pursuer's infeftment be prior, it is null, neither being registered in the register of sasines, nor in the town clerk's books of Aberdeen, according to the custom of all burghs, but hath been latent many years, and no vestige of it in the town's books; so that the defender was in bona fide, to contract with the common author, and apprise thereafter. It was answered, That the act of Parliament excepted sasines within burgh; and the pursuer having the town clerk's subscription was not answerable for his keeping a prothocol or record.
“Which the Lords found relevant, and sustained the sasine.”
1676. February 24.—In a competition betwixt James Swan and Robert Burnet, it being alleged that a sasine of a tenement in Aberdeen was null, neither being registrated in the register of the shire, nor in the town books, it was answered, That the sasine being under the town clerk's hand was sufficient, because the act of Parliament anent registration of sasines excepteth sasines within burgh, without any provision that they be booked in the town's books.
The Lords sustained the sasines. See No 5. p. 13538.
Fol. Dic. v. 2. p. 330. Stair, v. 1. p. 547. v. 2. p. 421.*** Dirleton reports this case:
1676. February 24.—A sasine within burgh being questioned, because it was not round in the books, was sustained; in respect of the act of Parliament, excepting such sasines from necessity of registration, it being to be presumed that the clerks do not fail to registrate the same, and if they do not book them, it ought to be imputed to them, and not to the party. In presentia.
For the Sasine, Sir David Falconer.Alt. Seaton.Clerk, Hay.
Dirleton, No 348. p. 166.
*** See Thomson against M'Kittrick, No 12. p. 6892, voce Infeftment.
