Found in conformity with Houston against Maxwell, No 390. p. 12515 that a sasine alone in burgage was sufficient title to carry on an action.
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John Walker, as having right to a tenement of land at the head of the Skinners' Close in Edinburgh, by disposition and infeftment from Janet Handyside, who was infeft by hasp and staple as heir to John Handyside merchant there, her father, heritor of the said tenement, having raised reduction and improbation against the Representatives and Creditors of James Adamson, of an adjudication and infeftment in the said tenement obtained by him, upon which thirty-eight years' possession had followed;
Alleged for the defenders, That the pursuer's author's infeftment being by hasp and staple, which is of the nature of an infeftment upon a precept of clare constat, that is good only against the superior granter, and tenants or possessors having no right of property, cannot be sustained for overturning rights habilely established in the person of third parties; because, though regularly there ought to be a cognition previous to the infeftment by hasp and staple, that the party is nearest heir, as the stile thereof imports, yet, by the universal custom of all the burghs in Scotland, no such cognition is used either by witnesses or an inquest, but such infeftments pass of course.
Replied for the pursuer, That infeftments by hasp and staple are rather to be assimilated to services than to precepts of clare, seeing the Bailie as judge is supposed to cognosce and inquire into the parties' propinquity to their predecessors by the honest neighbours of the burgh (who are in place of an inquest), and so it is called in our law cognitio more burgi. Again, a precept of clare constat flows only from a subject superior, whereas burgage lands hold of the sovereign, and the Bailie is not superior.
Duplied for the defenders, Esto there were a cognition in this case, as there was none, yet that would not alter the nature of the infeftment from that upon a precept of clare, seeing the superior in that case takes likewise cognition of the obtainer of the precept his propinquity, per authentica documenta, yet that superior's assertion will not prove the fact against third parties, more than the Bailie's assertion (or rather the assertion of the clerk in the burgh) in the infeftment of hasp and staple. In one respect it is true, that the Sovereign, and not the Bailie, is superior, that is, the whole burgh holds of the Sovereign: But then the Provost and Bailies are superior with respect to their particular burgesses, by the charter of erection of the burgh, so that they grant new charters and enter heirs by hasp and staple.
The Lords sustained the pursuer's title of infeftment by hasp and staple, as sufficient to convey the right, and carry on this process, unless the defender quarrel the propinquity of blood.
