What Title requisite in the Positive Prescription.
Subject_3 SECT. XI.
What Title requisite to the Prescription of annual Duties and Prestations?
M'Lay v. Skelmerlie
Date: 10 July 1623 Case No. No 143.
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M'Lay, alleging himself to be heritable crowner of Arran, pursued the Laird of Skelmerlie to pay to him a firlot of oats and a lamb for ilk plough horses, as a part of his fee of the office of crowner, whereof he heard his predecessors had been in possession past memory of man. His summons contained the by-runs of 31 years. It was excepted, That the pursuer could have no action, because he was not infeft per expressum in the duties libelled. The Lords, considering that the Provosts, stewarts, constables, crowners, mairs of fee, and other heritable officers, had not their fees insert in their infeftments, but possessed them as they had done past memory of man, they sustained the action since the date of the summons in anno 1621, and would not find process for the 29 years preceding, in respect of the long desuetude of possession.
Fol. Dic. v. 2.p. 110. Haddington, MS. No 2894.*** Durie reports this case:
1623. July 10.—In an action pursued by an Highlandman called M'Kay against the Laird of Skelmurlie, for payment of the duties libelled, pertaining to the office of the crownry of Arran, wherein the pursuer was infeft, and which was libelled to be resting and owing by the space of 30 years preceding the intenting of the cause, and were specially condescended yearly to extend to a special quantity acclaimed, and whereof the pursuer alleged possession sundry years before the years libelled; the Lords found no action ought to be granted for the said duties of the saids bypast years acclaimed, the pursuer having confessed in his summons that he wanted possession during so long a space; in respect it was a preparative of an evil example, to induce a servitude upon the defender's lands and heritage, which might tend to evict the whole lands; for the pursuer acclaimed, in his summons, as due to his office, a special quantity to be yearly paid for every horse of each plough of land within the isle, viz. half a lippy of meal and half a lamb; which the Lords found ought not to be sustained; seeing, albeit the pursuer was infeft in the office of crownry, yet he had neither infeftment nor other writ nor constitution which might furnish and give an action for the special quantity acclaimed; and therefore would not sustain the pursuit for the quantity to be proved by witnesses, except the pursuer would prove the same either by infeftment, bearing that quantity, or by some constitution or other lawful writ, which may produce action for the same quantity, and that that writ were shewn and produced for the title of the pursuit; and this was found concerning the bygone years acclaimed; but concerning that part of the summons whereby the pursuer desired the defender to be decerned in time coming to pay that quantity, it was not decided.
1623. July 15.—In this came cause concerning the office of crownry immediarely before mentioned, the pursuer having past from the bygone years acclaimed by his summons, and insisting only for payment in time coming, in respect of his infeftment, and that his summons bore that, conform to his infeftment, he was in continual possession, and his predecessors, of that duty libelled, past memory of man; the defender contending that that possession tending to lay on a great servitude upon the defender's lands, wherein he and his predecessors were infeft without all thraldom, which ought not to be prejudged by his alleged use and possession, to be proved by witnesses, but required a more solemn probation by writ, as said is; specially seeing, by the passing from the 30 years libelled, the pursuer confest the desuetude of that possession acclaimed, so that, after so long confessed want of possession, the action should not be sustained, by alleging any preceding possession to be proved by witnesses, to infer the foresaid servitude; the Lords sustained the action for time coming, the pursuer proving, by sufficient honest and unsuspected witnesses, to be examined in presence of the Lords, that the pursuer and his predecessors have been in continual possession of receiving of payment of the same duties libelled, from the whole rest of the heritors within the isle of Bute, at least from the most part of those heritors of the lands, continually, past memory of man, and to the very date and time of the intenting of this cause; and that sicklike he proving that he and his predecessors were in possession of receiving also the same duties, from the heritors of the same lands, for the which the defender was convened, continually, preceding the years libelled, which he had past from, past memory of man, before the said years; which point the Lords found the pursuer should be holden expressly to prove; and so sustained the action.
