What Title requisite in the Positive Prescription.
Subject_3 SECT. XI.
What Title requisite to the Prescription of annual Duties and Prestations?
Sheriff of Galloway v. Earl of Cassillis
Date: 11 March 1634 Case No. No 144.
A real servitude of tilling in harvest, &c. found established by immemorial possession, though done only by the defender's tenants, without of his knowledge.
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The Sheriff of Galloway being infeft by the Abbot of Sawlset in the Bailiary of certain lands pertaining to the Abbot, with services and dependencies due thereto, pursues the Earl of Cassillis and the tenants of his lands, whereof the Earl was heritor, and likewise Bailie, for payment of the said services, and doing of the same in ail time coming; and the particulars craved by the summons were “furnishing of shear darges in harvest, and tilling in sowing time, and leading of funilzie, and such other services;” and which the pursuer craved by this pursuit the defender to be decerned to do to the pursuer's other lands, pertaining to her heritable, not pertaining to those baronies whereof he was Bailie, but being land ture, holden by the pursuer of another superior than the Albot and also he craved the payment yearly for his said Bailie's duty and service of a certain quantity of oats and straw, particularly libelled for each plough of the defender's lands, together with some hens yearly; the ground of which pursuit was founded upon his infeftment of the bailiary, as said is, with the connexes and services belonging thereto, (for these were the words of his right, and there was no special duty insert therein;) and in fortification thereof he offered to prove that he had been in use, and his forbears, Bailies, of receiving of all these particular services and uties from the tenants of the said lands these 50 years bypast. And the defender alleging, That there was no ground nor reason to compel him, who was heritor, to do these services to any lands without the baronies, whereof the pursuer was constituted Bailie, and to go to any other of the pursuer's lands, not being of these baronies, neither holden of that Abbot, but of other superiors, and no use of the tenants, how long soever of doing the same, and paying them to these lands, whereto he was noways astricted, either in law or in reason, or by any constitution, either in infeftment or any other writ, could oblige the heritor, the same being done by and without his knowledge or consent, specially his infeftment, not astricting him to any such thing; and the pursuer's right of bailiary not proporting the same, and these services and duties being differing, and altogether disagreeing from services due to kirkrmen's Bailies;—and as to the oats, straw, and hens acclaimed, it were out of all reason to allow this pursuit for the same, as if Bailie services could extend to such predial duties, the same being a part of the duty and profit paid for the ground, which can belong to none but the master and heritor of the ground, or to such persons as have special right habili modo to such duties out of the lands;—these allegeances were repelled, and the action sustained, both for these duties of corns, straw, and hens, to be paid yearly to the Bailie, as duties and services due for his bailiary, and also for the special darges acclaimed to be done to the pursuer in his lands out of the barony, in respect of the said 40 or 50 years possession uninterrupted, albeit the possession was only from the tenants, and not from the heritor, nor of his knowledge, which the Lords found not necessary, and admitted the said summons and reply of possession to the pursuer's probation; but declared they would reserve to themselves, after probation, to determine upon the special services, and quantity of corns and others, which they would decern to be paid in all time there-after for the said bailie-duties, as they should find reasonable.
Act. Stuart & Heriot.Alt. Advocatus, Nicolson & Neilson.Clerk, Hay.
Fol. Dic. v. 2. p. 109. Durie, p. 711.
