Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Widow Wallace
v.
-

Date: 28 June 1649

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In the action for a terce, at the instance of Widow Wallace, furth of her husband his land of the Cannongate,—it was excepted, That all burgh lands ought to be free, and ought to have the like freedom. It was replied, That, by the old laws, the word burgh is only to be understood of burghs royal; who have that privilege, as it would seem, because they were almost merchants and tradesmen who dwelt therein, and did leave their dwelling-house to their heir; as the chief messuage in landward is likewise thought to be præcipuum: and that, out of the moveables, the relict might have a competent third. It was duplied, That the burghs of regality and of barony are of a like nature, the inhabitants having collected themselves to dwell together for mutual defence. And what is privilegiatum to the burghs royal, as, to vote in Parliament, to sell wine and wax, &c. those particular exceptions, by the Acts of Parliament, firmant regulam in omnibus casibus non except is; and so they take infeftment by hasp and staple, in the regals as in the royals. Likeas the custom has never been of seeking such a terce, albeit Anna Hay got it in the Cannongate,—the Raes, her good-sisters, not willing to oppose her for their own reasons; quod unicum exemplum in jure per Contradictionem non contraver sum, non trahendum est in consequentiam. And I think the terce usually kenned by sunny side and shadow in prediis rusticis. I scarce can see that kenning can be designed in urbanis prediis; or see I what may be the inconvenient in setting the two part and third. Vide L. Burgenses, anent the flat, et de interiore domus parte, appointed to the widow of a burgess. Howsoever, Repelled the answer and duply.

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