The erection of a royal burgh within a bailiary excludes not the bailiary of its jurisdiction and casualties; and the case differs from that of a barony constituted within an heritable sheriffdom, because the casualties of sheriffship fall to the King, but those of a bailiary belong to the bailie, and cannot be prejudged by any posterior grant.
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The Lord Colvil being infeft in the heritable office of the Bailiary of Culross, by progress from the Earl of Argyle, first Bailie, who was infeft by the Abbots before the Reformation; having full power of all jurisdictions, civil or criminal, and of all the amerciaments, bloods, and casualties to his own behoof, he does thereupon pursue a declarator of the right against the Town of Culross, which is within the Lordship of Culross, that he had right to the bloods, and to all jurisdictions civil and criminal amongst the burgesses thereof. It was alleged for the defenders, absolvitor; because their town was erected in a burgh royal by the King, with power of heading and hanging, and other privileges of burghs royal, by virtue whereof they have been in immemorial possession, in exercising all jurisdiction, civil and criminal amongst their own burgesses.
The Lords, before answer, having ordained either party to adduce witnesses as to the possession of their jurisdiction; which being closed, the debate was re-assumed upon the Town's right and possession;
It was answered for the pursuer, That he and his authors being infeft in the said heritable office long before the erection, and before the annexation of the abbacy of Culross to the Crown, no right granted thereafter to the Town could prejudge his established right; especially seeing, in the very act of annexation, such Bailiaries are expressly reserved, and declared to be unprejudged; and as to the Town's possession, it was but clandestine, and not total, for the Bailies did still exercise jurisdiction even upon burgesses of the Town committing bloods in the Town, and likewise strangers committing bloods, as is instructed by his court-books and witnesses, which is sufficient to hinder prescription. It Was answered, That the defence stood yet relevant, for the granting of the Bailiary could not be exclusive of the granter's own jurisdiction, but cumulative; and as the abbots, so the King, retained jurisdiction, and might dissolve a part of the barony, which thereby ceased to be within the jurisdiction of the Bailie of the barony, and might erect the same in a burgh royal, as he has done; in the same way as the King, after granting an heritable Sheriffship, may yet erect a barony within the same, which may exclude the Sheriffs, if the baron use diligence.
The Lords found, that the erection of the burgh royal being after the constitution of the Bailiary, could not exclude the same of its jurisdiction and casuality, unless it had been by possession sufficient to make prescription; and that the case was not alike, as if the barony of a baron were constituted within an heritable Sheriffship; because the casualties of the heritable Sheriffship belonged to the King himself, and could be only understood without prejudice of subordinate jurisdiction of Baronies, which were ordinary and known; but here the casualties belonging to the Bailie proprio jure, the constitution of the burgh could not prejudge them, even albeit the Lord of the regality's consent was thereto produced, seeing the Bailie consented not: But as to the possession and prescription, whether the Town could prescribe the right of the civil jurisdiction, albeit the Bailie exercised the criminal jurisdiction of bloods, or whether the Town could prescribe their right of a part of the civil jurisdiction, in so far as concerned trade; the Lords superseded to give answer white the first of June, and that they had time to consider the depositions of the witnesses fully.
