What Title requisite in the Positive Prescription.
Subject_3 SECT. XI.
What Title requisite to the Prescription of annual Duties and Prestations?
John Boswell v. The Town of Kirkcaldy
Date: 22 July 1668 Case No. No 147.
A proprietor of burgh acres found liable on account of immemorial usage, to pay stipend to a second minister, although he paid his whole teind to the first.
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John Boswell having some acres in the town's lands of Kirkcaldy, and some houses in the town, but not dwelling within the town, or parish, nor using any trade therein; pursues the town as having unwarrantably stented him for his stock and trade, he not dwelling in their burgh; 2dly, For unequal stenting him as to his lands; 3dly, For stenting him for the town's debts, as for the sums paid for their erecting harbours, and some teinds they bought; 4thly, For stenting him for the second minister's stipend, whereas he paid the whole teind to the first minister, nor dwelt he in the parish, nor consented to a second minister, or to his stipend, and for unwarrantable quartering on him and his tenants, and this since the year 1644. It was answered for the defenders, That they denied stenting of the pursuer, for any stock or trade, seeing he was no inhabitant; or that they quartered on him unwarrantably; but alleged there was now no ground after so long a time, to quarrel the inequality of their stent rolls, which were made by 15 sworn men, especially after so long a time; for this preparative would be the foundation of a debate, at the instance of every burgess, against every town in Scotland; neither could there be a clear rule, as in valuations, but behoved to proceed by the stenter's conjecture, according to the common esteem of the means and trade of every burgess; so that unless the complaint were against the inability of the stenters, in due time made, there could be no debate thereafter; and further alleged, That for the Town's debts, that such as were contracted for the common benefit of the Town, for getting their erection, and harbour; and for the second minister's stipend, the half of which had been paid by the whole heritors since the year 1613, and the other half since the year 1649 that their new kirk was erected, should burden the pursuer proportionally, according to his land rent. The pursuer answered, That he not being an inhabitant, was not concerned in the erection or harbour, nor in the second minister's stipend, seeing he paid his whole teind to the first minister.
The Lords found the pursuer liable for the half of the stipend, in regard of the immemorial use of payment, but found him free for what he had not paid of the other, unless it had been imposed by authority, or his own consent; and also found him free of the personal debt, and would not sustain process against the inequality of the stent roll after so long a time.
1669. February 1.—The Town of Kirkcaldy having given in a bill to stop the interlocutor of the 22d of July 1668, of the process against them, and having objected against that article of the libel, whereby John Boswell craved repetition of what he was stented for, for charges of commissions to the convention of burghs, upon this ground, that the convention of burghs was authorised by acts of Parliament, and commissioners are ordained to meet yearly thereat, which being a burden arising from the authority of Parliament, those who have tenements in the town, or lands in the burgh's lands, are liable pro rata; and did again resume the debate anent the second minister's stipend; and being heard thereupon in presentia;
The Lords adhered to their former interlocutor anent the teinds, and found nothing could make John Boswell liable for any part of the second minister's stipend, except what was due by law out of his teinds, or what was due by his own consent, or by custom of 40 years, and found him not liable for charges of commissioners of burghs, which though authorised by Parliament, yet the intent thereof was trading; and though the convention might equalise the proportion of taxations amongst burghs, which did concern all having land therein; yet that being a case merely contingent, they would not, upon consideration thereof, put any part of the burden upon those who had no trade.
Fol. Dic. v. 2. p. 110. Stair, v. 1. p. 558. & 595.*** Gosford reports this case:
1668. July 22.—John Boswell having a tenement and some acres of land in Kirkcaldy, did intent action against the Magistrates for repetition of some impositions laid upon his land more than was due; and particularly, for payment of a proportion of the stipend given to a second minister, for which they had stented his lands in relation to the whole stipend;—whereas, at first, the half of the stipend was only to be paid by the burgh, and the other half by the landward parish; but there being a new kirk erected for the landward, that half paid to the Town minister by them was settled upon the minister of the new kirk; whereupon the Town did impose the same upon their own incorporation.—The Lords found, that the Magistates had no power to impose such a stent, albeit for a pious use, unless the heritors on whose lands it was, imposed, or made voluntary payment.—See Burgh Royal.
