What Title requisite in the Positive Prescription.
Subject_3 SECT. XI.
What Title requisite to the Prescription of annual Duties and Prestations?
Earl of Callender v. Town of Stirling
Date: 11 July 1672 Case No. No 149.
Found in confermity to Douglas a gainst Town of Johngh, No 148. p. 10889. that 40 years poesession gave right to a Sheriff to ride a fair, and to extact so much for gloves, and for.
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The Earl of Callender being infeft in the heritable office of Sheriffship of Stirling, pursues a declarator against the Town, that he hath right to ride their fairs, and to exact so much for the Sheriff-gloves, and for the price of the best staig in the fair. The defenders alleged absolvitor, because the Earl was not infeft in any such duties; and albeit he or his authors had been in possession, thereof, it could only be understood in way of gratification, to be continued no longer than the burgh pleased, and if it were otherways exacted, it was unwarrantable; neither can the pursuer pretend prescription by 40 years possession before this pursuit, because he hath been long out of possession. The pursuer replied, That he being infeft in the office of Sheriffship, with all emoluments and casualties thereto belonging; long possession can only declare what they are, and neither in this nor any such infeftment is there any thing specially exprest, and though the pursuer cannot say 40 years possession before the pursuit, it is known that he was incapacitated to possess during the Usurpation, while all heritable offices was supprest.
The Lords found that 40 years possession before the Usurpation, or immemorial possession before the fair, of these particulars, was sufficient to extend the general clause of the pursuer's infeftment thereunto.
