It was found that the erection of a burgh royal, with the privilege of electing their Magistrates, did not exclude the right of the Lord of Erection, who previously, by his infeftment, had power, when it was a burgh of regality, to elect one of the bailies.
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The Town of Aberbrothick pursue a declarator of their right to elect their magistrates, as being a free burgh royal, and that the Earl of Panmuir had no right to elect any of them. Who alleged, That the Marquis of Hamilton was infeft by the King in the abbacy of Aberbrothick, with express power to elect one of the Bailies of Aberbrothick, and by virtue thereof had been in constant possession so to elect; and likewise, the defenders predecessors deriving right from the Marquis. It was answered for the pursuers, That they were at that time but a burgh of regality, and whatsoever the Marquis, who was Lord of Erection, and came in place of the abbot, might have done in the election of a burgh holden off himself, yet now the burgh being erected into a burgh royal, holding the privilege of a burgh immediately off the King, with express power to elect their magistrates, they had thereby good right to a free election. The defender replied, That he having an established right before their erection, no subsequent erection could evacuate the same, which is granted periculo petentis et salvo jure tertii.
The Lords found the Earl of Panmuir's right, by infeftment and erection, relevant, and assoilzied from the declarator.
