An infeftment by the King, of lands with a fair, was reduced, as impetrated from the King by obreption, suppressa veritate, the King not having known that he had on the same day granted a fair to another town, within a mile of the former.
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Farquharson being, by the Bishop of Aberdeen, infeft in a fair in the Kirktown of Birse, pursues declarator against the Earl of Aboyn, that a late gift by the King to the Earl for keeping that same day upon his land in the neighbourhood was obtained by obreption, or subreption, the King not knowing that he had granted a fair that same day to the Bishop of Aberdeen, to which the pursuer has right, within a mile or thereby of the pursuer's fair, and which was taken in æmulationem vicini, and therefore ought to cease;—The defender alleged absolvitor, 1mo, Because the King may grant erection of burghs or fairs where he pleases, and ordinarily erecteth burghs of barony at the ports of royal burghs, and burghs royal within the bounds assigned to other burghs royal, which neither was nor can be challenged without incroachment upon the prerogative, much less can this fair be challenged; 2do, In granting of fairs, chief respect is to be carried to the public good, which appeareth in giving the Earl this fair; because it is offered to be proven, that it is above two miles distant from the pursuer's fair; and there is interjected the water of Dee, which is frequently so impetuous, that passengers or cattle cannot pass, and there is very little accommodation at the place of the pursuer's fair, and good accommodation in the defender's, which is a burgh of barony.—The pursuer answered, That there is here no debate of the prerogative, what the King might do, but what he would have done, if he had known there was a fair inconsistent with the Earl's fair, granted to his predecessors some hundred years ago, and therefore the Earl's fair must be declared to have been procured suppressa veritate, or expressa facultate, and therefore is void. Neither are the allegeances for the Earl relevant, for there is not a mile's distance betwixt the fairs; but suppose there were two, it were not sufficient; and as for the passage of the river, it imports not; for this fair is the greatest fair in the north for cattle, which come always from the north, and are sold there, and then brought to the south; so that though they were bought in the Earl's fair, they must pass Dee before they go south; and it is notour, that there is a boat on Dee sufficient for passengers at all times, and that cattle can swim the river at any time; and this case, in all the circumstances, after full debate, hath been determined before by the Lords, in the case at the instance of Mr David Falconer against Glenbervie, No 4. p. 4146.; and if the Lords should sustain such a preparative, that powerful people might set up markets or fairs, near the markets of their inferiors, who by their influence might draw the markets wholly to themselves, it would be of pernicious consequence.
The Lords sustained the declarator, and repelled the defences, and found that the Earl could not impetrate nor make use of a fair at this distance, till the pursuer's fair were ended, or a month before the same.
