A discharge of 20s. Sterling payable yearly to a Constable with a perpetual renunciation thereof, not relevant against the Constable's singular successor having right by apprising.
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The Lord Halton, treasurer-depute, being infeft in the estate of Dundee and Constabulary thereof, cum feodis et emolumentis ejusdem, pursues the Town of Dundee to make payment to him of the sum of 20s. Sterling allowed to them in their Æque to the Exchequer in part of their burgh-mails, which Æque bear expressly this 20s. “consuetis solvi annuatim to the Constable of Dundee, or Lord or Viscount of Dudhope.” The defenders alleged, absolvitor, 1mo, Because the pursuer produces no special constitution of this 20 s. as a part of the emoluments of the Constabulary, for the Æque bearing “a sum to be paid to the Lairds of Dudhope,” it might be another right of pension, but not as Constable, neither can the generality of the infeftment be made special by payment; for, though the Æque bears, “that this is accustomed to be paid yearly,” yet that doth not import that it was truly paid, but it is only a designation of its being once paid to the Constable or Laird of Dundee; but the Town having gotten constant allowance of it, they have prescribed right thereto; 2do, The Town produceth subscribed articles betwixt the Constable and Town of Dundee, whereby the Constable “renounces all right he had to this annuity.” The pursuer answered to the first, That the emoluments of offices are ordinarily general, and possession doth only make them special; and here possession is clearly proved, in that the King doth yearly allow to the Town this annuity, “as used to be paid to the Constable of Dundee,” who did pretend no other title thereto during all their payments, neither was it for any use for the Exchequer to call for the Constable's discharge, it being a constant annual allowance to the Constable, which if the Town had not paid, they were liable for it to him; and, as to the discharge, it could have only effect against the granter or his heirs, seeing no real right aut jus fundi can be transmitted by a discharge, which is only personal, and reacheth no further than the granter and his heirs, who being obliged to warrant the same, cannot come against it; but it hath no effect against singular successors, as is ordinary in superiors discharging, of feu-duties, but especially in this case where this annuity is due to the Constable by his office, and cannot be separated from the office without the King's consent; for if for any fault the Constable lost his office, his discharge would not be effectual against any other Constable not being his heir, nor doth it import that the Æque doth bear “sometimes the Lairds of Dudhope or Dundee,” for unless a right could be shown to them distinct from the Constabulary, or that they got it when they were not Constables, law will ever presume that they had it as Constables, however they were designed in the Æque; for it being used to be paid to several generations of them, it cannot be presumed to be a pension, which is only personal, not reaching heirs; and though the words “used to be paid to the Constable” might have at first imported a designation, yet here it is constantly so continued, and sometimes bears debitis et consuetis, and doth not bear “of old, or some time due, or used to be paid to the Constables.”
The Lords found the pursuer's title valid by his infeftment, and made particular by the use of payment instructed by the Æque; but found that the Town's possession, qualified by their Æque, could import no prescription, except for the years preceding 40; and found that the Constable's discharge was not effectual against the pursuer a singular successor, having right not only to his gift of ultimus hæres, but by several apprisings.
Fol. Dic. v. 2. p. 68. Stair, v. 2. p. 718.*** Fountainhall reports this case:
In the action Lord Halton, as Constable of Dundee, against the Town of Dundee, for payment of an heritable fee for many years bygone; alleged, They had a discharge of it from the Earl of Dundee. Replied, He was but an administrator, and could not prejudge his successors in the office; so that it may be drawn to a general point, whether one that has an heritable office (for in a temporary office, such as the Provostrie of Edinburgh, there will not be much doubt they cannot,) with a fee annexed thereto, (such as a Bishop's heritable Bailie or the like) can grant a valid renunciation and discharge of the fee of all years to come? “The Lords, after much debate, found he might discharge it, so as to prejudge himself or his heir, but not a singular successor deriving right from him; or who has apprised or adjudged it.” And that, albeit an office is jus incorporeum, and is conveyed by a gift without any sasine or infeftment following thereupon. See in another law MS. the case of Montgomery of Langshaw, where the Lords found a superior's discharge of feu-duties for years to come did not militate nor subsist against his singular successor*. Yet it may be alleged, Halton is an heir, coming in by his ultimus hæres, only he will call himself now a singular successor, and cloath himself with the apprisings ; but he should not be permitted to invert the title by which he entered the possession, which was qua donatar to the ultimus hæres. Then it was alleged for the Town, That they could not be liable for that L. 20 of burghmail acclaimed by Halton as due to the Constable for his fial, quoad bygones, because they were in bona fide not to pay it, in respect of the former Earl of Dundee's discharge, and so they were fructus bona fide percepti et consumpti. “The Lords found they were not bona fide possessores; and therefore decerned for bygones.”
