Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir John Malcolm of Innerteil v. Colvil of Blair, Lindsay of Dowhill, and Others
Date: 18 February 1697
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I reported Sir John Malcolm of Innerteil against Colvil of Blair, Lindsay of Dowhill, and others. They had pursued him for a spuilyie of some sheep; he, by way of defence, repeated a declarator against them, bearing he stood infeft in the property of the hill of Bannarty, off which thir wedders were taken; and though the defenders had, in their feu-charter from him, a clause cum communi pastura, restricting them to such a definite number of sheep, yet he and his predecessors, past memory of man, had the right and privilege of ranging that hill for two effects: 1mo. To see that they did not over-charge the hill, nor exceed the number allowed them; in which case they used to seize upon all the supernumerary and waiff cattle as escheat. 2do. To prevent the keeping of scabbed or diseased sheep, which may infect the whole; and by which he made no profit; but the country people, who assisted at the search, got a sheep out of every flock, which was one of the perquisites and emoluments of the office; and this was all the spuilyie that was committed.
Answered,—His charter carried no such right. If it had borne a jus scrutandi, it might have been a title ad inchoandam prœscriptionem; but he being infeft in no such scrutinium, but only in the property of the hill, he can never introduce any such unusual, unknown, exorbitant servitude upon them; it being none of these known in the Roman law. And though the right of forrestry had sundry special privileges of escheating the goods, that only held where it was expressly granted, being inter regalia.
The Lords allowed a conjunct probation, to try the beginning, frequency, and reiteration of the exercise of this power of searching, and the quantity of the emoluments, and if it was only used upon complaints, and how far it has been interrupted; and then the Lords would determine if there was a sufficient constitution for introducing such an extraordinary servitude.
