Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Cunningham of Craigends v. The Earl of Eglington
Date: 8 December 1709
Click here to view a pdf copy of this documet : PDF Copy
Cunningham and the Earl of Eglington. Cunningham of Craigends, being heritor of the village of Kilbarchan in Renfrewshire, obtains a charter from the Queen, in 1704, to himself in liferent and his son in fee, containing a novodamus, and the right and privilege of keeping a yearly fair on the 4th of December, and uplifting the customs and duties of the same; whereupon, being infeft, he raises a declarator against the Earl of Eglington, heritable sheriff of Renfrew, pretending right to the same duties, and craves it may be declared that he has the sole and only right of holding the said fair, and uplifting the duties payable for weighing the goods, and furnishing other accommodations to the merchants resorting thither.
Against which declarator it was alleged for my Lord Eglington,—That he stood infeft in the heritable sheriffship of Renfrew cum omnibus feodis, divoriis, et privilegiis eidem pertinentibus; and, by virtue thereof, he and his authors were in the immemorial possession of uplifting a small duty for the weights at that fair, long before Craigends' charter giving him right thereto. And he being the sovereign's lieutenant in that place, et publicus justitiœ vindex, what could hinder him to take a moderate duty for his pains in overseeing the weights, that the neighbours, in buying and selling, should not overreach one another; and this possession has been sustained to give a right to the Lord Halton, come in place of the Scrimgeours, Constables of Dundee, against the Town of Dundee, 9th December, 1679; and in the Earl of Kinghorn's case, against the Town of Forfar, 18th July 1676; and again, Farquharson against the Earl of Aboyne, 2d December, 1679. 2do, You can never quarrel my right; for your father took a tack of thir customs from me, in the 1677, during his life, for payment of ten merks per annum, and so, you having homologated and acknowledged my right, that excludes you, exceptione personali, to come against your own deed.
Answered for Craigends,—That were a slavery indeed, if sheriffs should exact customs within my burghs of barony and property; and it is plain law, that the exactio vectigalium, or lifting of customs, is inter majora regalia, and not transmitted by a general jurisdiction, as Sextinus de Regalibus shows. And the erecting a sheriffship does not hinder her Majesty from granting fairs within that same bounds; as Sir George Mackenzie gives sundry examples of, in his Criminals,—tit. Regalities. To the second, My father's entering in tack with you, can never militate against me, who never owned your right. Likeas, The Queen's supervenient gift of this fair takes off any preceding homologation.
The Lords found my Lord Eglington's title, as sheriff, was no sufficient title to prescribe a right of exacting customs within another gentleman's property: and though in this cause it was lis de paupere Regno, yet it might be of consequence in other parts of the kingdom.
