What Title requisite in the Positive Prescription.
Subject_3 SECT. XI.
What Title requisite to the Prescription of annual Duties and Prestations?
Alexander Cuningham of Craigends v. Alexander Earl of Eglinton
Date: 27 December 1709 Case No. No 153.
An heritable right of sheriffship, cum omnibus feodis divoriis, seu casualitatibus, seu spectan, aut quĉ ad dictum jus et officium pertinere dignoseentur, sufficient to found a title of prescription, to set up weights, and uplift the duties thereof, in an annual fair at a burgh of barony, within the shire, altho' the baron's charter of erection carried power to him to hold fairs, and exact all the profits and duties thereof.
Click here to view a pdf copy of this documet : PDF Copy
Alexander Cuningham of Craigends having, in anno 1704, procured, by a grant from her Majesty, his village of Kilbarchan to be erected in a burgh of barony, with power to him to hold fairs, and exact all the profits and duties thereof; he pursued a declarator against the Earl of Eglinton, heritable Sheriff of Renfrew, (where Kilbarchan lies,) for declaring, that the pursuer has the sole right to hold fairs in the said burgh, and exact the duties thereof.
Alleged for the defender; He and his predecessors, as heritable Sheriffs of Renfrew, by themselves and deputes, had prescribed a positive right to set up weights at the fair of Kilbarchan, and to exact a particular duty for weighing such goods as were sold there, by immemorial possession; conform to a charter of the sheriffship, bearing, Cum omnibus feodis, divoriis, et casualitatibus, seu spectan, aut quæ ad dictum jus et officium pertinere dignoscentur; which right could not be inverted by the pursuer's charter, which was granted periculo petentis, et salvo jure cujuslibet.
Replied for the pursuer; The privilege of holding fairs, and exacting the duties thereof, being ranked inter regalia by Sixtinus, and other writers on the subject, it could never be possessed as part and pertinent; and the Sheriff being the Queen's Lieutenant, was in pessima fide to make or connive at any exaction upon the subject, without express allowance; nor has the power of exacting customs at fairs any connection with the office of Sheriff; 2do, Again, the defender's possession, as Sheriff, was but as the Queen's servant, and so can never prejudice her Majesty or her donatar; a servant's possession qua talis being the master's possession; 3tio, Esto the defender, as Sheriff, had a positive right to the duties of such a fair, the Sovereign might dissolve that casualty from the sheriffship, and bestow it otherways; it being ordinary to diminish the profits and jurisdictions of Sheriffs, by erecting new jurisdictions of Justices, Barons, &c. within theirs. Nor doth it alter the case, that the defender is heritable Sheriff; seeing the making a right hereditary doth only empower to transmit it to successors, without any further power than what the predecessor had.
Duplied for he defender; That he qua Sheriff could prescribe a right to the privilege in question, is clear from decisions, 18th July 1676, Earl Kinghorn contra Town of Forfar, voce Public Officer; 9th December 1679, Lord Hatton contra Town of Dundee, No 83. p. 10272.; and, which meets the present case in terminis, 13th December 1677, Earl Murray contra Feuars of the Fishing upon the Water of Ness, No 151. p. 10903. The privilege of setting up weights, and taking a duty for weighing, is not properly an exaction of custom; and so not inter regalia; because, the Sheriff is bound, ex officio, to see that no false weights be used, and to regulate weights conform to law; 2do, The defender did not possess in name of the Sovereign, but in his own name, by the Sovereign's concession; 3tio, He shall not here dispute her Majesty's power of taking away any of his casualties, as heritable Sheriff; but positively contends, that no such thing is done, or designed by the grant in favour of the pursuer.
Triplied for the pursuer; The decisions cited for the defender are not parallel: For there was no positive grant in competition with the Earl of Kinghorn's right of constabulary; besides, there is some disparity betwixt a Sheriff and a Constable. And the Earl pretended to prescribe no more than was the known and common right of all the Constables in Scotland; whereas, the right of fairs cannot be called the common right of Sheriffs. The practick betwixt the Earl of Murray and the Fishers of Ness is but a single decision; besides, salmonfishing being inter regalia, a servitude thereupon might be more easily constituted in favour of the Sovereign's heritable Lieutenant in the place, than the liberty of coming to any weights, which is meræ facultatis to every subject, can be lost non utendo. 2do, Our Lawgivers have had a particular care to secure the lieges from the exactions of Sheriffs at fairs, act 59th, Parliament 13th, James II. act 33d, Parliament 5th, James III. It is true, the grant of an office in general, cum feodis, divoriis, et casualitalibus, doth imply such fees and profits as arise from the nature of the office, and are a consequence of the jurisdiction; as the sasine-ox is a perquisite of Sheriffs; for that they, as the Queen's officers, give sasine of lands held of her by precepts out of the Chancery, and count in Exchequer. But such a general clause cannot extend to exotic profits of a different kind, having no contingency with the office.
Quadruplied for the defender; Though the grant of an office in general, cum feodis, &c. implies only the profits and fees naturally arising, according to the common rule, Mandata jurisdictione, ea omnia mandari censentur, sine quibus exerceri non potest; yet a person infeft heritably in an office, may, by long possession, prescribe a right to some privilege, that doth not always follow the nature of the office. And it is strange to reckon the privilege of setting up weights, and exacting a small duty from such as weigh their goods there, for defraying the charges, an exotic profit of a Sheriff, who, ratione officii, is to inspect and regulate weights.
The Lords found, that the Earl's right of heritable sheriffship of Renfrew, cum feodis, divoriis, casualitatibus, &c. is sufficient to found a prescription to set up weights, and uplift the duties thereof, at the town of Kilbarchan.
