A summary complaint being given in to the Lords, that a neighbour had obtained, by subreption, a grant of a fair from the Crown, in æmulationem of the complainer, they found it not competent before them by way of summary complaint; but were of opinion it was competent in this shape before the Justices of Peace.
Click here to view a pdf copy of this documet : PDF Copy
Dr Oswald of Preston having an ancient weekly market that will afford L. 100 Scots of customs yearly, Morison of Prestongrange procures the grant of a new market for his lands adjacent to the said barony of Preston, and makes it on the same day, and at a place very near to that where Preston market is held; whereby the old market is prejudged. Roger Oswald writer to the signet, being factor to the estate of Preston, gives in a bill, with concourse of the creditors complaining of this invidious and unneighbourly management, and offers to prove that Prestongrange intercepts the comers to Preston market with corn and other merchandise, and causes them to set them down at his market place; and therefore craves the Lords may summarily redress the injury, and discharge such an oppressive invasion and incroachment. The Lords thought that markets and fairs being only granted by the Sovereign, either in Parliament or by their charters, if Prestongrange had no such erection, then it would be an unlawful convocation of the lieges; and esto he had such a grant, yet being long posterior to Preston's market, he ought to have chosen another day, and a different remoter place, and not have made it interfere with a more ancient neighbouring market, which could scarce admit of any other construction but to be done in amulationem vicini; which the Lords have several times condemned and reprobated, as in the case of Pady Fair, observed by Durie, 24th June 1642, Falconer contra Douglas, No 4. p. 4146.; and within these few years betwixt the Town of Stirling and Polmaise, No 6. p. 4148; and which may occur where a neighbouring heritor on the water above or below my mill, erects one of his own which makes mine restagnate, the same Will not be allowed; but if it only deprive of the grist of voluntary comers to my mill, not being thirled, that accidental extrinsic loss will not be considered. And Andreas Gayll, in his Practical Observations, lib. 2. cap. 69. gives many other instances, and particularly in nundinis and markets, that they ought not to be granted till all the adjacent heritors be cited and heard how far the grant may prejudge them. But the Lords did not enter upon the cause, in regard Ptestongrange not being a member of the College of Justice, he could not be obliged to answer summarily on a bill; yet they thought the Jusices of Peace might summarily cognosce the complaint.
Fol. Dic. v. 1. p. 508. Fountainhall, v. 2. p. 602.
