What Subjects may be carried by the Positive Prescription.
Lord Kennet, and Others, v. Lady Francis Erskine
Date: 1 March 1769 Case No. No 77.
Instance of a right to tolls and customs acquired by the positive prescription.
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By a charter anno 1602, James VI. erected the town and port of Alloa into a burgh of regality and barony, in favour of John Earl of Mar, ‘cum omnibus privilegiis et liberatibus liberarum nundinarum, et ut recipiant et exigant omnes tholas, custumas, aliasque divorias earund, sicuti recipiuntur, et ut spectant alicui foro, seu liberis nundinis burgorum liberorum baroniæ et regalitatis infra regnum nostrum; et generaliter, cum potestate agendi, utendi, et exercendi omnes alias libertates et commoditates quascunque, ad liberum burgum baroniae et regalitatis, forum hebdomadale, liberum nundinum, liberum portum marinum, et littus spectand.’
This clause was repeated in succeeding charters; and, upon the forfeiture of the last Earl, the estate being purchased by Lord Grange, was disponed to him by the commissioners of enquiry, ‘with the yearly fairs and markets thereof, and tolls and customs belonging to the said Earldom.’ In these terms, a charter under the Great Seal passed in 1725, and new charters were afterward expede by Lord Erskine, and Lady Francis Erskine.
Under these titles, the family of Mar had been in possession of levying, 1st, A duty upon goods landed at the shore; 2dly, A duty upon goods brought from the country, and passing through” the town; 3dly, Certain dues at fairs and markets.
In a declarator of immunity, it was pleaded; That such exactions could not be supported upon mere possession, without a title; and that the charter was no title, since it conferred no other rights but such as belonged to all boroughs of barony as such.
Answered; The clause in the charter is broad enough to carry the customs in questions; 15th November 1754, Town of Lauder contra Brown, No 101. p. 1987.
At the same time, it was contended, that immemorial possession was sufficient of itself; at least, that it presumed a title. The statute 1587, c. 54, plainly proceeds upon that supposition; and so it is understood by Sir George Mackenzie, in his observations.
‘The Lords sustained the defence, and assoilzied.’
