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Scottish Court of Session Decisions >>
The Earl of Calendar v The Town of Stirling. [1672] 2 Brn 662 (5 July 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Brn020662-1068.html Cite as:
[1672] 2 Brn 662
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Earl of Calendar v. The Town of Stirling
Date: 5 July 1672
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The Earl of Calendar, as heritable Sheriff of Stirlingshire, pursues the Town of Stirling for making payment to him of those customs, commonly called the Sheriff-gloves, as also of a stag every day of the fair, conform to his possession, at least the use and wont of his authors, the Earls of Mar. Alleged,—That no right was produced to prove the Earl was Sheriff, or had right to the particulars acclaimed. Answered, They had produced his infeftment of the Sheriffship, which, though it was general and bore not the particulars he sought, yet he offered him to prove those were immemorial casualties of that office.
Alleged,—His infeftment is null, proceeding upon a gift or signature of his Majesty's, the time of his captivity in the Isle of Wight, all which are since revoked and declared void. Answered,—Whatever defect he had that way, the same is purged, being ratified in Parliament in 1662. Replied, Quod non est, id nequit ratificari.
Farther alleged,—That Stirling is sheriff within itself, and so never owned the sheriff of the shire. Answered, The two sheriffships are compatible; the sheriff of the shire is the far older of the two, and was in possession of the emoluments accruing to his office, and now acclaimed, before Stirling were made sheriffs within themselves: that the gift given to the town was salvo jure antiquiore.
Alleged,—That these thirty years bypast, the sheriff of the shire has used no deeds of possession of what he now seeks; that the town all that time has been free and in possession of their own privilege of sheriffship; and, therefore, the action being possessory, the defenders are to be maintained in their possession and must have the benefit of a possessory judgment. Answered, There is no immunity prescribed, except they say forty years free.
It was likewise alleged,—That the acts of Parliament discharge all sheriffs from oppressing the lieges in fairs; viz. acts 60 and 61 in anno 1456, act 33 in 1469, with many others. Vide act 277, post medium, in 1597; act 125, P. 1581. Item, that it is res judicata already betwixt the Town and this pursuer's authors, in so far as they having been pursued by the Earl of Mar for thir very customs, they were after debate assoilyied therefrom. Answered, That res judicata being exceptio impeditiva litis ingressus, and so in effect a dilator; the same must be instantly verified by production of the said sentence absolvitor, else no respect ought to be had thereto. Vide Dury, 10th July, 1623, Cronnar of Arran against Laird of Skelmurly.
