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Scottish Court of Session Decisions >>
The Earl of Galloway v The Marquis of Annandale. [1748] Mor 7708 (3 March 1748)
URL: http://www.bailii.org/scot/cases/ScotCS/1748/Mor1807708-409.html Cite as:
[1748] Mor 7708
Recompence due for a right of stew artry, clothed with possession over an estate, described as lying within another stewartry, the stewart of which had no possession ever the estate.
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The Earl of Galloway claimed for the stewartry of Gairlies, granted to his predecessor 1542, by a charter proceeding upon a resignation of the barony of Gairlies, lying within the stewartry of Kirkcudbright, cum officio Senescallatus, erected into a lordship; and he was in possession of exercising a jurisdiction, which he entitled of Stewartry in his books; but it was said, the particular acts were only such as might be exercised by a Baron Bailie.
The Marquis of Annandale, heritable Stewart of Kirkcudbright, granted to his author 1537, by a charter confirming another some years before, pleaded, That Gairlies was part of his stewartry, and could not be erected into another in favour of any person, to the prejudice of the heritable Stewart's prior rights. One stewartry could not subsist within another, as a stewartry might within a shire; and he was in constant use of accounting in Exchequer for the blench-duties of the Earl's barony of Gairlies, and had also summoned the inhabitants thereof to attend as jurors at the Justiciary Circuit Courts.
Pleaded for Galloway, That the Stewart of Kirkcudbright had never exacted the blench-duties, however he pretended to account for them; and there was only one instance of his summoning an inhabitant as a juryman, who did not attend: That both rights stood in need of the aid of prescription, which Galloway's had; and Annandale had no possession over Gairlies; so that, if he ever had a right, it was lost by the negative prescription: That Kirkcudbright was a proper stewartry, extending over the King's estate comprehending Gairlies; but the presumption was, that, before the Great Stewartry was made heritable, it was disjoined therefrom, and granted heritably to the claimant, whereby it came to be described as lying within that stewartry, of which it had really been a part; besides, as Kirkcudbright was no sheriffdom, but the Stewart did the functions of the Sheriff, Gairlies continued to remain in that respect within the Great Stewartry, as other stewartries were within the respective shires where they were locally situated.
Pleaded for Annandale, That the presumption was, this office was erected, before the estate came into the hands of the King, by the proprietor who had granted the stewartry of his barony of Gairlies, which was no more than the office of a Baron Bailie, at that time called Stewart: That, on the lands falling into the King's hands, by the forfeitures of the Earls of Douglas, to whom they had belonged; or, perhaps, on the forfeiture of some other family, to whom they had formerly belonged, the Great Stewartry was erected; but the former jurisdiction still subsisted, and was granted together with the barony of Gairlies, which was, therefore, rightly described as lying within the Stewartry of Kirkcudbright.
The Lords found the Earl of Galloway entitled to a recompence for the stewartry of Gairlies.
Fol. Dic. v. 3. p. 363. D. Falconer, No. 248. p. 333.
