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The Marquis of Annandale v The Tenants of Kircudbright. [1711] 4 Brn 861 (19 December 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Brn040861-0365.html Cite as:
[1711] 4 Brn 861
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Marquis of Annandale v. The Tenants of Kircudbright
Date: 19 December 1711
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There being a duty of some mart cows, payable out of the parish of Kirkcudbright, to the Marquis of Annandale, as steward thereof, and a fee and emolument due to that office; and the tenants being charged to pay them, they gave in a bill of suspension on thir reasons,—1mo, That these kye were due to him as keeper of the Castle of Threave, and for maintenance of the garrison kept there of old, which is now wholly ruinous and decayed; and, cessante causa, the duty must cease.
Answered,—This is a fee and emolument due to the heritable stewards of Kirkcudbright, whereof they have been in possession past memory of man: and it is of no import whether the castle be standing or demolished; for, though these castle-wards and constable fees were originally due for securing the peace of the country, and to defray the King's expense at table, when he came in circuit through the several shires, yet now they are become a part of the subject's property: and the same objection having been made against some kains and casualties payable to the Castle of Lochmaben, now ruinous, it was repelled.
2do, alleged,—Their masters held their lands blench of the Queen, pro omni alio onere, and so thir lands cannot be burdened with this duty.
Answered,—Though it be not in your charters, yet it is in mine, and confirmed by immemorial possession.
The third reason was, The manner of exaction is most illegal and abusive; for officers come, exacting crowns and half-crowns of some, and burdening others.
Answered,—The complaint is calumnious; for the way of uplifting is, that, at the Michaelmas head-court, intimation is made judicially, that they may meet and stent themselves in their proportions, and bring them in to the steward. 2do, If there were any extortion, let them complain to the judge competent, and they'll be punished according to law.
The Lords, in respect of the possession, (which was not denied,) refused the bill, reserving to them to get the way of uplifting it better regulated. If the possession had been controverted, the Lords would certainly have passed the bill, to the effect it might be proven; but there was no use for it here, the possession not being denied.
