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Scottish Court of Session Decisions >>
Falconer of Glenfarquhar v L. Glenbervie. [1642] Mor 4146 (24 June 1642)
URL: http://www.bailii.org/scot/cases/ScotCS/1642/Mor1004146-004.html Cite as:
[1642] Mor 4146
A person was infeft with the immemorial privilege of a fair. A neighbour obtained a subsequent grant of a fair which interfered with the former. Found, that the second could not keep his fair, except at the distance of a month from the other.
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Mr David Falconer being infeft in the lands of Glenfarquhar, with the privilege of an ancient fair, called Padie Fair, from Palladius, holden upon the said lands of———past memory of man, from the 1st of July to the 7th day thereof, pursues the Laird of Glenbervie, who had acquired from the King a late infeftment, anno 1635, of his lands, with the privilege of a fair to be holden on his lands of Dillivard, which lyes within a mile, or less, of the pursuer's lands, whereon his fair holds, to be holden from the 24th of June to the 1st of July yearly, to hear it be found, that the said infeftment ought to be declared null, so far as concerns, or may be extended to the having of any fair on the said lands of Dillivard the time foresaid, as being a privilege privately purchased, and indirectly tending to take away the liberty and privilege of the pursuer's fair, in respect that the pursuer's lands and the defender's, which has the fairs, are not distant from others a mile of ground; and the time of the holdings is so ewest, without any interval of time, that the defender's fair, (which ends the very day when the pursuer's fair begins,) must necessarily evert all privilege and use of his fair, and prejudge him of all commodity which he can have thereby, and tends manifestly to kindle trouble betwixt the parties, and to disturbe the quietness and peace of the country: Which action being heard in the Lords presence, and the parties and their advocates being heard to dispute thereupon, they found, That the defender's, infeftment ought not to extend to the privilege of a fair, to be holden of such nearness to the said lands, for keeping of the same, within the time contained in his infeftmeat, which is in such vicinity, and immediately precedes the time of the pursuer's ancient fair; the defender having taken the same to end the same day when the pursuer's fair begins; for however he might take a right from the King of his lands, with the said privilege of a fair, yet that privilege ought not to have been sought, to destroy the effect and use of that ancient fair, granted to, and bruiked immemorially by the pursuer, and his authors and predecessors of before; and therefore they ordained that privilege, so far as concerns that time of the holding thereof, to cease, as impetrate in æmulationem vicini; and found, that the said fair might be lawfully impetrated, and may be kept by the defender, upon his said lands, at any time after the end of the pursuer's fair, or at any time before, by the space of a month preceding the pursuer's beginning of his fair; but found, that the defender cannot have any fair before the pursuer's fair begin, except there intervene the space of a month at least free, betwixt the end of the defender's fair, and the beginning of the pursuers; and the Lords decerned accordingly.
Act. Advocatus, Nicolson & Stewart.Alt. Mowat, Gilmore & Nisbet.
Fol. Dic. v. 1. p. 293. Durie, p. 895.
