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Scottish Court of Session Decisions >>
Jane Telfer, Relict of Captain Stewart, v The Town of Dunbar. [1694] 4 Brn 230 (25 December 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040230-0520.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Jane Telfer, Relict of Captain Stewart, v. The Town of Dunbar
Date: 25 December 1694
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Jane Telfer, relict of Captain Stewart, against the Town of Dunbar, in a declarator of immunity from any cess, stents, or burdens imposed by them on some acres belonging to her, lying beside the said burgh, which held of old of the friers of the Cross-kirk of Peebles, and now, by the Act of Annexation, of the King. Alleged,—She must first disclaim ere she can pursue any such declarator. Answered,—This was not in a non-entry, or other casualty of superiority.
The Lords found, if she insisted on that medium concludendi, that they held not burgage, but paid cess with the shire, there was no ground to force her to declare whether she would disclaim them as her superiors or not; but, if she insisted, super hoc medio, that the lands held of the King, and so could not be stinted with the burgh, she behoved formally to disclaim. This was carried by one vote. Some thought there was little hazard of disclaiming, where one goes to the King, who is the common presumed superior of all the lands within his dominions.
