Governors of George Heriot's Hospital v. John Cockburn Ross, Esq. [1820] UKHL 6_Paton_640

UKHL
Governors of George Heriot's Hospital v. John Cockburn Ross, Esq.
[1820] UKHL 6_Paton_640 · 1820-07-24
Subject_ Superior and Vassal — Sub-Feus — Composition on Entry.This was an action raised by the respondent, who had purchased, many years ago, the ground now covered by Shandwick Place and Queensferry Street. Originally he had obtained charter from the appellants, his superiors, on paying a composition of £32, being the sum corresponding to the real rent of the ground and houses erected thereon.

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Since then, he had feued out the whole ground for building, gaining thereby a yearly return in sub-feu duties, of the sum of £428,11s. 8d., from the sub-feuars, besides taking them bound to pay a duplicando of the feu-duty on the entry of every heir and singular successor.Intending to alienate his whole original feu, the respondent demanded of the appellants to give entry to his disponee, a singular successor, on payment of £430, being one year's sub-feu duty. This the hospital declined, unless he would pay one year's sub-feu duty, and also one year's average value of the whole profits derived by the respondent from his sub-feus, by casualties, or any way whatever.Action having been raised by the respondent against the Governors of the Hospital, in defence the appellants stated that, in point of fact, the sub-feu rights, said to have been granted, were executed without their consent or concurrence. That in this situation their rights as superiors could not be affected by these sub-feus, but must continue entire, as if such sub-feus had never been granted; that the respondent, therefore, must continue liable in the legal full casualty due to the appellants, his superiors, which, upon the entry of a singular successor, is by law fixed at a full year's rent of the lands, according to the value of the same, at the time the entry is granted, and without distinguishing whether such rent proceeds from agricultural produce, or from buildings.Nov. 12, 1813.The Lord Ordinary (Meadowbank) pronounced this interlocutor:

expenses hitherto incurred, and dispenses with any representation.” *

“Finds, that by the pursuer's titles from the defenders, he was under no restraints from sub-feuing, and that the sub-feus he granted, it is not controverted by the defenders, were made for a full and adequate avail of the subject, computing feu-duties and casualties only, and created an immense improvement in the produce thereof, advantageous for the superior he held of, as well as for himself; finds that a purchaser, or adjudger, from the pursuer will be entitled to obtain an entry from the defenders on paying the free income of the estate acquired by him during the first year of his access to the possession thereof; and that the defenders have no title to exact from him any composition according to actual or hypothetical rents, payable to, or enjoyed by, the sub-feuars, and decerns and declares accordingly; finds the pursuer is entitled to the expense of extract, but no other

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On two several reclaiming petitions to the Inner House, the Court adhered. †

June 6, 1815.Against these interlocutors the present appeal was brought to the House of Lords.After hearing counsel,The Lord Chancellor (Eldon) said,

“My Lords, ‡

Before your Lordships proceed in the further discussion of the case of the Duke of Hamilton and Mrs Scott Waring, I will take the liberty of calling your attention, in a single word, to the case of the Lord Provost, Magistrates, Ministers, and Council of the city of Edinburgh, Governors of Heriot's Hospital, and John Cockburn Ross. My Lords, this is a case of great importance, and of no small difficulty. Since it was heard before your

Footnote

* Note by the Lord Ordinary:—

“The Lord Ordinary conceives it quite desperate of the defenders to think they are to get the better, in a question as to the rights of superiority, of the authority of Stair, Bankton, and Erskine, without an adverse authority of any description; even Craig being also hostile. It was slowly, and with difficulty, he apprehends, that in feu holdings a duplicando was exigible from heirs, without a stipulation for that purpose in the contract, or charter, because it was the feeling of the country, as Stair gives it, that feus were locations affording a superior security for the profits of the lands to personal or temporary leases, and were not proper fees, admitting of such severe casualties. But this came to be established, though, as appears from Elchies' Dictionary, with decisions adverse to it. In fact, the feudal law gave no authority for it. The entry, then, of a singular successor could only be thus taxed by virtue of the statutes authorising comprisers, &c., to compel an entry, as stated in the memorial for the pursuers; and of course it is not a feudal casualty, but a statutory payment for completing an alienation, and must be interpreted accordingly. In a proper feudal casualty, the superior is not affected by what he has not consented to; but, can it be believed or argued, that, in order to obtain an entry to an estate of £400 per annum, the statute meant to authorise a payment of £4000, to be exacted by a superior; or, can it be believed, that ever the country has so understood the statutes, and submitted to it without even a question.”
† For opinion of judges, vide Fac. Coll., vol. xviii., p. 402.‡ From Mr Gurney's short-hand Notes.

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It was accordingly ordered and adjudged, that the interlocutors complained of in the said appeal be, and the same are, hereby affirmed.Counsel: For the Appellants, John Leach, J. H. Mackenzie. For the Respondent, Sir Saml. Romilly, H. Cockburn.