Magistrates of Glasgow and Tacksman - Ada - Keay v. Dawsons and Mitchell - Robertso - Campbell [1826] UKHL 2_WS_230

UKHL
Magistrates of Glasgow and Tacksman - Ada - Keay v. Dawsons and Mitchell - Robertso - Campbell
[1826] UKHL 2_WS_230
The Court of Session having found that certain lands, situated within the territory of the royal burgh of Glasgow, and which had been disponed by the Magistrates in feu-farm for payment of a feu-duty, but to be held burgage, and the titles having been made up as if held in feu, were to be considered as holding feu; and that grain imported within their bounds was not liable to certain burgh taxes, called ladle-dues; and that a clause of thirlage did not apply to invecta et illata;—the House of Lords remitted the case for the opinion of all the Judges.Three questions were involved in this case: 1st, Whether certain lands belonging to Dawson, one of the respondents, were held feu or burgage? 2d, Whether certain dues were exigible by the Magistrates of Glasgow, for grain brought on to these lands? And, 3d, Whether the lands were subject to a thirlage, not only of grana crescentia, but also of iuvecta et illata? They arose out of these circumstances.In the immediate vicinity, and on the north side of the burgh of Glasgow, is situated a piece of land or muir called the Easter and Wester Common, which it was alleged had always been regarded as part of the ancient common good, although of this there was no record in existence.In 1730, the Magistrates sold part of this common or muir to James Rae; and in 1747, they exposed to sale, by public roup, “the muir of these parts of the lands of Wester Common, belonging to the town of Glasgow, and within the territory of the burgh, not yet sold off.” They also bound themselves to “grant to the purchaser a disposition of the said lands, to be holden in free burgage for service of burgh used and wont, and for payment to the said Magistrates and Council, and their successors in office, or their treasurers, factors, and chamberlains, in their name, for the use and behoof of the community of the said

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The deed contained no procuratory of resignation, but sasine was taken on the precept in favour of John Young, the instrument of which stated, that the “said John Young had produced to the said bailie a feu-contract, passed and perfected between the Provost of the said burgh and John Young;” and after quoting the contract, it proceeds, “after open and public reading of the said feu-contract and precept of sasine above insert, therein contained, in presence of the said bailie, and witnesses subscribing, the above-named Thomas Scott, bailie, aforesaid, by virtue and power of his said office of bailary, and in obedience to the said precept of sasine, gave and delivered heritable infeftment, state, and sasine, also real, actual, and corporal possession, of all and haill the foresaid muir of Wester Common, &c.; and that by delivering to him of earth and stone of the said lands, as use is; and did duly infeft and seise him therein, with and under the burden of the feu-duties, and other prestations above mentioned, after the form and tenor of the foresaid feu-contract and precept of sasine above insert.”—The sasine was recorded in the burgh register.The part of the Common which, in 1730, had been sold to Rae, had also been conveyed to him to be holden in free burgage, for service of burgh, used and wont, and for payment of 100 merks Scots, which, in the right granted to him, was likewise called a feu-duty. In other respects, the deed of conveyance to him was in the same terms as the conveyance to Young. Rae was infeft, and recorded his sasine in the burgh register. He afterwards disponed the lands to James Miller, who took infeftment on the procuratory of resignation contained in his disposition, and recorded the sasine in the burgh register. In the same way, the lands passed to Robert Hamilton, who also was infeft, on the procuratory of resignation in his disposition, and his sasine was in like manner recorded in the burgh register. Hamilton disponed them to John Young, describing them as lying within the territory of the burgh, and binding “himself, his heirs and successors, duly and validly, to infeft and seise the said John Young and his foresaids upon their own charge and expenses; and that by resignation thereof in the hands of the Provost, or any of the bailies of the burgh of Glasgow, for service of burgh used and wont, and for payment to the Magistrates and Town Council of Glasgow, and their successors in office, for the lands before disponed, of the duties and others underwritten,” and then followed a procuratory

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Soon after acquiring the lands, Dawson erected a distillery on them, and the business of distilling was thenceforward carried on by him and Mitchell under the firm of Dawson and Mitchell.By the original feu-contract, forming the foundation of Dawson's title, he was bound, by a clause of thirlage, to bring “the whole grain which shall grow upon the said lands, and other stuff and corn which they shall happen to grind, to the town of Glasgow's mills, and grind the same thereat, seed and horse-corn excepted, and pay multures and knaveships, and other services, used and wont.”In 1815, Wilson, tacksman of the ladle-dues under the Magistrates of Glasgow, raised an action, before the Burgh Court of that city, against Dawson and Mitchell, for payment of ladle-dues, and multures on the grain imported by them, and used in their distillery for the year 1814.The Magistrates found “that the ladle-dues held in lease by the pursuer are leviable within the royalty or territory of the royal burgh of Glasgow; that in the title-deeds, the lands, on which the defender's distillery is situated, are described as lying within the territory of the burgh of Glasgow; that the Muir of Wester Common, of which these lands are a part, appears formerly to have belonged to the town of Glasgow as a corporation, and to have been included in the royal charters of erection and confirmation; that it is proved that these lands have been held by burgage tenure for upwards of 40 years; that the conversion of the whole or part of the price into a perpetual annual ground-rent called a feu-duty, or ground-annual, is not inconsistent with the nature of burgage holding; that the validity of the tenure by which the lands are held cannot be competently questioned in an inferior Court;” and therefore found Dawson and Mitchell liable in ladle-dues. Thereafter the Magistrates found that the ladle-dues were leviable within the royalty or territory of the royal burgh of Glasgow, without any distinction, whether the lands were held in feu-farm, or by burgage tenure; and that, under the clause of thirlage, in the title-deeds, the defenders were bound to pay multures on the grain ground, bruised, or hashed, for the purpose of distillation, on the same principle as multures are exigible and payable under the same

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Dawson and Mitchell advocated; and Dawson, as an individual, raised an action of declarator, stating, that notwithstanding the tenor of the original feu-contract, the Magistrates and Town Council demanded from him and his tenants other duties and payments than those therein specified; that in particular, they demanded ladle-dues on the grain brought on his lands; that they insisted his lands were held by burgage tenure, and that he was liable in respect of these lands in burgage taxes and imposts, whereas the lands were held of the Magistrates and Town Council, as superiors in feu; and concluding that it should be declared that he was not liable, in respect of these lands, in payment of ladle-dues, or in any taxes or imposts of a burgage nature; that the lands held of the Magistrates and Town Council as superiors, by the tenure of feu-farm; that the town clerk of Glasgow had no exclusive privilege of acting as notary in taking infeftment thereon; and that the instruments of sasine fell to be recorded in the general register of sasines at Edinburgh, or in the particular register of sasines for the county in which the lands were situated.The Lord Ordinary conjoined the two actions, and found, “that the original grant of the land in question, by the Magistrates to John Young, in 1747, was really and essentially a feu-right, containing a specified feu-duty, and an express declaration that the same should be doubled upon the entry of heirs, and tripled on the entry of singular successors, voluntary or judicial, and containing a precept of clare * and all other clauses usual in feu-dispositions; and that it also subjects the feuars of the said lands to the thirlage of bringing their whole grain and other stuff, and corn they shall happen to grind, to the town of Glasgow mills, and grinding the same thereat, seed and horse corn, and bear excepted, and paying multures and knaveships, used and wont, but which multures can only apply to the subjects there astricted; that although the titles to these lands have since been completed by resignation in the hands of the Magistrates of Glasgow, more burgi, this does not seem to affect the original right, nor can it increase the nature of the burdens originally imposed on the subject, and which is repeated in the new investitures; therefore, with regard to the thirlage and multures to which these lands are subject, he found that these must he regulated by the clause in the original

Footnote

* A mistake—should be sasine.

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Lord Balgrdy observed. The magistrates are bound to give a title according to the contract of parties; and it is clear from the terms of the contract in 1747, that the title was to be burgage and not feu. No doubt, the magistrates stipulate for an annual payment, under the name of a feu-duty; but this is a mere name, and was not, and could not be intended to affect the nature of the tenure, which is distinctly expressed. I am also satisfied that the lands are within the territory of the burgh. They formed part of the common muir belonging to the burgh. If, therefore, these subjects are so situated, (and of this there can scarcely be a doubt,) they must necessarily fall within the original crown charter in favour of the burgh, and, of course, must be held burgage of the crown. In confirmation of their being burgage lands, there is evidence of the possessors having been in the practice of paying local and public taxes, on the assumption of their being within the burgh. But the stipulation of a feu-duty, or whatever you may call it, by the magistrates in favour of the burgh, can never alter the situation of the lands nor the nature of their tenure. The Crown, and by consequence its representatives, cannot dispense with or alter the

Footnote

* This was a mistake; the question of thirlage having been discussed in the advocation, and there being no conclusion in the declarator relative to it.

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Lord President .—The opinion of Lord Balgray may be right in a general point of view; but I rest my opinion on the particular titles laid before us. If subjects be held burgage, it may be true that an annual payment may be stipulated: but observe what is the nature of the titles here. They are utterly inconsistent with the idea of the lands being burgage. There is, in the first place, a precept of sasine with a sasine taken upon it — then infeftment is given not more burgi, nor by hasp and staple, but by earth and stone—and then (which is quite absurd, on the supposition of their being held burgage) a charter of confirmation is granted. Perhaps the parties originally intended a burgage holding, but assuredly the titles made up by them and laid before us are not applicable to such a tenure. Whether they can cure the blunder, I do not know; but we cannot say these subjects are burgage, although no doubt they appear to be situated within the burgh.Lord Balgray .—I rather think your Lordship proceeds on a mistake in feudal law. It is a general rule, that every man who has an unlimited right of property, may give a precept of sasine. There is an exception in the case of burgage property. But even in the original constitution of that species of holding, a precept of sasine is granted for taking infeftment. It is only in titles by progress that there is no precept. In the original constitution of a burgh, and in the division of the lands, the titles must be completed by sasine; and it is only in those by progress that a procuratory is given for resigning in the hands of the magistrates. Therefore, a precept of sasine is not, as is supposed, irreconcilable with the idea of the lands being burgage. Perhaps here the parties have committed a blunder in making up their titles, but that cannot alter the tenure of the lands.Lord President .—The Magistrates, however, did not hold these lands as commissioners of the Crown. They belonged to them as proprietors and vassals, and as such they have feued them.

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Lord Succoth. —I rather incline to be of Lord Balgray's opinion; and besides, the lands are within the burgh; but the question requires farther consideration.Lord Gillies .—It is not necessary to the decision of this case to go into the general rules of law. There is a plain distinction between res singulares and res universitatis as to the property connected with a burgh, and which has been overlooked both by the parties and by Lord Balgray. The lands in question were the private property of the burgh, and could be disposed of by the magistrates. Although situated within the burgh, yet, in relation to them, the magistrates were not the stewards or commissioners of the crown, but the proprietors. Now, all our institutional writers agree that the magistrates may feu the private property of the burgh; and therefore the question is, did the Magistrates of Glasgow do so in this case? But look at the terms of the original grant itself. By the dispositive clause, they “give, grant, sell, annalzie, and in feu-farm and heritage perpetually, let and demit,” &c. Then there is a precept of sasine—infeftment is taken by the symbols of earth and stone—feudal casualties are created—and a charter of confirmation granted. It is clear, therefore, that these titles have been made up agreeably to the original dispositive clause by which the lands were conveyed in feu.With regard to the ladles, they cannot be exacted if the lands be feu, because they are demanded only on the supposition of the lands being burgage, and it is admitted that hitherto they have never been exacted. As to the thirlage, again, the right to it must be regulated by the state of possession, and it has never been extended to invecta et illata.Lord Hermand concurred with the Lords President and Gillies.The Court then recalled the Lord Ordinary's interlocutor conjoining the advocation and declarator, and disjoined the two actions; and in the advocation remitted to the Magistrates of Glasgow, with instructions “to alter the interlocutors complained of, to sustain the defences, and assoilzie the informants, Messrs Dawson and Mitchell, from the conclusions of the libel, and decern. And farther, in the action of declarator at the instance of Adam Dawson, they found, that from the conception of the original rights in favour of John Young, in 1747, and from the subsequent transactions relative to the property in question, and the form of the transmissions and conveyances thereof, as well as from the mode of expeding the infeftments, the pursuers are entitled to enjoy the lands and subjects described in the libel as a

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The Magistrates and their tacksman appealed.Appellants .—Ladle-dues are a tax exigible upon all grain imported within the royalty or liberty of the burgh of Glasgow. It is of no importance at what precise spot within the royalty it was originally collected—that would vary as convenience directed. But the respondent's land, and the distillery erected thereon, are situated within the royalty or territory of the burgh of Glasgow; and therefore grain brought on the lands are liable in these dues. It is proved by the titles of the respondent, that the lands are situated within the territory of the burgh. Besides, this is confirmed by the nature of the holding. No lands can be held by the tenure of burgage, without necessarily being within the burgh; and therefore, if the lands in question are held by that tenure, they must be considered as being within the burgh, and so liable to all the burgage taxes. But it is proved by the titles that such is their tenure. The circumstance of a feu-duty being stipulated cannot affect the express mode of holding. Such a stipulation is perfectly lawful, being in truth of the nature of a ground-annual, forming part of the consideration for which the lands were sold. Lands within burgh are sometimes held feu—such as those which formerly belonged to ecclesiastics;—but the tenure in these are uniformly declared to be feu, whereas here it is burgage. In like manner, the Magistrates and Town Council may, as a corporation, be proprietors of lands, and which they may dispone, to be held of them as superiors in feu; but where lands are held in burgage, it is the Crown who is the superior, and not the Magistrates, who are merely the bailies of the king.In the present case, the tenure is expressly declared to be burgage, and infeftment has been taken for upwards of 90 years, more burgi, and the sasines recorded in the burgh register. Earth and stone were the proper symbols where the subject was land, and not houses; and any slight deviations from the usual mode of making up titles, as of burgage subjects, cannot alter the

Footnote

* See 3 Shaw and Dunlop, No. 99.

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Respondents .—The contract 1747 is in all its essential clauses a feu-right, and infeftment has followed according to symbols peculiar to feu-rights. The subsequent titles have been made up by resignation in the hands of the Magistrates as ordinary superiors, and not as commissioners of the King. They could not transform the feu-holding into a burgage-holding. It would have been illegal in them to have disponed by any other tenure than feu-farm. Having received, as ordinary superiors, the feu-duty for seventy years, a different set of prestations to a different superior cannot now be exacted. Besides, the lands are held for a feu-duty expressly declared to be pro omni alio onere. The lands in question do not lie within the burgh. If they had, they would have been held burgage, and not in feu-farm; and they have hitherto never paid other burdens than the feu-duty. Ladle-dues are only exigible on grain passing the ports of the burgh. But the respondent's lands are nearly a mile distant from the ports, through which the grain now attempted to be subjected to the ladle-duty, never in fact passes at all. As to the thirlage, considering the terms of astriction, the subject of the servitude, and the practice that has hitherto prevailed, no heavier astriction than that of grana crescentia can be inferred or imposed.Lord Gifford .—Whatever be the holding, if the lands are locally situated within the territory of the burgh, and if grain be imported, (if I may use the expression,) must not the grain be liable in the dues? Has that point been settled? The Court of Session merely find that the holding is in feu-farm, and the arguments of the Judges are occupied by the question of tenure.Robertson .—In the Bailie Court, the question was raised as to the situation of the lands—and the interlocutor of the Court of Session embraces both points.

Adam ,—The Court proceeded on the tenure. If the lands

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Robertson .—The question of locality has been, in effect, decided by the Court.Lord Gifford .—But not directly. Of what consequence is the tenure, if the grain be actually brought within the territory of the burgh?Adam .—Certainly of none. The person who brings the grain within the burgh must pay the dues. We say that the subjects are within the territory, and, as one article of evidence of the fact, we refer to the burgage holding of the lands. See the case of Dixon, 2d vol. p. 176, Shaw and Dunlop's Reports.Lord Gifford .—I do not see what right the tacksman has to sue for multures.Adam .—This right seems to have been taken for granted. The objection was not stated in the Court below—but we have no objection to your Lordship's observation, for we wish the case remitted.The House of Lords ordered, “That the cause be remitted back to the Court of Session in Scotland, for them to review generally the interlocutors complained of; and in reviewing the same, they are particularly to consider, in the said action of advocation, Whether the Magistrates of Glasgow are entitled to any, and if to any, to what dues, in respect of corn or grain brought within the liberties or territory of the city or burgh of Glasgow, for sale, manufacture, or consumption; and if they are entitled to any such dues, then, whether the lands in the possession of the respondents are within such liberties or territory? And it is farther ordered, that the Court to which this remit is made, do require the opinion of the Judges of the other Division, on the whole matters and questions of law, which may arise in this case, as well in the action of advocation as in the action of declarator, which Judges of the other Division are so to give and communicate the same; and after so reviewing the interlocutors complained of, the said Court do and decern in the said causes, as may be just.”Lord Gifford .— My Lords, the next case to which I will call your Lordships' attention, is the case of the Magistrates of Glasgow, against Dawson and Mitchell, and I shall be under the necessity of troubling your Lordships at some length in the detail of the proceedings, in order that

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My Lords,the case, as it affects the appellants, and also as it affects the respondents, is of considerable importance. The question in this case relates to a demand, by the Magistrates of Glasgow, of certain tolls, which are denominated ladle-dues, in respect of grain brought to, and used in a distillery belonging to the respondents, and erected on part of a common near the city of Glasgow, and, as has been contended on the part of the Magistrates of Glasgow, within the liberty and royalty. Another question has been made in this case respecting the right of the Magistrates of Glasgow to certain multures or imposts, as they are called, namely, the right on their part to compel the occupiers of this distillery to grind all the corn and grain which shall be brought, either grown upon the lands belonging to this estate, or brought there, at the mills of the Magistrates of Glasgow. A third question also has been raised, in the course of these proceedings, respecting the tenure of the land on which this distillery has been erected.My Lords,as I have stated to your Lordships, the Magistrates of Glasgow claim a right to exact these tolls, or ladle-dues, in respect of all corn, or grain, or meal, brought to the royalty or liberties of the burgh; the duty which they claim is called the ladle-due, from its being a ladle-full out of every sack, or load of meal or grain, frequently expressed by the general term of victual, imported or brought into the burgh. I have also stated to your Lordships, that they claim from the respondents, Messrs Dawson and Mitchell, a compensation for the grinding of the corn or grain which was used at their distillery, and in consequence of those claims having been resisted on the part of Messrs Dawson and Mitchell, proceedings were instituted by a person of the name of Wilson, who stated himself to be collector of the ladle-dues of the city of Glasgow, in the Burgh Court of Glasgow, against Messrs Dawson and Mitchell, to recover the sum of £89, 8s. 9d. in respect of those ladle-dues, and in respect of those multures, as they are called, namely, a compensation for the grinding of corn at those mills.My Lords,in this original action before the Burgh Court of Glasgow, they claimed on the part of this gentleman, the collector of the ladle-dues, against John Mitchell and Company, distillers, Old Basin, Glasgow, defenders, that whereas the defenders “are justly indebted and owing to the pursuer the sum of £89, 8s. 9d. for the reasons stated in a particular account herewith produced, and held as herein repeated brevitatis causa; and although the pursuer has frequently desired and required the defenders to make payment to him of the foresaid sum, which they as often promised to do, yet they now refuse, at least delay, unless compelled.”Answers were put in to the proceeding by Messrs Dawson and Mitchell, in which they contended, “that the pursuer had produced no title by which he could instruct his right to insist in the present action, and until he should do so, the respondents could not enter on their defence; they were confident, however, they should be able to satisfy the Court,

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My Lords,under these circumstances, I really feel that, after all the proceedings which have taken place in this cause, brought in the Burgh Court of Glasgow, and particularly in this advocation afterwards brought in the Court of Session, it will be too much now to say, that that preliminary objection should prevail; the respondents, appearing to have waived that objection to it, have gone on with Mr Wilson, and afterwards with the Magistrates of Glasgow, upon the merits of the case. At the same time, I cannot but much regret, that in a case of so much importance to both parties, there should be entertained any doubt with respect to the right of the pursuer to pursue in this action, and to bring into Court those very important questions which have been agitated in the course of these proceedings.My Lords,the case then went on in the Burgh Court, and after some proceedings there, the following interlocutor was first pronounced by the Magistrates. (His Lordship here read the interlocutor.) Now, my Lords, another remark occurs here, with respect to the regularity of this proceeding, that this interlocutor is confined to the ladle-dues, whereas the demand of Mr Wilson was not only to the ladle-dues, but the multures, composing the great part of the demand. No notice, however, appears to have been taken of that omission.The case was afterwards brought again before the Burgh Court, and this interlocutor was pronounced. (His Lordship read the interlocutor, and then noticed some farther proceedings in the cause.)

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My Lords,the questions which were in agitation before the Court below having been exhausted, an advocation was brought by Messrs Dawson and Mitchell in the Court of Session, and in that advocation they contended, that the interlocutors ought to be set aside on certain grounds. In the first place, they stated, that their lands were not within the city, nor liberties thereof; in the second place, that the distillery was not situated within the royalty of Glasgow; and in the third place, they contended, that the pursuer had no right to demand multures on raw or unmalted grain consumed in distilleries, and that the only multures to which they were entitled, was in respect of corn growing upon the lands, upon part of which the distillery was erected. In this way the case came before the Court of Session, bringing before the Court those important questions which had been agitated, namely, the right of the Magistrates of Glasgow to exact those duties, in respect of corn or grain brought upon the lands in question—the defenders in the Court below contending, that the Magistrates of Glasgow had no right to exact those dues, in respect of lands which lie beyond the city or burgh; but next, they contended, that if this right extended to corn brought within that dominion, round the town, which may be considered as being within the liberties or territory, still they were not bound to pay those dues, inasmuch as their lands were not situated within that territory; and next, they contended, that the pursuer had no right to demand multures on raw or unmalted grain, consumed in the distillery, or, according to the language of Scotland, on corn or grain brought there for the purpose of manufacture.My Lords,in consequence of the case having been thus brought before the Court of Session, another action was instituted by Mr Dawson, the proprietor of the lands of Wester Common, in the nature of an action of declarator. The summons in that action after setting out the title under which he held those lands, sought to have it declared by the Court of Session, “That the pursuer is not liable, in respect of his lands aforesaid, in payment of the said dues called ladles, or in any taxes or imposts of a burgage nature; and the same being so found and declared, the Magistrates and Town Council, and the said Robert Wilson, their tacks-man,” (treating here again Wilson as the tacksman of the Magistrates of Glasgow), “ought and should be decerned and ordained, by decree aforesaid, to desist and cease from troubling the pursuer, in respect of his lands aforesaid, by the exaction of the foresaid dues called ladles or any other taxes or imposts of a burgage nature; and that it should be found and declared, that the foresaid lands of Wester Common hold of the said Magistrates and Town Council, by the tenure of feu-farm, and that the town-clerk of Glasgow has no exclusive privilege of acting as notary, in the taking of infeftment in the lands, and that instruments of sasine thereon fall to be recorded in the general register of sasines, at Edinburgh, or in the particular register of sasines for the county or regality in which the lands are situated.”

Your Lordships perceive, therefore, that this action brought before the

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This action came before Lord Alloway, and he conjoined it with the process of advocation (a mode of proceeding in the Court of Scotland, of conjoining two actions which are supposed to involve questions of a similar nature), and this conjoined action coming on before Lord Alloway as Lord Ordinary, he, on the 20th of December 1817, pronounced the following interlocutor. (His Lordship here read the interlocutor.)Your Lordships will perceive, that by that interlocutor the Lord Ordinary decided with respect to the thirlage, but it appears the question was suspended with respect to the dues.The case came afterwards before the Court of Session, on the 18th of November 1823, and they pronounced an interlocutor, by which they “recall the interlocutor, conjoining the action of advocation with the process of declarator, and disjoin the said two actions; and in the action of advocation, remit the same to the Magistrates of Glasgow, with instructions to alter the interlocutors complained of, to sustain the defences, and assoilzie the informants, Messrs Dawson and Mitchell, from the conclusion of the libel, and decern.” They, therefore, in the action of advocation, determined in favour of Messrs Dawson and Mitchell, sustaining their defences and assoilzieing them from the conclusions of the libel. The effect of this interlocutor was to adjudge, that Messrs Dawson and Mitchell were not liable in respect of the ladle-dues; and also to find, in conformity to the interlocutor of the Lord Ordinary, that the multures were only due in respect of grain ground, bruised, and hashed;—
“and farther, in the action of declarator at the instance of Adam Dawson, they find, that from the conception of the original rights in favour of John Young in 1747, and from the subsequent transactions relative to the property in question, and the form of the transmissions and conveyances thereof, as well as from the mode of expeding the infeftments, the pursuer is entitled to enjoy the lands and subjects described in the libel as a feu-holding; and, therefore, repel the defences applicable to the first and second conclusions of the libel, and also to the manner of holding, and decern and declare, conform to the said conclusions, accordingly; but, in so far as regards the other conclusions relative to the town-clerk of Glasgow acting as a notary, and to the recording of the infeftments, they supersede the consideration thereof, and appoint parties to be further heard thereon, without prejudice to the taking and recording the infeftments, as formerly, in the meantime.”
My Lords,there was a reclaiming petition presented, but, on the 15th of June 1824, the Court of Session, on considering the reclaiming petition, refused the desire of it, and adhered to the interlocutor reclaimed against.

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My Lords,it is fit I should state to your Lordships, that upon the matter being discussed before the Court of Session, the great question that was agitated there, was respecting the tenure of these lands. It was contended, on the part of the Magistrates of Glasgow, that these lands were held in burgage. On the part of Mr Dawson, it was contended, that these lands were held in feu-farm; that, therefore, they were only liable to the tolls, dues, and multures, expressed in the feu-contract; and that, in respect of the land so held, it was not liable to pay any dues for any of the corn or grain brought there for the purpose of manufacture. Very learned arguments, and at great length, were employed upon that very nice, and, perhaps, difficult question; and the Court of Session were much divided in their opinions, with respect to some of those points,— two of the learned Judges being of opinion, that they held in burgage,— three others being of opinion, that the instrument under which those lands had been held, and the nature of the provisions of that instrument, particularly in respect to the symbols used, showed that they were held in feu-farm. It does appear to me, with great submission to the Court of Session, that they have overlooked one question, namely, Whether the Magistrates of Glasgow were entitled to those dues, in respect of the grain brought upon these lands? because that did not depend altogether upon the nature of the tenure. It is very true, that if they had been of opinion those lands were burgage, it would seem to follow as a necessary consequence from that, that they must be considered either as being within the burgh, or the territory and liberty of the burgh; and, therefore, if they had come to the conclusion, as far as the locality of the lands was concerned, that they were either within the burgh, or the territory or liberty, and that the Magistrates of Glasgow had a right to exact those dues, not only within the burgh, but the territory and liberty, they would have come to the result, that the Magistrates of Glasgow had a right to those dues. But when they determined that those lands were not held burgage, but feu, it did not necessarily follow from thence, that the Magistrates of Glasgow, represented by Mr Wilson, had not a right to ladle-dues from Messrs Dawson and Mitchell, in respect of the corn brought there; for it was not a claim made in respect of the tenure of land, but in respect of the corn and grain having been brought either for consumption, or use, or sale, within the liberty or territory of the burgh;—the Magistrates of Glasgow contending, that they were entitled to the dues on corn and grain so brought; and I find, that almost all the learned Judges were of opinion, that notwithstanding that the lands were held feu, they were within the territory of the burgh; for I find, at the conclusion of my Lord President's judgment, pronounced in the year 1823, he says, “I think these lands are within the territory of the burgh.” Lord Succoth, who had been of a different opinion from the Judges with respect to the tenure, says, “I am convinced the lands are within the territory of the burgh.” Lord Gillies says, ‘I am of the same opinion.’ Lord President— “I am of the same opinion also.” So that these learned Judges, although they were

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With respect to the multures, undoubtedly the question appears to have been referred to, but not very much entered into, by the Court of Session. The Lord Ordinary was of opinion, that, looking at the terms in which the thirlage had been reserved in the grant, and the nature of the lands, it was to be restricted to grana crescentia. The terms are these, “bringing their whole grain and other stuff and corn they shall happen to grind, to the city of Glasgow's mills, and grinding the same thereat, seed and horse corn and bear excepted, and paying multures and knaveships used and wont.” Your Lordships see, that it thus subjects the feuars of the lands to the thirlage of bringing their whole grain and other stuff and corn they shall happen to grind, to the city of Glasgow's mills. Upon this question coming before the Court of Session, as I have already stated, their attention was principally directed to the other—the important question—and though the result of their judgment is, that the Judges of the Court of Session coincide with the Lord Ordinary, it does not appear, from the notes handed to me of the speeches made upon that occasion, that they go very much into this question of the thirlage. I observe one of the learned Judges, my Lord Hermand, dropped a very few words upon that subject; the other Judges go at great length into the question of tenure, but hardly any of them advert, at any length, to this question of the multures, but they conclude that the thirlage is restricted to grana crescentia.My Lords,upon the question of tenure, I have stated to your Lordships very elaborate judgments were given, and great difference of opinion expressed; and I find from these learned Judges, that this is a question not only of great importance between these parties, but of very great

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My Lords,as I have already stated to your Lordships, it is in evidence, and not denied in this case, that all the sasines of these lands, and which are supposed to be held in burgage, have been registered in the burgh court of Glasgow. Your Lordships perceive, that in the action of declarator brought by Mr Dawson, after having concluded, that it might be decerned that those lands were holden in feu-farm, he also concludes to have it declared, that the instruments of sasine therein fall to be recorded in the general register of sasines at Edinburgh, or in the particular register of sasines for the county or regality in which the lands are situate. But in the interlocutor pronounced by the Court of Session, although they have adjudged these lands to be holden in feu-farm, they have inserted this reservation:—
“But in so far as regards the other conclusions relative to the town-clerk of Glasgow acting as notary, and to the recording of the infeftments, they supersede the consideration thereof, and appoint parties to be farther heard thereon, without prejudice to the taking and recording of the infeftments.”
My Lords,I may just remark, that one ground on which some of the Judges appear to have proceeded in coming to the conclusion, that these were lands held in feu-farm, was the nature of the symbol employed in the delivery of sasine, namely, earth and stone, and that those symbols were never used in relation to lands held in burgage. Upon that subject it is not my intention to detain your Lordships, but I think, upon the authorities cited at your Lordships' Bar, as well as that stated by Mr Erskine, upon the subject of the symbols, perhaps no great reliance can be placed upon that circumstance. I apprehend, that where a property, consisting of houses and buildings, is held burgage, the proper symbols to be used are certainly those of hasp and staple; but I apprehend, looking at the authorities, that it cannot be said, that where it consists wholly of lands, earth and stone are not the proper symbols to be used in giving sasine, because I do not know what other symbols could be used. I will just call your Lordships' attention to that which is stated by Mr Erskine upon this subject. In respect of symbols, he says, “The symbols by which the delivery of a feudal subject is expressed, are different, according to the different nature of the

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My Lords,I mention this only, because I do observe that some of the Judges placed very great reliance upon those symbols which were used upon this occasion; while others of them went at great length into the form of the different charters used in transfers of this property. I shall, however, avoid expressing any opinion upon this subject, for this reason, that, considering the great importance of it, not merely as applying to Glasgow, but as applying generally to property situate in burghs, and considering, too, the great difference of opinion of the Judges upon this subject, involving the titles of a very large proportion of property in burghs, I should really venture humbly to submit to your Lordships, that this is a case which requires farther consideration of the Court of Session, and that it would be extremely desirable, in a case of such great magnitude, not only that the Division before which this cause came should review the interlocutors they have pronounced upon this subject, but that your Lordships should have the advantage of the opinion of the other Division of the Court upon this, which I consider a question of great importance.Your Lordships are aware, that with respect to Scotch causes, you have not the advantage which you have in English causes, of obtaining the opinions of the learned Judges to assist you in your decisions. Where a case of great legal importance occurs in an appeal, or a writ of error brought before your Lordships from any of the Courts of Westminster Hall, your Lordships are in the habit of calling for the assistance of the learned Judges, and of receiving from them their deliberate

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My Lords,I cannot help thinking also, as I have already mentioned, that the finding of the Court of Session has not decided one of the questions which was raised in the proceedings in the burgh court;—I mean, the right of the Magistrates of Glasgow to exact those dues. If the determination should be ultimately, that these lands were holden burgage, contrary to the decision which has been already expressed (which I have no right to expect), that might determine the question with respect to the locality of these lands. If, on the other hand, the majority of the Judges should adhere to the opinion already expressed, that these lands are holden in feu-farm, still it appears to be the opinion of several of the Judges at least, that if they are holden in feu-farm, they are still within the territory or liberty. Then comes the question, whether, if they are within the territory or liberty, the Magistrates of Glasgow have a right to exact the dues on

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My Lords,with respect to the question of thirlage, if it had not been my intention to propose that the cause should be remitted, perhaps your Lordships would have come to a decision upon that question, though it does not appear to have received so much discussion and deliberation as it perhaps deserves; but as I shall advise your Lordships that the case should go back upon the other questions, it appears to me respectful to the Court of Session, that they should have an opportunity of reconsidering that question at the same time they are considering the rest. I do not mean to express any opinion which can be considered as operating upon the minds of the learned Judges, either upon that, or upon any other question in the cause,—my opinion being, and if that opinion should be sanctioned by your Lordships, the opinion of your Lordships' House being,—that the question is of so much importance and so much difficulty, that it ought to be reconsidered by the learned Judges of the Court of Session, before whom it has already been, and that your Lordships ought to have the opinion of the other Division of the Court; that with respect to the right of the Magistrates of Glasgow to exact these dues, and the question of locality of these lands, those questions have not been sufficiently considered by the Judges in the Court below; that the case therefore should be considered further by them; and with respect to the thirlage, that that also should be reconsidered by them. My proposition, therefore, will be, that this cause should be remitted back to the Court of Session, for them to review generally the interlocutors complained of; and that in reconsidering it, they should consider whether the Magistrates and Town Council of Glasgow are entitled to any, and if to any, to what dues, in respect of the corn and grain brought within the territories of the royal burgh of Glasgow; and if they are entitled to such dues, whether the lands are within the territory of the burgh of Glasgow. I would move your Lordships farther to direct, that the Division of the Court of Session to which this remit is made, shall require the opinion, in writing, of the Judges of the other Division of the Court. Such is the nature of the judgment which I mean to propose to your Lordships. I will delay presenting it formally to your Lordships until you meet again, in order that I may take care that the questions which I propose should be considered by the Court of Session, should be distinctly stated in the judgment, that there may be no misunderstanding in the Court below, with respect to the nature of the inquiries, or the nature of the consideration of the question, which your Lordships wish to have entered into;—the substance of the judgment, I shall propose to your Lordships to pronounce, being, that the cause shall be remitted to the Court of Session, for them to consider, not

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Appellants' Authorities .—Burgh of Rutherglen, 4th June 1575. Burgh of Lanark, 28th June 1594. Balfour's Practicks, p. 73. Brewers of Glasgow, 20th Jan. 1761. Bakers of Glasgow, 5th June 1792. 1 Craig, 10. Hutchison's Justice of Peace, 2. 46. 3 Ersk. 8. 72. 1 Juridical Styles, 551. Bell's Treatise on Conveyance to Land, p. 120. 2 Ersk. 9. 27. Dixon, Feb. 1, 1823, (2 Shaw and Dunlop, No. 161.) Respondents' Authorities .—1 Bankton, 561. 1 Juridical Styles, 8. § 1. 2 Stair, 3. 38. 2 St. 3. 17. 2 Ersk. 4. 8. 2 Ersk. 3. 36. 1 Craig, 10. 31. and 36. 1491, c. 36—1593, c. 185. Hope's Minor Practicks, page 321. Wight on Elections, 209. Cathie, 30th June 1752, (2521.) Dean, 3d July 1752, (2522.) 1 Bell on Deeds, 466. Town of Inverness, 14th July 1674, (10893.) 1 Stair 4. 45. 5. 4 Ersk. 2. 36. Town of Perth, 16th Jan. 1711, (11861.) 2. Ersk. 9. 27. Duke of Buccleuch, 25th June 1767,(16053.) Yeaman, 17th Nov. 1759, (16044.)Solicitors: J. Richardson— A. Mundell—Solicitors.