Dawson and Mitchell .Spanki - James Campbell v. Magistrates of Glasgow .Lushingto - A. M'Neill [1830] UKHL 4_WS_81

UKHL
Dawson and Mitchell .Spanki - James Campbell v. Magistrates of Glasgow .Lushingto - A. M'Neill
[1830] UKHL 4_WS_81
1. Circumstances and clauses in titles held, (affirming the judgment of the Court of Session), to constitute a burgage tenure, and not a feu. 2. In a grant by burgage-holding, the town-clerk is alone entitled to act as notary; and the sasine must be registered in the books of the burgh. 3. Held, (reversing the judgment of the Court of Session), that a clause of thirlage of grana crescentia, having these words adjected, “and other stuff and corn they shall happen to grind, seed and horse corn and bear excepted,” does not import a thirlage of invecta et illata.This was a branch of the case reported ante, Vol. ii. No. 21. p. 230., which see.In the original appeal taken by the Magistrates of Glasgow, 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 on 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

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The First Division of the Court of Session, in obedience to this order, appointed Cases containing the necessary questions to be put to the Judges of the other Division; and having received their opinions, found, (November 14. 1827), “1st, That the subjects are held by burgage tenure; that the town-clerk has the exclusive privilege of preparing sasines therein; and that the sasines are to be recorded in the burgh register. 2dly, Appointed the Magistrates to lodge a condescendence of the usage concerning the levying of ladle-dues. 3dly, Found that the thirlage extends to invecta et illata as well as to grana crescentia, seed and horse corn and bear excepted.” *Dawson and Mitchell appealed.Appellants .—1. The appellants' lands are held in feu-farm. This is obvious from the titles † by which the lands have been granted and passed. It is an unfounded assumption to hold that the tenendas clause proves the holding to be burgage; at the worst, it only leaves the holding to be ambiguous. Neither is the objection, that the holding is not declared to be “of the Magistrates” of any importance; for the holding is “for behoof of the burgh,” which is equivalent to a holding “of the Magistrates” for behoof of the burgh. Such a tenendas is incompatible with a burgage-holding, which implies that all the payments must be to the Crown. But as the property in question formed part of the common property of the town, it could not be lawfully conveyed in burgage. All authorities concur that such an alienation must be in feu; and, in dubio, the presumption is, that it was intended to be so conveyed. All the other parts of

Footnote

* 6. Shaw & Dunlop, 19. where the opinions of the Judges are given.† For a full deduction of the titles, see report of the original appeal, ante, ii. 230.

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2. The fact of the lands being held in feu-farm also settles the point of registration. In that case, the instrument of sasine must be recorded in the Particular Register of the county, or in the General Register in Edinburgh.3. If the appellants hold their lands in feu-farm, then, as the feu-duty is a payment pro omni alio onere, it excludes the exaction of ladle or any other dues of that description. No doubt such dues are paid, not so much in relation to the tenure, as to the locality. Still the Magistrates had it in their power to depart from such a claim; and by conveying in feu, and stipulating merely for a feu-duty, they have departed from the claim. In point of locality there is no evidence that these lands lie within the limits of the burgh. But, even if the lands formed part of the property of the burgh, ladle-dues are not exigible from grain which does not pass the city ports or enter the city markets. These duties are, as it were, a toll payable from articles that pass the gates. The right to levy them depends on ancient custom. The Magistrates have no express grant to them, nor have they any deed of gift which limits or defines their amount or extent. The right, therefore, being founded on possession, must be regulated by the maxim, ‘tantum præscriptum quantum possessum.’ But the Magistrates have not been in the use of levying these dues except on articles passing within the ‘city of Glasgow,’ i. e . within the actual limits of the town; whereas the appellants' distillery is landward, and at a distance from the town or houses.4. As to the thirlage, the Court below have, from an ambiguous clause, and by vague and uncertain inference, subjected the appellants to the heaviest servitude known in law; but in dubio, præsumendum est pro libertate.

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Respondents .—1. The lands in question are held burgage. This is evident from the words of the tenendas clause—“to be holden in free burgage.” That holding is not changed because the Magistrates reserved a ground-rent, and called it a feu-duty. The successive transferences all support the same conclusion; and these lands have always been treated as burgage lands in the matter of land-tax, poor rates, teind, &c. It is incorrect to say that the Magistrates had no power to make a grant by tenure of burgage. As a corporation, they can hold and convey heritable property. If the property be land without the burgh, they can hold it feu or blench; if within burgh, they can hold it in burgage; and their power of alienating is equal in both. They can grant the one to a purchaser in feu-farm, and the other in burgage, exactly as a private individual can. Had this property been held in feu, there must on each resignation have been a charter of resignation, with precept of infeftment; but throughout the various alienations, the resignation and infeftment have been (as is peculiar to burgage-holding) unico contextu given by a bailie of the burgh. If this be a feu-holding, there is a radical vice in the appellants' title. The precept in the original grant was introduced, from the distinction not being attended to between the Magistrates as Commissioners of the Crown, and as a Corporation; and it was thought absurd that the commissioners should resign in their own hands. But this precept, if bad, does no harm; if good, the disponee held in free burgage, as is provided in the precept. The symbols are precisely those used where the burgage property is land. It would be anomalous to use the symbol of hasp and staple, where there was no house to admit of symbolical entry. The charter of confirmation was but a blunder, and cannot affect the question. If, till then, the lands were burgage, the confirmation did not change the character of the tenure. Besides, ladle-dues are exigible from all grain brought within the territory of the burgh of Glasgow; and the exaction does not depend upon the passing into the town itself. This the respondents can prove.2. If the lands are held burgage, then indisputably the privilege of preparing the sasines belongs to the city-clerk, and the sasine must be registered in the burgh books.3. The property being burgage, the ladle-dues are exigible. Even if feu, the appellants would be liable; for these dues have no relation to the tenure, and can be demanded as a mere impost sanctioned by custom, and not abandoned by any contract. There is abundance of evidence that these lands lay within the limits of the burgh, and were always dealt with as burgh land.

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4. The words ‘other stuff and corn,’ clearly constitute the thirlage of invecta et illata.Lord Wynford .—My Lords, From the respect which I feel, and which I am persuaded every one will feel, who is at all acquainted with the manner in which justice is administered in the Court of Session in Scotland by the learned persons who preside there, and having the misfortune to differ from them upon one point in this very difficult and important case, I requested of your Lordships time to consider it. My Lords, I have devoted all the time that I could spare from other important avocations, since last we met in this place, to the consideration of this case. I have looked into every book, and into every case, and the consequence has been, that I have convinced myself that the view I had taken of one of the points was erroneous; and upon that I now agree with the Court of Session in Scotland. Upon the most important, and perhaps the only point that is worth deciding, I, however, still retain the same opinion that I first formed, which is against the judgment of the Court below. I deliver that opinion with the less embarrassment, because, though I have the misfortune to differ from the opinion last delivered by the Judges of the Court of Session, I am supported by a judgment previously given by that Court; for it so happens, that the first time this case was brought under their consideration, they decided the point on which I cannot agree with them in a different manner from that in which they have since decided it. The first judgment of the Court of Session was brought by appeal before this House, and your Lordships were pleased to send it back for further consideration, in consequence of great doubts entertained by a noble and learned Lord, (Lord Gifford), of whose services the country is now deprived by his much to be lamented death; and it so happens, that, on a reconsideration, twelve out of fifteen of the Lords of Session formed an opinion different from that to which they had previously come upon this case.My Lords,an action was brought by the Magistrates of the burgh of Glasgow, for ladle-dues and thirlage. Ladle-dues are dues which derive their name from the ladle, with which a portion was taken out of the different articles that were brought to a town for sale, and for manufacture. Thirlage is paid for corn growing within a certain thirl or district, or for corn brought within that district. An action, as I have stated to your Lordships, was brought by the corporation of Glasgow, claiming those dues, against the present appellants. The defenders thought proper to institute what is called an action of declarator,—a proceeding to which we have nothing analogous in this country,—by which the pursuers call upon the Court to decide certain other points, which they conceived would be of importance between them and the other litigating parties. In consequence of this proceeding, these points were raised:—1st, Whether certain lands, which

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My Lords,on the first question, namely, whether the subjects, as they are called, are held by burgage tenure, it is, first of all, material to consider under what terms the burgh itself held this land. It is a principle of the constitution, both in England and Scotland, that burgage tenants must hold from the Crown. These burghs were originally created for the improvement of commerce, and to raise up an authority in the country to counterbalance that of the great Barons. It was necessary, therefore, that those who were members of those burghs, should hold immediately under the Crown; that they should derive their interest from the Crown, and be subject to the Crown, and to the Crown only. There are some burghs in Scotland which do not hold in burgage tenure, but hold their lands of certain great Barons, from whom they derived those lands. But I think there cannot be the least doubt, that the corporation of Glasgow hold by burgage tenure from the Crown; for your Lordships will find in the respondents' case, the charter under which they hold, which is a charter of James IV., and is in these words:—‘Dedimus concessimus et in feudifirmam pro perpetuo disposuimus:’—It will be material for your Lordships to attend to the word ‘feudifirmam,’ for we have had a great deal of argument, that burgage tenure can be held only on the performance of burgage services; whereas it is clear, that in the grant of this very property, besides the burgage service, it was to be held in fee-farm—a tenure of a description with which we are very familiar in England:—quæ per leges et consuetudinem hujus regni nostri ac liberum burgum regalem pertinent.”
“Tenoreque præsentis cartæ nostræ damus, concedimus, et in feudifirmam pro perpetuo disponimus, dictis præposito, ballivis, consulibus, et communitati dicti burgi et civitatis Glasguensis, et eorum successoribus, totum et integrum dictum burgum et civitatem Glasguensem, cum domibus, ædificiis, hortis, terris, tam lie outfield quam infield, cultis quam incultis, custumis per terram et aquam, ac etiam fecimus ereximus et constituimus tenoreque præsentis cartæ nostrae facimus constituimus et erigimus dictum burgum et civitatem Glasguensem in unum liberum burgum regalem, cum omnibus libertatibus privilegiis honoribus immunitatibus et jurisdictionibus

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Your Lordships will perceive, therefore, that this is a grant immediately from the King to these burgesses, and proves that the corporation held from the King.This brings us to the next point, Whether the Magistrates granted to Mr Young (under whom the present appellants claim) a holding in free burgage? or, Whether they made to him what is called a mere feu-grant? Now, for the purpose of deciding this question, it would be most important that your Lordships should look at the three instruments under which Mr Young took. Mr Young, in the year 1740, purchased by roup or at auction the property in question. Your Lordships will find, that in the contract upon the roup it is expressly stated, in clear and unquestionable terms, that the purchaser is to hold it in free burgage. That I may not mistake, I will take the liberty of directing your Lordships' attention to the very words of the feu-contract,—“to be holden in free burgage, for service of burgh used and wont.” Your Lordships will find these words repeated in the other instrument to which I have alluded. Your Lordships will also find the same words repeated in that which, I think, is of more importance than either, in the instrument commanding what is called the sasine in Scotland, or as in England we say, the seisin. Your Lordships know, that, till some modern conveyances were introduced, there was no mode of conveying land in England without livery of seisin; that is, either the actual delivery of some portion of the property, as for the whole, or a symbolical delivery of the whole, as by giving the key. That, amongst our simple ancestors, was the mode, and perhaps a better mode than that now used; for there were fewer words used than at present. In the instrument directing the delivery of sasine, Young was directed to hold that sasine by burgage tenure. Now, my Lords, I think if the appellants were to succeed in their argument, it must be a success which they would be sorry for another day; because, if this person does not hold in burgage tenure, it may become a question, what right he has to the lands?—for the persons who held at the time, and who have given his successors sasine, had no authority to give sasine on any other terms than that of holding on burgage tenure. But I am disposed to relieve him from that difficulty, by recommending to your Lordships to say, by your judgment, in conformity with the opinion of the Lords of Session, that these lands are held by burgage tenure. Having stated the terms of this contract, I shall submit to your Lordships, that when a man takes to hold in burgage tenure, he cannot be allowed to say that he does not hold in burgage tenure, against his own words three times expressly repeated; first, by the executry contract,—then by the contract carrying that executry contract into execution,—and lastly, by the act of delivering sasine. He cannot be permitted to say, that he does not hold the lands in the manner, and upon the terms in which, upon those different occasions, he stated that he was ready to accept them, and did accept them.

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But, my Lords, it has been very ingeniously pressed,—and those who have to assist your Lordships to administer justice here, must prepare themselves for arguments, which, though they have not much foundation in law, are urged with so much ingenuity that it is difficult at first to get over them;—it has been pressed upon your Lordships, that the Magistrates of the burgh at Glasgow could not convey in free burgage, and therefore it is altogether a void conveyance. Your Lordships were referred to an Act of the Scotch Parliament in support of this objection; and it was insisted with great ability, that a conveyance in burgage tenure would be in direct contravention to this Act of Parliament. My Lords, the terms of the statute are certainly calculated to induce one to think there is something in the argument. By this Act, which passed so long ago as the year 1491, cap. 36. “it is statuit and ordainit, anent the common guid of all our Sovereign Lord's burghs within the realm, that the same common guid be observit and keepit to the common profit of the town, and to be spendit in common and necessary things.” My Lords, I thought those words were merely declaratory of that which had been the law before, namely, that corporations should not employ corporate property for the private purposes of the members of the corporation, but for the welfare of the town: but the statute, after making a provision to prevent this abuse, declares, “and attour that the rentes of the burghs, as landis, fishings, farmes, mails, mills, and yearly revenues, be not set but for the year allenarly; and gif any happen to be set otherways, that they be of no avail, force nor effect, in time coming.” It struck me at first, that corporations could not grant out property as this corporation had done in the present case; but on looking to the words with more attention, your Lordships will find, that corporations are not restrained from granting lands, but only from granting the rents of lands;—and this is the construction that has been put upon those words of the Act by one of the most learned writers upon the law of Scotland, a passage from whose book was cited in the argument;—but the object of this statute was only to prevent a race of persons growing up, who, I believe, have been found to be most mischievous in another part of the United Empire, namely middlemen, persons who stand between the lessor and the occupier, and impoverish both.But your Lordships have been referred to a passage of Sir Thomas Hope, in which that writer says, that a burgh royal cannot feu out their common lands. I beg to observe that Sir Thomas Hope must be clearly wrong in this, supposing this to be Sir Thomas Hope's opinion. Your Lordships know perfectly well, that the whole argument assumes that it would be good as a feu, though not as a grant of burgage tenure. ‘A burgh royal,’ Sir Thomas Hope is made to say, “cannot feu out their common lands without the King's express consent, and without an Act of the convention of burghs allowing that burgh so to do.” My Lords, I confess was surprised by the reference

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“Every royal burgh has its own common good or common lands pertaining thereto, which pertain to the burgh in common, and are holden of the King in free burgage, quoad the haill body of the town; but if any particular person acquire an heritable right of these common lands from the town, this is not holden of the King in free burgage, but of the town in feu: which difference is necessary to be observed, by reason that sasines of land holden burgage have sundry privileges by Act of Parliament, which do not pertain to the feu lands of the town.”
That is applicable to quite another case. My Lords, the next passage cited for the purpose of supporting this doctrine, is a passage from Mr Erskine, who says, “If any part of the common lands of a burgh are feued by the Magistrates to a private purchaser, such lands hold not of the Crown in burgage, but of the burgh in feu-farm.” The question is, in this case, whether they are feued or granted in free burgage? And in another place the same writer says, “Leases for a longer term than three years, of the rents or revenues of burghs royal, whether proceeding from lands, fishings, mills, or other subjects yielding a yearly profit, are prohibited by 1491, cap. 36.; but there is no limitation with respect to leases or feus of the lands or other subjects themselves, which, therefore, may still be lawfully granted by the Magistrates and common council, as if the statute had not been enacted.” My Lords, the passage, as quoted here, goes far enough to shew, that the construction I have ventured to submit to your Lordships is the true construction of this statute. But Mr Erskine adds, “For no more was meant by the Legislature, than to forbid the granting of leases to those who thereby became entitled to the tack-duties payable by the proper tacksmen or tenants, and who, under the pretence of their undertaking the hazard of the deficiences or bankruptcies of those tacksmen, frequently obtained such general leases at a considerable undervalue.” These last words shew what was the object of the Legislature in passing this statute, and that we should go beyond that object, if we by construction extended it to a conveyance of land.It is then said, that burgage tenures must hold from the King. It is added, these persons do not hold from the King, but from the corporation. If that proposition be made out, these persons are not burgage tenants; for burgage tenants must hold from the King. If,

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The service of watch and ward is a military service. At the period when Scotland and England were divided, particularly upon the borders of the two kingdoms, the watch and ward was an important military service. It is at all times, however, a service for the benefit of the Crown; because, if a town is not protected by the Crown against a foreign enemy, the internal peace of the country is preserved by that service. The sovereign of the country, therefore, derives an advantage from the performance of it. The performance of this service is a consideration for the grant of lands by the sovereign to him who obliges himself to perform it. But your Lordships will find, that the Scotch writers explain how this is to be done. The work of Lord Stair, your Lordships know, is a book of the highest authority; he is the Lyttelton of Scotland. In lib. 2. title 3. paragraph 38. are these words:—
“The particular persons infeft are the King's immediate vassals; and the bailies of the burgh are the King's bailies.”
In a very able note of Mr Brodie upon this passage, he says, “The community may take infeftment in what is held in burgage; but then as, by such infeftment, it fills the fee,” (that is, as by the infeftment the feoffer gives up the fee to the feoffee), “it follows, that whenever it transfers that property to individuals in burgage, the infeftment of the latter denudes the community:” The granter ceases to be a tenant of the King, and the grantee, by the very act of conveyance, becomes instanter a tenant of the King. ‘It is a mere impossibility,’ continues Mr Brodie, “that the burgh should fill the fee, and yet that the proprietors should be the immediate vassals of the Crown.” Your Lordships see that he assumes that they are immediate vassals of the

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I mentioned to your Lordships, that the next question, namely, Whether the town-clerk has the exclusive privilege of passing sasines in these lands? depended entirely on the decision of the former. If this be, as I am of opinion it is, a burgage tenure, it was properly registered in the burgh: Had it been a feu tenure, it must have been registered in the county. Burgage tenures, being peculiar to burghs, can only be registered in the registry of the burghs, and by the proper officer of these burghs.My Lords,this brings me to the last question to be decided by your Lordships, namely, Are the respondents, that is, the corporation, entitled to thirlage on grana invecta et illata, or only on grana crescentia?—Now, I shall humbly submit to your Lordships, that they are entitled to thirlage only on omnia grana crescentia, and not on grana invecta et illata. I stated to your Lordships, that this was the opinion of the learned Judges of the Court of Session in Scotland, when the case first came before them; this was the opinion of two of that learned body when the case was under their consideration the last time; and I am in possession of a very excellent judgment, pronounced by one of those persons, of whose services the country has since been deprived by his death, whom I had the honour of knowing, and whose abilities as a lawyer have long been respected by all Scotland—I mean the late Lord Alloway. * This learned Judge dissented from this judgment; and he expressed that dissent in a most luminous judgment, now lying on your Lordships' table. My Lords, the grounds on which I have formed this opinion (which I form with diffidence, considering the difference of opinion upon it) are these:—

Footnote

* See 6. Shaw and Dunlop, 26.

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“And bringing the whole grain which shall grow upon the said lands, and other stuff and corn they shall happen to grind, to the town of Glasgow's milns, and grind the same thereat, seed and horse-corn and bear excepted.”
Here are words which expressly limit the service to grain which shall grow upon the lands. It is difficult to say what is the meaning of the words ‘other stuff.’ But it would be contrary to the rules which regulate the construction of every kind of instrument to say, that such loose general ambiguous terms should embrace a different service, and one more heavy than that which is expressed in the particular terms previously used. At all events, such a meaning cannot be put on such terms in an instrument on which a limited and narrow constiuction should always be put. The introduction of such terms should be attributed to that tautology of which lawyers, both in England and Scotland, are so fond, rather than to any intention of increasing a heavy impost on the necessaries of life. It is said also, that the thirlage of grana invecta et illata is included in the words ‘service of burgh used and wont.’ But I am of opinion, that

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I would, upon the whole, humbly move your Lordships, that you should declare that the subjects are held by burgage tenure: Secondly, That the town-clerk has the exclusive privilege of passing sasines, and that the same are to be recorded in the burgh register: And further, that the respondents are not entitled to thirlage on grana invecta et illata, but only on grana crescentia.
“The House of Lords ordered and adjudged, that the interlocutor of the Court of Session of the First Division, of the 14th November 1827, complained of in the said appeal, in so far as it finds that the subjects are held by burgage tenure, and that the town-clerk has the exclusive privilege of preparing sasines therein, and that the sasines are to be recorded in the burgh register, and in so far as it appoints the Magistrates to lodge a condescendence of the usage concerning the levying of ladle-dues, be affirmed; and it is further ordered and adjudged, that the said interlocutor, in so far as it finds that the thirlage extends to invecta et illata as well as to grana crescentia, seed and horse corn and bear excepted, be reversed: And it is further ordered and adjudged, that the said two other interlocutors of the said Court, of the 30th of November and 20th December 1827, * also complained of in the said appeal, be affirmed: And it is further ordered, that the cause be remitted back to the Court of Session, to proceed therein as shall be consistent with this judgment.”

Footnote

* These interlocutors were orders of Court in regard to the statements as to the fact of usage in levying the ladle-dues.Appellants' additional Authorities .—Davie, June 2. 1814, (F. C.) Town of Edinburgh, Nov. 24. 1696, (1898.) 1567, c. 27.; 1681, c. 11.; 4. Geo. III. c. 42. Respondents' additional Authority .—Edgar, June 1743; Brown's Supplement, vol. v. p. 730.Solicitors: Alexander Mundell— Richardson and Connell,—Solicitors.