Incorporation of Tailors of Aberdeen 1 v. Adam Coutts [1840] UKHL 1_Rob_296
[1]It is a condition of the grant that the disponee and his heirs and assignees shall, within a certain time, erect houses upon the subject of a certain description, and the condition is fenced with a penalty and an irritant clause. There is no doubt that this obligation is of such a nature as to be binding upon singular successors, although it is not declared in express terms to be a real burden, and although it had not been fenced with an irritancy. It is a condition extremely common in feu-rights, Page: 323 ↓ granted for the purpose of building; its validity was never doubted, and it is daily enforced. We may observe, in passing, that the irritancy with which it is fenced to a certain extent is not valid, and would be ineffectual both against the first vassal and his singular successors; for it is stipulated that the appellant shall have power to use and dispose of the subject in the event of failure, without raising any process to that effect, that is, without process of declarator of irritancy, for that is not consistent with law as at present settled. The irritancy, in so far as it is legal, is beneficial to the granters, but the want of it would not affect the reality of the burden.[2]There is an obligation on the disponee to erect an iron railing eight feet from the houses, an obligation to carry off the eaves-drop, servitudes tigni immittendi et oneris ferendi in favour of the adjoining feuars, and an obligation to lay a foot pavement opposite to and along the sides of the feu. All these are manifestly, from their nature, real burdens, though neither declared to be so in express terms nor fenced with irritancies, having all the requisites mentioned above to render them effectual as such.[3]There is a condition that the vassal shall pay a proportion of two third parts of the expense of forming and enclosing the area in the middle of the square, and of upholding it in complete repair. That is not a real burden, for it is an obligation to pay an indefinite sum of money, which cannot, be imposed by the law of Scotland. On this point it may be proper to explain, that an obligation ad factum præstandum may be enforced, and is so every day, though indirectly and practically it Page: 324 ↓ may resolve into payment of an indefinite sum. Thus it is one of the usual mill services, that the vassals of the sucken shall bring home mill-stones when required, and clear out the aqueduct when it becomes filled with mud and rubbish. This, in general, can only be done by hiring labourers to perform the work, whose wages the vassals pay, in proportion to the extent of their feus or the nature of their thirlage. But these obligations are unquestionably real burdens, because the fact to be performed is in itself specific, whatever means the vassal may resort to for his own convenience in accomplishing it. There is accordingly a finding in the interlocutor proceeding on that familiar distinction. An obligation to pay a proportion of the expense of keeping certain wells in repair is of the same nature.[4]There is a prohibition to tan leather, to refine tallow, to make candles, to slaughter cattle, and various other nuisances, which, laying out of view the circumstances of this particular case, are all of a nature to bind singular successors, without being declared in express terms to be real burdens, or fenced with irritancies, because they are lawful conditions of the grant.[5]The next obligation is to pay 18 l . 2 s . 6 d . per annum as ground-rent, which, though not a feu-duty, is in some respects of the same nature; and it is properly fenced with an irritancy, which would have been useless in a feu-right, because it may not have the benefit of the statute 1597, this being a burgage-holding. There is a declaration that the ground rents shall be real burdens, affecting the ground and the houses built upon it. That, however, is not for the purpose of transmitting the obligation against singular successors, Page: 325 ↓ but to explain that the disponee shall have the benefit of real diligence against the tenants and possessors of the subject for his own relief. The last condition is of more doubtful effect than any of the rest. It is provided, “that the said George Nicol, and all succeeding heirs and singular successors to him in said piece of ground, shall be obliged, within six months after their acquiring right thereto, to grant, upon their own expenses, personal obligations for payment of said duties or ground-rents, and performance of the whole clauses and conditions prestable by them therein contained, and that without prejudice of the real right competent to the said John Finlason and his foresaids in virtue of said disposition, and of this infeftment thereon.” There is no doubt that parties intended this to be a real burden, and to attach upon singular successors, for so it is expressly declared, but whether the law will sanction such a burden is a different question. Certainly, as is admitted, it could not oblige singular successors to grant a personal bond for the performance of conditions which were not or could not be made real burdens in the grant. In the next place, it rather appears to be a condition inconsistent with public policy, vexatious to the vassal, and an obstacle to the free commerce of land, because it ousts him of many advantages which he would otherwise enjoy at common law. When real burdens are enforced against him in the ordinary manner,—for example, if he is required to build a house, to lay a pavement, to inclose an area, and so forth, within a limited time,—and if he fails to do so within the time specified, the irritancy cannot be declared until the ordinary induciæ of a summons have run, and until Page: 326 ↓ defences have been stated, and decree of declarator obtained and extracted. But if he has granted a personal bond to do these things, he may be charged on letters of horning at six days date, and could not obtain suspension without finding caution perhaps to a great amount. Keeping this in view, and also that such clauses are extremely rare, and, as far as it appears, have neither authority nor decision in their support, we doubt whether they might not be considered in the same light as the clause in Campbell of Blythwood's charters 1 was by the minority of the Court; an opinion which received countenance in the House of Lords, both when the remit was made, and when the judgment in this case was moved. If it be a legal and warrantable condition in any case, it seems to be so in regard to feu-duties or ground-rents, the precise, amount of which is liquidated in the charter or disposition, and for withholding payment of which there can scarcely even be an excuse. II. The second question is, “If any one of the obligations is such as to be a real burden, without being so declared, is the irritancy necessary to make it binding upon singular successors?” This question appears to involve its own answer. If an obligation in a feu or burgage right is real, it binds singular successors; if it does not bind them it is not real, but personal. An irritancy is often a convenient mode of enforcing a real burden, but not necessary to constitute it, except, as has been explained, in the case of strict tailzies, with which at present we have nothing to do. Footnote 1 Campbell v. Ilarley , supra, 318. Page: 327 ↓ III. The third question is, “Are any of the obligations, and which of them, of such a nature that the irritancy would not make them binding upon singular successors as real burdens, without words declaring them real burdens?” An irritancy will not make a personal burden real, although, when the words are otherwise not sufficiently precise, it may be of use to explain the intention of parties. For example, in the case of Martin v. Paterson , no irritancy would have made the payment of the sum mentioned in the infeftment a burden upon singular successors, the Court holding the words employed not sufficiently clear: but they might have taken it into view in construing those words. Thus, in Cumming v. Johnston , or Canham v. Adamson 1 , a case mentioned when the judgment was moved, the disponee of a burgage tenement was burdened with the payment of a specific sum to a creditor of the disponer, and the Court at first found that the creditor had only a personal right. There was an irritant clause in the disposition, but it was not repeated in the infeftment, and therefore absolutely unavailing against singular successors. But as the burden itself, though without the irritancy, appeared in the infeftment, they afterwards sustained it as real. This judgment perhaps went too far, according to our present notions of the law, and it can only be justified by giving the irritant clause the effect which has among other circumstances been mentioned, that of being an element of construction. IV. Fourthly, it is asked, “Is there any difference, and what, between the effect of an irritancy which Footnote 1 7th Nov. 1666, Mor. 10234 & 2727. Page: 328 ↓ forfeits the right of the singular successor only, and one which gives the feu back to the superior, in making the obligation to which it is annexed binding upon singular successorss?” An irritancy cannot be declared against a singular successor without giving back the subject to some person. In feu rights the subject reverts to the superior or his heirs. In burgage holdings it reverts not to the superior, who is the sovereign, but to the granter of the burgage disposition. In strict entails, when an irritancy is declared the contravener is struck out of the destination, and the fee descends to the heirs of his body, if the forfeiture is not directed against them, and if so, to the next heir in the destination after the contravener. We are of opinion that there is no difference between the fee returning to the superior in a feu or to the disponer in burgage, in making the obligation to which it is annexed binding upon singular successors. If there was a condition either in a feu or burgage right, of which we never saw an example, that the subject, when the right of the granter is irritated, should go to some third party otherwise unconnected with the feudal or burgage contract, we cannot see how this should affect the quality of the right in the person of the singular successor. A fee forfeited, and reverting to nobody, is altogether anomalous. With a view to save further expense, in a case which has already cost the parties much more than the value of the matter in dispute, two further explanations may be given.[1]The first interlocutor of the Ordinary, which, on a remit, he saw cause to alter, proceeded upon this ground. There were specialties in the case which seemed of importance. Page: 329 ↓ Some of the conditions were protected by clauses of irritancy, and others, where it would have been equally useful, were not so protected. Again, there was an obligation to engross all the conditions in Nicol the first vassal's infeftment, but there was no obligation to engross them in any future conveyance or investiture. This singular omission appeared to raise the presumption, that parties intended that one set of the conditions at least should be personal, binding Nicol and his heirs exclusively. But, upon reconsideration, as the words employed expressed conditions naturally attaching to land, and were such as usually occur in urban tenements, he came to be of opinion that the presumption arising from these specialties, in not a very skilful conveyance, ought to be disregarded.[2]Many of the conditions, which from their nature appeared to be real, are not enforced in consequence of the shape of the summons and the proceedings of the parties. The summons contains five petitory conclusions only, and one declaratory conclusion. 1 With regard to the petitory conclusions referring to five conditions, four are sufficiently precise, and the grounds upon which they rest are set forth in explicit terms. They have therefore been articulately disposed of by the interlocutor. There are no petitory conclusions with regard to the remaining conditions of the grant. On the contrary, the pursuers have pleaded, “that they have no occasion in the present action to enforce them.” The declaratory conclusion, however, stands in a different situation. It bears, that the Court should find and declare, that “the whole foresaid obligations, stipulations, Footnote 1 See conclusions of the summons, 2 Sh. & M'Le., 635-637. Page: 330 ↓ provisions, conditions, and declarations contained in the said articles of roup, and in the said feu charter granted by the said John Keith, and in the said disposition granted by the said John Finlason, both in favour of the said George Nicol and above quoted, attach and apply to and are binding upon the said Adam Coutts, as disponee of the said George Nicol, and upon his heirs and successors.” This sweeping conclusion rested and could rest solely on the ground, that the respondent being clerk to the corporation had acted fraudulently, or from gross and culpable negligence, in omitting to render all the conditions contained in these documents binding upon singular successors, and therefore that he was barred personali exceptione from pleading that they were not binding. When the charge of fraud and negligence was repelled, the declaratory conclusion in that shape fell to the ground. In the character merely of a singular successor, the respondent had no concern whatever with the conditions in the articles of roup, or in the inept feu charter, or those which had not been engrossed in Nicol's investiture, all of which, however, were libelled upon. If the pursuers, giving up that medium concludendi altogether, had wished a decree to declare the reality of the conditions inserted in the burgage disposition and sasine alone, independently of the plea of fraud and negligence, they should have set forth specifically those conditions, and rested their plea upon the burgage disposition. Further, they should have excepted from that part of their libel all the conditions which had been previously implemented, and those as to which waiver was alleged, or at least they should have made that restriction in their condescendence. Page: 331 ↓ Thus, with regard to the condition about nuisances, waiver was expressly pleaded; for the respondent averred, that “the trade had previously admitted nuisances in the case of Dempster and many others, in feus close adjoining.” That was held a relevant defence in the case of Brown v. Burns 1 ; but in this case it was neither admitted nor denied by the pursuers with sufficient precision, nor did they join issue with the defender, or take any proof upon the subject, although a proof in very general terms was allowed. But under the judicature act, 6 Geo. 4. c. 120., it is provided, that the pursuer or pursuers shall in the summons set forth in explicit terms the nature, extent, and grounds of the complaint or cause of action, and the conclusions which, according to the form of the particular action, the said pursuer or pursuers shall by the law and practice of Scotland be entitled to deduce therefrom.” This provision was not complied with, and it was supposed to be the duty of the judge to pick out some one or other condition from the multitude of the conditions libelled, and to support it on some one or other of the various grounds upon which the action was laid. In the same manner, in the first petitory conclusion, the defender is required to grant a personal obligation for the ground rents, and for performance of the whole clauses and conditions contained in the articles of roup, feu charter, and burgage disposition. That might have been a good conclusion on the medium of the respondent's fraud or negligence; but if the appellants proceeded on a different medium, namely, the reality of the condition, they should have restricted this Footnote 1 Supra, p. 30. Page: 332 ↓ conclusion to the burdens contained in the burgage disposition alone, to such of those burdens as had entered the infeftment, to such as by their nature were real, and to such as had not been implemented or waived, or the restriction should have been made in the condescendence, and a proof demanded of the facts, if disputed. This conclusion, therefore, as it stands, was defective in form under the judicature act, and the defect was not afterwards remedied in the condescendence. It was upon these grounds that there was an absolvitor from the declaratory and the first petitory conclusion. If the appellants had required it, a reservation would have been inserted to enable them to sue in a more correct form. But no such reservation was asked from the Lord Ordinary, neither was it asked when his interlocutor was reviewed by the Court. It may still be inserted in the House of Lords, if desired by the appellants. Lord Moncreiff .—I think that the whole matter embraced by the remit of the House of Lords is well explained in the above opinion, and I concur therein. Lord Medwyn .—I concur in this opinion, with this explanation, that I do not think the principle which prevents the obligation in a disposition to a real subject to pay an indefinite sum of money, being more than personal, or binding on a singular successor, applies to the obligation in a burgage disposition or building feu-charter, to pay two thirds of the expense of forming and inclosing the area of the square, and of repairing and keeping it up. The expense is indeed indefinite, but it is as precise as its nature will admit, and it is not unlimited; it never can exceed the limited proportion of the actual expense, and it is a natural obligation in such a deed, as Page: 333 ↓ much as building according to a plan or any other facta præstanda connected with such a feu; it is, in fact, the equivalent or commutation for an obligation ad factum præstandum, and in this respect is quite different from a condition which converts the feu-charter or burgage holding into a security for a loan of money, which is not one of the naturalia of the right. An obligation to pay the stipend belonging to other lands, although the amount cannot be specified, ( Johnston v. Ramsay , 20th November 1824,) has been sustained against a singular successor, when properly constituted a real burden; and I think this obligation as to the expense of keeping up the area of the square will always affect the purchaser of the house, and that the superior or other proprietors will have no occasion to look after the heirs of the original feuar, who may have ceased to have any concern with the subject, and claim the amount from them. The Lord President and Lord Cockburn agreed with Lord Medwyn. Lord Meadowbank .—I concur in the opinion of the other Judges and the preceding addition. The Lord Justice Clerk .—I concur also in this opinion, but have the same doubt as that expressed by Lord Medwyn, and am disposed to hold that the stipulation as to payment of two-thirds of the expense attending the enclosure of the area of the square is effectual. Lord Glenlee .—I concur in the foregoing opinion, but at the same time I think what is stated by Lord Medwyn deserves great attention. I am not aware of any precise judgment hitherto pronounced-on the point stated by his Lordship, and I do not think it quite clear that the considerations which led the Court, after various contradictory decisions, to establish the general rule, that Page: 334 ↓ where the burden consists in payment of a sum of money the sum must he exactly and precisely specified, necessarily apply to the case in question. Lords Fullerton and Cuninghame .—While we entirely concur in the exposition given in Lord Corehouse's opinion 1 , of the general principles by which questions similar to the present are to be determined, we must be permitted to doubt how far the application of those principles does in some particulars warrant the special conclusions there arrived at. In the first place, we agree with Lord Medwyn, that the obligation to pay a certain “proportion of the expense of inclosing the area,” &c. does constitute a burden effectual against singular successors in the title of an urban property like the present. It seems to us merely the pecuniary commutation of an obligation, which, if expressed in the form of an obligation ad factum præstandum, would have been perfectly good, agreeably to those general principles on which various others have been supported. It would be difficult to distinguish it from the obligations to erect an iron railway or to lay a foot pavement, except in the immaterial circumstance that the latter are imposed on the disponee singly, while the former is imposed on him jointly with the other burgage tenants. Still less does it differ from such an obligation as that which was sustained in the case of the Duke of Argyle against the creditors of Tarbert 2 , “to keep and uphold a boat with six oars,” &c. Footnote 1 The opinion of Lords Gilles and others, understood to have been drwan by Lord Corehouse. 2 Supra, p. 310. Page: 335 ↓ Secondly, we have great difficulty in holding that the obligation on George Nicol, his heirs and singular successors, to grant personal obligations, for the performance of such of the clauses and conditions as are in themselves real burdens, is objectionable and ineffective. It is framed in terms which seem to be sufficient to render it real, and it does not appear to us to involve any thing either inconsistent with public policy or even prejudicial to the private interest of the parties. It does no more than bind each singular successor to undertake, in the form of a personal obligation, that which ex hypothesi is already a real burden, and of which consequently he has, by taking the lands, contemplated the performance; and its only effect is to place the singular successors in the same situation as the original acquirer of the right. The stipulation is certainly unusual, and we therefore give this opinion with some diffidence; but, advised as we are at present, we are not prepared to hold it to be ineffectual. The foregoing opinions having been laid before the House, their Lordships appointed the cause to be argued by one counsel of a side as to their import; and, after argument, judgment was deferred. Ld. Brougham's Speech. Lord Brougham .—My Lords. In this case your Lordships have had the very great assistance of the learned judges in the Court below; for the answers which they have given to the questions put by your Lordships three years ago, certainly are most able, learned, and elaborate, and are calculated to give the greatest assistance to your Lordships in the disposing Page: 336 ↓ of this cause. I shall certainly recommend to your Lordships to take further time in considering their answers, as they raise some very important questions, not only with respect to those matters sent down originally, but also a new question, not only highly material in this case, but which must be of great importance also in general practice. Judgment deferred. Lord Brougham .—It is first necessary to dispose of the objection raised upon the pleadings; and when examined this appears to be untenable to the extent at least to which it is pushed. There are two declaratory conclusions, one applicable to the respondent in his capacity of agent or clerk of the corporation, and the other applicable to him merely as a singular successor. These are kept separate and distinct in express terms both in the subsumption and in the conclusions of the summons. “That the said A. Coutts is further and separately bound to implement in consequence of having been clerk and professional agent,” is the language of the subsumption; and the conclusion follows it, desiring to have it further declared “that A. Coutts is further and separately bound to implement in consequence of having been clerk and professional agent.” This averment in the one part of the summons and the demand in the other immediately follow the averment and demand relating to A. Coutts as disponee of G. Nicol. It is true they do not ask to have each of the obligations declared burdens, nor do they ask that the whole or some should be so declared, but they ask that the whole should be declared; and it cannot be Page: 337 ↓ contended that this does not entitle them to a declaration in part, though they have not said “the whole or some part thereof.” If, indeed, there had only been one conclusion, and that resting solely, as the opinion in the Court below seems to assume, on the personal liability of the party in respect of his employment as agent,—if that ground were disallowed as to one, it must fail as to all; consequently no declaration could be given upon the burdens which might affect him as singular successor. But in another view, also taken below, though inconveniently mixed up with the former, there is a serious objection to the frame of the declaratory conclusion: it has no particularity whatever. The whole conditions are libelled equally and in a mass, as well those which had been engrossed in G. Nicol's investiture, as those with which a singular successor had nothing to do; for example, the articles of roup and the inept feu charter, as well those which had been implemented as those which remained unperformed. And although the conclusion only asks a declaration upon the latter (those not implemented), yet it was the duty of the party to specify what these were, and not leave the Court (as the learned judges observe) to pick out from the multitude some one capable of supporting the conclusions. The judicature act, 6 Geo. 4. c. 120. s. 2., expressly requires “that the nature, extent, and grounds of the complaint or cause of action be set forth in explicit terms in the summons, and the conclusions to be deduced therefrom.” In strictness, perhaps, we should require each conclusion to be applied to the ground on which it is rested; but it may be admitted that if in the subsumption there is a specified Page: 338 ↓ statement of different grounds, declaratory and petitory conclusions may be applied to those grounds severally. Thus, although it will not do to recite the whole set of instruments containing many obligations,—some applicable to the party charged, and some inapplicable, some on which the pursuer proceeds, others on which he makes no claim,—and then to demand a declaration on the whole so far as they may be unperformed, yet he may select those on which he claims both declaratory findings and decretal orders (answering to his declaratory and petitory conclusions); and if his declaratory conclusion be good in other respects, it will entitle him to a declaratory finding, although it does not in terms ask it upon the particular matter, but only upon the whole, and although it does not distinguish which of the two declaratory conclusions is applicable to the several obligations, but asks for a declaration against the defender in both capacities as to the whole obligations. The demand, on the whole, here must fairly be taken to mean either the whole of the preceding particulars or part of them. Certainly, unless some authority is shown for holding the rule more tight, for imposing a more strict construction upon the requisition of the statute, we cannot safely require greater precision. If we did, it would only drive the pleader to repeat each condition or obligation in the subsumption and in each conclusion, where, as here, there are more than one; and thus little would be gained, unless indeed we were to hold, as the Court below seems to do, that where the whole is asked, and any one fails, the whole must fail; in which, as already observed, it seems impossible to agree. It may also be remarked, that the learned judges Page: 339 ↓ themselves regarded the provisions of the statute as not excluding a somewhat lax interpretation, for, although “summons” only is mentioned in the second section, they assume that the defect of generality in the summons might have been cured by the greater particularity of the condescendence. I therefore am of opinion, that there is nothing in the frame of this summons to prevent the pursuers' having a declaratory finding upon any of the conclusions which are specially averred in the subsumption to be binding on the defender, without specifying in what capacity; but that they have no right to a declaratory finding upon any of the other obligations not specified as binding in any part of the summons, and being referred to in the mass of disputed articles of roup and feu charter. The question of pleading, therefore, being disposed of, the merits remain to be considered as now before your Lordships on the remit; and the doubts raised on these by the opinions of the learned judges refer, first, to the payment of the two thirds of making and repairing the square, and, secondly, to the granting personal obligations for paying the duties and performing the clauses and conditions. On the last of these points I think it would not be right to deviate from what appears to be the opinion of nearly the whole of the learned judges, and what is consistent with the view taken both in the Blytheswood case 1 when it was before your Lordships and in 1837, when the present case was sent back; namely, that such an obligation is ineffectual, although intended by the words of the conveyance to be made a real burden. On the former I have much more hesitation, Footnote 1 Campbell v. Harley , ut sup. 318. Page: 340 ↓ but I have come to the opinion of those who hold it not to affect the party. Here the conveyance does not declare it a real burden; there is nothing to show (in the words of the learned judges) “that the subject itself is meant to be affected,” and it is not one of the necessary or natural burdens of such rights. It is not “ad factum præstandum,” at least not directly or immediately, but only to pay a proportion of the expense occasioned by a certain fact, if done. It is an obligation to bear an unascertained expense, that is, an unascertained sum of money, which it is on all hands agreed cannot be imposed; and it by no means follows, that because the property might have been burdened with the whole inclosures and repairs of the square, therefore it may be burdened with relieving those who shall inclose and repair,—relieving them to a certain extent of the sums required for that purpose. On the contrary, such an obligation would really be converting the feu charter, and in this case the burgage holding, into a security for an amount,—and an undefined amount of money. In a matter confessedly of some nicety, and on which I have had great doubts, it seems the safe course to consider this obligation as it directly and apparently is,—an obligation to pay an indefinite sum, unconnected with the naturalia of the right. The obligation to pay the expense or any proportion of the expense of repairing, immediately connected with the subject granted, would clearly stand in a different predicament. In the case referred to below, Johnstone v. Ramsay , 20th May 1824 1 , the obligation was a warrandice of teinds against Footnote 1 3 S. & D. 33. Page: 341 ↓ stipend expressly declared to be a real burden in the seisin; and the learned judges have not said in the present case that an obligation, such as the present, can be effectual against singular successors when not declared a real burden, and when the obligation is not to a feudal superior, but to the grantor of the right, when there is no feu holding. The course which I in the outset showed, must be taken, as the objection to the pleadings confines the pursuers' right to a declaratory finding within the limits of the obligation specified as binding on the defender in the subsumption, where alone (except in the repetition of the petitory conclusions) there is in this case any specification. And, from what has now been said on the merits, it likewise appears that only one declaratory finding for the pursuer respecting those specified obligations remains to be added to the interlocutor; that, namely, which relates to the foot pavement and iron railing at the east end of the premises. To this declaration it seems clear that they are entitled, although in all probability the mere finding in the interlocutor, with the decerniture against the defender, would be sufficient for the purpose; and it is material, with a view to the question of costs, that we should bear in mind how very trifling this alteration of the interlocutor is. The only difference made is, that the interlocutor found the defender bound to do the thing in question; and to this we now add a declaration, that it is a real burden upon the property binding on him as a singular successor. As this House does not itself declare rights, a remit pro formâ will be necessary to decern and declare in terms of the findings against the respondent, and the judgment will then stand thus:— That so much of the Page: 342 ↓ interlocutor of the 19th November 1833, appealed against, as finds that the defender is not bound to grant to the pursuer, for behoof of the corporation, a personal obligation for payment of the yearly dues or ground rents specified in the libel, or for the performance of the clauses and conditions contained in the articles of roup, or in the burgage disposition granted by John Finlayson, boxmaster of the corporation, in favour of George Nicol; and so much as finds that the defender is not liable to pay to the pursuers or their successors in office the sum of 16 l. 6 s. 6 3 ⁄ 4 d . with interest, as part of the expense of erecting the metal railing and dwarf wall round the centre of Bon Accord Square; and so much as finds that the defender is bound to lay the foot pavement opposite to and along the sides of the subjects disponed to George Nicol, and to erect an iron railing at the east end of the said subjects in conformity with the provisions in the burgage disposition, and within the time therein mentioned; and so much as finds that the defender is not bound to lay the pavement at the west end of the subjects fronting Bon Accord Terrace, there being no obligation to that effect in the disposition to Nicol; and so much as finds that the defender is liable to the pursuers in the sum of 27 l. 14 s . 2 d ., being his proportion of erecting a common sewer, of which he has taken benefit since the purchase from Nicol; be and the same is hereby affirmed: And as to so much of the said interlocutor as assoilzies the defender from all the other conclusions of the libel, remit to the Court of Session, with the direction * that in respect of the declaratory Footnote * This reference to the first declaratory conclusion will he sufficient to affirm the finding below, that A. Coutts is not barred personali exceptione. Page: 343 ↓ conclusion of the summons against the defender as a singular successor, disponee of G. Nicol, the said Court do decern and declare in terms of the said interlocutor, that the obligation of the defender to lay the foot pavement opposite to and along the sides of the subjects disponed to Nicol, and to erect an iron railing at the east end of the said subjects in conformity with the burgage disposition and within the time therein mentioned * , is a real burden upon the property in question, and is binding on the defender; and that the said Court do of new assoilzie the defender from all the other conclusions of the libel, and that they do decern accordingly; and that they do further find the pursuers liable to the defender in all expenses of process in the Court below, down to the termination of the proceedings, except in so far as the discussion and proof regarding the common sewer is concerned, but the defender liable to the pursuers in the expenses of the said discussion and proof; and that they do remit the accounts of the said expenses, when given in, to the auditor to tax and report. The alteration made in the interlocutor is far too slight to make any difference in the portion of that interlocutor ordering the pursuers to pay the defender's expenses below. Considering the attacks made upon his character, and from which the pursuers were driven, he clearly must have his expenses throughout the whole proceeding there, notwithstanding the finding against him, now Footnote * Namely, that it does not go all round. The finding excludes the west end; so that the clause in the disposition is to be read:— “Along the sides of the said piece of ground, in front of the said square and street, eight feet broad.” Page: 344 ↓ added to the former finding against him, but added, as has already been observed, in little more than form. As to the costs here, those of the cross appeal must be paid by the respondent, but the clerk will take care to ascertain whether or not it was necessary for the appellants to present a separate case, which the respondent did not. It is extremely to be regretted that the costs of the principal appeal cannot be given against the appellants after the attacks made on the respondent in the Court below; but it has been a thing unavoidable to alter the interlocutor; and it was, even in the matters which stand against the appellants, a question involving much doubt; so that after the abandonment below of all attacks on the respondent's character, the appeal could not be considered so vexatious as to justify giving costs where, to a certain, though small extent, it has succeeded. It remains to add, that although the litigation has unfortunately cost a great deal more than the value of the matter in dispute, the discussion which the question has undergone possibly will prevent,—most certainly it ought to prevent, any further dispute respecting the rights of the parties under the burgage disposition in question. It is true that the judgment now for the most part affirmed has not declared how far many of the obligations are real burdens on the property, as the obligation to build, and others mentioned in the opinions of the learned judges on the remit. But this was owing to a defect in the pleadings; and there can be no doubt whatever, that had the summons been properly framed the pursuers would have had declaratory findings on all those matters on which the opinions of the learned judges have been unanimously pronounced in their favour. Page: 345 ↓ Judgment. The House of Lords ordered and adjudged, That so much of the said interlocutor of the Lord Ordinary of the 19th of November 1833, appealed against in the said appeals, as finds that the defender is not bound to grant to the pursuer, for behoof of the corporation, a personal obligation for payment of the yearly dues or ground rents specified in the libel, or for the performance of the clauses and conditions contained in the articles of roup or the burgage disposition granted by John Finlason, boxmaster of the corporation, in favour of George Nicol; and so much as finds that the defender is not liable to pay to the pursuers or their successors in office the sum of 16 l . 6 s . 6 3 ⁄ 4 d ., with interest, as part of the expense of erecting the metal railing and dwarf wall round the centre of Bon Accord Square; and so much as finds that the defender is bound to lay the foot pavement opposite to and along the sides of the subjects disponed to George Nicol, and to erect an iron railing at the east end of the said subjects, in conformity with the provisions in the burgage disposition, and within the time therein mentioned; and so much as finds that the defender is not bound to lay the pavement at the west end of the subjects fronting Bon Accord terrace, there being no obligation to that effect in the disposition to George Nicol; and so much as finds that the defender is liable to the pursuer in the sum of 27 l. 14 s . 2 d ., being his proportion of erecting a common sewer, of which he has taken benefit since his purchase from George Nicol, with interest, as libelled,—be and the same is hereby affirmed. And it is further ordered, That as to so much of the said interlocutor as assoilzies the defender from all the other conclusions of the libel, it be remitted to the Court of Session, with this direction, that in respect of the declaratory conclusion of the summons against the defender as a singular successor disponee of George Nicol, the said Court do decern and declare, in terms of the said interlocutor, that the obligation of the defender to lay the foot pavement opposite to and along the sides of the subjects disponed to George Nicol, and to erect an iron railing at the east end of the said subjects, in conformity with the burgage disposition, and within the time therein mentioned, is a real burden upon the property in question, and is binding on the Page: 346 ↓ defender; and that the said Court do of new assoilzie the defender from all the other conclusions of the libel, and that they do decern accordingly; and that they do further find the pursuers liable to the defender in all expenses of process in the Court below, down to the termination of the proceedings, except in so far as the discussion and proof regarding the common sewer is concerned, but find the said Adam Coutts the defender liable to the pursuers in the expense of the said discussion and proof; and that they do remit the accounts of the said expenses, when given in, to the auditor, to tax and to report: And it is further ordered, That the said Adam Coutts, the respondent in the said original appeal, do pay or cause to be paid, to the said appellants the costs incurred by them in respect of the said cross appeal, the amount thereof to be certified by the clerk assistant: And it is also further ordered, That unless the costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the cause shall be and is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the bills during the vacation, to issue such summary process or diligence for the recovery of such costs as shall be lawful and necessary. Solicitors: A. Dobie— Richardson and Connell, Solicitors. 1840