Scottish Court of Session Decisions

This was an action for payment of a casualty of a year's rent in consequence of the death of the vassal last vest and seised in certain subjects in the burgh of Kirkintilloch, by the bailies and clerk of the burgh for behoof of the burgesses, against Robert Marshall, who had acquired the subjects in question in 1869, the last vassal having died in 1864.

The pursuers alleged in support of their title as superiors that the burgh of Kirkintilloch was erected in 1184 into a burgh of barony by charter granted by King William The Lion to William Cumyn, and was thereafter, in feu farm and heritage, sold and disponed by the said William Cumyn to certain inhabitants or burgesses of the said burgh, with the liberty of a free burgh of barony, with power of courts, election of bailies yearly, and other privileges, as set forth in the charter thereof.

But the earliest document on which they founded was a charter of confirmation of 1670 by William Earl of Wigtown, a successor of William Cumyn, by which, on the narrative of the aforesaid erection and of several charters, with sasines thereon, in favour of the burgh, granted by certain of the Earl's predecessors, the Earl, for the sum of 550 merks paid to him by the bailies of the burgh, confirmed to the bailies, burgesses, and corporation of the burgh all previous charters, sasines, etc. (including those therein narrated), in favour of the burgesses, and of new granted to the bailies, burgesses, portioners, and heritors of the burgh the whole burgh lands and buildings therein more particularly described, to be holden by the bailies and their successors in office, chosen yearly by the burgesses, in feu farm of him and his successors for a yearly feu-duty of twelve merks together with services used and wont. This charter further granted to the burgesses the power of electing bailies, clerks of court, and other officers, and to the bailies so elected the right to hold courts and administer justice. The charter further gave to the bailies and to their clerks of court, as commissioners of the granter and his successors, and “as superiors of the said lands to that effect by these presents lawfully constituted,” full power to receive resignations, and to infeft and seise all and singular the heritable proprietors of the said burgh, or of any parts thereof, whether as heirs of their predecessors or upon resignation of their authors, or in any other ways according to the laws of the kingdom. It further confirmed to the bailies, burgesses, and community all liberties, immunities, and privileges at any time byegone granted to him and his predecessors by the king or the estates of Parliament in favour of the free burgh of his barony of Lenzie, and particularly that of holding markets. The precept of sasine in said charter directs sasine to be given in the said lands “by deliverance to the above-named bailies, burgesses, and heritors of Kirkintilloch and their foresaids, or to their certain attorneys or attorney in their names, bearers hereof,” &c., with full power to the burgesses and heritors of buying and selling their several parts and portions of the said town and burgh, and of making resignations thereof in the hands of the bailies and their successors in the office of bailiary, and with liberty to the bailies of receiving the same, and of giving and granting infeftments and sasines thereupon, according to the tenor of the ancient infeftments of the lands of the charter. Upon this precept sasine duly followed, conform to instrument of sasine in favour of the bailies and burgesses and their successors in office in January 1671.

The pursuers further averred that long prior to and ever since the date of said charter the burgesses of said burgh had elected two bailies and a clerk of court annually, and these had been in use to grant charters, precepts, and other writs usually granted by superiors to the individual burgesses and heritable proprietors within the burgh, and on granting these to exact and receive the usual feudal casualties for the benefit of the corporation or community.

In 1812 a charter of confirmation bearing to be by the “bailies of the burgh of Kirkintilloch, and as such immediate lawful superiors of the lands and others after mentioned” (now belonging to the defender), had been granted in favour of Agnes and Jean Millar equally, the survivor of whom was the vassal last vest and seised, and on account of whose death the present claim was made against the defender as singular successor. This charter confirmed a series of titles of the subjects in question in favour of the said vassals predecessors, and bore that the subjects were to be holden “of and under us and our successors in office, bailies of the burgh of Kirkintilloch, for payment to us, or to the treasurer of the said

Page: 802↓

burgh for the time being, of the feu and teind duties and others specified and contained in the original charter of the said lands.

The defender resisted the claim, averring that the sole superiors of his subjects were the Earls of Wigtown and their successors (now William Burns, Esq., of Cumbernauld and Kilmahew), and that the bailies by the charter of 1670 were not vested in any dominium directum, but were constituted merely agents or commissioners for the superior to grant certain charters by progress; and that the bailies received no power to uplift any feu-duties or casualties due to the superior, all which were by the said charter made payable to the superior or his chamberlain alone; and further, that no power was granted to the bailies to sue any declarator of non-entry, or to take any judicial proceedings to compel an entry into any feu held, as the defender's was, immediately of the superior of the burgh.

In regard to the charter of 1812 he maintained that the bailies who granted it, and who were not represented by the pursuers, were mere agents or commissioners for the superior of the burgh and of this defender's subjects; that these subjects were admittedly held blench, and that no casualty was payable or had been paid; and further, that the pursuers had no title or entry from the superior.

He averred further, that the pursuers were not properly elected and did not properly represent the burgesses of Kirkintilloch, and discharged no public functions there, and that the management of the burgh was in the hands of the magistrates and commissioners under the General Police Act. He also averred that he had never paid any feu-duty to the bailies.

The defender pleaded—“(2) No title to sue. (3) The pursuers not being superiors of the defender's subjects, the defender is entitled to absolvitor. (4) There being, by the terms of the charter of 1670, no casualty or composition exigible on a sale of the subjects now belonging to the defender, he is entitled to absolvitor.”

No proof was led in the cause.

The Lord Ordinary found in terms of the declaratory conclusions of the summons, and granted leave to reclaim, adding the following opinion—“This seems to me a very clear case. The defender's lands are within the burgh territory, and the magistrates of the burgh bring this action of declarator and for payment—an action which would, prior to the Conveyancing Act of 1874, have been an action of declarator of non-entry. The title on which the defender possesses—indeed the only title which he produces—is a charter of confirmation of 1812, and I cannot read that charter as anything else than a simple confirmation of a feu-right under the burgh as superior. The tenendas clause is quite explicit, for it says, ‘to be holden of and under us and our successors in office, bailies of the burgh of Kirkintilloch, for payment to us, or to the treasurer of the said burgh for the time being, of the feu and teind duties, and others specified and contained in the original charter of the said lands;’ so that I do not think it is within the limits of possible construction to read this charter as a charter in which the lands are held of the superior of the burgh, for the very reverse is declared. If that be so, it seems to me there is an end of the case. The sole contention of the defender is that he held an estate of the burgh's superior, but the only title which he produces, or seeks to produce, seems to me to be necessarily conclusive against him.

The defender says that he has never paid feu-duty. I assume that to be true; but I do not think it is material. It is perfectly possible the feu-duty was never paid, but that fact will not alter or affect the nature of the holding.

The pursuers say that composition was paid on the entry of 1812. I do not think that I need inquire whether it was paid or not. The presumption is that it was, inasmuch as a singular successor would presumably be required to fulfil the conditions on which alone he could enforce an entry. I think, therefore, that the pursuers are entitled to prevail.

The defender also contends that the pursuers are not infeft, but he offered little or no argument in support of that contention. According to the deed of 1812 the burgh is infeft. If it is not, the bailies are trustees, and their title is completed by the 45th section of the Act of 1874.”

The defender reclaimed accordingly, and argued that as the burgesses of a burgh royal held of the Crown, so those of a burgh of barony held of the baron, and at all events such was the case here under the writs produced.

Authorities—Ersk. ii. iv. 8; i. iv. 30; Earl of Wigtown v. Town of Kirkintilloch, 1734, M. 7299; Feuars of Danse v. Hay, 1732, M. 1824; Home v. Young, December 18, 1846, 9 D. 266; Hay v. Bailies of Aberdeen, 1634, M. 15, 031; Earl of Breadalbane v. M'Dougall, November 4, 1880, 8 R. 42— aff. H. of L., ib. 93; Innes v. Gordon, November 28, 1844, 7 D. 141.

At advising—