Subject_1 ADJUDICATION and APPRISING. Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.
Sir Alexander Cockburn v. Creditors of Langton
Date: 10 July 1747 Case No. No 17.
The office of principal Usher to the King, found to be adjudgeable.
1595.
1609.
1642.
1662.
1674.
1686.
1711.
1690.
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The office of principal Usher to the King, was granted heritably to the predecessor of Sir Alexander Cockburn of Langton. What was the precise date of the original grant, does not with certainty appear; but there is, in the records, a a grant by King Robert the II. ratified in Parliament, to Alexander de Cockburn, therein designed, ‘dilecto nostro armigero.’ This grant dispones to him the three baronies of Bolton, Caridden, and Langton, in free forestry and warren, with the burgh of barony; and then adds, “Itaque quod dictus Alexander, bæredes vel assignati sui inter intersit vel interfint tres sectas capitales, viz Sectam itineris justiciarii tent. inter vicecomitatum de Berwick super Tuedam, sectam itineris justiciarii tent apud Edinburgh, et Parliamentum nostrum tent apud Sconam: et quod dictus Alexander vel hæredes sint principales ostiarii nostri ad nostra Parliamenta, generalia concilia, et festa, capiendo de nobis et successoribus nostris per dictum tempus, liberationem pro duobus armigeris, duobus arcutenentibus, cum gladiferis et equis pertinentibus eisdem.” And the charter contains a reddendo of a pair of gilded spurs of blanch farm, pro omni alio onere. From the 1647, downward, there is a connected progress of grants from the crown, of the said office, to Sir Alexander's prodecessors, and their heirs-male; with this variation, by charter under the great seal in the 1674, that there is a fee, or yearly pension of L. 250 Sterling, annexed to the office, in place of the livery, or maintenance formerly given to principal usher's attendants, to his esquires, archers, sword-bearers, and his and their horses, and their grooms.
The creditors of Langton, who had adjudged the office, as well as the land estate, having brought a ranking and sale of the estate, comprehending the said heritable office, and the fees thereof, Sir Alexander, apparent heir male of the family, being advised that this office was a right annexed to the person, and not to the estate, and consequently not transmissible by voluntary conveyance, nor by legal diligence, brought a declarator to have it found and declared, “That this office is not a patrimonial estate, capable to be aliened from the family, or to be affeced by creditors; but that it must descend to the heirs of the family in their right of blood, and that the pursuer's taking and holding this office cannot subject him to the debts of his predecessors.”
In support of these conclusions, the arguments urged for the pursuer were what follow. Property, no doubt, implies a power of disposal, whether the subject of the property be land, moveables, or an office. But, by the establishment of the feudal law, which comprehended offices as well as lands, the superior was understood proprietor, and the vassal had nothing but the ususfructus, or the use of the subject. The grant. made to the vassal of the land was not understood an alienation of the property, but only a right to enjoy the fruits instead of wages, to enable him to perform the services contained in the grant At first, these grants were during pleasure; they were afterwards continued for life; and at last extended to the grantee's male descendents. Accordingly, when a vassal died, his light of usufruct died with him; and his son had no other right to the land, but what depended upon the superior's obligation, contained in the original feudal right, to renew the grant in favour of the grantee's male descendents. This claim was competent to the heir, not as deriving any right from his ancestor but as creditor to the superior. See 2d of Statutes, Rob. 1 cap. 6. which directs the manner of laying this claim.
Among the Romans, where lands were allodial, and heir claimed the land in right of his ancestor; and there was necessary an aditio bæreditatis, to be a legal and public testimony of the heir's will, to subject himself to all the ancestor's debts and engagements, which was a necessary consequence among them of an heir's taking up an ancestors estate An aditio bæreditatis was necessary among us; not is such a form known in our old law. With regard to moveables, if they were not conveyed by testament, the church had the management and distribution. And as to land, the heir might safely demand renovation of the seu from the superior, without any form of, aditio; because an heir, by this new grant, became only subjected to perform the feudal services to the superior, without being liable for any of his ancestor's debts. As he took nothing in the right of his ancestor, there was no foundation in law nor equity, to burden him with his ancestor's debts. After the Roman law Was introduced into Scotland, the great regard paid to that law among the modern nations in Europe, led us by degrees to vary the principles of our old law, so as to accommodate them, as much as possible, to this new adopted law. Thus, a special service is commonly held to be the form of aditio in land estates. But when we consider the thing attentively, we will find, that a special service is not at all of the nature of an aditio bæreditatis, to transmit the defunct's right into the person of his heir: The whole procedure of it shows, that it is intended for no other purpose, but to obtain a renewal of the seu from the superior, and to derive a right from him, not at all from the defunct.
By the feudal law, and by the practice of this country an heir of ward-land is not entitled to demand a renovation of the feu from the superior, till he be of full age for performing the services for which the land was granted to his family By the common principles of law, a minor is entitled to take up his father's right, as well as a major is. Here a minor has no claim to the land; which, proves that he derives no right from the predecessor. His claim lies against the superior, who, in the original covenant, gave the land to the vassal and his made descendents, upon condition of his military service, and for maintaining them during their service. But it is implied in such a grant, that the superior is not bound to give his land to an heir who is not capable to bear arms; and therefore he is not bound to give the heir possession till he be of full age, when he is understood fit for war.
Thus a vassal, by the feudal law, is in reality but a liferenter, or usufructuarius, as much after heirs were introduced into feus as before. The heir is called to be servant to the superior, and he gets his wages or fee from the superior, who assigns him the same portion of land that his father formerly had, for the same service. But, in this matter he is to be considered as heir designative only. He derives no right from his father, if it be not birth and blood. After the father's death, the land returns to the superior, who bellows it of new upon the son, according to his promise in the original grant.
To come close to the present point, when the feudal law came to be in vigour, grants of all kinds were formed upon the plan of it, not excepting grants of honour and of offices. The office-bearer was the vassal, and he held his office of the granter his superior, under the condition of performing the duties of his office, of whatever nature these were. Dignities, originally, were always granted along with land, or with jurisdiction; and even, at present, where they are granted without relation to either, they imply a reddendo of the being the King's counsellors, and of attending him in Parliament.
It is no wonder then, that by the original constitution of feudal holdings, the subjects or privileges thereby held, were put altogether extra commercium. Many things concurred; There was a delectus personarum; there was a standing contract betwixt the superior and his vassal; a subject granted for services to be performed by that very vassal, which subject could not be taken from the vassal without the superior's consent, as being destined for a certain purpose; and lastly, there was properly no subject in the vassal, which could be alienated, every vassal being properly an usufructuarius, and the heir deriving right not from his predecessor, but from the superior.
But in progress of time, when nations were civilized, and the arts of peace cultivated, military prowess was of less importance. Peace produced industry, and industry produced commerce: Money came to be of general use; and, by the increase of money, land acquired a value which it had not originally. Vassals were willing to alien their land for money, and superiors were easily brought to consent upon getting a part of the price. Thus the commerce of land crept in by degrees; and when a man purchased land for a full price, it was a natural consequence, that he should have more power over it, than if he had got it, as a gratuity for military service. In process of time, feus came to be considered as patrimonial, which originally were beneficiary only: They came to be granted without limitation, to the purchaser, and to his heirs whatever. In a word, they are now in England in every shape allodial; and equally so in this country, except as to the form of transmission.
To this day, traces of our old law so far remain, that land cannot be directly alienated without the superior's consent. But then, there is a remedy provided against this restraint by an adjudication. So soon as land came to be patrimonial, it was a natural consequence, that it should be attachable, for payment of the vassal's debt. This gave rife to apprisings and adjudications; which the superior is bound to complete, by granting a charter to the creditor. And, under the notion of debt, every fort of conveyance may be thus made effectual.
Land is the most natural subject of commerce; and a desirable purchase, as being the most permanent commodity of any that is designed for the use of man: and this natural aptitude for commerce, could not fail, in time, to get the better of the feudal law. But offices, and dignities, are of a quite contrary nature. It is, in a great measure, inconsistent with the policy of a well-governed country, that these should be in commercio. It is, even, a stretch, to make them hereditary; of which our legislature was extremely sensible, in the reign of James II., when the evil was, in part, remedied, by forbidding heritable offices to be granted in time coming. It would be still a wider stretch, to make such rights saleable, and adjudgeable by creditors; which might well deserve to be repressed by law, had it ever crept into use. But, whatever faint attempts have been made, every good man must be pleased to find, that such a gross corruption has never gained an establishment among us; and, every good man must heartily with, that it never may.
Thus, the strict rules, of the feudal law, continue, among us, in their original force; so far, as they concern offices and dignities. These cannot be alienated, without content of the superior. And, though, by statute, the superior is bound to accept a creditor, for his vassal, who adjudges land for payment of debt; yet, adjudgers of offices and dignities, have no such privilege. The statute takes place, only in lands, and other patrimonial subjects; and, neither the spirit, nor letter of the law, can be stretched, to comprehend offices and dignities, which are strictly beneficiary, not at all patrimonial.
It is very true, that the office, of heritable usher, is not of the first magnitude: Perhaps, it does not require any particular skill, or activity, to perform the duty of the office. But, then, it is a grant, from the Crown, to a certain family, selected to serve as usher; and, the King cannot have other ushers imposed upon him, but whom he has chosen. Every heir is entitled to the office, as called to it personally, by the grant; and not as deriving any right from his predecessor. At the same time, it cannot pass observation, that the defenders seem to give little attention to consequences, when they urge, the meanness of the office, as an argument in their favour. Were the judgment, in this case, to affect the pursuer only, it would not deserve any regard, further than so far as justice is concerned. But, it makes the present question of the utmost importance, that it is a leading case; for, whatever judgment is here given, must be applicable to offices of the highest trust and importance, as well as the lowest. If the office of usher be found adjudgeable, the Court cannot stop short; but mull find the same, as to all the, hereditary offices in the kingdom; the greater in power and dignity not excepted.
This train of reasoning may be reduced, into a narrow compass. The nature of these offices preserves them from being in commercio; and, when we consider the manner of their establishment by feudal holding, it must be yielded, there was a time when they were extra commercium, as much as land was. Land is now in commercio; and it is good policy it should be so. The direct contrary obtains, in dignities and offices: It would be a gross abuse, to bring them into commerce. These things being yielded, (and there is no disputing any of them,) it remains, upon the defenders, to make out, that this abuse, however gross, is sanctified by practice and custom. If they can bring full evidence of this, there is no help for it; they must gain their cause. But, if they can only give a few instances, where heritable sheriffships have been adjudged, and, at best, acquiesced in, without challenge, (not one single instance, where the same, upon challenge, has got the countenance, and authority, of a court of law,) such instances can only shew, that the abuse is creeping in; which, instead of being a favourable circumstance for the defenders, ought to rouse the attention of the public, and engage the Court of Session, by a judgment, upon the point of right, to put an end, at once, to this encroachment upon low and good policy. What an appearance must it have, to fee the twofold power of a magistrate, and of a judge, put to sale in a market, under the title of a sheriffship? A thing, that would be remarked, as uncouth, even in the history of savages. And yet, the consequence is evident; for, if a sheriffship be found adjudgeable for debt, such a judgment must pave the way, to bring it absolutely into commerce. In a country, where offices are venal, it is no wonder, that every thing else should be bought and fold. But, the pursuer rests, in the humble assurance, that the Court of Session will never give countenance to such a gross corruption.
As the defenders laid great weight, upon the many instances, produced by them, of heritable offices passing by retours, (concluding, from thence, that heritable offices are considered, in our practice, to be patrimonial, and, consequently, attachable, for payment of debt,) the pursuer endeavoured to remove the weight of these instances, by observing, that there is no instance of a service, where nothing was intended to be taken up but an office, or a dignity. The instance of Charles II.'s serving heir to the Duke of Lennox, in order to carry the heritable offices of high admiral, and high chamberlain, does not hold true in fact: The brieve was taken out to serve the King heir in the earldom of Lenox; and these offices went into the retour, as being annexed to the earldom, and contained in the charter from whence a description of the lands was taken. And it must be obvious, that instances of retours of lands where offices and dignities are also enrolled, can be of no weight to prove, that, in our practice, retours are necessary to connect the heir's title to an office, or dignity; since the retour, at any rate, is necessary for the land. But, as this matter is of importance, the pursuer will consider it a little more at large.
There can be little doubt, that the renovation of the feu, in the person of every heir, was requisite, in dignities and offices, as well as in land. What was the precise form of the renovation, in these cases, is a little dark. Our lawyers are silent upon this head; probably because the thing has not often occurred; For, originally, offices, and dignities, were always annexed to land; and the renovation of the feu, by investment, upon a retour, carried, along, the whole connected rights. In England, at this very day, we find traces, of the renovation of the feu, in dignities: The heir of a peer cannot take his feat in Parliament, at short hand, but must be introduced, by two other peers, in a form prescribed by custom; and, probably, there has been some such thing in Scotland. But, however this be, one thing is extremely plain, that a service, and retour, can never be requisite, for making up the heir's title, in a dignity, or office, unless where annexed to land. It is obvious, that a service and retour is calculated for land only. The questions, which are put to the inquest, do, all of them, regard the land, in which the predecessor died infeft; and the verdict, or answers, made by the jury, are adapted to the questions. At the same time, in giving the heir possession of his father's dignity, or office, there was no necessity of an inquisition, as in the case of land. The King, though he is not supposed to know the condition and circumstances of every one of his vassals, can scarcely fail to be personally acquainted with every one of his nobles, and, with every one of his office bearers; and, therefore, for ought appears, the heir was admitted in these cases, whatever was the form of the admission, without any preceding inquisition.
And this is the true reason, and foundation of the rule, that service is not necessary in dignities, and in offices. An heir-apparent, of a peer, may, without any solemnity, assume his predecessor's title; which, of course, gives him all the privileges belonging to it. The case is the same, with regard to an office. And it would appear, that, if there has been any particular form, in these cases, of renewing the feu in the person of the heir, the same has worn out of practice, as the strict forms of the feudal law are universally wearing out. And so, with regard to dignities and offices, the case, among us, at present, comes to be much upon the same footing with what has always been the law of France, lands not excepted, that mortuus sasit vivum; which, in plain English, is, that the heir is entitled to take up his predecessor's right at short hand, without needing a renovation of the feu from the superior.
The pursuer thought it necessary, to explain this matter at large; both as tending to support one branch of his libel, viz. that he is entitled to take up the office of usher, without a service, and, consequently, without being subjected to the debts of his predecessor; and also, as furnishing, in his apprehension, a strong additional argument, in support of the first branch of his libel, viz. that the subject is not adjudgeable. For to say, A subject may be taken up by an heir, without incurring a passive title, and to say, That a subject is not adjudgeable, are propositions intimately connected; the one must be a consequence of the other: The reason is, that a man can withhold from his creditors no subject, which he can turn into money, for their payment: Every such subject may be attached by legal execution; and the heir, who takes up such a subject, must be liable in a passive title, as intromitting with a fund which ought to go to creditors for their payment. If, therefore, there be a subject which is not attachable by creditors, we may safely conclude, that the heir may take up the same, without incurring a passive title; as e converso, if there be a subject which the heir may take up without incurring a passive title, we may as safely conclude, that the same is not attachable by creditors. This seems to be resting upon a secure foundation: Let us apply. It is tritissimi juris, that an heir may take up his predecessor's peerage, without danger of incurring any passive title; ergo, a peerage is not adjudgeable, It was never dreamed, that the taking up an hereditary office makes the heir liable to his predecessor's debts; ergo, an hereditable office is not adjudgeable. It is said, that the Earl of Moray purchased the sheriffship of Moray from Dunbar of Westfield. Let us suppose the family-estate to be quite gone, and the heir of the family of Moray reduced to his peerage and sheriffship: Will it be said, that he cannot take up the sheriffship, without incurring a passive title? Such doctrine is not to be met with, in our law books; and the pursuer will take the contrary for granted, till the proposition be proved from principles, or from authority. But he has no occasion to rest upon the negative proposition: He has the express authority of the Court of Session for him. A process, upon the passive titles, was brought against the Earl Marishal; and the passive titles, condescended on were, his using the title, and exercising the office. “The Lords found peerages and and offices not to be in commercio; and, therefore, that the defender's using the title of Earl, and exercising the office of Marishal, infer no passive title, 2d February 1682, Bower of Kilmidrum, contra Earl Marishal.” (See Passive Title.) Here is a judgment in point, that an heir's taking up, and exercising, a hereditary office, makes not a passive title. The reason given, in the decision, is, that offices and dignities, are not in commercio, cannot be bought and fold. And it is a necessary inference, that they are not adjudgeable for payment of debt. This direct authority, of the Court of Session, in the pursuer's favour, is worth a hundred instances, if so many could be brought, of heritable offices being fold privately, and connived at, without challenge.
It has been urged, by the defenders, “That the jurisdiction of a baron, or of a lord of regality, are merely territorial; are inherent qualities, or privileges, belonging to the land; and go, along with the land, to every purchaser.” The nature of an office, which has no relation to land, is very different. It may, occasionally, be annexed, or united, to land; as any two things may be united by a charter; however incapable of natural union: But such an union is as easily dissolved as it is established. Alienation of the land, by the vassal, dissolves the union; and, therefore, an adjudication of the land will not carry, along with it, the office: On the contrary, the adjudging the land is one of the ways by which the union is dissolved.
The case being reported by Lord Arniston, “The Lords found the office in question adjudgeable.” The pursuer reclaimed; and, with the answers, was given in, a large excerpt from the records, tending to shew, that offices had deviated from their original nature, as well as land, to become patrimonial, in place of being beneficiary; and, therefore, that, by practice, offices were become the subject of commerce, as well as land; though the former was not so thoroughly established as the latter. When this cause came to be considered, upon the petition and answers, with the said excerpts, the judges were all of opinion, that it was an irrational practice to subject: offices, like this in question, to be distrained for payment of debt. But, then, it was thought, that the practice had gone too far to be altered; and that it might be of dangerous consequence, to many, who possess such offices, by legal, or voluntary conveyance, to find this office not adjudgeable. And, for that reason, they adhered to their former interlocutor, the President alone dissenting. But they stopt there; and refused to find, that the office must be carried by a service, so as to subject the heir to all the debts of his ancestor.
This judgment was affirmed, upon an appeal to the House of Lords, in the following terms:
“Ordered and adjudged, That the appeal be dismissed, and the interlocutors complained of, be affirmed.”
Fol. Dic. v. 3. p. 9. Rem. Dec. v. 2. p. 125.*** This case is also stated by Mr D. Falconer, under the title, Sir James Cock-Burn against Sir William Cockburn, and under date, 23d July 1747, in the following manner:
King Robert II. granted to Alexander Cockburn, Esquire, the baronies of Bolton, Carriden, and Langton, “Itaque quod dictus Alexander, bæredes vel assignati sui intersit vel intersint tres sectas as capitales, viz. fectam itineris justiciarii tent infra vicecomitat. de Berwick, sectam itineris justiciarii tent, apud Edinburgh & Parliamentum tent, apud Scoon, & quod dictus Alexander vel heredes sint principales ostiarii nostri ad nostra parliamenta, generalia concilia & festa, capiendo de nobis & successbribus nostris, per dictum tempus liberationem, pro duobus armigeris, duobus arcutenentibus, cum gladiferis, & equis pertinentibus iisdem, reddendo inde annuatim par calcarium deauratorum.”
James IV., on the resignation of William Cockburn of Langton, granted, to Alexander, his son, the baronies of Langton and Carriden, with the office of usher; which he united into one barony, and annexed thereto the office; all to be held in libera baronia, referring the father's liferent.
Sir William Cockburn of Langton, who held the barony containing the office to him, and his heirs-male, resigned the same, and took it to the heirs-male of his body; which failing, to Cockburn of Clarkington, and the heirs-male of his body; which failing, to his own heirs-male whatsoever. This charter contained a novodamus.; and it is to be observed, that Sir William's immediate predecessor had held to heirs and assignees whatsoever.
The office of usher, and casualties thereof, was granted to Sir William Cockburn, “Reservata omnimodo libertate & plena potestate fucobo Maxwell de Innerwick, & Willielmo Maxwell de Kirkhouse, eorumque alteri diutius viventi, dict officium, tanquam conjunctos ostiarios, cum omnibus privilegiis, feodis & divoriis dict, officio spectantibus, secundum eorum jura separata & possesstionem, durant. omnibus eorum vita diebus, aut cujuslibet eorum.”
As, by this last charter, the office appears to have been alienated in liferent, so there were several subsequent ones to the proprietor and liferenters; and it was again granted and confirmed to Sir Archibald Cockburn, and united with the barony, reserving to the liferenter the office of ushership; and, the liferent being purchased in, the lands and office, and a fee of L. 250 sterling, all united into a barony, were granted to Sir Archibald, and his heirs-male, and assignees, whatsoever.
Upon Sir Archibald's resignation, the barony, office of usher, and perquisites, were granted to Archibald, his son. reserving the father's liferent, and a faculty to burden with 50,000 merks Scots.
Sir Alexander Cockburn was served heir to his brother, Archibald, in the lands and barony, office of usher, pension, and whole casualties, particularly mentioned. These were the most remarkable parts of the progress.
Archibald Cockburn, above mentioned, disponed the office of usher to Sir James Cockburn, for relief of certain engagements he stood bound in; and, other creditors having adjudged, a competition ensued, in which Sir James was preferred; since which time, he, and Sir William, his son, have possessed the fees; the duty of the office being, in the mean time, performed by the heirs of the family.
Sir Alexander Cockburn, heir of the family, insisted in a declarator, concluding, that it was not a patrimonial estate, alienable by his predecessors, or affectable by their creditors; but that it must descend to the heirs of the family, in their right of blood; and that his taking and holding this office, could not subject him to the debts of his predecessors.
Pleaded for the pursuer, That there had been many heritable offices in the kingdom, some of which yet existed, and no creditor had hitherto attempted to adjudge them; that all feus were originally personal, after which they were granted to heirs, but were still unalienable; that on the decline of the feudal law, as Craig called it, they came to be purchased for money, to be bought and sold by the vassal, and apprised for his debts; but it was not till 1469, that the superior was obliged to receive the appriser on payment of a year's rent, or pay the debt; this was the effect of a positive statute, relating indeed to all things properly patrimonial, but not to offices which were granted by the King, from a personal regard to the officer, and those of his blood, and for services, which brought no patrimonial advantages to the superior; they were therefore not alienable, and the Crown was not obliged to admit an appriser, since the reason failed on which apprisings were introduced, to wit, that the subject was bought with the vassal's money, and ought to be subject to his debts; nor had the superior reason to complain where the reddendo was chiefly a pecuniary patrimonial interest, which any person might pay. That offices conferred by the Crown, carried alongst with them a dignity, a kind of nobility, as was observed by Craig, l. 1. D. 10. § 9., which was not in commercio; and hence titles of honour were descendible to heirs in right of blood, but were not in commercio; they were anciently feus given for life, afterwards hereditary, Craig, l. 1. D. 4. § 4. & seqq &. D. 10. § 12. But as these noble feus had nothing pecuniary or patrimonial, they were not subject to diligence.
The same rule applied to heritable offices, which were feus conveying dignity, whereof many were mentioned by Craig, l. 3. D. 1. § 2., of this sort was an heritable Sheriffship; it descended to heirs in right of blood, but was not alienable, nor subject to diligence; and of this fort also was the office of usher to the king, in his parliaments, conventions, councils, and festivals: It imported a trust about the king's person; and the attendants he was bound to have, demonstrated the dignity which belonged to him; it therefore was unalienable, and descended to the heirs by blood of the officer, without subjecting them to any passive title, 2d February 1682, Bower of Kileondrum against the Earl Marishal, (See Passive Title); from which it followed, that no service was necessary, or if it was, it ought not to subject him to a passive title.
Pleaded for the defender, That originally the office was part of the service due for the baronies of Bolton, Carriden, and Langton, and behoved to pass with them; afterwards, though it was granted in fee and heritage, in the manner as the baronies, with a reddendo for the whole, yet it was annexed and incorporated with that of Langton; and therefore might be transmitted in the same manner as the barony; the destination was sometimes to heirs whatsoever, sometimes to heirs male of the fiar's body; whom failing, to an extraneous person, and the heirs male of his body; whom failing, to the fiar's heirs male whatsoever, and sometimes to heirs male and assignees whatsoever; and these alterations were made without any special warrant from the Crown, sometimes without so much as a novodamus, but upon common resignations. The office was granted with reservation of liferents; there were liferents constituted upon it; it had been taken up by service and retour; and therefore, it was not easy to conceive how the nature of it should be so far changed, as now not to be transmissible in the same way as other rights of property.
In the case of the present office, there was no delectus personæ, nor indeed could there be any, since feus went to heirs; but, in this, no great qualifications could be requisite to open and shut a door.
There was a difference between dignities of peerage, which were agreed not to be alienable, and such offices as an ostiarius or door-keeper, the first ennobled the blood, and for that reason were carried with the blood, without any solemnity; but, such an office conferred no dignity, and the feu thereof, by the modern customs, was alienable and affectable by diligence, by the nature of the grant, vesting the property, and the express quality therein, giving it to heirs and assignees.
All the great heritable offices in the kingdom had been taken up by retours. King Charles II. was served heir to the Duke of Lennox, in the offices of high admiral and high chamberlain. Heritable sheriffship, had been conveyed by voluntary and legal transmissions; and many instances there were of the other offices to the same purpose.
It was a mistake, that apprisings were only introduced in James III.'s time, since they were mentioned in the statutes of Alexander and Robert I. And though it might be true, these statutes concerned only land, they had been extended to all patrimonial interests, and to some as indivisible as this; and this difficulty was easily remedied by rouping the subject for the benefit of all concerned. Indeed, the present question had been already determined in the competition concerning this office, amongst the creditors of Langton, wherein the defender was preferred, and though the parties there, all concurred to make it alienable, yet if it was not so, it was pars judicis to notice it.
As the defender in pleading, needed not make his cause weaker than it was, he behoved to notice a distinction betwixt the greater and the lesser offices, one whereof, viz. that of King's printer, had lately been found adjudgeable; the first carried a dignity alongst with them, which it were absurd to attribute to the other, though it had never been decided, that even the greatest were not adjudgeable, when they came to be patrimonial; and Craig, 1. 3. D. 2. fol. 255. nov. edit, expressly said, Idem fi debitor aliquod officium five administrationem publicam, quæ ei est hereditaria, habuerit, nam & ea ut ejus propria potest licitari.
There was produced for the defender, a condescendence, from the records of charters, relating to this office; the chief of which have been noticed; also of retours of several heritable offices, particularly sheriffships, alongst with lands, and of charters of heritable offices, upon adjudications and judicial sales, and voluntary transmissions, without any novodamus, some of which without any lands annexed.
Pleaded for the pursuer, The argument for the defender, that the office was part of the reddendo of the three baronies, proved too much; for then part of it must have past from the family, when two of them were alienated, which it did not; and this was also contrary to the decreet, whereby Sir James Cockburn, who had right to the office alone, was preferred to creditors infeft prior in the barony.
2 do, Charters had not then received a determinate style, nor were the clauses, distinguished; and therefore, though the office was not in the dispositive clause it would not follow that it was a part of the reddendo; and in all the after charters, it was granted as a distinct feu. The annexation thereof to the barony, did not alter its nature; anciently, titles of honour were given together with lands, erected into feuda nobilia; and still when one is possessed of a title of honour, it is ordinary to erect his lands into an earldom or lordship, which is a strong annexation of the dignity to the estate, particularly King Charles II. gave the title of Earl to Gilbert Earl of Enrol, and erected the said title, office of constabulary, lands and baronies, into an haill and free earldom; in which, and several other instances that might be given, the lands were subject to legal and voluntary alienation, without affecting either the titles or offices.
The alienation by one of the fiar's to his son, reserving the liferent, was no proper alienation, but like a resignation by a peer to his heir, who did not there by become a peer, the reserved liferent being in all respects equal to a fee, and the other liferents constitute upon it, did not appear to be done by the fiar, but by the king per recital of the subsequent grants to Sir William Cockburn, in 1642 and 1647, by which, upon that account, he obtained a fee of L. 400 Scots, with a declaration, that these grants in liferent mould be no precedent.
The occasion of taking up offices by retour, had been, their being annexed to lands for which the retour was necessary, as King Charles was served to the Duke of Lennox, in the lands and dukedom thereof, and offices annexed, but this did not prove a retour necessary for a simple office. It might be true they had been adjudged, because adjudications part without enquiry, the subjects being copied by the writer from the debtor's infeftment. The case of the King's printer, still liable to review, differed in many circumstances; 1 mo, the office it self, which was only a monopoly, and might be reckoned wholly patrimonial was not like an office about the King's person; 2do, It had no dignity annexed; and 3tio, was always granted to assignees.
In the decreet of preference, obtained by Sir James Cockburn, there was no compearance for the proprietor, the parties were all creditors; the point was never stated to the Court, and the whole determined by one interlocutor of an Ordinary; so far was this from a res judicata, that it ought not to be allowed the force of a decision or precedent.
The Lords, 14th December 1744, ‘Found that the office in question was adjudgeable.’
A reclaiming bill being presented and answered, before any determination could be given thereon, Sir Alexander was killed in the battle of Fontenoy, after which the cause lay over, till it was taken up by Sir James the heir male; and the defender having, in the mean time, searched carefully the records, gave in a condescendence, which may be said to have taken away all question, as several Lords who differed from the interlocutor, and thought the point in abstract argument, with the pursuer, without hesitation, agreed to adhere; and therefore, the heads of this condescendence, as divided into chapters by the defender him self, shall be subjoined. Voluntary titles, cap. 1. Charters and infeftments of heritable offices per se, cap. 2. Retours and infeftments in heritable offices per se, cap. 3. The King's officers accountable for the non-entry duties of heritable offices per se, cap. 4 Gifts of the ward and non-entry of heritable offices per se, cap. 5. Heritable offices per se, granted by the crown to singular successors, upon the resignation of the former proprietors, cap. 6. Charters of sale of heritable offices, per se, by subjects for a price paid, confirmed by the Crown, cap. 7. Heritable offices limited by the Crown to the grantees and the heirs of their body, whom failing to return to the Crown, cap. 8. Heritable offices limited to the grantees and the heirs of their bodies, whom failing to return to the granters; with prohibitory, resolutive, and irritant clauses, cap. 9. Offices given in liferent and fee, with power to the liferenter, to fell and dispose thereof at pleasure, without consent of the fiar, cap. 10. Wives provided to the liferent of heritable offices, and entitled to a terce of the profits thereof, cap. 11. Heritable offices sold, purchased, and disponed by the Crown, in way of mortgage, and under reversion, cap. 12. A proportion of the taxed duties payable to the crown for lands and heritable offices jointly, is laid upon the offices when disponed separately, and engrossed in the reddendo accordingly, cap. 13. Shewing that the offices of high admiral and chamberlain, are patrimonial, and the charters thereof, proper feus, cap. 14. Shewing, 1mo, That the office of high constable of Scotland is patrimonial, and the charters thereof feudal; 2do, That this office was alienate to Francis, the second son of the Earl of Errol, and the sons of an after marriage, excluding Alexander, his then eldest son, and Thomas his third son, and their descendants. 3tio, That the office and fees thereof were set in tack to William Henderson, and, upon his forfeiture, Andrew Master of Errol, obtained a gift of the escheat of said tack, cap. 15. Progress of the titles to the office of the keeper of the park of Holyroodhouse, cap. 16. Office of usher or door keeper of the King's chapel, cap. 17. Progress of titles to the office of macer and King's, serjeant, cap. 18. Progress of the titles to the office of usher of exchequer.
Legal Titles, Cap. 1. Shewing, that when a debtor had obtained a charter, but taken no infeftment upon it, the King was in use, upon the creditor's supplication, to issue letters, commanding the debtor to take infeftment within forty days, to the end the creditor might obtain the heritage, apprised for payment of his debt, with certification if he failed, the King would enter the creditor; and when the debtor neglected to obey the charge, the lords of the King's council, then the judges, advised the King to dispone to the creditor, as much of the debtor's heritable estate as was equivalent to the debt; whereupon the King dispones to the creditor certain lands and offices belonging to the debtor, redeemable to the creditor within seven years, conform to act of Parliament. Cap. 2. Shewing, that before general apprisings were introduced, heritable offices as well as lands, were appreciate upon oath by the jury, and thereafter offered to public sale: and when no offerers appeared, the same were judicially disponed to the creditors in satisfaction of their debts, in whole or in part, according to the value put upon them. Cap. 3. Heritable offices, as well as lands, universally apprised and adjudged to creditors, and disponed to them by the King, in execution and implement of the act of Parliament. Cap. 4. Lands and certain fees belong to heritable offices of jurisdiction, apprised during the time of the usurpation (when offices themselves were suppressed), and accordingly disponed to the creditors by charters under the Great Seal, vide Scobell's Collection of the acts of Parliament, from 1640 to 1656, cap. 2. anno 1652, and cap. 9. anno 1656. Cap. 5. Heritable offices adjudged by creditors after the debtor's death, upon the apparent heirs renouncing to be heirs to the debtors their predecessors; and the adjudgers ordained to be infeft in the offices by decree of the Lords of Session, upon precept under the quarter seal, and also upon charters under the Great Seal. Cap 6. Heritable offices, judicially sold by public roup, by the Court of Session, and possessed by the purchasers upon these titles.
Acts of Parliament, cap. 1. confirming charters of offices to the grantees, and declaring the same to be good and effectual rights. Cap. 2. Heritable offices are the property of the owners as much as lands or any other inheritance, and have been always excepted from general public laws as rights of property, and as such, supposed by the Legislature, to be alienable by the proprietors; and, in consequence of this, the act 1681, declaring a cumulative jurisdiction, and the imposing judges, where there were heritable offices and jurisdictions, are declared illegal by the claim of right; and heritable officers dispossessed by the crown, have been reponed by act of Parliament to the enjoyment of their offices, as their property vested in them by their rights and infeftments.
The Lords adhered.
Act. R. Craigie, W. Grant, & H. Home.Alt. Graham & Ferguson.Clerk, Kirkpatrick.
D. Falconer, v. 1. p 373.
