Subject_1 ADJUDICATION and APPRISING. Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.
Marion Wilson v. Alexander Falconer
Date: 7 December 1759 Case No. No 20.
The office of keeper of the register of sasines, granted during life, with power to name a deputy, found not to be adjudge able.
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Alexander Falconer, keeper of the register of sasines for the shire of Berwick, in which office he had a power to name a deputy, being debtor to the pursuer, she raised an action of adjudication of this office.
Pleaded for Falconer, The office is not adjudgeable; because it is not a patrimonial estate. The defender has only his commission during life, or so long as he executes the office properly; it does not go to heirs; and it cannot be assigned: But an adjudication is a legal assignation.
In the nomination of a person to this office, there is a dilectus personæ. Diligence and fidelity are requisite in the execution of it, for which there can be no security, if it may be attached indiscriminately by any creditor of the officer. The Crown has invested him with certain powers. His register, and extracts from it, bear faith in all courts. These powers he may commit to a deputy; but no court has a power to transfer them to creditors. Some few instances may indeed be given, where offices of trust have been adjudged; such as that of sheriff, usher, and printer to the King, &c. But the principles on which these decisions were founded, are not void of difficulty. Besides, these were cases very different from the present. In each of them there was an heritable patrimonial interest; they passed by charter and sasine, as land-rights do, or descended to heirs. They were granted in perpetuity, or for a certain term of years; and might be assigned, bought and sold, without the approbation or accession of the Crown, as any other thing in property may. But this office is of uncertain duration; it is granted for life, or quamdiu se bene gesserit; it cannot be transferred from one person to another, without a new commission from the Crown; and it is not in any shape given by the Crown as a patrimonial estate or property.
Pleaded for the pursuer, That in law and reason every person's estate, whether heritable or moveable, whether in liferent or see, whether it is an estate vested for a long or a short endurance, ought to be subjected to the diligence of his creditors. It is admitted, that many heritable offices of trust, in which a dilectus personæ was proper in a very high degree, and which were vested by the Crown with great powers, and a public character, such as those of Constable, Justiciar, Chamberlain, Sheriff, Steward, Mayor, Bailie, Forester, Coroner, King's Usher, and King's Printer, have been so far considered as property, that they have been adjudged; and, as such offices have been adjudged, when granted heritably, or for a term of years, a good reason does not occur, why they might not have been adjudged, had they been granted only for life.
There is no difference in the nature of the thing betwixt an heritable office, and an office for life, except in the endurance. The terms of the grant, in other respects, are the same, the duties of the offices are the same. A prohibition to alienate is not more implied in the one than in the other; and an heritable office is not more the property of the possessor than a liferent one is, for the terms of their respective endurance. It appears then incongruous, that the one should have it in his power to with-hold his estate from his creditors, and that the other should not have the same power. In other subjects, this distinction is not observed; a terce, a courtesy, the liferent of an heir of entail, or any other liferent of a land-estate, may be adjudged as well as the fee of it. Suppose the liferent of an office is granted to a man, and the fee of it to his son, it will not be disputed, that the liferent of this office would be adjudgeable for the debt of the father, as his property. By parity of reason, the liferent of an office ought to be subjected to the diligence of creditors, although the fee of it is not given away, but remains in the Crown.
Every objection arising from the importance of this office, from the dilectus personæ, the care and diligence requisite in executing it, and the powers vested in the officer by the Crown, ought to have applied with more weight against the adjudication of the high heritable jurisdictions already mentioned. Besides, the nice choice of a person to officiate in this office is not necessary, it requires only a faithful transcriber. The defender, by his commission, is impowered to name any person he pleases to be his deputy; and the creditors may be as capable to officiate, or to appoint a proper deputy, as the officer himself. By act 6, Parl. 1424, it is provided, That where officers of the law are incapable, others may be appointed in their places;—but what greater incapacity can there be than bankruptcy? and who are so well entitled to enjoy the office during the incapacity, as the creditors of such officer? This question has been formerly determined in the Court of Session. The creditors of Hugh Crawford, keeper of the register of sasines for the shire of Renfrew, led several adjudications of his office from the 1750 to 1753.
Replied, The argument founded on the act of James I. does not apply. The power granted of naming persons to officiate during the incapacity of officers of the law, or other officers, was only in the case of heritable offices, of which the possessor, though minor, or otherwise incapable, could not be deprived. But this is an office ad vitam aut culpam. If the officer is incapable of officiating, he may be deprived. The adjudications led against Hugh Crawford were pronounced by the Lord Ordinary in the outer-house, and no appearance was made for Crawthe debtor.
‘The Lords found the office not adjudgeable.’*
Act. J. Dalrymple.Alt. P. Murray.
Fol. Dic. v. 3. p. 9. Fac. Col. No 201. p. 359.
* On this case Lord Kames makes the following observations:—In the year 1742, Alexander Falconer, town-clerk of Lauder, obtained a commission from his Majesty to be keeper of the register of sasines and reversions for the town of Lauder, bailiery of Lauderdale, and sheriffdom of Berwick, with the fees and emoluments thereof. The commission is for life, and empowers Alexander Falconer to appoint a deputy or deputies to act for him.
His creditor Marion Wilson, raised a process of adjudication, in order to affect this liferent-office. And it was urged for her, that all offices of profit are adjudgeable, liferent-offices as well as what are hereditary. The defender admitted, that any subject descendable to heirs, is to be understood patrimonial; and, therefore, in its nature is attachable by legal execution. But he contended, that a liferent-office is of the nature of a trust, implying a dilectus personæ, that it cannot be transferred by will, and therefore is not adjudgeable. This is the reason why the office of a Judge of the Court of Session is not adjudgeable; and the same reasoning is applicable to the office of keeper of the register of sasines. The Court refused to sustain the adjudication.
This decision deserves scarce to be considered an an authority. The point was but superficially handled by the pursuer, and the Court took up with the topics that were set before them, without piercing to the foundation. It seems clear, that the office itself is not adjudgeable. It was certainly not in the power of the Court of Session, by means of an adjudication, or by any means, to forfeit Falconer of his office, and in his stead to name Marion Wilson keeper of the register of sasines. This power is inherent in the Crown, and does not belong to the Court of Session. Next, to transfer the office to the creditor, is repugnant to the very nature of an adjudication, considered as a security only, which is the case during the legal. A security upon land may be granted voluntarily, in order to levy the rents; and the same security may be established by adjudication. But supposing a liferent office to be alienable by will, so as to put the disponee in the place of the disponer, we can form no idea of a security granted upon an office; for the right to an office is in its nature indivisible, and cannot be split into parts like a right to lands, of which one may enjoy the property, and another a real security; and for that reason, a security upon an office cannot be established, whether by consent or by authority of a judge. But, as there is nothing in law to bar a voluntry conveyance of the emoluments of an office in security and payment of debt, as little is there to bar an adjudication of these emoluments. This leads to the true state of the matter in debate. And the question ought to be, not whether the office be adjudgeable? but whether the emoluments be adjudgeable? When the case is considered in this light, all difficulties vanish. The jus mariti as far as personal, considered as the authority a man has over his wife, is certainly not adjudgeable. But the emoluments of the jus mariti may be adjudged. Precisely in the same manner, the office of keeper of the register of sasines being personal, is not adjudgeable. But the emoluments of that office may be adjudged. And if such adjudication be competent, it follows, that the deputy, instead of accounting to Mr Falconer for the emoluments, must account to the adjudger. Possibly no depute may be named; but in that case, it is Mr Falconer's duty to name a deputy with consent of the adjudger. And if Falconer refuse to do this act of justice to his creditor, it becomes the duty of the Court of Session in his place to name a depute. To conclude, it appears to me that wherever there is power of deputation, the emoluments may be adjudged however personal the office may be. Otherways, where there is no power of deputation, which is the case of the supreme Judges.
