Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMMUNITY.
Subject_3 A clerk to an incorporation appointed for life, is entitled to object to an assistant being joined with him, though he thereby suffers no diminution of salary.

John Taylor and Others,
v.
The Convenery of the Trades of Aberdeen

Date: 16 July 1767

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[Faculty Collection, IV. p. 293. Dictionary 13,128.]

Coalston. If there had been a vacancy, the corporations might have named an assistant and successor; but they could not add an assistant during the life of Taylor, who had a liferent office. I do not think that, in strict law, a successor can be named, while the office is full; but it is not time to try that question, as the nomination of a successor cannot take place till the demise of Taylor.

Hailes. I do not approve of survivancies. The granting them is making a contract with posterity, to which posterity does not consent. We wish to have our own hands free; why should we tie up the hands of those who are to come after us? Survivances are sometimes authorised by inveterate usage; but here I do not see any such usage. The first example is that of Farquharson in 1724. He was named conjunct clerk as well as successor; and he paid a sum of money to the society for this favour: Possibly the taking the money might have bound the corporations. The only other example is that of young Taylor in 1756; but, as he died leaving his father the present clerk, that example only shows what powers the convenery assumed, but not any acquiescence of the corporations in the actual execution of such assumed powers. This question, however, is, as has been observed, premature. As to the power of naming an assistant, the convenery has no such powers; though, I observe, that, in the present case, they went so far as to assume a right of bestowing a share of the perquisites on the assistant. [Who was to have the custody of the books? Was that to be given to the assistant, notwithstanding Taylor's liferent right? If it was not, how could the assistant act?]

Gardenston. No injustice is done to Taylor in naming an assistant, who relieves Taylor of part of the trouble, without drawing any part of the profits. As to survivances, I think them incongruous and inexpedient, unless established by immemorial practice.

Alemore. I shall reserve my opinion as to survivances, until that question comes properly before us: Meanwhile, I think that the convenery had no power to conjoin Watson in a liferent office: that was a step to pave the way for a survivancy.

President. I hate survivances, and ever will hate them: but that is not the present question. It was the survivancy that occasioned this favour done to Taylor, in naming an assistant to relieve him: this the convenery could not do. Although Watson renounced all perquisites during Taylor's life, yet, in the nature of the thing, one acting assistant will draw perquisites.

The Lords altered Lord Auchinleck's interlocutor; and found that the convenery had no power to conjoin Watson in a liferent office, without the consent of Taylor; but found it was premature to determine the point as to the survivancy.

Act. W. M'Kenzie. Alt. H. Dundas, D. Rae.