What Title requisite in the Positive Prescription.
Subject_3 SECT. XII.
Positive Prescription of other Rights.
Skirving and Another v. Smellie and Another
Date: 19 January 1803 Case No. No 163.
Prescription sustained as a sufficient title to the exclusive privileges of an incorporated trade.
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Thomas Smellie, and several other carpenters in Dundee, carried on their trade within the burgh, without having been admitted members of the corporation of wrights. A complaint was presented to the Magistrates against them, in the name of John Skirving the deacon or visitor, and William Kay the boxmaster, as being guilty of an infringement of the exclusive privileges of the corporation. Their defence was, that the wrights had neither a charter from the Crown, nor a seal of cause from the Magistrates, and therefore that there was no legal foundation for their assumed privileges. The Magistrates sustained the defence.
Upon this, the deacon presented a bill of advocation, which was reported to the Court by the Lord Ordinary; and it was then suggested from the Bench, that the question ought to be discussed in the form of a declarator. The bill of advocation was accordingly passed, and a summons of declarator raised in the name of the deacon and boxmaster, concluding, ‘That the pursuers, the freemen or members of the said corporation, called the wright trade of Dundee, have for time immemorial been, and now are, a body corporate and politic,’ and that as such, they were entitled to an exclusive privilege of exercising their trade within the liberties of the Town.
This declarator was conjoined with the advocation; and being reported to the Court by the Lord Ordinary, the pursuers
Pleaded; The possession of corporate rights, and exclusive privileges from time immemorial, is equivalent to a written grant. The pursuers only claim what takes place in every burgh. The erection of subordinate corporations of craftsmen is a necessary consequence of the creation of a royal burgh; and the sanction of the Magistrates is a sufficient title for the different crafts to exercise the usual privileges; Bankton, b. 1. tit. 2. § 27. In fact, the various coporations of craftsmen in the different burghs of Scotland, derive their right from no other source. So much are these rights a matter of course, that a seal of cause granted by a baron to tradesmen within his jurisdiction, is a sufficient title to a craft for the enjoyment of exclusive privileges; Fleshers of Canongate against Town of Edinburgh, November 22d 1677, Stair, No 3. p. 1824.; Cordiners of Leith against Cordiners of Edinburgh, January 20th 1731, (See Appendix.) Trades of Leith against Corporation of St Mary's Chapel, December 21st 1734, (See Appendix.) The possession of exclusive privileges has been admitted as a legal title for societies of tradesmen exercising their crafts within a royal burgh, although they have no connection with its political constitution; so that a share in the government of the burgh is no criterion of the existence of a corporation; Trades of Burntisland against the Magistates, February 20th 1679, Stair, No 2. p. 1836.
Since these exclusive privileges are sanctioned by law in every burgh, prescription affords a legal title to possess them; Feuars of Kelso against the Duke of Roxburgh, January 8th 1755, Kames, No 6. p. 1830.; Tailors of Perth against Lyon and others, December 10th 1756, No 71. p. 1947.; Procuratorfiscal of Paisley against Corporation of Wrights, February 17th 1761, No 76. p. 1956.; Lawson against Thomson, August 5th 1768, No 83. p. 1965.; Tailors of Potterrow against Brown, January 26th 1776, No 330. p. 7709. This is likewise agreeable to the law of England with respect to corporations; Coke, Litt. 114; Douglas' Reports, 374; and is supported by the civil law, which holds prescription to apply to every species of right; L. 4. C. De præser. trig, vel quad, ann.; L. 12. C. De præs. long. temp.; L. 14. C. De fund. patr. There are royal charters in favour of the burgesses and communities; and the fate of the Town of Dundee, at different periods of our history, makes it extremely probable that the special grant to the corporation of wrights was lost or destroyed along with most of the written documents relative to the rights of the Town. At all events, the pursuers have been in use to exercise all the privileges of an incorporated trade; and the defenders are the first burgesses who have attempted to carry on their trade without becoming members of the craft. And as their society has always been subjected to the burdens and contributions imposed upon the incorporated trades, it is likewise entitled to the immunities and privileges.
Answered; Corporate rights must be derived from the grant of the Sovereign, and a prescriptive title has no other force than as presumptive evidence of such a grant. The society of wrights in Dundee are not in possession of any charter, or seal of cause, entitling them to the privileges of a corporation; and they cannot acquire, by usage, a right which must proceed directly from the Sovereign, having no title upon which to found the plea of prescription. The writings produced by them, so far from affording any evidence of their having been once in possession of a charter, afford a contrary presumption. The set of the burgh includes a certain number of incorporated trades, which compose a convenery, and are recognised as enjoying the privileges of corporations. The wrights do not form one of these, but, along with two other crafts, are denominated ‘ The Pendicle Trades,’ to distinguish them from those that are regularly incorporated. These three pendicle trades have no concern in the political constitution of the burgh, nor are they under the government of the Town-Council, who exercise a jurisdiction over the incorporated trades. Their preses, till lately, was not denominated deacon, as is the case with the various corporations, but merely visitor; and they are to be considered only as voluntary associations, totally distinct from the incorporated trades of Dundee. Whatever power they may have, therefore, over those who chuse to become members, they have no right to exclude such as are not members, from practising their respective trades within the burgh. There is a material distinction between a body politic, authorised to acquire property, and one in possession of an exclusive privilege of the exercise of a particular employment; Heritors and Kirk-session of Dalry against Newall and others, November 17th 1791. voce Society.
Every exclusive privilege is unfavourable in law, and to be allowed only to to those who possess it by a special grant. This, accordingly, is agreeable to the law of England, where the King's consent is absolutely necessary to the erection of a corporation; Blackston, b. 1. cap. 18.; Bac. Abrid. voce Corporation; Brady on Burgh's Pres.; Jacob's Law Dictionary, voce Corporation, § 1. The fact, therefore, that the wrights of Dundee have for a length of time, assumed to themselves the exclusive privileges of a corporation, can never confer upon them a right to such privileges; Crawfurd against Mitchell, June 13th 1761, No 77. p. 1958.; Goodfellow against the Hammermen of Stirling, July 4th 1766, No 82. p. 1963.
The Lords sustained the reasons of advocation, and decerned agreeably to the conclusions of the declarator.
Some of the Judges seemed to think, that though the wrights of Dundee had shown that they were a corporation, it did not follow that they had made out a title to exclusive privileges, and that they were to be considered merely as a separate portion of the guildry. But it was the general opinion of the Court, that their title to all the usual privileges of a corporation was established by prescription; and, though it was not now extant, the presumption was, that they had originally possessed a seal of cause, or charter.
Lord Ordinary, Meadowbank.Act. Williamson, Jo. Murray.Agent, G. Andrew.Alt. Corbet.Agent, D. Freer, W. S.Clerk, Menzies.
Fac. Col. No 76. p. 170.
