Scottish Court of Session Decisions

Lords Justice-Clerk, Glenlee, Meadowbank, and Cringletie, returned this Opinion:—

“By the titles in virtue of which the proprietor of the estate of Myres is now vested with the heritable right of nominating one of the macers of the Court of Session, it appears to us, that nothing more is thereby truly conferred, than the right of appointing, or presenting to the Court, a fit and qualified person for discharging the duties of an ordinary macer. The crown charter of 5th July, 1828, conveys to Mr and Mrs Bruce, all and haill the lands and barony of Myres, and as an appendage to the barony ‘Officium Clavigeri et armorum Sergeandi coram Dominis Concilii et Sessionis cum potestate et privilegio nominandi et presentandi unum ex quatuor ordinariis clavigeris coram dict. Dominis Concilii et Sessionis cum usitatis feodis, salariis et casualitatibus ejusdem.’ The nature of the right is more fully detailed in the first report of the Commissioners on the Courts of Justice in Scotland; but although it is there stated that the family of Myres, in whom the office of one of the macers of the Court of Session is heritably vested, has possessed it as a pertinent of lands secured by infeftment, with the usual fees, salaries, and casualties of the office, and that in presenting one of the ordinary macers who is received by the Court, and acts as deputy under his constituents, the proprietor of Myres has for some time been in the use of receiving £45 a-year out of the office, yet there is nothing there stated, indicative of the existence of any right or usage of exacting, over and above, any further deduction from the emoluments of the office, for the use, either of the proprietor of Myres, or of any one else whom he might choose to favour. We observe that, in 1810, the Court had thought the nature of this right, and the practice of exacting the above-mentioned sum, to be a matter of so much importance, as to require the appointment of a committee of their number to enquire into it, and that a report was made by that committee, and approved of by the Court; but no farther steps were taken thereon. Whether this right of the proprietor of Myres, to reserve the above proportion of the emoluments of the office, may or may not be well founded, we are not now called upon to give any opinion in regard to it. But admitting that the heritable right of the patronage of the office is legally saleable, we do not consider that the actual nomination of a macer, or the emoluments of the office, can, on each vacancy, be legally made the subject of sale, as we can discover no grounds for holding, that, either under the original confirmation of the grant in 1690, by which power was given ‘to name and present one of the ordinary macers of the Court of Session, who is to have right to the usual fees, salaries, and casualties of the office,'—or the ratification in Parliament, in 1693, which is narrated in the papers—or the crown charter of 1828, any power of selling the appointment of macer, or of appropriating any part of its emoluments to a third party, was thereby conferred upon the grantee. It is, indeed, quite manifest, that if, by a private stipulation, the holder of this office could legally be burdened with the payment of the sum claimed in this action, the emoluments might, on the same principle, be still farther frittered away, so as to leave next to nothing to the person actually performing its duties, and, consequently, to render him totally unfit for the situation, and make it imperative upon the Court to refuse to receive him.

We are therefore disposed to view the transaction which took place at the appointment of the defender, Alexander Grant, to which the patrons were parties, as very similar in its nature to what occurred in the case of Dove against Thomson, 16th February, 1811, in which the reservation of a part of the emoluments of the office of keeper of the Parliament-house, in favour of an individual who had been a candidate for the situation, by the interference of the Magistrates of Edinburgh, who held the right of presentation, was pronounced by this Court to be a pactum illieitum.—Concurring, therefore, as we do, in the sentiments expressed by the Lord President in that case, we are of opinion that the agreement libelled on in the present case is not legal or actionable.”

On considering these Opinions, the defender submitted, that, even according to the view of those Judges, who held the agreement actionable, it was on the ground that the patron “was bound to leave as much of the profits to the deputy as would induce such competent person to accept and properly exercise the duty.” He contended, therefore, that, if allowed to explain, in detail, his averments which were already on record on this subject, he would be entitled to absolvitor, on the ground of the total inadequacy of the emoluments left to himself.

The Court, “before answer, allowed the defender to put in a minute, stating the facts which he avers and offers to prove relative to the amount of the remuneration, which, under the agreement in question, he draws, as inadequate for a person exercising the office of macer.” In this minute, he stated, that, on the average of the three years during which he had held the office, the sum of £37, 12s. 7d. was the net annual amount which would remain to him, if compelled to pay £45 to the pursuer, as well as to the patron. He also founded on I and 2 Geo. IV. c. 38, § 28, which enacted, that the macers should “thereafter receive a salary of £120 each, payable in the same manner, and at the same times in which salaries of £120 each are now paid,” &c. He stated, that a reduction of the fees of the office was then made to such extent, that Cuninghame, the defender's predecessor, got a compensation of £65 during his lifetime. He also founded on the Act of Sederunt, 11th March, 1791, which enacted, as to this office:—“And whereas the office of one of the macers, or the right of presenting him, is hereditary, and has been in use to be exercised by a deputy, the said Lords do hereby declare, that the fourth share of the said additional fees upon enrolments, and upon bills of suspension and advocation, which is meant to be appropriated to the said macers, shall belong to the said deputy alone, and no part thereof to the principal; and that, in time coming, no deputy shall be received to officiate in the said office, until it be explained upon oath, if required, what transaction has been made between the principal and the deputy, and until the Court is satisfied that the deputy is to have a sufficient and reasonable allowance for enabling him to exercise the duties of the office.”

The pursuer objected to the competency of allowing these statements to be made after the record was closed; and he refused to admit that the net amount left to the defender was so small as he alleged.

The Court allowed additional Cases, with a view of again laying the cause before all the Judges, which was accordingly done.

Lords Medwyn, Corehouse, Fullerton, and Moncreiff, returned this additional Opinion:—

“We have reconsidered our opinion formerly given, with the benefit of the additional cases now lodged for the parties.

“The single question still put to us is, ‘Whether the agreement libelled on is legal and actionable?’ And we remain of opinion, that the agreement is legal, and that action is competent upon it.

“Whatever views may be entertained as to the expediency of the law recognising such rights, it is certain that, from the earliest period of our law, till the present time, as well as in the laws of most of the countries of Europe, certain, offices, some of greater and some of less importance, have been acknowledged as offices of inheritance or of fee, as contradistinguished from offices which are not of inheritance, but personal and simply of trust. See Craig, 3, 2, 15; and every later authority. Such offices of inheritance have these qualities, that they are legitimately the source of profit and permanent emolument to the proprictor in the fee; that they may be sold or alienated; that they may be adjudged by creditors for payment of their debts; that they may be the subjects of subinfeudations; that the proprietor in the fee may act either by himself or by a deputy.

This subject was very fully and minutely investigated in the reported case of Sir James Cockburn against Sir William Cockburn, July 10th and 23d, 1747 (Mor 150, 157). The question was, whether the heritable office of usher to the King could be adjudged for debt; and the Court, though put in doubt at first by speculative arguments, at last came to all but an unanimous judgment, sustaining the adjudication, on seeing a condescendence, the heads of which are given in Falconer's Report (M. p. 162), allowing the long established and undisputed practice of the law in regard to titles of this kind, in eighteen distinct cases. The last example in the list is—‘Progress of titles to the office of macer and King's Serjeant.’ In the later case of Stewart against Campbell, January 17, 1782, the same office of heritable usher was found to have been effectually subfeued.

“The principle, therefore, being clear as to the peculiar nature of such offices of inheritance, we are decidedly of opinion, both on the terms of the title produced, and the practical recognition of it from time immemorial, that the office described in the charters as—‘Officium clavigeri et armorum serjeandi coram Dominis Concilii et Sessionis,' is an office of fee and inheritance of this character in law. And, accordingly, we do not understand it to be doubted, that it has been validly alienated by the former proprietor, and acquired by onerous purchase by Mrs Tyndall Bruce.

“One of the privileges of this office is that of acting by deputy, or, as expressly given by the charters, of naming one of the ordinary macers of the Court of Session. The right to do so has accordingly been recognised ever since the date of the grant, and the only title which the defender in this action possesses depends on that right.

“But the legal power and competency of the hereditary officer in the fee, to transact with the deputy whom he so appoints, in regard to the emoluments of the office, is inherent in the nature of the office itself, and has at all times been acknowledged by the Court. What circumstances or qualities the Court may be entitled to require, as necessary to the legal fitness of the person for the discharge of the duties required of the acting macer, before admitting him, is a question not at all involved in the single point submitted for our opinion. The question is, Whether a particular agreement into which the delender deliberately entered with the pursuer, acting by the express mandate and authority of the principal macer, is so tainted with illegality, that the Court must deny action altogether for enforcing it? We cannot answer that it is not legal or actionable, consistently either with the view we have of the nature of the office, or with the undoubted practice of the Court up to this time.

“The act of Sederunt of 11th March, 1791, which has now been referred to, does, in our view of it, very strongly confirm our opinion. It, in the first place, in express terms declares the office of macer to be hereditary, and the acting macer to be merely a deputy, ‘Whereas the office of one of the macers, or the right of presenting him, is hereditary, and has been in use to be exercised by a deputy,’ &c. In the second place, it appropriates the new or additional fees per expressum to the deputy, implying that without this he might have been legally required to account for them to the principal macer, under existing agreements between them. But the third part of the act, in our opinion, puts the question as to the legality of such transactions at rest. For it in express terms recognises them as in themselves lawful, and only provides this salvo against them, as otherwise binding between the parties, that no deputy shall be received till it be explained to the Court, on oath if required, “what transaction has been made between the principal and deputy, and until the Court is satisfied that the deputy is to have a sufficient and reasonable allowance for enabling him to exercise the duties of the office.” This enactment distinctly recognises the legality of such transactions; and it as distinctly supposes that the principal may lawfully, by transaction, reserve a portion of the emoluments to himself; for it only contemplates, that a sufficient and reasonable allowance he left; and the substantive provision made is only a declared purpose or rule for the Court itself, inferring nothing like a nullity in any particular transaction, as between the parties themselves.

“In the present case, the Court might have called for disclosure of the transaction before admitting the defender; and, on the principle of the act, they might have refused to admit him, if they thought the allowance inadequate. But we do not see that they could have done any thing else, unless there was undue delay in appointing a proper macer, with a sufficient allowance. What may be the effect, in regard to the power of the Court, of the defender having been admitted without enquiry, while he discharges the duties correctly, and to what effect this action should be ultimately sustained, are questions not involved in the point put before us. We are only of opinion, that there is nothing illegal in the transaction itself to bar action for implement of it.

“And it farther appears to us, that, whatever may be in the power or competency of the Court, when the state of the case is made known to it,—as to which, or any tiling to follow, we are not called upon to give any opinion,—neither the provision of the Act of Sederunt, nor the principle of it, can afford any defence to this defender against the demand for implement of his own deliberate contract. And, indeed, while we rest our opinion on the principle already explained, we should also think, that, if the defender were allowed to state such a plea, or the Court should refuse implement to the pursuer, the consequence ought to be, that, by thus entering into an agreement by which he secured the appointment, and then openly breaking his engagement, he rendered himself unfit to hold the office.”

Lords Justice-Clerk, Glenlee, and Meadowbank, returned this Opinion:—

“We have considered the minute and answers, and additional cases in this cause, ordered to be laid before us by the Judges of the First Division, and observing that no new or additional question has been submitted to us, we have only now to state, that we have seen no reasons in the pleadings that have last been transmitted, for altering the opinion we have already delivered upon the only question on which it was required.”

Lords Jeffrey and Cockburn, who had, in the interim, been elevated to the bench, returned this Opinion:—

“We concur, on the whole, in the opinion of the Lord Justice-Clerk, and the other judges who subscribe that opinion. But there are two considerations, not specifically stated in the opinion, which have tended much to confirm us in the practical conclusion.

“1st, We do not think it at all clear, that the ‘one of the four ordinary macers’ whom the proprietor of Myres acquired the right of appointing, by the charter of 1690, is to be considered as the deputy or representative of that proprietor; or that he himself, if so inclined, could claim to act, and to draw fees and salary, as one of the four ordinary macers; who were plainly all existing and officiating at the date of that charter.

“It rather appears to us, that the office confirmed to him by that charter, was an ancient honorary place, altogether distinct from that of an actual attendant and officiating servant of the Court; and that, when the right of nominating one of those inferior persons was first conferred on him in 1690, it is to be regarded as a new and additional grant, of a right of patronage or presentment to a separate subsisting office, and not as the mere recognition of a power to act by deputy, in that which he already held.

“The terms and nature of the grant are not a little peculiar. It appears, from the recital of the Parliamentary ratification in 1693 (see Mr Thomson's edition of the Statutes, vol. ix. p. 337), not only that there was no power of presenting an ordinary macer (or any other subordinate person) in the original grant, but that it did not even specify in which of his Majesty's courts the general office of ‘sergeandrie and macerie,’ which it conferred, should be exercised; and it proceeds accordingly to narrate, that, partly from this cause, and partly because his Majesty's predecessors had been in the use (notwithstanding this grant) of gifting all such offices, as soon as they became vacant, or even before, the grantee and his predecessors had not, ‘for a long time,’ had any possession under it. In short, it had never, up to that time, been any thing but a mere titular and barren honour.

“Now, it is upon this narrative (and that of the merits and services of the Mon-crieffs) that the charter and ratification of 1690 and 1693 proceed ‘to grant the power and privilege, to George Moncrieff and his heirs, in all time coming, to nominate and present one of the four ordinary macers in the Court of Session; commencing the very first time any of the said offices shall be vacant.’ These are the leading words of the first and only grant of the power of presentation. They occur immediately after the recital already quoted; and are not connected, in this part of the deed, with any notice or recognition of the right conferred by the ancient titles; and though they are afterwards followed up by a novodamus of the old ‘office of sergeandrie and macerie in the Court of Session,’ together with the new power of presenting one of the four ordinary macers, it appears to us, that they truly constitute, in relation to this last power, an original and distinct grant of a right of patronage to a separate office, and can never be construed into a mere permission to execute the duties of the ancient hereditary office itself, by deputy.

“There cannot, we think, be any doubt that the right of appointing an officiating macer, whether a deputy or not, was a right granted for the first time in 1690; and when the question is, what was the true nature of this indisputably new grant, it is very important to look to the words in which it is conceived. Now the words are undoubtedly those usually employed in conferring such a jus patronatus merely; and we are not aware of any instance in which any such words have been used to express a power of granting a deputation. It is remarkable also, not only, that in no part of the charter do the marking words, of deputy and principal, occur, or any analogous words; but that the epithet of ‘ordinary,’ which is there applied to the officiating macers, and applied equally to them all, seems to fix upon the hereditary officer the character, not of principal, but of extraordinary macer; and thus to indicate a relation quite different from that of principal and deputy, and apparently inconsistent with its existence.

“It is, at all events, perfectly apparent, that at the time of making this grant, ‘the four ordinary macers’ of the Court of Session were existing officers, all appointed by competent authority, and seemingly by the Crown; and that, if the owner of Myres had then any right to appear in the Court, it could not be as one of them, but as a separate and much higher person—the honorary and extraordinary hereditary macer and serjeant-at-arms of the Court—exempted from the humble services exigible from its ordinary officials, and entitled to no share in the paltry emoluments by which those services might be remunerated. There is no recognition or intimation, any where, of his right to act, if so inclined, as one of ‘the four ordinary macers;’ or to draw, by means of a deputy, any share of their fees and emoluments. He is merely confirmed in the hereditary office and dignity of the one ancient and hereditary macer; and then invested, for the first time, with the new and additional right of nominating and presenting one of the four ordinary attendants; from whom he seems to be, in the most emphatic manner, set apart and distinguished.

“That he is made answerable for the person he presents, may be unusual in cases of mere patronage, though we believe it not to be unprecedented. But this appears a very insufficient ground from which to infer, in opposition to the whole strain of the instrument, that a right of ‘nominating and appointing one of the four ordinary macers,’ truly implies that the person holding that power was himself already one of those four, and was merely permitted thereafter to exercise his office by deputy. If he was not himself one of the four, and entitled as such, on the death of his nominee to officiate and draw fees in that character, then none of them could be his deputy; and there is an end of all argument founded on the assumption of that relation.

“It is clear that, before 1690, there were four ordinary macers in the Court, though the owner of Myres had for 200 years been also an hereditary and extraordinary macer. He must, therefore, during all that time have been a fifth and quite separate officer; and there is certainly no hint in the charter that one of them had been all this while usurping his place; and that by giving him a right to present one of them in common form, it was meant that he should either resume it in person, or execute it by deputy, as he thought best. The office to which he appoints, it may also be observed, is granted for life; exactly as that of the other three, who certainly are not deputies; and does not fall, as deputations almost always do, by the death or denuding of the supposed principal.

“If these views be well founded they make the case of Dove a case strictly in point, and raise great doubts, not only as to the legality of the present claim for an additional £45, but of the stipulation for the original sura; as to which, indeed, we observe, that strong doubts are also expressed, in the report by the committee of judges, printed in the Acts of Sederunt of 7th April, 1810. The same view will also dispose of any argument which may be raised upon the exception in the act of 49 Geo. III. c. 126, against the sale and brokerage of offices, as that exception applies only to the proper case of principal and deputy.

“2. Even holding the nature of the right to be doubtful, and the old exaction of £45 to have been legalised by long continued usage, it appears to us that the innovation upon that usage, attempted by the transaction with Gardner, now in question, would be illegal, and not actionable. The true way to test this, is to suppose that, the terms of the grant and charters being as they are, there had been, up to this time, no usage to take any money on making the appointments; and, on that supposition, to ask whether it would be legal, now for the first time, to levy an assessment of £90 a-year from that one of the ordinary macers who was appointed by the owner of Myres? To this, we think, the answer could not be doubtful; and yet, if it required ancient consuetude to legalise any such exaction, it appears to us that no exaction which has not the protection of such consuetude can be legal.

“We do not in the least question that the hereditary office itself is adjudgeable and saleable, but we consider the exercise of the right of patronage attached to it to be in quite a different situation, and we have the strongest possible jealousy of permitting any act of patronage in the nomination of a public officer to be exercised for a price. If such a proceeding be not essentially corrupt, it is at least nearly allied to corruption, and ought never to be sanctioned, without the clearest legal necessity, by a court of justice.

“We do not think that the Act of Sederunt 1791 has any material bearing on the question, and we do not conceive that it is of any binding authority, except perhaps as to the resolution it announces to require explanations, before admitting the presentees of Myres, de future—which resolution appears not to have been acted upon in the present case. But however this may he, wo cannot hold ourselves bound by the incidental assumption it appears to make, of that presentee being a deputy of the patron—an assumption in no way material to the practical part of the enactment, and which we humbly conceive to be erroneous.

“What the consequences may be of holding the agreement not legal or actionable, we are not required to consider. If they should go to anuul the appointment of Grant altogether, it may probably be thought right that Mrs Tyndall Bruce and her husband should be made parties to the cause.”

On resuming the cause, the Judges of the First Division (except the Lord President, who declined himself) delivered these Opinions:—

Lord Gillies.—I arrive at the same result with Lords Jeffrey and Cockburn, but do not adopt all the views stated by them. It appears to me that the Act of Sederunt 1791, which has now been founded on, does most materially affect the case. The transaction seems to have been altogether irregular. By the Act of Sederunt, it was provided, “that, in time coming, no deputy shall be received to officiate in the said office, until it be explained upon oath, if required, what transaction has been made between the principal and the deputy, and until the Court is satisfied that the deputy is to have a sufficient and reasonable allowance for enabling him to exercise the duties of the office.” Here no enquiry was made whatever; no means were taken to satisfy the Court that the deputy had a reasonable allowance. I do not think, therefore, that there has been any such transaction as the pursuer can call upon us to enforce; and I would accordingly dismiss his action.

Lord Mackenzie.—I arrive at the same conclusion, but would not incline to rest it altogether upon so narrow a ground, though I concur very much in what has just been said. I shall explain my views shortly, as I do not adopt all the reasoning of those judges who are adverse to the pursuer; and I cannot now, after the new papers laid before us, concur in the conclusions of those judges, with whom I formerly returned a joint opinion.

I do not hold the right granted to Moncrieff was one of mere patronage. He received an heritable office, with a right of substitution. My previous opinion, on this point, remains unchanged. If Moncrieff had held a mere patronage, it might have been doubtful if he could make a traffic of its exercise, so as to derive patrimonial gain from it. But I have no doubt that, as the holder of a heritable right, with a power of substitution, he was entitled to make terms with his nominee, He might take a price from him, or even, to a certain extent, stipulate for a share of the profits and emoluments of the office.

Moncrieff possessed a heritable right of macery; there was a power of delegation implied in the nature of such right, and his title being vague, he went to the King and got a charter in 1690, which did not bestow any thing entirely new, but explained and defined the heritable right already existing in him. The grant accordingly bears:—“Their Majesties, for clearing off the right of the said heritable office, and making the same effectual, in all time coming, have, by the said charter, given and granted full power and privilege to the said George Moncrieff, during his lifetime, and after his decease, to the said John Moncrieff, his son, and his foresaids, in all time coming, to nominate and present one of the four ordinary macers before the Lords of Council and Session, fit and qualified for the said office, for whom the said George and John Moncrieff shall be answerable.”

Looking to the grant, and the practice following on it, it was just a heritable right, with a power of substitution. The validity of the charter seems to have been at one time disputed, as appears from a report in Fountainhall, ¹ and the Court, in the end, sustained the charter. It appears, from the report, that one John Adam, having paid 2200 merks to Moncrieff, was admitted macer on Moncrieff's nomination. From this, the Court must have held it lawful to turn the right patrimonially to account; and then the legislature, ratifying the grant, confirmed the decision of the Court. In practice, so far as appears, the substitution was never granted gratuitously to any nominee whatever, A price was always taken, and it is repeatedly so noticed in the Acts of Sederunt. I view it, therefore, as a heritable office, with a power of substitution, for granting which profit might lawfully be made. If the office had been sold, I see no reason to doubt the legality of the sale. It would be difficult to doubt the effect of an act of Parliament conferring a crown grant of a right, which had been bought and sold. But the peculiarity here is, that the office was not granted for a price paid down, but in consideration of a reserved share of the emoluments. This last is a different species of transaction. A purchaser, becoming proprietor of the office, has the greatest interest to execute it effectually, and has the means of doing so, the whole profits being his own. But a party who has a share only of the profits stands on another footing. I do not know that it ever was the law in this country that a party, holding a heritable office of any importance, could take so much of the profits to himself, as would not leave an adequate competency to the party undertaking the actual discharge of its duties. I think the law stands otherwise; of which, an illustration occurs in the case of Rose, Nov. 17, 1761. There was, in that case, the grant of a substitution by a sheriff. The substitute was appointed without any salary, and, after his death, his executors claimed salary from the sheriff, who pleaded, that none had been stipulated. But the Court awarded Balary, at the rate of £25, and held that it was contra bonos mores, and of bad example, to employ a substitute without the allowance of a reasonable salary. I think this illustrates an important principle in the law of Scotland, that the party intrusted with the actual

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¹ 11th January and 2d February, 1693, 1 Fount, p. 548 and 553.