Scottish Court of Session Decisions

In 1814, a written agreement was entered into by a number of the inhabitants of Abercromby Place and East Queen Street for the purchase of garden-ground lying in front of Abercromby Place, which was to belong in common property to the subscribers. Every subscriber, to the extent of £40, or of an annual sum of £3, was declared to be entitled to a share. The purchase was effected, and the gardens were thrown open to the shareholders, being managed by a committee of their number, in terms of regulations passed at their general meetings; but several years elapsed before the ground was feudally vested in trustees for their behoof. This was not done till 1821. In the mean time, a clerk and cashier was appointed, and transfers of shares were at first effected by the purchaser subscribing the original deed of agreement, and specifying in whose place he had come. In 1816, it was resolved, that a transfer-book for shares should be kept in a particular form, and a fee of 5s. paid on each transfer. Lady Anne Elizabeth Hope, as in right of a share, acquired, in 1818, from Sir John Connel, who was an original subscriber, sold her share to Lord Ashburton for £40. This was notified by her Ladyship's agent to William Bell, W.S., clerk to the subscribers. Subsequently to this, Lord Ashburton, by his agent, attended various meetings of the subscribers, paid his annual assessments, and, inter alia, voted for applying for an act of Parliament, which was obtained, and for the purchase of farther ground, which was effected. His agent also signed an acceptance of the share of Lady Anne E. Hope, together with an obligation to be bound by the rules of the gardens; and this was sent to the clerk of the gardens. The use of a key to the gardens was restricted to shareholders or their lessees; and Lord Ashburton's agent, on getting a key for his Lordship, signed an acknowledgment that Lord Ashburton, “as proprietor of a share of Queen Street Gardens,” had received the key.

By the act of Parliament above referred to, which was obtained in 1822, a form of transfer of shares was specified, “or some form to the like effect,” and it was provided, that a copy of the transfer should be inserted in the transfer-book, and that the purchaser should subscribe a declaration of acceptance of the share, subjoined to the copy in the transfer-book. It was also provided, that a transfer made in the statutory form, and copied and signed in the transfer-book, should be “valid and effectual, in all respects, and to all intents and purposes, to the effect of transferring a share or shares in the gardens aforesaid, from one person to another, of vesting such share or shares in the said assignee or assignees, and of rendering all persons who may so acquire shares, subject and liable in respect of such share or shares, to the provisions of this act, and to make all the payments due in respect of such share or shares, and subject and liable to all the rules and regulations agreed to by the proprietors thereof.”

Lord Ashburton died in February, 1823, and his widow, Lady Ashburton, became his representative by a lucrative title. Her Ladyship took possession of the key of the gardens, and, on leaving Edinburgh, which apparently happened soon after Lord Ashburton's death, she gave the use of it to her friends. This was prohibited by the regulations of the gardens, and these regulations were enforced. Lady Ashburton felt offended, and notified, by her agent, in 1828, and again in 1829, that she was “willing to resign her share to the proprietors,” and that she would rather do this than pay the arrears of assessment for the expenses of the garden. Part of the assessments thus in arrear arose from the current annual expense of the gardens, and part from the extra expense occasioned by purchasing the additional ground, which was done in pursuance of the resolution of a general meeting of subscribers in 1821.

The minute of transfer of the share of Sir John Connel to Lady Anne E. Hope, and of her Ladyship's share to Lord Ashburton, as engrossed in the transfer-book, had not been signed; and Lady Ashburton had not got any conveyance there inserted of his Lordship's share in her favour. She, therefore, refused payment of the assessments which were in arrear from the death of Lord Ashburton, and, in 1832, amounted, with interest, to £31, 13s. 6d. In an action raised for payment of them, she pleaded—

1. That, by the act of Parliament, a special form of transfer alone was recognised, and, unless that was adopted, no liability for assessment could be incurred; and,

2. That as there was no effectual conveyance of any share in favour of Lord Ashburton, he could not be assessed as a shareholder, and she, as his representative, and having never signed an acceptance of any share, was equally entitled to be free.

The pursuer answered—

1. That the provision of a statutory form of transfer was meant for behoof of the body of proprietors, and there was nothing to prevent them from recognising any other valid transference, if they chose. And as Lord Ashburton had, by his agent, signed an acceptance of a share; obtained and used a key as a proprietor; paid his annual assessments; voted for measures which inferred considerable outlay, and rendered necessary a part of the extra assessment now sued for, he was, by his actings, completely identified with all the other subscribers, and bound by the regulations, in terms of which the whole assessments had been imposed. And if his Lordship would have been liable, his representative was equally so.

2. If it was the fact, that Lord Ashburton had never made up a good legal title to a share in the gardens, sibi imputet, and that would not relieve him from his share of assessment, after so long acting as a proprietor, and holding himself out as such. But, in truth,, his Lordship had acquired a right to a share, of which no one could deprive him, and Lady Ashburton was sensible of her possessing that right, as her agent had expressly made an offer to resign it, which was refused.

The Lord Ordinary “repelled the defences, and decerned in terms of the conclusions of the libel, and found expenses due.”

Lady Ashburton reclaimed.