Scottish Court of Session Decisions

By disposition dated 22d August 1767, and duly recorded, John Campbell, Esq. of Calder, in consideration of a price paid by the Lords Commissioners of His Majesty's (Geo. III.) Treasury, on behalf of “His Majesty and the public,” sold and disponed “to His Majesty and his royal heirs and successors, to remain inseparably annexed with the Crown of these realms, certain lands, part of the barony of Ardersier, on part of which lands now disponed the Fort of Ardersier or Fort George is built … possessed by the garrison at Ardersier and others for and in name of His Majesty and the public.” The disposition contained the following provisions—“And further providing that His Majesty, his royal heirs and successors, shall, by acceptation hereof, be bound and obliged to make, keep, and maintain the fence between the ground hereby disponed, and the remaining parts of the barony of Ardersier, good and sufficient, so as to keep out horses, cattle, and sheep, and so that there may be no disputes on account of trespasses on their mutual grounds between the possessors of the grounds hereby disponed and my tenants; and providing also, that as in the sums so now paid me full consideration was had and made to me for all feu and teind duties, stipends, schoolmasters' salaries, land-tax, building, or reparation of kirks and manses, and every other parish or public burden whatever which was or might at any time be due and payable for or furth of the said lands and others foresaid: Therefore it is hereby declared that His Majesty, his royal heirs and successors, are to be freed and relieved by me, my heirs and successors, of and from all payment of any feu or teind-duties, stipends, schoolmasters' salaries, land-tax, reparation of kirk, manse, and every other parish or public burden whatever which might be demanded from them for and in respect of the subjects above disponed since the said year 1750 and in all time coming: And for further security to His Majesty, and his royal heirs and successors, I hereby dispone the remaining parts of the said lands and barony of Ardersier, lying, as said is, within the parish of Ardersier and shire of Inverness, to His Majesty and his royal heirs and successors, and that in real and special warrandice to them against all payment of teind or feu-duties, stipends, schoolmasters' salaries, land-tax, building or repairing of kirks and manses, and every other parish or public burden which may be demanded of or from them for or in respect of the lands and others principally before disponed, and so as that, on their being distressed therefor, they may for their relief have immediate recourse to the lands disponed in warrandice, rents, maills, and duties thereof.” The disposition also contained a procuratory of resignation ad remanentiam, in which the above-quoted clause of relief was verbatim repeated. On the disposition an instrument of resignation ad remanentiam was expede in favour of His Majesty, dated and recorded the 5th and 10th January 1768. By disposition dated 16th May 1851, the Ordnance Department, in whom the lands were vested for the Crown, disponed to George Archibald a portion (known as Hillhead) of the lands conveyed to the Crown by the disposition of 1767, with and under the reservations, declarations, and provisions contained in the instrument of resignation ad remanentiam, in favour of His Majesty, following on the procuratory in that disposition, and, in particular, providing, in terms of that disposition, “that the said George Archibald and his aforesaids shall be relieved by the said John Campbell, his heirs and successors, of and from all payment of any feu or

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teind duties (except the feu-duty after mentioned), stipends, schoolmasters’ salaries, land-tax, reparation of kirk, manse, and every other parish or public burden whatever which may be demanded from them for and in respect of the subjects thereof disponed from the term of their entry thereto and in all time coming;” and for further security the Department disponed the remaining portion of the barony of Ardersier in real and special warrandice against all payment of teinds of the burdens first specified. Archibald was duly infeft in the lands and in the warrandice lands. He was succeeded in them by his son, who conveyed them to a trustee for creditors, from whom in 1881 Archibald Orr Ewing, Esq., of Ballikinrain, M.P. for Dumbarton, purchased them, and the disposition to him contained a special assignation in his favour of the disposition granted by John Campbell of Calder to His Majesty King George III., and the clause of relief from burdens contained therein. The remainder of the barony of Ardersier was also disponed to him in real and special warrandice of the clause of relief. He raised this action against the defender, the Earl of Cawdor, as heir and representative of John Campbell of Calder, the original granter of the obligation of relief, and proprietor of the lands and barony of Ardersier, to have it declared that “the defender, and his heirs and successors, are bound to free and relieve the pursuer, and his heirs and successors, of and from all payment of any feu or teind—duties, stipends, schoolmasters’ salaries, land-tax, reparation of kirk, manse, and every other parish or public burden whatever which may be demanded from the pursuer for and in respect of” the lands of Hillhead, and to have him ordained to pay the pursuer a sum of £57, 3s. 1d. as the amount of poor-rates which the pursuer had paid for and in respect of the lands.

He pleaded—“(1) Under the said clause and declaration of relief, the granter thereof, and his heirs and successors, became bound and liable in relief and payment as libelled. (2) The said clause and declaration of relief having been duly transmitted to the pursuer, the present proprietor of the said lands and others is enforceable at the instance of the pursuer against the defender as representing the granter thereof. (3) Generally, in the circumstances, the pursuer is entitled to decree in terms of the conclusions of the summons, with expenses.”

The defender pleaded—“(1) No title to sue. (2) The obligation of relief founded on is not by the terms thereof assignable, and in any view has not been assigned to the pursuer. (3) The pursuer not having been distressed in respect of any burdens except poor-rates; the action, except quoad the said poor-rates, is premature. (4) Poor-rates not being a burden for which the Crown is or was liable, the same do not fall within the scope of the obligation founded on, and the pursuer cannot therefore be relieved thereof.”