Scottish Court of Session Decisions

The Right Honourable Archibald Philip, Earl of Rosebery, Her Majesty's Lieutenant and High Sheriff of the county of Linlithgow; Peter M'Lagan of Pumpherston, Vice-Lieutenant of the said county, and also Member of Parliament for the said county; Thomas Hope of Bridge Castle, convener of the said county; Alexander Blair, advocate, Sheriff-Depute of the said county; and Andrew Gilmour, Provost of the royal burgh of Linlithgow, as trustees for themselves and in trust for and in name and on behalf of the whole other noblemen, deputy-lieutenants,

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freeholders, justices of the peace, and commissioners of supply of the said county of Linlithgow, acting under and in virtue of the trusts created by the feu-disposition dated 9th July 1825, granted by the Town Council of the said burgh in favour of the petitioner's predecessors in office, and also of the disposition dated 16th, 27th, and 28th January 1873, and registered in the Books of Council and Session 22nd June 1888, granted by the trustee and commissioners on the sequestrated estate of the said burgh in favour of the petitioner's predecessors in office, presented a petition to the First Division of the Court of Session, which set forth that by feu-disposition dated 9th July 1825, the Provost, Magistrates, and Town Council of the burgh of Linlithgow, on the narrative that by an Act of Council inserted in the records of said burgh, of date the 24th day of July 1819, the Provost, Magistrates, and Town Council of the said burgh of Linlithgow did, in consideration of the annual feu-duty therein and after mentioned, to be paid and applied for the use and behoof of the said community, agree to convey and make over to His Majesty's Lieutenant and other official characters of the county of Linlithgow, therein and before designed, for the purpose of erecting a hall containing apartments for the meetings of the said county, the area of the ground therein described, and that the said area was in terms of said agreement and Act of Council taken possession of by the said Lord-Lieutenant and others, and a hall for county meetings built and erected thereon at their expense, did therefore feu to the Right Honourable John Earl of Hopetoun, His Majesty's Lieutenant and High Sheriff of the county of Linlithgow, James Dundas, Esquire of Dundas, Vice-Lieutenant of the said county; Lieutenant-General the Honourable Sir Alexander Hope of Waughton, G.C.B., Member of Parliament for the said county; Alexander Majoribanks, Esquire, of Majoribanks, convener of the said county; John Cay, Esquire, Her Majesty's Sheriff-Depute of the said county, and John Boyd, Esquire, provost of the royal burgh of Linlithgow, and to their several successors in office for the time being, as trustees for themselves and in trust for and in name and on behalf of the whole other noblemen, deputy-lieutenants, freeholders, justices of the peace, and commissioners of supply of the said county of Linlithgow, for the yearly feu-duty of 20s., a piece of ground situated within the said burgh, for the purpose of erecting a hall containing apartments for the meetings of the said county, which it was declared should be occupied for the use and accommodation of the said county of Linlithgow alien arly, and not convertible to any other purpose. Sasine duly followed upon this disposition.

It was not definitely known at whose expense the County Hall erected on the said site was built, but it was believed that the money was raised by voluntary subscription. The feu-duty and other annual expenses were paid for many years, at first out of the rogue money, subsequently out of the County General Assessment, and since the passing of the Local Government (Scotland) Act 1889, by the County Council of Linlithgow. By permission of the trustees, and in accordance with the purposes of the trust, the County Hall has been freely made use of by the Commissioners of Supply, the Road Trustees, the local authority, and other county governing bodies, and since the passing of the said Act by the County Council of Linlithgow.

In 1873, the estates of the burgh of Linlithgow having been sequestrated under the Bankruptcy Statutes, the superiority of the above-mentioned feu was purchased from the trustee in the sequestration for £22. The Commissioners of Supply paid the money out of the County General Assessment; but the title to the superiority was taken in name of the above-mentioned body of trustees, in terms precisely similar to those used in the feu-disposition.

In terms of the Local Government (Scotland) Act 1889, section 25, sub-section 1, the whole property of the Commissioners of Supply, including the area of the old prison, became the property of the County Council of Linlithgow. In this way the said County Council owns the present entrance to the County Hall and three apartments opening from it.

The petitioners were advised that three pictures at present hanging in the County Hall were their property, subject to the same trust purposes as the hall itself.

The pictures were of considerable value, and were in need of restoration, involving an immediate outlay of about £55, according to the estimate of an expert, which was produced and referred to. The petitioners had no funds at their disposal, and they understood that there was some reason to doubt whether the County Council of Linlithgow had statutory power to make any outlay upon those pictures in the present circumstances.

By section 25, sub-section 2, of the Local Government (Scotland) Act 1889, it is provided “That the county council shall have full power to manage, alter, and enlarge, and, with the consent of the Secretary for Scotland, to alienate the lands and heritages transferred by this section, but shall from time to time provide such accommodation and rooms, and such furniture, books, and other things, for the transaction of the business of the county council and of the quarter sessions, justices of the peace, and commissioners of supply, as they respectively may from time to time require, provided that … the justices of any county may retain pictures or other property, on the ground that the same have been presented to them or otherwise belong to them, and are not held for public purposes of the county.”

At a meeting of the County Council of Linlithgow, held on 15th December 1891, a suggestion of the petitioners to transfer their trust property to the County Council was unanimously approved of. At the statutory meeting held on 6th May 1892 the proposal was again approved.

The petition prayed the Court, after due

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intimation and advertisement, “to grant warrant to and authorise the petitioners, as the existing trustees of the foresaid property, to dispone to and in favour of the County Council of Linlithgow the whole trust property held by them under the trust created as aforesaid, … and to make and execute all deeds necessary thereto, and thereupon to find that the office of the petitioners as trustees has come to an end, and to exoner and discharge them of the said trust and of their whole actings, intromissions, and management as trustees foresaid.”

In support of the petition it was argued that it was most desirable that the County Council, who now had the main use of this building, should have the title to it. They were bound under the sub-section (2) of section 25 of the Local Government (Scotland) Act to provide themselves with necessary buildings. They were therefore entitled to take over a suitable existing building. But for the peculiarity of this being trust property it would have been transferred under the 1st sub-section of section 25. The only difficulty was as to the right of the trustees to put an end to the trust; but all interests contemplated by the trust were represented by the petitioners. The purpose of the trust had virtually come to an end, and under the doctrine of cy-près the Court would authorise the application of trust property to a cognate purpose. The purpose here to be served was so similar as to be virtually identical with that of the original trust. The only difference was that henceforth the administration of the property would be in different hands. All interested were anxious that this petition should be granted, and there was no opposition. The present trustees had no funds out of which to keep up this property. The County Council could always get such funds by rating.

The Court granted the prayer of the petition.