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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Hamilton of Dalziel Esq. v. The Principal, Masters, and Professors of the University of Glasgow [1716] UKHL Robertson_172 (9 June 1716)
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Cite as: [1716] UKHL Robertson_172
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SCOTTISH_HoL_JURY_COURT
Page: 172↓
(1716) Robertson 172
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 40.
v.
Subject_Superior and Vassal. — Act of Parliament 1469, c. 36. —
Fountainhall, 27 March 1707. Forbes, 24 July 1713.
An university having acquired righ to an adjudication of lands, held in ward, for a debt due to them, the Court found that the superior must enter the university, or pay the debt to the extent of the value of the lands: but upon appeal the judgment is reversed; and it is ordered, that the superior should admit such proper person for vassal as the university should nominate.
Subject_Bona fide Possession. —
The superior, notwithstanding the reversal, is obliged to account for the rents since the charter was offered to him by the university, he having deduction of his casualties as if the old vassal then entered.
Subject_Casts and Expences. —
Expences of the Court below, and 30 l. costs of appeal, given to the appellant.
On the 9th of June 1687, Elizabeth Herbertson, widow, obtained a decreet of adjudication of the lands of Shields and Burngrains, belonging to her creditor Mungo Nisbet, who held these lands of the appellant in Ward holding. Mrs. Herbertson
Page: 173↓
In July following the respondents tendered to the appellant as superior a year's rent and a charter to be executed by him, to admit the respondents as his vassals in the premises; but the appellant refused to admit the respondents, alleging that he was not obliged to admit an university as his vassals, because he would thereby be deprived of his casualties of entry, non-entry, and other casualties incident to ward-holding.
The respondents in 1707 brought an action before the Court of Session to compel the appellant to receive them as his vassals; and the cause being heard before the Lord Ordinary, his lordship, on the 25th of March 1707, “found that the appellant was not obliged to enter the respondents as his vassals.”
1469, c. 36.
This action was not further proceeded in till 1713, and at a hearing of the cause on the 16th of February that year, the respondents insisted upon the act of parliament 1469. c. 36. that the appellant was obliged either to enter the respondents as his vassals, or to pay the debt due to them. The Court, on the 24th of July 1713, “found that the appellant the superior must either enter the university of Glasgow, or pay the debt due to them to the value of the lands adjudged, as the said value should be determined by the Lords upon a probation thereof; and found that the said respondents must transfer their right and debt to him upon his paying the value of the said lands, with absolute warrandice for the sum they received, reserving always their right to them against the common debtor, in so far as they should not be satisfied by the appellant in regard the debt due to the respondents was more than the value of the lands, and found that the appellant must be accountable for his intromissions with the rents of the said lands, or interest of the value thereof, in his option from their offer of a charter and year's rent to him, and remitted it to the Lord Ordinary in the cause to call and hear the parties, procurators, and apply the interlocutor, and determine or report.”
Before the Lord Ordinary the appellant made several objections to the offer of the charter made by the respondents to him; and his lordship, on the 28th of the said month of July, “found the appellant accountable for the rents or interest of the value of the lands from July 1697, the time the charter was offered to him,” and granted commission to both parties to examine witnesses as to the value of the premises.
The appellant presented a reclaiming petition to the Court, complaining particularly of that part of the interlocutor obliging him to account for the profits since he was in possession, by virtue
Page: 174↓
A proof was afterwards made of tire rental and value of the said lands; and after considering the proof, the Court, on the 9th of July 1715, “found that the said lands held ward of the appellant, and that the same were worth 16 years purchase; and that the value and price of the said lands extended after deduction of the teind to 1744 l. 14 s. 4 d. Scots money; and found that the appellant ought to make his election whether or not he would accept of the said lands at the value and price aforesaid, (the university of Glasgow transferring their right to him with absolute warrandice for the said price and value), and pay to the said university the said price, or enter and receive the said university as his vassal upon their adjudication, upon payment to him of a year's rent of the said lands.”
The appellant (reserving a liberty of appealing) by his counsel made his election to purchase the lands; and thereupon the Court
(b) “decerned the appellant to pay to the respondents 1744
l. 14
s. 4
d. Scots, with interest, from the 15th of July 1697, the date of the offer of the charter, the respondents transmitting their right to the appellant.” The appellant petitioned against this interlocutor, as being thereby deprived of an opportunity of making his objections against the charter offered to him in terms of the interlocutor 31st July 1713; and he stated that though he had petitioned against the other parts of that interlocutor, and insisted that he might be at liberty to except to the charge given him to enter the respondents his vassals, as well as to the charter offered to him, which petition the Court, on the 18th of November 1713, had refused and adhered to their former interlocutor; yet so far was that from taking away the reservation, that the interlocutor whereby it was given was affirmed; and the appellant therefore prayed, that he might be heard as to these objections.
_________________ Footnote _________________
(a) It does not appear from the Appeal Cases what these objections were.
(b) No date appears to this; and except it formed part of the interlocutor 9 July 1715, it does not appear to be appealed from.
Page: 175↓
Entered, 11 Aug. 1715.
The appeal was brought from “an interlocutor of the Lords of Session of the 24th of July 1713, and from an interlocutor of the Lord Polwarth, Ordinary in the cause, of the 28th of the same month, and from that part of the interlocutor of the Lords of Session of the 31st of the same month affirming the said former interlocutors and refusing the desire of the petitioners supplication; and likewise from the interlocutors of the said Lords of the 18th of November following, and of the 9th and 28th of July 1715.”
Heads of the Appellant's Argument.
The lands in question hold ward of the appellant, and he is entitled to all the casualties of such tenure; particularly ward, relief, and marriage, which are part of the appellant's property. It Cannot, then, be looked upon but as a very great hardship to deprive him of all these casualties (which were the only consideration for the original grant of the said lands) without his consent; but should the respondents prevail, the appellant must lose all these casualties, since an university or corporation can never marry or be under wardship.
However general the words of the act of parliament be, yet as there never was any instance of a superior's having been compelled to receive an university or corporation for his vassal, yet the purpose of the act, as it is humbly apprehended, can only be intended to compel a superior to receive the creditor as his vassal, supposing he were of the same nature or condition as the former vassal. For it cannot be reasonably thought that the legislature intended to put it in the power of a vassal to alter the tenure, and to deprive and disappoint a superior of his casualties; and yet upon the foundation of this decree it will be in the power of every vassal to assign to a corporation whereby a superior will entirely lose his casualties.
The respondents have an easy and safe way to prevent any prejudice to themselves or being deprived of their just demand as creditors; for they may convey their right to a third person in trust for them, and then the appellant, as superior, will enter him as his vassal. And since, by this method, the respondents may be safe as to their demands, and the appellant still be entitled to his casualties, it would be a great hardship to oblige the appellant to do any thing so much to his prejudice as to forfeit his casualties. Though the appellant should be obliged to receive the respondents as his vassal, yet it is conceived to be unreasonable to make him accountable either for the rents of the lands, or the interest of the value thereof, because the appellant was certainly bona fide possessor of these lands; he had decree of declarator of non-entry against those under whom the respondents claim, and the possession thereof decreed to him. He had likewise the Lord Ordinary's interlocutor in his favour when this cause came first to be heard, and if the respondents
Page: 176↓
Though the appellant were accountable for profits, that could only be from the offer made of a charter from the respondents; but that not being done in a regular manner, nor according to the forms prescribed for that purpose, that offer must be looked upon as void, and consequently the appellant not changeable with the profits of the said lands.
Heads of the Respondents' Argument.
The words of the act 1469, c. 36. are, “And also the over-lord fall receive the creditour or any uther buyer, tennent till him pay—and to the over-lord a yeire's maill as the land is set for the time, and failzieing thereof, that he take the said land till himself, and undergang the debtes.” This act makes no manner of distinction what sort of creditors the superiors must receive, whether a body corporate or an individual; so that the law being indefinite and general, making no exception, the application must be So likewise, especially seeing all corporate bodies, and particularly universities, who have all the favour the law can allow, may purchase and contract debts. But if they cannot secure their debts and purchases in the same manner that the law allows to other creditors, they would be entirely deprived of the benefit of any dealings or improving their stock; because, by the law of Scotland, lands and securities upon lands cannot be effectually conveyed without sasine, which the superior must always give in the case of adjudications; so that to allow the superior the liberty of refusing, is in effect to deny the benefit of real security to incorporated bodies on their debtor's lands. And as to the pretended inconveniences that might happen to a superior, by an university's being received as a vassal, they are very little to be regarded; for although they were such as stated, yet the act of parliament being general, it must take place, and inconveniences in certain particular cases must always yield to a more universal good: and the superiors have got by the law a recompence, which is a full year's rent, and which is thought equivalent for the exchange of the vassal.
Digest. 1. 50. tic. 17. De Reg. Jur. 39 & 161.
The appellant can sustain no loss by this, for long before the offer of a charter, and ever since he has been in possession of all the rents and profits of the said estate, and by the interlocutors appealed from he is decreed to pay no greater price than 16 years' purchase, which is very moderate, and it was the appellant's own particular choice, rather to pay that price than to quit the property of these lands and retain the superiority only. Besides, it is most reasonable that the appellant should be obliged either to be accountable for his intromissions, or she value of the lands and interest since the said 5th of July 1697, because he received the rents and profits fine titulo; and his possession was a plain usurpation upon the vassal, for the superior is only entitled to the full rents during the vassal's wilful non-entry. But ever since the said 5th of July
Page: 177↓
As to the pretence of the charter's being irregular, that is entirely groundless, the same being in the precise words of the charters granted by the appellant's predecessors of the said lands to the former vassals. And although the appellant made several objections to the said charter so offered by the university, and though these objections were reserved to him to be proved; yet upon the appellant's application to the Court in relation thereto, and the university's answer, these objections were fully cleared, as appears by the interlocutor of the 18th November 1713, as well as by all the subsequent interlocutors made in this cause. The reservation of these objections therefore cannot be construed to entitle the appellant to the property of all the rents and profits of the estate received by him, since these objections have been since over-ruled by what the Court did afterwards.
Judgment, 9 May 1715.
After hearing counsel, It is ordered and adjudged, that the several interlocutors complained of in the said appeal be reversed; and it is further ordered and adjudged, that the appellant admit such proper person for tenant as the respondents shall nominate, and that the appellant do account for the profits of the lands of Shields and others mentioned in the said appeal, which he received or might have received without his wilful default, from the time the respondents offered the charter in the year 1697, deducting thereout the year's rent due for such admission and the appellant's costs in the court below, and also 30l. for the appellant's costs of this appeal; and further, that the appellant have allowance for all such casualties as have (been) incurred (if any) supposing Mrs. Herbertson had been admitted vassal in the said lands at the time of the offer of the aforesaid charter in the year 1697, and the said Court of Session is hereby ordered to cause the said account to be taken, and full costs to be assessed sustained by the appellant in the court below.
Counsel: For Appellant,
Sam. Mead.
Will. Hamilton.
For Respondent,
David Dalrymple.
Thomas Lutwyche.
This case is in several respects worthy of particular observation; the judgment here reversed so favourably for the appellant, as to allow him expences of the court below and costs of appeal, is founded on in the Dictionary, vol. 2. p. 408. Superior and Vassal; and by Bankton, b. 2. tit. 4. § 11. It appears decisive
Page: 178↓
With regard to the collateral point of law, whether, in the case of an university or corporation disponee a superior would be obliged to receive or not, Bankton states, that no decision has been given; and he inclines to think that the act 20 Geo. 2. c. 50. as it contains no exception with regard to universities or corporations, would oblige the superior to receive them. Erskine, however, b. 2. tit. 7. § 7. inclines to the opposite opinion; and indeed the act last mentioned does not appear so strong in favour of the university or corporation disponee, as the act 1469, c. 36. is in favour of the adjudger.
A similar decision to that here reversed, is given by Dalrymple, 11 December 1712, Master of Church and Bridge Work of Aberdeen, against the King's College of Aberdeen, where the decision of the Court of Session in the present case is also mentioned.