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(1718) Robertson 197
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 45.
Subject_Public Officer. —
A gift of the office of King's Printer in Scotland is made to a person and his heirs, and his partners, assignees, and substitutes; he afterwards assigns to two others, each one-third of the patent; these assignees and the original grantee had each right to a third share in the grant of the office, equal in all respects, and each might use the title of one of his Majesty's Printers.
Certain objections made to an assignee under this grant, that the original grantee had not taken the oaths required by law, for taking which a space of time was limited, having assigned in the intermediate period; that this grant was made during the subsistence of a former grant, though to commence after expiration of such former one; and that it contained clauses and powers (some of which had been renounced) that were stated to be unusual and contrary to law,—found not relevant to reduce the same.
A new patent being obtained during the currency of the former, without any reduction thereof, and being founded on in this action, the decree is nevertheless ordained to be extracted, without prejudice to the grantees in the new patent, to insist on the gift in their favour as accords.
The Court having found, however, that the partners in the patent first mentioned might print Bibles, &c. and dispose of the same in any part of his majesty's united kingdom or elsewhere; upon appeal, these last mentioned words ate ordered to be omitted in the affirmance of the judgment.
King Charles the Second, in May 1671, granted a patent to Andrew Anderson deceased and his assignees, to be his majesty's printer in Scotland, with the sole power of printing Bibles, New Testaments, acts of parliament, and every thing published by authority, for and during the term of 41 years. This patent expired on the 12th of May 1712.
Soon after it had been granted Andrew Anderson died, and the office was enjoyed and the business carried on by his widow.
When the patent to Anderson was near expiring, the respondent, a printer in Edinburgh, Robert Freebairn, a bookseller, and Richard Watkins a stationer, the latter being trustee for the appellant John Baskett, his majesty's printer in England, entered into an agreement to use their joint interest to procure a new patent. And accordingly by articles executed by them on the 9th of March 1710–11, it was agreed, “That if a grant of queen's printer in Scotland could be obtained, in one or either of their
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On the 11th of August 1711, her then majesty granted her letters patent of the office of king's printer in Scotland to the said Robert Freebairn, reciting the said former grant to Anderson, and the time it would expire; “and considering that it would be necessary for her and her subjects in that part of Great Britain called Scotland that the said office should be timely provided for: and that they on whom she should bestow the same should be provided with materials and printing instruments whereby they might more readily and commodiously serve her and her subjects in that part of her said kingdom, as soon as the said grant to Anderson should expire: and that the said Freebairn had undertaken for himself and his heirs, and for his partners, assignees, and substitutes, that all books to be there printed should be more correctly published than heretofore they had been by his predecessors; her said majesty did make, nominate, and appoint the said Freebairn her sole and only printer in Scotland, for the term of 41 years, to commence immediately after the expiration of the said grant to Anderson, without prejudice to the time therein mentioned; giving and granting unto the said Freebairn and his aforesaids the sole privilege of printing all Bibles, New Testaments, Psalters, Common-prayer books, according to the use and custom of Great Britain and Ireland; and of printing and re-printing acts of parliament, proclamations, and whatever should be published by authority; and of the books of the common and municipal laws of Scotland, whensoever the grant thereof to her majesty's then printer or other particular persons should respectively expire;” with the clauses and powers of prohibiting all others, and confiscations as usual in the like grants.
In September 1711, Freebairn assigned the third part of his interest to the appellant Baskett; who by agreement was to credit the company with paper for 12 months, and also was to pay a moiety of the charges of passing the said patent, and a proportionable part of the charges of setting up and hiring a printing-house. And on the 30th of April 1712, Freebairn also assigned to the respondent one just third part and share of the said office, and of all privileges and profits thereof; the 300 l. advanced by him, as he states, being more than his share of the charges of obtaining the patent.
Disagreements, however, soon arose among the parties, and in January 1713, the respondent took a protest under the hands of a notary, requiring Freebairn and Watkins (on behalf the appellant
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Pending this action, the parties had acted separately under the said office; and on the 8th of December 1714 Freebairn, assisted by the interest of Baskett, obtained a warrant from King George the First to have a new grant of the office made to him solely. The respondent, however, having represented that he had right under the said patent granted by Queen Anne, a stop was put to the passing of the laid new grant.
The respondent afterwards brought an action against Agnes Campbell, since deceased, widow and assignee of the said Andrew Anderson, and the other appellants his representatives, to have it declared that the gift in favour of Anderson was expired, and that all Bibles and other books contained in the gift to the respondent, and printed by the said Agnes Campbell or the representatives of Anderson, since the expiration of the gift to him, should be consiscated in terms of his gift; and that they might be discharged to print any more of such books or to fell those already printed. It was insisted for Agnes Campbell, that the gift made by Queen, Anne was granted to Freebairn alone; but he not having qualified himself for the said office by taking the oaths required by law, the gift became void, and he could not communicate the benefit of it to any other person whatsoever. That the grant to Freebairn was during the Subsistence of the former grant to Anderson; and that the grant to Freebairn, under which the respondent claimed, was by express words recalled and voided in a subsequent grant to him by King George the First. The Lord Ordinary having made a report of the cause, the Court, on the 17th of July 1716, “found, that the respondent's interest and title by the gift did not fall or become irritate by Mr. Freebairn not qualifying within three months of the date of the gift; and also repelled the defence, that after the said first gift to Freebairn he obtained a second gift; and also repelled the defence that the said
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1 Geo, 1. c. 13.
It was afterwards contended that the respondent himself had not qualified according to law; but he insisting that he had qualified within the time limited by the act of 1 Geo. 1. c. 13., the Lord Ordinary on the 19th of July “repelled the allegation, and decerned and declared, that the respondent, as one of his majesty's printers, might print Bibles and acts of parliament, and other public papers, and sell and dispose of them in any part of his majesty's united kingdom or elsewhere; and declared the gift in favour of Andrew Anderson and his heirs expired; and decerned the said Mrs. Anderson and the appellants her grandchildren to desist from any new impression, or further printing of any Bibles, acts of parliament, and other papers concerning the Government, or selling the same, from and after the 1st of July 1715.”
Pending this last action, the king granted a new patent for being king's printer in Scotland to the said Mrs. Anderson, and to the appellant Baskett; but she died soon after. Baskett and the representatives of Mrs. Anderson produced the new patent to the Court and claimed the benefit thereof, and prayed that the right under the same, and the right to that under which the respondent claimed, might be discussed and settled before any judgment given. But the Court, on the 14th of December 1716, “Ordained the respondent's decree to be extracted, but prejudice to the appellant Baskett to insist on the new gift in his favour as accords.” Baskett and the other appellants afterwards brought an action of reduction to make void the gift under which the respondent claims; and then they presented a petition, (in the former action) complaining of the before mentioned interlocutors: but the Court, on the 18th of December 1716, “refused the desire of the petition, reserving the appellant's right by the new gift as accords.”
Entered, 22 March 1716–17.
The appeal was brought from “an interlocutor or decree of the Lord Grange in Scotland, made the 8th of February 1715, and the affirmance thereof by the Lords of Session the 17th of June 1715, and also from another interlocutor or decree of the Lords of Session of the 17th of July 1716; and also from another interlocutor or decree of the said Lord Grange, the 19th of the same July, whereby his lordship decerned and declared, amongst other things, “That James Watson, as one of his majesty's printers, might print Bibles and acts of parliament, and other public papers, and sell and dispose of them in any part of his majesty's united kingdom or elsewhere;” and also from two other interlocutors of the said Lords of Session of the 14th and 18th of December 1716.”
Heads of the Appellants' Argument.
The patent to Mr. Freebairn, under which the respondent claims, contained several very illegal clauses: particularly it gave
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It is the constant practice and custom of the Court of Session, not to determine in favour of any grant, when another appears and pleads a better right till they once hear both parties; for it is otherwise prejudicing the one party by giving judgment unheard: and the rather in this case, because the respondent having brought his action to have his grant established, the appellants pleaded this new grant as a separate and total defence to that demand.
Mr. Freebairn being the only patentee, and not having taken the oaths within the time limited by law, the gift became void, and the office sell, and therefore he could not communicate the same, nor any of its consequences; and though he assigned a third part to Watson before the time in which he should have taken the oaths, yet the title to the office was imperfect and incomplete in the person of Freebairn until he should take the oaths; but he never having done that, the right resolved and became void from the beginning.
supposing Mr. Freebairn's grant were good, it was against reason to decree a confiscation of all books to the respondent alone, since the appellant Basket has by his own shewing an equal share in that grant with the respondent.
By the decree the respondent is declared to have right to print Bibles, &c. and to dispose of and sell the same in any part of his majesty's united kingdom. This is directly contrary to and inconsistent with the patent granted to the king's printers in England, whereby all persons are prohibited to import any Bibles into England,
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Heads of the Respondent's Argument.
The said Freebairn was only a trustee for the respondent as to one third of the grant; and the respondent cannot by the laws of Great Britain incur any forfeiture by Freebairn's delinquency; not only because Freebairn was neither convicted nor the time elapsed for taking the oaths. No new grant can be legal during the subsistence of a former grant. The respondent, for a valuable consideration of 300 l. paid to Freebairn before such delinquency, had a grant of one third in the interest of the said former patent, and hath also expended 2000 l. for carrying on the said employment for the benefit of the public. But Baskett, who has a grant of the office of king's printer in England, and who farms the University press in that country, seeks by this present appeal to engross the whole trade of printing the word of God in Scotland also, which, if he prevail in, it will make Bibles, New Testaments, and Common Prayer Books very scarce and dear, having already raised the price some 60 per cent. And in further prejudice of the respodent's right he has assumed to himself in his late editions of Bibles and Common Prayer Books the stile of King's Printer for Great Britain.
The appellants' aforesaid action of reduction is not yet ripe for the determination of the House of Peers, till the same have had a previous and judicial determination in Scotland.
Judgment, 15 Feb. 1717–18.
After hearing counsel, It is ordered and adjudged, that the said interlocutor of the 19th July 1716 be so far varied as that the words after-mentioned, viz. “in any part of his majesty's united kingdom or elsewhere,” be omitted, and that the said interlocutor or decree as to all other parts thereof, as also the several other interlocutors complained of in the said appeal be affirmed.
Counsel: For Appellants,
Spencer Cowper.
Sam. Mead.
For Respondent,
Tho. Lutwyche.
Rob. Raymond.