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SCOTTISH_HoL_JURY_COURT

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(1757) 1 Paton 632

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

House of Lords

No. 117.

[M. 2340.]

Duke of Roxburgh, Appellant

v.

Jeffrey and Others, (Kelso case) Respondents

18th March 1757.

Subject_Burgh. — Dues and Customs— Servitude— Prescription.—

1 st, Held though the merchants of Kelso could produce no charter or seal of cause, yet that they were a burgh of barony by the charter in favour of the Earl of Roxburgh erecting his lands and the town into a barony. But, 2 d, That their right of entering burgesses, &c., was subject to his regulation and control. 3 d, That they were not entitled to uplift the dues and customs, and their claim to have the past dues and customs applied to the common good of the burgh was prescribed. 4 th, That though they had immemorial possession of a right of bleaching skins, and drying and washing linen on the island of Ana, yet they had not acquired any servitude over it.

Before the Reformation the lands and village of Kelso had belonged to the abbots and monastery of Kelso. They afterwards came into the possession of the Earl of Roxburgh. Thereafter a contract was entered into between His Majesty and the Earl, whereby, on resigning these lands, comprehending the town and lands of Kelso, with the customs and dues of the town, His Majesty agreed to give a charter, “erecting the said town of Kelso, with all and sundry lands, tenements, cottages, houses, and all other pertinents within the territory of the same, in ane free Burgh of Barony, to be called in all time coming the Burgh of Kelso, with all liberties and privileges of Burgh of Barony, and to hold weekly upon Saturday ane market-day,” and “with power to hold two fairs, and with power to this said Earl to elect and choose bailies, clerks, officers,

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and to uplift customs and duties of the same markets and fairs, and also uniting the same lands, “milns, and Burgh of Barony, to be called the Lordship and Barony of Haliden.”

1634.

In terms of this contract a charter was granted to the Earl by the Crown, in terms as above, erecting the Burgh of Kelso into a Burgh of Barony, with right to the Earl to admit burgesses, and to uplift the customs and duties of the market and fairs. It contains no obligation on him to be accountable for these any more than for the rents of the other premises; but it contains this clause, “custumas et divorias earundem recipiendi et levandi, et easdem ad commune bonum dicti burgi applicandi.”

This clause, authorizing the customs and dues to be applied to the uses and good of the burgh, was not in the contract, which was the warrant of the charter.

In the subsequent charters this clause, “ad commune bonum burgi” was omitted: The customs and dues were constantly levied by the Duke, and, until lately, the respondents had but one cause of complaint, which was, that the appellant did not regularly apply the whole customs to the good of the burgh. The Earl never exercised the powers conferred upon him. He never admitted burgesses, who might have constituted a body politic or corporate: but in all time there were bakers, brewers, butchers, and other craftsmen in the burgh, who, in process of time, formed themselves into societies, and made bye-laws, which were approved of by the Earl of Roxburgh, but without possessing any express grant or seal of cause. Having assumed exclusive privileges of a body corporate, in preventing other craftsmen from setting up in town, and the exercise of other rights,

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the late Duke of Roxburgh revoked these regulations, and interfered otherwise with what they conceived their rights; whereupon the craftsmen brought the present action of declarator, to have it found and declared, 1 st, That in virtue of the foresaid charter they had been, passed the memory of man, settled and established into six incorporations, and had enjoyed exclusive privileges of prosecuting their trades within the burgh. 2 d, That the incorporation was entitled to the customs of the weekly markets, and of the two fairs granted for the good of the burgh, and the Duke having uplifted these dues, was bound to apply them to the good of the burgh in terms of the charter 1634. 3 d, That there was a piece of ground lying opposite to the Milns of Kelso, in the river Tweed, described to be the Island of Ana, which the skinners had immemorially made use of for drying their leather and skins, and the whole inhabitants for drying and washing their clothes, until of late they were debarred therefrom. Defences,—1. No erection into a corporation, no seal of cause, and no grant conferring any such privileges. 2. The craftsmen had no right to exact customs or dues, or to prevent other craftsmen from setting up in the burgh; and the charter 1634 founded on did not confer on them any such exclusive privileges. The claim on the Duke to apply the customs and dues uplifted in times past, to the common good of the burgh, was prescribed by the negative prescription. 3. The Duke of Roxburgh, being proprietor of the lands on both sides of the river Tweed, both above and below the island in question, the said island, called Ana, situated in the middle of the stream, which had been recently separated from his other lands, by an irruption of the river, was in law a part of his

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property, and he was entitled to exclude the craftsmen and the inhabitants of the burgh therefrom, who could neither allege nor prove any right of property, or right of servitude over it. They had no title from him, or any other. And there was no prædium dominans belonging to them, to which such servitude could attach.

17th Nov. 1753.

12th Jan. 1755.

The Lords, of this date, found that the “pursuers, the merchants, and the several crafts, are incorporations, having perpetual succession, subject nevertheless to such proper regulations as the Duke of Roxburgh and his successors, Barons of the Burgh of Kelso, shall by themselves or their bailies make, touching the government of the said corporation, or admission of new entrants; the said regulations being always for the good and well-being of the said corporation and burgh. And found, and hereby find, that the Duke of Roxburgh, by his rights erecting the said burgh, is obliged to apply the whole revenue arising from the customs of the weekly markets, and two annual fairs, for the good of the town, and that the application of the custom, commonly called the spoon and ladle, for a salary to the bailie of the said burgh, is a proper application thereof, and for the good of the burgh; and found and hereby find it proven by the defender's admission, that the burgesses, inhabitants of the said burgh, have been immemorially in the constant uninterrupted possession of whitening and drying their linen on the island called the Ana or Sandbed. And therefore found and hereby find them entitled to continue their said possession of whitening and drying their linen there as formerly, and remitted to the Lord Ordinary.” On petitions and representations the Court “adhered, and hereby adhere, to the first part

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of their former interlocutor, finding the pursuers, the merchants and several crafts of the town of Kelso, are incorporations, having perpetual succession, subjected to such proper regulation as the Duke of Roxburgh and his successors, Barons of the Burgh of Kelso, shall by themselves or their bailie make, touching the government of the said incorporations; repelled and hereby repel the defence offered for the Duke with respect to the application of the customs and duties of the two annual fairs and weekly markets; and repelled, and hereby repel the defence made for the Duke, founded on the charter 1747, and subsequent charters granted by the Crown to the Duke's predecessors; and repelled and hereby repel the defence of the positive and negative prescription with respect to the custom of the fairs and weekly markets; and repelled and hereby repel the defence of the right to the customs, alleged to belong to Learmont and Healley, in respect no such right is produced. But granted diligence, at the defender's instance, for recovering these rights; and when they are recovered, remitted to the Lord Prestongrange, in place of the Lord Elchies, to hear parties' procurators thereon, and to do therein as he should see cause: and found, and hereby find it proven, by the defender's admission, that the burgesses and inhabitants of the said burgh have been immemorially in the uninterrupted possession of whitening and drying their linen upon the island called the Ana or Sandbed; therefore found and hereby find them entitled to continue the said possession, and remitted to the Lord Ordinary to hear parties' procurators how they are to have access to the use of the said Ana or Sandbed, with the least prejudice

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to the defender's the Duke of Roxburgh's property.”

11th Feb. 1755.

After another petition the Court adhered. Against these interlocutors the present appeal was brought.

Pleaded for the Appellant:—1 st, That the respondents were never erected into a body corporate, and could not hold exclusive privileges as such. That they were never so erected by any of the grants from the Crown above set forth; all these grants being in favour of the Earl of Roxburgh, with power to him and his successors to admit free burgesses as they should think fit; and the Earl had never created any bodies politic or corporate within the Burgh of Kelso; and until this was done no acts or regulations of their own could constitute them into a corporation. 2 d, That the charter 1634, with the clause, “ et easdem ad commune bonum dicte burgi applicandi,” did not confer the privilege of corporation, or any right to exact the dues and customs. These were conferred on the Baron; and the clause therein of applying them to the common good of the burgh did not originally form a part of his right, and was consequently, in the charter of 1647 and subsequent charters, entirely omitted. 3 d, In regard to the island, this being his exclusive property, the pursuers adduce no title or right to the same acquired from him. They do not aver any title by which they could acquire a right by prescription. Nor could the use of it for bleaching and drying belong to them as a right of servitude, because there was no dominant tenement for whose benefit it could be acquired.

Pleaded for the Respondents:—l st, The burgesses and inhabitants of the burgh of Kelso are corporations, having perpetual succession, which are not liable to be abolished and extinguished at the pleasure of the Duke of Roxburgh. They have enjoyed

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privileges as a corporation for time out of mind, subject to regulations approvable by the Baron; the latter only exercising his right for their common good. 2 d, The erection of the town of Kelso into a Burgh of Barony, although contained in the charter in favour of the Earl, was a sufficient title to them, and a sufficient seal of cause; and seeing the Earl had levied the dues and customs himself, and was bound to apply them to the common good of the burgh by the earlier charter of 1634, it made no difference that the subsequent charters omitted this clause, as the burgh had been in immemorial use and wont of exacting these dues, and applying them to the common good of the burgh. 3 d, And as to the island of Ana, by charters 1614 and 1634, the burgh is erected “cum omnis et singulis terris, tenementis, &c., et singulis suis pertinentiis,” and the burgesses and inhabitants having possessed the island as a pertinent, the same must be presumed to be comprehended within the grants of the Crown, which being confirmed and followed by prescriptive possession, is at once a sufficient title.

After hearing counsel upon the

18 th February 1755, adhering thereto, so far as the same are not reversed or varied as aforesaid, be, and the same are hereby affirmed.

Counsel: For Appellants, Rob. Dundas, C. Yorke.
For Respondent, Al. Forrester, Al. Wedderburn.

Note.—The particular ground upon which the reversal in the House of Lords proceeded, in regard to the island of Ana, not being known and not appearing, leaves the case in uncertainty; but as the House of Lords has sustained the Duke's special defence on this head, the grounds of the reversal must, it is presumed, be found within that defence.

Lord Kames, as to the first point, says that “the difficulty in the case was, that no seals of cause were produced. This difficulty was surmounted upon the following considerations. By the erection of a village into a burgh of barony, &c., the houses are incorporated into one feudal subject, and the inhabitants are also united into an incorporation, which holds the feudal subject of the Baron. Next, by erection of every burgh, whether of royalty, regality, or barony, certain exclusive privileges of trade are understood to be granted to the incorporation; because such is the purpose and motive for erecting a burgh. Therefore the town of Kelso enjoys those exclusive privileges without the necessity of alleging that seals of cause were granted by the Baron.” Ont he second point he says,—“The defence was, that this claim was lost by the negative prescription.”—Kames, p. 98 et 100; Elchies, p. 100, Notes.

1757