BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
The Earl of Lauderdale v The Town of Haddington. [1709] 4 Brn 739 (18 February 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040739-0238.html Cite as:
[1709] 4 Brn 739
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Lauderdale v. The Town of Haddington
Date: 18 February 1709
Click here to view a pdf copy of this documet : PDF Copy
The Lord Justice-clerk reported the Earl of Lauderdale against the Town of Haddington. Of old, when the burgh of Haddington fitted their œqué in Exchequer, they paid £15 Scots, as their burgh-maill due to the crown: but, 40 shillings Scots of this being given off by the crown to the abbots of Dunfermline, they paid only £13 Scots to the crown, and got deduction and retention, in their own hand, of the 40 shillings given off to the abbot.
In King James VI.'s reign all these feu-duties were raised and augmented, with the alteration of the value of money, to ten times more than they paid at first: So that, for the £13 Scots of old, they now pay L.130 Scots; each twenty shillings being raised to ten pounds Scots. The abbot's right, on the south side of the Forth, being erected to my Lord Thirlstane, he and the Earls of Lauderdale, his successors, had right to the abbot's 40 shillings, due by the burgh of Haddington; and, for sundry years, exacted only the 40 shillings Scots. The present Earl conceiving that his 40 shillings ought to be in sterling money, as well as the burgh-maill paid in to the King, he raises a process against the magistrates of Haddington, for payment of it, at the rate of L.20 Scots yearly, instead of his old 40 shillings Scots; and claims for 39 years back, all above that being prescribed.
Alleged for the Town of Haddington,—That though there was a conversion made of the crown-revenue, augmenting it to a decimal proportion, yet that can never operate in favours of the abbot and his successors, who are only private parties; the reason of the augmentation, viz. to defray the necessary exigencies of the government, ceasing quoad them. Likeas, the Earls of Lauderdale have so understood it, by accepting 40 shillings Scots, as by their discharges appears. And the appropriation of 40 shillings of their feu-duty to the abbot made it become juris privati, and could never be raised to any higher sum, without the Town's consent and approbation; which is not pretended. And, though 40 shillings in our ancient times of frugality went farther than ten times that sum does now, yet that can never burden the Town of Haddington, whose expense has likewise grown proportionally.
Answered,—Their œqué in Exchequer is opponed, bearing, That, out of their £15, they get retention 40 solidorum monetœ onerationis prœdictœ: so the 40 shillings must be of the same specie and value with the L.13 paid in by them to the Exchequer. Likeas, the whole L.15 is originally due to the crown; and the Lords of Erection have only right to these feu-duties under redemption of 1000 merks the chalder; so, they bruiking only in the King's right, it must be all money of the same kind. And though the right of redemption is now discharged by an Act of our last Scots Parliament, in 1707, yet initium est inspiciendum that it was redeemable and under reversion at its first constitution,
The Lords found the 40 shillings due to the abbot and his successors must be the same money with that paid to the Exchequer; and so must have the benefit of the conversion and augmentation.
