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Lord Advocate v Dunglas

State Trials Cited authorities 16 Cited in Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date28 February 1842
Date28 February 1842
CourtState Trial Proceedings
1 Geo. 2. st. 1 c. 1. Civil List Act
1 Geo. 3. c. 1. Civil List Act
28 Geo. 3. c. 33. s. 13.- Crown Revenues of Scotland
50 Geo. 3. c. 111. Scotch Civil List : Pensions
1 Geo. 4. c. 1. Civil List Act, Scotch revenues
1 & 2 Geo. 4. c. 31. Hereditary Scottish revenues
10 Geo. 4. c. 50. Crown Lands Act
2 & 3 Will. 4. c. 112. Crown Lands (Scotland)
3 & 4 Will. 4. c. 69. Crown Lands (Scotland)
18 & 19 Vict. c. 90. Liability of Crown for costs
19 & 20 Vict. c. 56. Liability of Crown for costs
22 & 23 Vict. c. 21. (cited in text as c. 56.)- Liability of Crown for costs
THE LORD ADVOCATE against LORD DUNGLAS. LORD DUNGLAS against THE OFFICERS OF STATE FOR SCOTLAND. THE LORD ADVOCATE OF SCOTLAND, IN THE NAME AND ON BEHALF OF HER MAJESTY AND OF THE COMMIS- Appellant SIONERS OF WOODS AND FORESTS - - AND THE HON. COSPATRICK ALEXANDER HOME, LORD DUNGLAS,}Respondents. AND CAPTAIN ROBERT CUNNINGHAM - - (FIRST APPEAL.) THE SAID LORD DUNGLAS AND ROBERT CUNNINGHAM Appellants AND HER MAJESTY”S OFFICERS OF STATE FOR SCOTLAND, AND THE LORD ADVOCATE ON BEHALF OF THE COMMIS- Respondents. SIONERS OF WOODS AND FORESTS - (SECOND APPEAL.) JUDGMENTS OF THE HOUSE OF LORDS ON APPEAL FROM THE COURT OF SESSION, FEBRUARY 28, 1842. (Reported in 9 & F. 173 ; 1 Bell,, App. 537.) In 1827 George 4 conferred upon Lord Dunglas for life the office of chamberlain and collector of the rents, revenues, 8cd. of the lands and lordship of Ettrick Forest, at a salary exceeding the annual value of such rents and revenues, and charged the deficiency on another part of the hereditary revenues of the Crown of Scotland. In actions commenced in the subsequent reign to reduce or rescind the grant Held by the House of Lords on appeal from the Court of Session- 1. Prerogative Grant of Pension under colour of Office. That such grant, though purporting to be the grant of an office, was, in fact, the grant of a pension to endure beyond the life of the Royal grantor, and was so far an illegal alienation of the Crown property. 2. Civil List Acts Surrender of hereditary Revenues to Parliament. Per Lord Campbell: The surrender of the hereditary revenues to the use of the public at the beginning of a new reign does not operate beyond the life of the sovereign making the surrender. 3. Attorney General, Right of Reply. Where the Crown is respondent on an appeal to the House of Lords it is not the usage of the House for the Attorney General to have a general reply on the part of the Crown. .4. Liability of Crown for Costs Recognisances Appeal for Costs. The Lord Advocate or other officer suing on behalf of the Crown was not liable for costs even where the suit was improperly instituted.(a) The Lord Advocate, or other officer appealing to the House of Lords on behalf of the Crown, is not required to enter into reccgoisances to meet the costs of the appeal. An appeal will lie from a judgment awarding such costs in spite of the rule against appeals for costs. (a) 18 & 19 Viet. c. 90. ss. 1 and 2, and 22 & 23 ”Viet. c. 56. s. 24, as regards England, and 19 & 20 Viet. c. 56, as regards Scotland, provide that costs may be given against the Crown in certain cases ; hut see Mews v. Reg. 8 App. Ca. 353n. o 67432. A A 739] The Lord Advocate agai These appeals were brought against several interlocutors of the Court of Session in Scotland in two actions instituted there in different forms, but with the same purpose, namely, to rescind a grant made to Lord Dunglas " of the office of chamber. lain and collector of rents, revenues, feu duties, and other casualties of superiority payable to the Crown out of the lands and aordship of Ettrick Forest, in the shire of Selkirk, part of the hereditary revenues of the Crown of Scotland." The office having become vacant in 1827 was granted to Lord Dunglas by King George 4. by commission under the .Great Seal of Scotland, issuing on a warrant under His Majesty”s sign manual dated July 27, 1827. The warrant em. powered Lord Dunglas to appoint a deputy or deputies to collect the said revenues, and recited that "his said Majesty as well in consideration of the said office as out of his royal bounty " was pleased to grant to Lord Dunglas a yearly salary of 3001. and 201. to his deputy, both salaries to be payable " out of the moneys of the said collection, and wherein they come short, out of the first and readiest of the rents, revenues," &c. payable to the Crown out of the lands and lordship of Dunbar. Lord Dunglas entered on the office under this commission, and appointed Captain Robert Cunningham his deputy. The annual amount of the rents and revenues of Ettrick Forest which they collected .amounted to 2351., and the difference between that sum and 3201., the amount of their salaries, was paid to them out of the revenues of the lordship of Dunbar according to the terms of the grant. After the passing of the Act 3 & 4 Will. 4. c. 69., by which the administration of the hereditary revenues of the Crown of Scotland w as transferred to the Commissioners of Woods and Forests, the attention of the House of Commons was called to the subject of the grant to Lord Dun-plea, and a resolution was passed, directing the Law Officers of the Crown in Scotland to institute proceedings to set -aside the grant. The Lord Advocate having raised au action in May 1824 in the Court of Session in the name and on behalf of the King and of the Commissioners of Woods and Forests against Lord Dunglas and his deputy Captain Cunningham for the reduction of the grant, the Lords of the Second Division, on the 24th of December 1836, pronounced the following interlocutor, dismissing the suit on a preliminary defence taken by the defenders to the title of the pursuers :- " The Lords, &c. sustain the objection to thenet Lord Dunglas, 1842. [740 title of the pursuers to insist in their actions ; dismiss the same accordingly, and decern ; find the Commissioners of Woods and Forests liable to the defenders in the expenses of the process ; allow the accounts to be given in, and therefore remit to the auditor to tax the same and report." On February 10, 1837, their Lordships pronounced a final interlocutor for payment to the defenders of 2841. 14s. 8d. of expenses of process. From these interlocutors the Lord Advocate presented a petition of appeal to the House of Lords on February 18, 1839. In the meantime, and on the 6th of February 1837, a new action was instituted in the Conrt of Session against the same defenders and for the came purpose- " at the instance of Our well-beloved cousins, &c., William, Duke of Argyll, Keeper of Our Great Seal of Scotland ; Robert, Viscount Melville, Keeper of Our Privy Seal of Scotland ; the Right Hon. William Dundas, Our Clerk Register ; David Boyle, Our Justice Clerk ; and John Archibald Murray, Our Advocate ; Our Officers of State for Scotland, for Our interest ; and the said Right Hon. J. A. Murray, Our Advocate, for and on behalf of Our Commissioners of Woods and Forests, &c., in the terms of an Act passed in the third and fourth years of Our reign, c. 69, and Acts therein recited for any interest they have in the premises pursuers." In this action, by which the validity of the grant was finally determined, the reasons assigned for reducing or rescinding the grant, after the first or formal one, were as follows : "Seczollio. That George the Fourth had no power or authority to make, give, or grant the same, at least to the effect of the said warrant, commission, grant, or letters patent enduring or having effect beyond the period of His said late Majesty”s demise. " Tertio. The said warrant, commission, grant, or letters patent, under the narrative and disguise of a grant of office of chamberlain or collector of the rents and revenues of Ettrick Forest was and is unwarrantable, illegal, and inept, as an alienation; and for a period exceeding the reign of His Majesty, the granter thereof, of the whole revenues of the lands and lordships specified in the said grant, and also of a large part of the rents and revenues of the land and lotdship of Dunbar. "Quarto. The said warrant, and the said commission, grant, or letters patent in so far as they purport to give and grant to the said Honourable Cospatrick Alexander Home, commonly called Lord Dunglas for all the days of his natural life, an annuity or yearly salary out of the rents, revenues, feu duties, and other casualties of superiority of the lands and lordships of Ettrick Forest and Dunbar, forming parts and portions of the hereditary revenue of the Crown in Scotland were ultra sires of his 741] The Lord Advocate agai said late Majesty King George IV., inasmuch as the said hereditary revenue having been surrendered without reserve to the disposal of Parliament on the accession of his said late Majesty, was afterwards settled upon his said late Majesty for his life only, whereby it was beyond the power of his said late Majesty to alienate, burden, or affect the same in anyway by grants to have effect or be operative beyond the period of his demise. " Quint. The settlement of the said hereditary revenue made at the accession of his said late Majesty, for the period of his natural life having come to an end upon his demise, such hereditary revenue was upon Our accession again placed by Us at the disposal of Parliament and by Parliament thereafter made part of the Consolidated Funds, subsequently vested in the Commissioners of Our woods, forests, lands, revenues, works, and buildings in terms of, and for the purposes expressed in, the said Act of the third and fourth years of Our reign above referred to, and the Acts therein recited, whereby the said Commissioners have now the sole and undoubted right to the whole hereditary and land revenues of the Crown in Scotland whereof the rents, revenues, feu duties, and other casualties of the superiority of the lands and lordships of Ettrick Forest and Dunbar form parts and portions ; and, further, by the said illegal grant We are prevented for an indefinite period, from...

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