Scottish Court of Session Decisions

The late Earl of Rosslyn held the office of Director of Chancery in Scotland. In 1830, he granted a commission, narrating that the office of writer and clerk in Chancery was then vacant and at his disposal, and nominating his son, Lord Loughborough, and John Dundas, W.S., jointly and severally during their respective lives, and the life of the survivor of them, to be sole writers and clerks, or writer and clerk of Chancery in Scotland, with full power to them, and the survivor of them, exclusively to extend all charters, &c. and to dispatch all business belonging to that office, and to receive the whole fees, &c. The Earl of Rosslyn died in January, 1837, and the Lords of the Treasury, being advised that the above commission granted by his Lordship had thereby fallen, proceeded by a Treasury minute to regulate the offices both of Director and Clerk of Chancery, in terms of 57 G. III. c. 64, which conferred on them that power when a vacancy occurred. One object of the statute was to provide that the persons appointed to offices, should personally perform the duties of these offices. It was enacted by the statute, § 11, that the amount of salaries or allowances to be enjoyed by the Director and the Clerk should be regulated by the Lord High Treasurer, or Lords Commissioners of the Treasury, “Provided always, that any fees at present charged or chargeable for or in respect of any of the said offices respectively, shall continue to be received, and the same shall be applied in the payment of the salary or salaries, allowance or allowances, authorized by this act to be granted or made in each of the said offices in which such fees shall be received; and if any balance of such fees shall remain, after paying and satisfying such salaries or allowances respectively, the same shall be paid, at least once in three months, to the Receiver-General of Scotland, and shall by him be paid and accounted for in the same manner with any public monies received and accounted for by him.”

By the Treasury minute it was resolved that one person ought to be appointed both to the office of Director and that of Clerk, and that “he should discharge the duties and collect the fees under the existing regulations, the whole of the fees so collected to be accounted for to this Board:” and that a salary of £600 should be allowed to the person so appointed. This minute was communicated to the Home Secretary, and a commission was granted, conferring the offices both of Director of Chancery and Clerk of Chancery on Roger Aytoun, W.S., in virtue of a warrant or sign-manual by the King, which was duly registered and sealed at Edinburgh, on May 1, 1837. The commission proceeded on the narrative that both of these offices were vacant; it regulated the duties of Roger Aytoun, conformably to the Treasury minute, and it declared that these offices were to be fulfilled and enjoyed by him, with a salary of £600 per annum; “Providen. semper quod munera dict. unitorum officiorum per dict. Rogerum Aytoun, in propria persona fungentur,” under certain qualifications.

In October, 1837, Aytoun raised a summons of declarator, reduction, and count and reckoning against Lord Loughborough, now Earl of Rosslyn, and John Dundas, libelling that he was duly appointed to the offices of Director and Clerk of Chancery; that he was entitled exclusively to perform the whole business of these offices, and to uplift the whole fees; that the defenders' right to the office of Clerk of Chancery was originally invalid, or at least fell by the death of the late Earl of Rosslyn; that they nevertheless contended that their appointment was valid during their joint lives and the life of the survivor, and refused to cease from performing the duties and levying the fees of Clerk of Chancery. Aytoun concluded for declarator, that the right of the defenders fell, at latest, by the death of the late Earl of Rosslyn; that the pursuer had the only good right to the office of Clerk of Chancery; that the right of the defenders should be reduced; and that they should be ordained to account to him for the fees uplifted since May 1, 1837.

The defenders pleaded that the pursuer had no title to reduce their commission. His whole patrimonial interest in his appointment was a salary of £600 per annum, and he had no right to the fees on his own account. The whole fees were to be accounted for to the Treasury Board, and the pursuer was merely a collector for them. In these circumstances this reduction and count and reckoning could only be pursued by the Lords of the Treasury, or the Officers of State.

The pursuer answered that his commission proceeded on the narrative that the office of Clerk of Chancery was vacant. It conferred on him the right to that office, and enjoined on him the performance of its duties. It was true, that, in place of his emoluments, consisting, as formerly, of the fees, there was a fixed salary allowed to him; but he was bound to uplift the whole fees, and his salary was payable out of them, it being only the surplus which he was bound to pay over to the Treasury Board. Being enjoined, therefore, to perform the business of the office, and to uplift the fees, all which the defenders alleged was excluded by the prior right to the office enjoyed by them, it followed that, whatever might prove to be the merits of his action, his title and interest to pursue it were undoubted.

The Lord Ordinary, “in respect the pursuer's commission from his late Majesty, as Director and Clerk of Chancery, is produced, and in respect of the terms thereof, repelled the preliminary defences; and, in respect the defenders have intimated that they are not to acquiesce in this interlocutor, found the pursuer entitled to expenses, in terms of the statute.” ^*

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* “ Note.—Had this question occurred at, the stage when it was necessary to decide the case on the merits, the Lord Ordinary, for various reasons, would not have delivered it, but taken it to report. As the present, however, is a mere incidental question, raised on the form of the action, apart altogether from the merits, he has considered himself bound to give a decision, in order to forward the preparation of the cause.

“In judging of title, the reasons of reduction must, of course, be assumed as relevant and true. But the reasons here set forth are, 1st, That the appointment given to the defenders, by the late Director, was ultra vires; and, 2d, That the said appointment was contrary to the provisions of the act 57 Geo. IV. cap. 64.

“Now, it appears to the Lord Ordinary that the pursuer, as the party holding a commission from his late Majesty to the joint offices of Director and Clerk of Chancery, ex facie, valid and unreduced, is the proper party to insist in such a challenge as the present. He is the Director of Chancery, and, of course, has all the powers belonging by law to that office; and he is also the Clerk, appointed to that office by commission from the King. As the holder of these offices, it is thought that he has the only legal title to reduce an appointment said to have been given by his predecessor contrary to his powers.

“Such a challenge is not necessary on the part of the Crown (as in Lord Dunglass' case), because the defender's commission did not flow from the King; and it is not necessary, and, perhaps, not competent, at the instance of the Lords of the Treasury, because they have not (in law) the right of appointment, but merely the right to regulate the duties of the office.

“If the statement in the summons, however, be correct in law, the pursuer is the only party now legally entitled to exercise the office; and, if so, he is entitled to interdict the defenders from interfering with him, and, of course, to reduce the defender's title, in so far as it excludes the pursuer from one of the offices granted to him.

“The defenders seemed to admit, in argument, that, if the pursuer had been appointed Director of Chancery, with a power in his commission to name his clerks, he could have maintained the present action. But this right does not appear less broad, when he is himself named both Director and Clerk. He has thus both offices in his own person, and all the powers which, by another form of commission, he might have been empowered to devolve on another.”

The defenders reclaimed.