Scottish Court of Session Decisions

Subject_1 TERCE.

Margaret Park
v.
William Gib

Date: 15 November 1769
Case No. No. 36.

Terce due from tenements in boroughs of barony.

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Margaret Park, widow of James Gib, several years after her husband's death, purchased a brieve, in order to be served before the Sheriff of Renfrew, to a terce of an old tenement in the borough of Paisley, in which her husband James Gib had died infeft.

William Gib, the son and heir of James Gib, opposed this claim; to which he offered several objections, which the Sheriff repelled. William Gib advocated the cause; and the Lord Ordinary, before whom the advocation came, repelled the reasons of advocation and, remitted the cause simpliciter.

Pleaded in a petition to the Court for William Gib, 1mo, Terce is not due out of burgage-tenements; 2do, The subject in question is a burgage-tenement, situated in the borough of Paisley, the proprietors of which hold burgage.

Upon the first point, it was contended, that every writer on the law of Scotland had laid it down as established law, that no terce was due out of burgage-tenements; and reference was made to a number of authorities, to show that such was the law.

But the determination of the question seemed to turn chiefly upon the second point stated for William Gibb, that the subject out of which the terce was demanded was a burgage tenement. And upon this point he argued, that, though Paisley was not a royal borough, yet it was a borough erected by the King, founded upon special grants, with ample privileges, and holding of no subject-superior. The proprietors of tenements within the borough hold them in capite of his Majesty, by that species of holding called burgage, and are entered and seised by the magistrates, acting as the King's bailies, in the same manner as practised in royal boroughs.

In 1488, the town of Paisley was, by a charter from King James IV. erected into a free borough of barony, in favour of the then Abbot of Paisley, with very ample liberties and privileges. In 1496, the Abbot and Convent granted a charter to the magistrates, burgesses, and community of Paisley, of the said borough of Paisley, and whole lands and subjects thereof, with sundry rights and privileges. Upon the Reformation, the superiority of this borough returned to the Crown, by the act of annexation 1587; and, in 1665, William Lord Cochran, lord of erection of the abbacy of Paisley, and William, master of Cochran, his son, together with the magistrates, council, and community of the borough, granted procuratory for resigning the borough in the hands of the Crown, for new infeftments to be granted by his Majesty to the magistrates, town-council, and community, and their successors in office; and upon this resignation, a charter was granted by King Charles II. granting and disponing, “dilectis nostris balivis, thesaurario, consiliariis, et communitate burgi de Pasleto, suisque successoribus, totum et integrum burgum et villam de Pasleto, cum acris burgalibus, croftis, tenementis, domibus, &c. cum foris, nundinis, privilegiis, aliisque quibuscunque pertinen. ad dictum burgum; cum potestate faciendi, eligendi, renovandi, et mutandi præpositum, balivos. burgenses, officiarios, aliaque membra dicti burgi de Pasleto;” with fairs, markets, tolls, customs, and a variety of other privileges.

In terms of these charters, the magistrates have immemorially exercised the same jurisdiction that is competent to magistrates of royal boroughs, secundun statuta et leges burgorum; they receive resignations of the burgage lands, give sasine the rein, ut mos est inburgo; they enter heirs by hasp and staple, in the same manner as is practised in royal boroughs; the borough is the King's vassal; the burgesses hold immediately of the Crown; the magistrates, in receiving resignations and giving infeftments, act as the King's bailies; they have every characteristic of a borough, holding courts, creating burgesses, self-government, &c. all which privileges are, by their charters given them, adeo plenarie, integre, et honorifice ut burgi de Dumferling, Newburgh, et Aberbrothock: And though they do not send a delegate to the convention of royal boroughs, or a representative to Parliament, that cannot annihilate or take away the privileges of the borough. Lands may hold burgage in other boroughs, as well as in royal boroughs. It never has been doubted, that the lands and tenements within the liberties of the borough of Paisley are burgage. The burgesses are called out to watch and ward for the protection of the borough, under the authority of the magistrates, and are, in every respect, considered as burgesses; nor can any instance be pointed out wherever a terce was so much as claimed by the widow of a burgess of Paisley.

Answered for Margaret Park: It cannot be denied, that the writers on the law of Scotland have laid it down as a fixed maxim, that terce does not extend to burgage tenements; but it is remarkable that none of them have been able to assign any reason for such maxim being received in our law, which, as appears from the Regiam Majestatem, and Leges Burgorum, and Balfour's Practicks, was not antiently the law of this country, but which it is, in this case, unnecessary to insist upon, as the tenement in question is not a burgage-tenement, Paisley not being a royal borough. A burgage-tenement or burgage-holding applies only to a tenement in a royal borough, or that kind of holding peculiar to royal boroughs, and cannot be extended to boroughs of regality or barony, no more than summary arrestments, or other privileges peculiar to royal boroughs. Paisley is no more than a borough of barony; so it appears from the charter of King James IV. in 1488, in favours of the Abbot of Paisley, and charter from the Abbot and, Convent of Paisley in 1490, in favours of the magistrates; and though, upon the Reformation, the superiotity of this borough returned to the Crown, that made no alteration, as the borough must hold of the Crown, in the same manner it formerly held of the Abbots of Paisley; and, as in the charters in favours of Abbots, it is described as a borough of barony, it must still remain such: Neither will it alter the case, that, in this borough, heirs are entered in the same manner as in royal boroughs: Such is the case with Musselburgh, and other boroughs of barony; yet these boroughs cannot claim the same privileges with royal boroughs. Paisley stands not on the rolls of Parliament; it sends no commissioner to Parliament, nor to the convention of royal boroughs; neither does it pay any part of the -supply as a royal borough; from all which it is evident, that it is no more than a borough of barony; and, as the restriction as to terce relates solely to royal boroughs, of consequence, a terce must be due in this case.

“The Lords adhered to the Lord Ordinary's interlocutor, repelling the objections to the claim of terce.”

For Gib, Ilay Campbell. For Park, Robert Sinclair. Fac. Coll. No. 99. p. 354.