CHALMERS & Ors, v MAGISTRATES of PAISLEY (Court of Session)

In 1666, the magistrates passed an act of council declaring, ‘that ilk person that held of the lords of erection before, their singular successors shall pay of composition, for their entry, the eighth part of a year's rent, provided that this act shall not be extended to tenements that formerly held properly of the town, nor to the entry of heirs as formerly; and that ilk heir shall pay the double of their feu-duty the first year of their entry.’

In 1656, the Magistrates passed an act of council regulating the amount of composition to be paid by the town-vassals at entering with the town as superiors. By these regulations, a singular successor was to pay for a house one-eighth of the rent as composition, &c. The rate of entry for booked vassals was likewise declared. These rates appear to have been uniformly observed in practice, until the proceedings which gave rise to the present action.

In 1805, the Magistrates passed another act of council, referring to the rates of composition established in 1756, and increasing these rates from one-eighth to one-fourth.

Matters remained in this state down to the act 1633, c. 14, before which period the burgh had been erected into a temporal lordship, and the feuars held of the lords of erection. The effect of that act was to make feuars who had previously held of the lords of erection the immediate vassals of the Crown; and, in this way, the Bailies, in exercising the power of giving entries, &c. became the commissioners of the Crown.

The Magistrates had no power to pass these acts. The feuars being vassals of the Crown, the Crown could not interpose upon them the lord of erection, or any other subject superior, without their consent; Stewart v. Laird of Abbotshall, 6th Nov. 1610, Fol. Dict. ( Mor. 15,012); Duke of Montrose v. Colquhoun, 31st Jan. 1781 ( Mor. 15,017).