Scottish Court of Session Decisions

This was an application for authority to uplift certain consigned money. The petitioners were proprietors of certain heritable subjects in Couper Street, Leith. On 24th October 1865, they received notice from the North British Railway Company that they required to purchase under Acts of Parliament obtained by them a portion of the said subjects, and demanding from them the particulars of their interest therein, and the claims made by them in respect thereof, and giving them notice that the company was willing to treat for the purchase of the subjects and as to the compensation to be made.

On 23d November 1865, the petitioners sent in a claim in which they set forth that they were owners of the subjects, called upon the company to take the whole of the subjects, and claimed £270 as compensation.

On 20th January 1866, the company, with the view of entering upon the subjects in virtue of the Lands Clauses Consolidation Act, consigned in bank the sum of £270, being the amount claimed, and tendered a bond. The deposit receipt bore, in terms of the act, that the consignation was made “subject to the control and disposition of the Court of Session.”

The petitioners thereafter agreed with the company to accept £250 as compensation, and the titles were sent to their agents with a view to a conveyance being prepared. The petitioners offered, in implement of their statutory obligation to grant a title, to give the company an assignation by the trustees of the Scottish Property Investment Company (who held an ex facie absolute assignation of the personal right and title of the petitioners in security of advances) of their personal right and title, and to become consenting parties thereto. This the railway company refused to accept, in consequence of certain alleged defects in the prior titles.

The petitioners thereupon presented this application for authority to uplift £250 of the consigned fund, they, at the same time, giving the company the assignation which they had tendered. They founded on sections 84 and 85 of the Lands Clauses Consolidation Act.

The railway company lodged answers, in which they stated that the application was, by reason of the terms of section 86 of the Lands Clauses Act, incompetent. A bond had been tendered by them previous to their entry to the lands, which was by the act equivalent to granting a bond, and there was no condition of that bond which had not been fulfilled by them. They were willing to settle the price on their objections to the title being removed.

Their objections to the title were—“1. That no prescriptive title had been produced to the respondents. 2. That the petitioners are not infeft. 3 That the petitioners have only a right to a pro indiviso half of the subjects, in respect that the subjects had been at one time held under a disposition and sasine in favour of the then deacon and boxmaster of the barbers of Leith, nominatim, and their successors in office, for the use and behoof of the said incorporation, and that the subjects have never been taken out of the haereditas jacens of one of these persons, but still to the extent of one pro indivisohalf thereof remain with his heirs. Mr Johnston, the deacon to whom the title was so taken, died without conveying his right and interest in the subjects; and in 1817 the then deacon, together with the old boxmaster, who still survived, pretended to dispone the subjects to the petitioners' authors. 4. An important part of the petitioners' subjects was and is omitted in the charter of resignation in their favour. This objection the petitioners proposed and did attempt to remedy by getting the omitted portion of the description put on the margin of the charter, and signed after the objection was taken, in order that it might pass as if signed of the proper date of the deed, as is shown by the respondents' agents' letter of 30th April 1866, and the charter of resignation as it now stands, which the petitioners have produced. The charter is No. 19 of process.”

The Lord Ordinary (Mure) pronounced an interlocutor, in which he repelled the objection to the competency, and found, with reference to the annexed note, that the respondents are not bound to accept the title offered by the petitioners until the objection taken to the charter of resignation No. 19 of process is removed. The following is his Lordship's

Note.—The object of the present application is to obtain an order on the City of Glasgow Bank for payment of a sum of money deposited by the

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respondents, under the provisions of the 84th section of the statute 8 and 9 Vict., cap. 19, regulating the conditions upon which railway companies are to be allowed to enter upon lands before any agreement is come to, or award made as to the price to be paid for the lands; and with reference to which the 85th section provides that money deposited in terms of the 84th section shall be paid into the bank, there to be ‘subject to the control and disposition of the Court of Session.’

The receipt under which the money in question was deposited bears that it was consigned, ‘subject to the control and disposition of the Court of Session;’ and assuming the present question to turn upon the 85th section alone, the Lord Ordinary is, in these circumstances, unable to see why a summary application to this Court to regulate the ‘control and disposition’ of money deposited under the 84th section of the statute should not be a competent mode of proceeding under the 85th section, as it admittedly would have been in the case where money had been deposited under the 75th section, in which the very same expression, ‘subject to the, control and disposition of the Court of Session’, is used. It is, however, objected on the part of the respondents, that this case must be determined upon the 86th section of the statute, which, they contend, alone gives jurisdiction to this Court to deal with money deposited by way of security. The Lord Ordinary doubts the soundness of this contention. But, assuming it to be necessary to have recourse to the 86th section, its provisions would not, in the opinion of the Lord Ordinary, in any respect affect the competency of this application. It provides (1) for applications at the instance of the promoters of the undertaking where the conditions of any bond, granted under the provisions of the 84th section, have been performed, in which case the Court of Session are authorised to order the money to be repaid to the promoters; and (2) for the case where such conditions shall not be fully performed, in which case the deposited money is to be applied as the Court ‘shall think fit for the benefit of the parties for whose security the same shall so have been deposited.’

In the present case no bond was granted, because none was required by the petitioner. But one is alleged to have been tendered, as explained in the minute given in by the respondents, containing the leading obligations or conditions of the 84th section of the statute—viz., an obligation to pay a sum equal to the sum deposited by way of security, or to make a deposit in bank of all purchase money or compensation which may be determined to be payable by the promoters, with interest at 5 per cent. till payment. Now, assuming that the 86th section applies to the case of tendering as well as granting a bond, as contended for by the respondents, these conditions have neither of them been performed. No sum equal to the sum deposited under section 84th has been paid to the petitioner; neither has any such farther sum with interest been deposited in bank. And that being so, a case appears to the Lord Ordinary to have occurred, in which the Court of Session is authorised by section 86th to interfere. So that, under whichever section the case is dealt with, there is in the opinion of the Lord Ordinary no incompetency in the present application, which is brought in order that it may be determined whether the money ought now to be applied for the benefit of the petitioner, for whose security it was deposited.

The title offered in the present case flows from the same parties as in the case of Thomson, viz., the vassals under the feu-contract No. 8 of this process, and, apart from the objection taken to the charter of resignation, is not in the opinion of the Lord Ordinary, one which the respondents are entitled to reject, provided the petitioners show, by a complete search, that no competing right has been created since the date of the infeftment upon the disposition, No. 9 of process.

That disposition is taken to Henry Johnston, deacon, and William Andrew, boxmaster of the Incorporation of Barbers, not for themselves as individuals, but as deacon and box master ‘for the use and behoof of the Incorporation, and to the disponees of the deacon and boxmaster for the time being, authorised by a special sederunt for that purpose,’ &c. Now, although the word trustee is not used as descriptive of the character of the nominatim disponees, the conveyance wan plainly one in trust for the incorporation. It was therefore qua trustees that the disponees were in feft on the conveyance;and as the disposition, No. 11 of Process, to which objection is taken, was granted by the then deacon and boxmaster as specially authorised, and also by William Andrew, the former boxmaster, and survivor of the officers in whose person the original trust title had been created, it appears to the Lord Ordinary that the objection taken by the respondents to this disposition is not well founded, because, upon the authority of the case of Gordon's Trustees v. Eglinton, July 17, 1851, the surviving boxmaster had, it is thought, a good title as surviving trustee, to convey, when duly authorised to do so by the incorporation.

If, then, the charter of resignation had been free from objection, the Lord Ordinary, would, in these circumstances, have been disposed to grant the prayer of the application upon the petitioners delivering to the respondents a conveyance to the title now held by the Property Investment Company. But that charter is defective, inasmuch as a part of the subjects in question was omitted from the body of the deed, and only inserted on the margin several years after the date of the charter. The deed is therefore one which the respondents are not, in the opinion of the Lord Ordinary, bound to accept as a valid title from the superior to the whole of the subjects, for it is open to the objection that it is not correct in point of fact that a charter bearing that marginal addition was signed on the 14th of November 1861, as stated in the testing-clause.

The objection is, however, one which may, it is thought, be cured without much difficulty by getting a new charter from the superior to the whole property, or a supplementary charter to the omitted portion. Or it might perhaps be held to be obviated by an addition to the testing-clause to the effect that the marginal addition was signed before the same witnesses of the date on which the signature to it was adhibited. But as this is a point not free from doubt, the petitioners are, it is thought, bound, if the respondents insist upon it, to rectify the matter in some other way.

“D. M.”

The respondents reclaimed, but before this was done the petitioners lodged a prescriptive progress of titles in process and the following minute:—

M'Laren, for the minuters, with reference to the Lord Ordinary's interlocutor of 17th January current, and without prejudice to their pleas in the event of the said interlocutor being brought under review,

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stated to his Lordship that the petitioners proposed to remedy the objection therein stated to the charter of resignation, dated 14th Nov. 1861, by getting a supplementary charter from the superior, embracing the subjects mentioned on the margin of the said charter, and which supplementary charter the superior was willing to grant.”

Solicitor-General and Thoms, for the company, argued—1. The petitioners were not under sec. 86 of the Act entitled to make this application until breach of the conditions of the bond. If the title offered was sufficient, the application was competent, but under sec. 75 the company are the judges of its sufficiency. The connection and effect of those sections is the subject of remark in Willey, 10th Feb. 1849, 6 R.C., 106. 2. The title offered was not a good title, as it had been taken to two persons, and one-half of the subjects had never been taken out of the haereditas jacens of one of them. Black v. Lorimer, 25th June 1822, 1 S. 521; 3 Juridical Styles, p. 431; Campbell v. Orphan Hospital, 28th June 1843, 5 D. 1278 (Lord Medwyn's opinion); Gardner v. Trinity House of Leith, 23d Jan. 1845, 7 D., 286.

Clark and M‘Laren, for the petitioners, replied—1. In arguing the question of competency the title must be assumed to be good, and if good, the competency is not questioned. 2. The title is unexceptionable. The property was held by the office-bearers as trustees, and the right of the deceasing trustee accresced to the survivor. But, farther, the beneficial right was really in the incorporation, and the office-bearers for the time being were entitled to dispone. Gordon's Trustees v. Eglinton, 17th July 1851, 13 D., 1381; Finlay, 30th June, 1855, 17 D. 1014; at any rate, the corporation could assign, and thereby enable the railway company, by declaratory adjudication, to make up a good title. Graham v. Caledonian Railway Company, 27th Jan. 1848, 10 D. 495. At advising,