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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Drummond Hay, Petitioner [1873] ScotLR 11_81 (20 November 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0081.html Cite as: [1873] ScotLR 11_81, [1873] SLR 11_81 |
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Page: 81↓
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An heir of entail in possession petitioned the Court for authority (1) to uplift a certain sum of money paid under an Act of Parliament by a Railway Company as compensation for certain portions of the entailed lands acquired by them; and further, (2) to apply this money in repayment pro tanto of sums expended on improving the entailed estate.— Held, on an objection raised against the Auditor's report, that the common expenses incurred in serving the double purpose of the application must be borne equally by the petitioner and the Railway Company.
This was a petition at the instance of Mrs Charlotte Elizabeth Richardson Drummond Hay of Seggieden, in the county of Perth, with consent of her husband Lieut.-Colonel Drummond Hay, for authority to uplift and apply certain monies which had been consigned by the Edinburgh, Perth, & Dundee Railway Company.
The application was made under the following circumstances:—
The petitioner is heiress of entail in possession of the entailed estate of Aberargie, in the parishes of Abernethy and Dron, in the county of Perth, and has made up a title to the whole of the lands embraced by the entail.
Under the powers conferred by “The Edinburgh, Perth, and Dundee Railway (Consolidation) Act, 1851,” certain portions of this entailed estate were taken by the Edinburgh, Perth, and Dundee Railway Company for the purposes of their undertaking. These portions were conveyed by Mrs Drummond Hay to the Railway Company by disposition, dated 5th November 1855, in consideration of the sum of £790, 15s., which had been fixed by arbitration as the amount of purchase-money and compensation, in respect of land taken and otherwise, to which the petitioner and the heirs of entail succeeding to her in the entailed estate were entitled. This sum of £790, 15s. was consigned subject to the provisions of the Lands Clauses Consolidation (Scotland) Act, 1845, on a deposit-receipt by the Bank of Scotland, dated 14th January 1871, and the petitioner has uplifted the interest on the consigned sum down to 13th March 1873.
By the 26th section of the Act 11th and 12th Vict. cap. 36, it is enacted, “That in all cases where money has been derived from the sale or disposal of any portion of an entailed estate in Scotland, or of any right or interest in or concerning the same, or in respect of any permanent damage done to such estate under any private or other Act of Parliament,” it shall be lawful for the heir of entail in possession, where he shall not be entitled to acquire the said money in fee-simple, to apply to the Court of Session for authority to uplift and apply it, inter alia, in permanently improving the entailed estate, or in repayment of money already expended in such improvements; and the heir so applying such monies is directed to set forth the sums proposed to be laid out, and the special purpose to which it is intended to apply them. Mrs Drummond Hay, since succeeding, has expended in permanent improvements, chiefly in additions to the farm-steadings and in drainage, a sum of £1474, 14s. 1d., conform to a state of expenditure put in process, and she desired to avail herself of the power conferred by the Act, and to uplift the consigned sum of £790, 15s., and apply it in repayment pro tanto of the sum of £1474, 14s. 1d. expended on these permanent improvements.
Mrs Drummond Hay is above 25 years of age, and the three nearest heirs of entail were duly called. The narrative of the petition concluded thus:—
“In terms of the 79th section of the said “Lands Clauses Consolidation (Scotland) Act, 1845, the North British Railway Company, as now amalgamated with and coming in place of the said Edinburgh, Perth, and Dundee Railway Company, the original promoters of the undertaking, for the purposes of which the said portion of the entailed estate was taken, are liable in the expenses of this application.”
The petitioner prayed for intimation and service on the three next heirs, on their guardianat-law, and on the North British Railway Co., and for advertisement, and, in conclusion, asked the Court “to authorise the petitioner to uplift the said sum of £790, 15s., consigned in the Bank of Scotland as aforesaid, and to apply the same in repayment pro tanto of the sums so found to have been expended on the entailed estate, and to grant warrant to and ordain the said Bank of Scotland to make payment to the petitioner of the said sum of £790, 15s., to be applied as aforesaid, together with the interest accrued thereon subsequently to 13th March 1873 for her own use, upon her granting a valid acknowledgment and discharge therefor; and further, to find the North British Railway Company liable in the expenses of this application,” &c.
Page: 82↓
The Lord Ordinary, after the petition had been duly intimated and served on the parties named, remitted to the Auditor of Court to report on the question of expenses.
The report of the Auditor, dated 4th November 1873, was as follows:—“In consequence of a remit by Lord Shand (Ordinary) the Auditor has examined the foregoing account, and taxed the same in presence of the agents for the parties at the sum of £33, 12s. 8d. sterling, reserving for the determination of the Court the question of the liability of the Railway Company for the sum of £9, 5s. 7
Note.—This application embraces two matters—the constitution of improvement against the heirs of entail, and power to uplift and apply compensation money in payment of the improvement expenditure, the former under the Entail Amendment Acts, and the latter under the Lands Clauses Consolidation Act.
The Auditor has taxed the expenses as against the Railway Company at the sum of £33, 12s. 8d. In doing so he has allowed what may be described as the general expenses of the application, such as the drawing and printing the petition, bringing the application into Court, obtaining order for intimation, &c. In this he has acted in conformity with his own practice, and he believes with that of his predecessor. But an objection has several times, at audits of similar accounts, been suggested, and has at the present audit been formally stated and urged, that the general expenses being available equally to both branches of the application, and the Railway Company being liable only for the procedure under the Lands Clauses Act, these expenses ought to be apportioned between the petitioner and the Railway Company. The answer by the petitioner is that the Railway Company are not charged with a larger sum of general expenses than they would have been had the petition been confined to the power to uplift and apply. But this is open to the reply that the same expenses would have been incurred had the application been confined to the constitution of improvements, and would in that event have fallen wholly on the petitioner, and that the saving effected by the conjunction of the two matters should not be imputed wholly to either, but that the petitioner and Railway Company should each participate.
The question in the present case is not of much importance in a pecuniary point of view, but it is of frequent recurrence, and the Auditor is desirous to have it authoritatively settled for his future guidance. His own opinion is very decided, that the contention of the Railway Company is well founded, and were he dealing with the question for the first time he would be inclined to hold that general expenses should be equally divided, but in the face of the practice which has prevailed he does not think it right to give effect to the objection without the sanction of the Court, or to subject either party to the expense of disposing of the question by way of objection to his report. He has therefore reserved it for the consideration of the Lord Ordinary. Should his Lordship decide in favour of the objection, the taxed account now reported will be restricted to £24, 7s. 0
The Lord Ordinary, on 12th November 1873, pronounced the following interlocutor, which, by acquiescence, became final:—“The Lord Ordinary having heard counsel for the petitioner and the North British Railway Company on the objections stated by the said Company to the petitioner's account of expenses, No. 30 of process, reserved by the Auditor, sustains the said objections, and disallows the charges in the petitioner's account to the extent of £9, 5s. 7
Note.—The point reserved by the Auditor for the consideration of the Court appears to present itself for decision now for the first time, since in the cases of Torphichen ( 13 D. 1400) and Erskine ( 14 D. 119), the only matter discussed, and on which a decision was given, was brought forward entirely by the necessity for ascertaining whether the improvement expenditure was of such a nature as to form a good charge against the heirs of entail. On this question the companies succeeded to the full extent for which they then contended.
In the present case the respondents, the North British Railway Company, referring to the double object of the application, as appearing from its prayer, maintain that, while on the one hand they must pay the proper cost applicable to the uplifting and applying the consigned money, and the petitioner must bear the proper cost of substantiating his claim for improvement expenditure, the expenses otherwise of the proceedings which may be called the common or general expenses of the application ought to be borne equally by them and the petitioner.
The Lord Ordinary is of the opinion expressed by the Auditor on this subject. The common expenses have been incurred in serving the double purpose of the application, and the expense in relation to one of these purposes is payable by the petitioner, and in relation to the other by the respondents. It is an advantage that the double purpose admits of being effected under one petition in place of two, and there seems to be no good reason for holding that this advantage should accrue to one only of the parties interested. It is but reasonable that the petitioner as well as the respondents should bear a share of the expense, for, as the Auditor observes, when the petitioner in support of her contention, alleges that the same expense would have been incurred and payable by the Railway Company had the application been limited to the application of the consigned money only, the Company may with equal justice say the same expense would have been incurred and payable by the petitioner had the application been limited to its first branch, viz., the constitution of the improvement debt only.
Taking this as the sound view if the point now arose for the first time in practice, the remaining question is whether the contrary practice which has gone on for a considerable time, should prevent the application of a principle which appears to have reason to commend it. The practice to which reference has been made applies to a limited class of applications only, viz., those which embrace a constitution of improvement debt as a part of them. It has not followed on any decisions or dicta by the Court favourable to the petitioner's view, and although before the Auditor the objection has been suggested in previous cases, it has only now been formally stated
Page: 83↓
Authorities— Moncreiffe, 21 D. 1359; Torphichen, 13 D. 1400; Erskine, 14 D. 119.
Counsel for Petitioner— Adam. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for Respondents— Balfour. Agents— Dalmahoy & Cowan, W.S.
