Scottish Court of Session Decisions

The Duchess of Sutherland, Countess of Cromartie, was heiress of entail infeft in, inter edict, All and Whole the corn-mills of Miltown of New Tarbet, with the mill lands thereto belonging, and the whole parts, pendicles, and pertinents of said mills lying in the parish of Kilmuir Easter, county of Cromarty, and of All and Whole the astricted multures, suckens, and sequels of the said mills used, and among others the multures, suckens, sequells, and services of the lands and estate of Drumgillie, which formed part of the estate of Shandwick. She sued the proprietors of the estate of Shandwick, viz., the trustees of the late Captain Reid, and the trustees of the late Mr Ross Duncan, for payment of £80, 14s. 3d., or such other sum as might be ascertained to be the equivalent of the commuted multures payable from the said lands of Drumgillie for crops in years 1877, 1878, and 1879, according to the conversion in terms of the abbreviate-decree of commutation condescended on, or otherwise for payment of the money equivalent of the amounts of barley and meal fixed by long custom as the equivalent of the amounts of grain and money contained in the said decrees. The said abbreviate-decree of commutation, which was dated 1st September 1800, and recorded 17th March 1804, followed upon a petition presented to the Sheriff of Ross and Cromarty under the Act 39 George III. c. 55 (“An Act for encouraging the improvement of land, subject to the servitude of thirlage, in that part of Great Britain called Scotland”), by the Hon. Mrs Mackenzie of Cromarty, the pursuer's predecessor in the property of the mills and mill lands above set forth, against John Cockburn Ross, Esquire of Shandwick, to have the thirlage of the lands of Drumgillie commuted to the payment of a fixed annual amount of victual in view of thirlage services, conform to and in terms of the said Act of Parliament. The abbreviate-decree bore the verdict of the jury following on said petition, and fixing the fair and. just annual payment to be substituted for the petitioner's right of thirlage over said lands. The pursuer averred that until 1878, for crop and year 1877, the value of the said commuted thirlages, as converted (grain and money) by long custom, was regularly paid, but the defenders had since then suspended payment, and the present action had been rendered necessary. The defenders denied the practice of payment, and averred on a preliminary defence that the abbreviate-decree had not been recorded in terms of the statute; that the estate of Shandwick, including the lands of Drumgillie, having been held under an entail, no obligation to pay commuted multures could be made to affect the said lands or succeeding proprietors otherwise than in terms of the statute; that the proceedings and abbreviate founded on instructed no obligation against the defenders; and further, that at the date of said petition Mrs Jane Cockburn Ross was heiress of entail in possession of the lands of Shandwick, that she was no party to the proceedings referred to, and that her husband John Cockburn Ross, the respondent in the petition, was at no time proprietor of said hinds.

The Act 39 Geo. HI. c. 55, proceeds on the following preamble:—“Whereas it is found by experience that the servitude of thirlage and right of mill services incident thereto in that part of Great Britain called Scotland are very unfavourable to the general improvement of the country, by checking the industry of the occupiers of the ground, and by occasioning troublesome and expensive litigation, and that it is highly expedient that it should be allowed to persons subject to such servitude to compensate or to commute the same by a fixed annual payment in lieu and satisfaction of the said right of thirlage, and of all services, prestations, and restrictions thereto incident or pertaining, and in some cases to make an entire and complete purchase of the same for a fair and adequate price.” … . It is provided (section 1), after the procedure before the Sheriff and jury has been set forth, that an abbreviate of the verdict and determination of the jury “shall be registered by any of the parties in the General Register of Sasines at Edinburgh, or the Particular Register of the said county or stewartry, within sixty days after the pronouncing of such verdict or determination.” Section 4 provides that “After the expiry of three years from the registration of the verdict of the jury, the said verdict and the proceedings had relative thereto shall not be reduced, set aside, reviewed, altered, or amended by the Court of Session or any other judicatory for any neglect of the provisions herein contained, or for any informality or error, or for any other reason or pretext whatever; and if any party shall pursue any process of reduction of the verdict of the jury, or other process for setting the same aside, or for altering or amending the same in the Court of Session, and shall fail in such pursuit or process, such party prosecuting as aforesaid shall be liable to the other party or parties in full costs of suit.”

The defenders pleaded—“(1) The abbreviate founded on not having been recorded in terms of the Statute 39 Geo. III. cap. 55, is ineffectual to instruct the pursuer's claim. (2) The proceedings founded on by the pursuer as ascertaining the amount of commuted multures, not having been carried out in terms of the said statute, et separatim, not having been directed against the proprietor of the lands mentioned, are insufficient to instruct the present claim against the defenders.”

The Lord Ordinary (Curriehill) found “that the decree of commutation mentioned in the summons is binding upon the pursuer and defenders, and that the defenders are bound, in accordance with the provisions thereof, to pay to the pursuer the sum concluded for, with interest.”

His Lordship added the following note:—

“This is an action at the instance of the Duchess of Sutherland, Countess of Cromartie, against the proprietors of the estate of Shandwick for payment of the sum of £80, 14s. 3d., being

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the equivalent in money value, according to the fiars prices, of three years' payment of certain quantities of grain and meal in name of services for upholding the mill and mill-lade of Miltown, and for dry multures, in pursuance of a decree of commutation obtained at the instance of the pursuer's predecessor against the defenders' predecessors, dated 1st September 1803, an abbreviate whereof was recorded in the register of sasines on 17th March 1804. At the date of the decree the estate was held under a deed of entail dated 5th May 1790, but on the death of the last proprietor in 1872 without issue the succession opened to the heirs and assignees whomsoever of the entailer, in which capacity the late Andrew Gildart Reid and John Ross Duncan succeeded to the estate as heirs-portioners, and their respective interests are now represented by the two sets of defenders. The main defence is that the decree of commutation is ineffectual in respect of alleged non-compliance with the provisions of the Statute 39 Geo. III. cap. 55, by which such commutation was authorised.

The first and principal objection is that the abbreviate of the decree prepared in terms of the statute was not recorded within sixty days of the date of the decree or verdict of the jury, and that the same is therefore ineffectual to instruct the pursuer's claim. By section 1 of the statute it is enacted, that after the amount of commutation is ascertained by the verdict of a jury in the manner prescribed, an abbreviate of the decree or verdict ‘shall be registered by any of the parties in the General Register of Sasines at Edinburgh, or the Particular Register for said county or stewartry, within sixty days after the pronouncing of such verdict or determination.’ Now, it is quite true that the abbreviate of the decree in question was not recorded within sixty days of its date, but it was recorded in the proper register about six months after its date.

The defenders maintain that the direction to record within sixty days is imperative, and that failure to comply with that direction is fatal to the decree.

It appears to me, however, that the pursuer is entitled to rely upon section 4, which provides that ‘After the expiry of three years from the registration of the verdict of the jury, the said verdict and the proceedings had relative thereto shall not be reduced, set aside, reviewed, altered, or amended by the Court of Session, or any other judicatory, for any neglect of the provisions herein contained, or for any informality or error, or for any other reason or pretext whatever.’ This section must be read in connection with section 5, which enacts that after the verdict—not, be it observed, after registration of the verdict, but after the verdict—‘the servitude and thirlage, and all services, prestations, and restrictions pertaining or any way incident thereto, so valued by the said jury, shall cease to be exigible from or binding upon either or any of the parties; but in lieu thereof the said proprietor or proprietors, occupier or occupiers, of the thirled lands or tenement shall be bound and obliged to pay, and the proprietor of the mill to which the said lands or tenements are thirled shall be bound and obliged to receive, annually at the mill where the multures under the former servitude of thirlage was in use to be paid, or at some other convenient place to be fixed by the jury, such quantity or amount of corn or grain of such kind or sorts, kinds or sorts, as the said jury shall in manner aforesaid determine to be a just compensation or equivalent to such right of thirlage.’ And by section 7 the payment of the commutation is to be made at Candlemas yearly, the first payment to be made at the first term of Candlemas after the date of the verdict, which term might arise long before the expiry of the sixty days prescribed for the registration of an abbreviate.

Now, reading all these clauses together, I think it is clear the decree or verdict was to take effect, and was to operate, as a commutation of the thirlage and services from its date, irrespective altogether of the registration of the abbreviate. But unless and until the abbreviate was recorded, the decree was to remain open to challenge or review on any competent ground. The object of the Legislature in prescribing the registration of an abbreviate, and in directing the registration to take place within sixty days, was not only to provide for the publication of the commutation in the public records of the country, but to induce the parties to make the publication without delay, and thereby secure the finality of the decree at the earliest possible period, i.e., after the lapse of three years from the registration. Until the registration was made, the decree, whether acted on by the parties or not, might be challenged, in a reduction or otherwise, not only on the merits, but on the grounds of failure to comply with the statutory forms, and the right of challenge would probably subsist until extinguished by prescription or barred by homologation. But so soon as the abbreviate is recorded, the statutory period of limitation (three years) begins to run, and on its expiration the decree is to become absolutely unchallengeable on any pretext whatever.

In these circumstances the direction to record the abbreviate within sixty days appears to me to be not imperative, not only because there is no penalty attached to failure to comply with that provision, but because the provision is just one of those statutory provisions, failure to comply with which is expressly declared to be ineffectual as a ground of challenge after three years from the date of registration. It is important to observe that in the case of sasines and inhibitions, where registration within sixty days and forty days respectively is by statute made matter of express enactment, the penalty of nullity is attached to failure to comply with the direction, whereas in the case of adjudication where an abbreviate is by statute directed to be recorded within sixty days, failure to comply with that direction does not create a nullity, but has merely the effect of postponing the adjudication of which an abbreviate is not timeously recorded, to an adjudication which, although subsequent in date, has been timeously recorded.

It is further objected to the decreee that John Cockburn Ross, upon whom the petition for commutation was served, as being then the proprietor of Shandwick, was not truly proprietor. To this objection two answers are made—(1) That as the decree bears that he was the proprietor of the lands, and that he appeared and took part in the proceedings as proprietor, such an objection cannot be entertained without a

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reduction of the decree; and (2) because the 4th section of the statute is a complete answer to a challenge of the decree on this or any other ground. I am of opinion that these answers are well founded.

In conclusion, on this branch of the case, I have only to observe that this is a highly remedial statute, and is to be interpreted liberally, and not in the jndaical manner contended for by the defender. It was passed, not for the purpose of imposing a burden upon lands, but of substituting a moderate fixed annual payment for a burden uncertain in amount, and oppressive in the mode of exaction; and I think it would be absurd to hold that it was intended that the whole benefit of the lengthened and laborious inquiry directed by the statute was to be entirely lost if the parties, from any cause however innocent, should allow even one hour more than the sixty days to elapse without recording the abbreviate.”

The defenders reclaimed, and argued—The abbreviate-decree founded by the pursuer was invalid—(1) The Act 39 Geo. III. c. 55, directed the registration of the verdict within sixty days after it was pronounced. This had admittedly not been done here. The direction was an imperative one, and the provisions of section 4 would not remedy the defect, for the “registration” there alluded to was a registration of the verdict in terms of section 1. Instruments of sasine and inhibitions, if not recorded within sixty and forty days respectively, incurred the penalty of nullity—see Acts 1581, c. 119; 1617, c. 16; Young v. Leith, 11th March 1847, 9 D. 932. (2) The respondent who was called, and who answered the petition on which the abbreviate proceeded, was at no time owner of the lands. His wife, who was proprietrix, was no party to the proceedings. The decree could not therefore be founded on, and the defenders denied the practice of payment since 1803. The pursuer's claim in this action therefore fell to the ground.

The pursuer replied—(1) The admitted defect of non-registration within sixty days was just one of those provided for by the remedial words of section 4. That section, read along with secs. 5 and 7, showed that the verdict was to take effect and operate at once, irrespective of its registration, but until it had been recorded and remained three years on the register it was to be open to challenge on any competent ground. The provision as to registration in section 1 was a directory one, to which no sanction of nullity was attached. This distinguished it from the other Acts cited by way of analogy by the defenders—see also Act 1661, c. 31 (apprisings), and 1669, c. 3 (instruments of resignation). (2) It was not admitted that John C. Ross was not proprietor of the lands. The defenders would have to prove this, and that in a reduction, and not ope exceptionis in this action. If a reduction were brought, it would be challenged in limine as incompetent under section 4. That section was an answer to both the objections raised. The statute was a highly remedial one, and should be liberally construed.