Scottish Court of Session Decisions

Subject_1 CLAUSE.
Subject_2 SECT. IX.

Liberty of Disponing without Consent. - Making Provisions a Burden on Lands. - Obliging to lay out on Sufficient Security. - General Abrogatory Clause in an Act of Parliament. - Relieving from Public Burdens.

James Bruce-Carstairs of Kinross,
v.
Robert Greig and Others, his Vassals, in the Parish of Kinross

Date: 23 January 1773
Case No. No 66.

A clause in a feu right, relieving from public burdens, found not to free the vassals, from paying their proportions of the expense of a manse and offices for the minister of the parish.

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The estate of Kinross, situated in the parishes of Kinross, Portmoag, and Orwell, had been mostly feued out many years ago; and, in particular, parts thereof to the defenders predecessors, about the middle of the last century, by tenures after expressed; and but an inconsiderable part of the property-lands remained with the family.

A new manse having been lately built for the minister of Kinross, a demand was made upon the defenders for payment of certain proportions of the expense thereof, according to the valuation of their respective lands; wherewith they meanwhile complied, and paid the money: And having been sued in the Sheriff-court for arrears of the feu-duty, they pleaded compensation of their feu-duties to the amount of what they had paid towards building the minister's manse of Kinross; for that the reparation of the minister's manse was a public burden, of which, by their charters, they were entitled to be relieved, in whole or in part.

The Sheriff having given a decree against them for the sums sued for, reserving action to them against the pursuer with respect to the compensation pleaded by them in their defences, they removed this action from the Sheriff by a bill of advocation, and also brought an action of repetition of the sums paid by them. These two actions having been conjoined, and the feu-rights of the defenders produced, they were conceived as follows:

Robert Greig is bound to pay a certain feu-duty, and perform certain services; ‘and that for all other burden or exaction that may be required;’ and the superior binds himself, and his successors, “to relieve the said Robert Greig, and his above written, of all cess, and public burdens, minister's stipend and school master's-fees, payable forth of the lands in all time coming.”

John Dempster is bound to pay a certain feu-duty, and perform certain services; “and besides, to pay the third of all taxations and public burdens whatsoever, imposed, or to be imposed, on the said lands; and that for all other burden, exaction, question, demand, or secular service, that can anywise be exacted or demanded forth of the said lands, for whatever occasion,” or any other manner of way whatsoever.

James Beveridge is bound to pay a certain feu-duty, and to perform certain services; “and besides, to pay the third part of all taxations and public burdens whatsoever, imposed, or to be imposed, upon the said lands; and that for all other burden, exaction, question, demand, or secular service, that can be anywise exacted or required forth of the said third part of the said town and lands of Easter Tillochie, with the pertinents.”

The charter of James Belfrage runs in the same stile with that last mentioned.

James Stocks is bound to pay a certain feu duty, and perform certain services; “and, in like manner, paying two parts of all taxations, public burdens, and impositions, imposed, or to be imposed, upon the said lands, and paying the schoolmaster's stipend of Kinross, upon their own proper expenses, and reporting acquittances thereof yearly; and also, paying all their duties willingly, without any process of law, and observing good neighbourhood, as becomes an honest man, for all other burden, exaction, question, demand, or secular service, which can anywise be exacted or required forth of the said lands, by any person whatsoever.”

Michael Henderson is bound to pay a certain feu-duty, and two sheep and two lambs yearly, for said lands of Turf-hills; “and relieving me and my foresaids of the two parts of all public burdens, imposed, or to be imposed, upon the said lands;” and for some other lands mentioned in his writs, he is bound to pay a certain feu-duty, and perform certain services; “and sicklike, to pay two parts of all public burdens, imposed, or to be imposed, upon the said lands of Bouton and Westmost-acre; and relieving me and my foresaids of the two parts of all public burdens, imposed, or to be imposed, on the saids lands of Turf-hills; and that for all other burden, exaction, or demand, which can be lawfully required forth of the said lands in time coming.”

Robert Marshall is bound to pay a certain feu-duty, and perform certain services; “and these for all other burdens, exactions, questions, demands, or secular services, which can be anywise exacted or demanded forth of the said lands, with the pertinents, in time coming.”

Although the expense of rebuilding the manse and offices was the only article presently in dispute, as the judgment of law behoved to be the same with respect to the expences of rebuilding or repairing the church, it was understood, in the argument before the Lord Ordinary, that one determination should be given upon the whole; his Lordship pronounced this interlocutor: “Finds, that the defenders, in consequence of their rights, have no claim of relief for any part of the expenses laid out by them in either rebuilding or repairing the church, manse, and office-houses belonging to the parish of Kinross; therefore repells the defence founded on that claim.”

Upon two successive reclaiming petitions and answers, ‘the Lords adhered to the Lord Ordinary's interlocutors;’ not singly upon the import of the rights, but in respect of the instances that were given of the practice in the three several parishes over which the pursuer's right of vassalage extended, downward from the 1729, of the vassals contributing their proportion of the expenses in question; which the Court held to be explanatory of the meaning of parties in a doubtful contract, which several of the Judges thought this was; and that, in any recent question upon it, the construction would rather have been with the defenders.

Act. Dean of Faculty. Alt. M'Laurin. Clerk, Gibson. Fol. Dic. v. 3. p. 130. Fac. Col. No 50. p. 131. *** This cause was appealed:

1775. Nov. 24.—The House of Lords Ordered and Adjudged, That the interlocutors complained of, be affirmed.