Scottish Court of Session Decisions

This was an action of declarator of irritancy of a contract of ground-annual. The summons concluded for declarator “that the ground-annual or yearly ground rent of £68, 5s. 2d. sterling, aftermentioned, payable by the defender, the said John Fulton Anstruther, and his heirs, executors, and successors, in the lands and others after described, and which said ground-annual or yearly ground rent it was, by the contract of ground-annual aftermentioned, provided and declared, should be uplifted and taken by the said Elizabeth Lyon Dunlop, and by William or Willie Dunlop, residing in Port Glasgow, sister of the said Elizabeth Lyon Dunlop, equally between them, and their respective heirs and successors, furth of and from the subjects respectively hereinafter described, and whole houses and buildings erected, or to be erected thereon, and furth of any art or portion thereof, readiest, rents, maills, and duties of the same has fallen into arrear, and that two years' payments thereof (being the half-year's ground rents or ground-annuals due respectively at the terms of Whitsunday and Martinmas 1863, and Whitsunday and Martinmas 1864) are resting-owing and unpaid, and that thereby the irritancy specified and provided in the said contract of ground-annual has been incurred; and that the contract of ground-annual before referred to, dated the 18th day of March and 9th day of April, both in the year 1858, entered into between the said William or Willie Dunlop for herself, and as factor, commissioner, and attorney for the said Elizabeth Lyon Dunlop, her sister, conform to factory and commission granted by the said Elizabeth Lyon Dunlop in her favour, of date the 18th day of February 1857, the said William or Willie Dunlop and Elizabeth Lyon Dunlop, being heritable proprietors of the subjects, lands, and others after described; and also with the special advice and consent of the defender, the said Mrs Margaret Adam or Anstruther, spouse of the said John Fulton Anstruther, as therein mentioned of the first part, and the said John Fulton Anstruther of the second part, with all that has followed thereon, has become void and null; and that the said subjects, lands, and others, and whole houses and buildings thereon, described in the said contract of ground-annual as follows—(Here follows description of lands)—have reverted to, and do now belong to the pursuers, trustees foresaid and their foresaids, successors of the said Elizabeth Lyon Dunlop and William or Willie Dunlop, in, and having right to the said contract of ground-annual the said ground-annual or yearly ground-rent subjects and others therein mentioned; and that the pursuers, trustees foresaid, and their foresaids may enter into possession of the said subjects, lands and others, and whole houses and buildings thereon, and dispose thereof at pleasure.” There were also conclusions for decree of removing and for expenses.

The defenders pleaded, inter alia, “The pursuers having, inter alia, wrongfully failed to put the said defender into possession of a material part of the subjects, of which the pursuers authors', Miss William or Willie Dunlop and Miss Elizabeth Lyon Dunlop, who is represented by the pursuers, became, under the contract of ground-annual libelled on, bound to give the said defender possession, the said defender is not bound to pay to the pursuers the ground-annual specified in said contract.”

The Lord Ordinary (Jerviswoode) pronounced the following interlocutor:—

“ Edinburgh, 6 th March 1866.—The Lord Ordinary having heard counsel, and made avizandum, and considered the record, productions, and whole process—Sustains the first plea in law stated for the pursuers; and, in respect thereof, finds, declares, and decerns in terms of the first conclusion of the summons; and, before answer on the remaining conclusions, allows the defender to state, within ten days from the date hereof, whether or not he is prepared to purge the irritancy referred to in the said first conclusion of the summons—reserving meanwhile all questions of expenses.

Charles Baillie.

Note.—The Lord Ordinary does not mean to prejudge in any respect the merits of the question raised in the action of damages at the instance of the defender against the present pursuers. But he is of opinion that the claim for damages, as stated, cannot be relevantly pleaded against the demand of the pursuers here for present payment of the ground-annual, as sued for.

C.B.”

The defenders reclaiming. When the note came to be discussed, the irritancy was purged at the bar by payment of the arrears of ground-annual, and it was stated that the cause of complaint on which the defender's plea was founded had been removed. It became necessary, however, to review the interlocutor in order to determine the question of expenses.

Black was heard for the defenders and reclaimers.

Gifford and Gloag for the pursuers.

At advising,