Scottish Court of Session Decisions

This was a suspension in which the question was, as to a right of exemption claimed by the Scottish North-Eastern Railway Company from poor's assessment, in respect of certain exempting clauses in their Acts. The clauses mainly relied upon were the 23d section of the Act 6 Will. IV., c. 32, and the 32d section of the Act 6 Will. IV., c. 34. By section 23 of cap. 32, it was enacted, “That the rights and titles to be granted in manner above-mentioned to the said company to the lands and heritages therein described shall not in any measure affect or diminish the right of the superiority of the same, but, notwithstanding the said conveyances, the rights of superiority shall remain as before, entire in the persons granting such conveyances; and the lands and heritages so conveyed to the said company shall not be liable for any feu-duties or casualties to the superiors, nor for land-tax; cess, stipend, schoolmaster's salary, nor any public or parish burden whatever, but the same shall be paid by the original proprietor of such lands or heritages.” By section 32, cap. 34, it is enacted, “That the lands or heritages to be acquired for the purposes of this Act shall not be liable in payment of land-tax, or any feu-duties, casualties of superiority, cess, stipends, schoolmaster's salary, or other public or parochial burdens, unless it be so stipulated in the conveyance thereof to the said company, but the same shall be paid by the original proprietors of such lands or heritages, except in case the said company shall purchase and acquire the whole lands or heritages belonging to any person within the said parishes, in which case the said burdens shall be paid by the said company for the whole of such lands or heritages which may be so acquired as aforesaid.”

The Court had formerly decided, in an action at the instance of the Inspector of Coupar-Angus, that the claim of exemption was well-founded; but the present case was designed to bring up the merits of the Coupar-Angus case with a view to appeal, and also to enable the respondents to state certain additional pleas, to the effect (1) that the exemption only applied to the assessment attaching to ownership, and (2) that there were certain portions of the railway company's line in the parish of St Vigeans which were not under the exempting clauses.

The Lord Ordinary suspended simpliciter, holding that there was no distinction between this case and that of Coupar-Angus, and that the respondent had not condescended upon the portion of the line excepted from the exemption.

His Lordship pronounced the following interlocutor:—

“The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the proceedings: Finds that the suspenders, the Scottish North-Eastern Railway Company, are not due to the respondent, the Collector of Poor's-rates for the parish of St Vigeans, the sum of assessment for which warrant has been granted: Suspends simpli citer the warrants and proceedings complained of Declares the interdict already granted perpetual, and decerns: Finds the respondent liable to the suspenders in the expenses of process: Allows an account thereof to be lodged, and remits to the auditor to tax the same, and to report.

“ W. Penney.”

“ Note.—The present case must be ruled by the decision of the Court in the case of the Scottish North-Eastern Railway Company v. Gardiner, 29th January 1864, 2 M., 537. The Collector of Poor's—rates for the parish of St Vigeans has avowedly disregarded that decision, and assessed the Railway Company without giving effect, in any respect, to the exemptions sanctioned by the judgment. The sum insisted for, and for enforcement of which poindings were executed of the Company's carriages and locomotives, is clearly not due to the whole extent. The Lord Ordinary would have been well pleased had he been enabled in the course of the process to fix the sum (within that demanded) truly duo by the Company, and he gave the Collector an opportunity of showing the limitation produced by the application of the decided case. The Collector has been unable to do so, from causes alleged by him to be beyond his control. The Lord Ordinary has therefore felt that he had no alternative but to grant suspension of the warrant and interdict against the prosecution of the poinding.

“W.P.”

The Collector reclaimed.