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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson v. Magistrates of Musselburgh [1867] ScotLR 5_312 (22 February 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0312.html
Cite as: [1867] ScotLR 5_312, [1867] SLR 5_312
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SCOTTISH_SLR_Court_of_Session
Page: 312↓
Court of Session Inner House Second Division.
v.
Facts:
Circumstances in which held (repeating the judgment in Scott v. Edmond) that an obligation of relief from public burdens in a feu-contract applied only to such burdens as were imposed in virtue of law existing at the date of the contract.
This was an action at the instance of Miss Margaret Wilson, of Olivebank, against the Magistrates of Musselburgh, and the summons concluded to have it found and declared that the defenders were bound to free and relieve the pursuer of all cess, ministers’ stipend, and all other public burdens whatever, payable or which might be demanded furth of the lands of Olivebank held by her, and fued from the said burgh; and also to have the defenders decerned to make payment to the pursuer of the sum of £337, 10s. 3d., being the amount of public burdens paid by her and her predecessors, whom she represented, from Whitsunday 1843 to Whitsunday 1866.
The question arose under a feu-contract, dated in 1765, by which the Magistrates of Musselburgh feued to the pursuer's author the lands of Olivebank for the yearly feu-duty of £22, 4s., and which contained a provision that the said feu-duty should be “in full of all cess, ministers’ stipends, and all other public burdens whatever, payable or which may be claimed or demanded furth of the said lands hereby fued; of all which the said Magistrates and treasurer, for themselves and in name foresaid, bind and oblige themselves and their successors
Page: 313↓
in office to indemnify, free, and relieve the said Major Thomas Hamilton (the feuar) and his foresaids in all time coming.” It was maintained by the defenders that this obligation of relief only applied to public burdens imposed in virtue of laws existing at the date of the contract; and the Lord Ordinary ( Kinloch) gave effect to that contention.
The pursuer reclaimed.
Clark and John Hunter for her.
Young, Gifford, and Asher for defenders.
The Court, after overruling an objection taken in the Outer-House to the pursuer's title, adhered to the principle of the Lord Ordinary's judgment, holding the same to be settled by the case of Scott v. Edmond, 12 D. 1077. The case was continued that parties might be heard on the application of this principle to the particular burdens referred to in the summons, and also as to the question whether the obligation included burdens payable by tenants and occupiers.
Parties having been heard on this point, the Court held that the pursuer, under the clause in the feu-contract founded on, was entitled to be relieved of poor-rates payable by her as proprietor, and also of cholera money, which was an additional assessment under the Poor-law Act; but they held that the clause did not apply to poor-rates or other burdens payable by tenants or occupants, nor to constabulary assessments, assessments for general prisons, repairs on Inveresk Church, and statute-labour assessment. With regard to expenses, neither party was found entitled to expenses prior to the date of the Lord Ordinary's interlocutor, and the defenders were found entitled to expenses subsequent to that interlocutor.
Solicitors: Agents for Pursuer— Morton, Whitehead, and Greig, W.S.
Agents for Defenders— Paterson and Romanes, W.S.