Scottish Court of Session Decisions

This was an application by an entail proprietor for authority to uplift and apply towards obtaining a discharge of a bond of provision secured over the estate, certain money consigned some years ago by the Gorbals Gravitation Water Company (who are now succeeded by the Glasgow Corporation Water Works Commissioners) as the price of a portion of his lands taken under compulsory powers. The Water Commissioners were called as parties, and the petition asked that they should be found liable in the expenses of the proceedings. After some inquiry the prayer of the petition was granted, and the expenses taxed at £75 odds.

The Water Commissioners objected to the report of the auditor, in so far as he allowed “charges therein which relate to the discharge of the disposition and bond of provision granted by the deceased Sir Hew Crawfurd Pollok, Baronet, the father of the petitioner, in favour of his daughter Jean or Jane Johnston, otherwise Crawford Pollok, now wife of William Ferguson, Esq., mentioned in the petition.”

Burnet for the objectors.

Duncan for the petitioner.

The Lord Ordinary pronounced the following Interlocutor, which was acquiesced in by the petitioner:—“ Edinburgh, 5th March 1869.—The Lord Ordinary having considered the auditor's report on the petitioner's account of expenses, with objections thereto for the respondents, the Glasgow Corporation Water Commissioners, and whole proceedings, and having heard parties' procurators: Finds that the petitioner is not entitled to any part of the charges in said account which relate to the discharge of the disposition and heritable bond of provision granted by the late Sir Hew Crawford of Pollok, Baronet, the father of the petitioner in favour of his daughter Mrs Jane or Jean Johnston Crawfurd Pollok or Ferguson: Therefore sustains these objections for the respondents: Disallows the said account to the extent of the sum of thirty pounds sterling: Finds the petitioner liable

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to the respondents in the expense of discussing the question, and modifies the same to the sum of five pounds five shillings sterling, and decerns—two words delete.

“ Note.— The petitioner's application, which is founded exclusively on the Lands' Clauses (Scotland) Act 1845, is for authority to uplift the sum of £13,062, 10s. (being part of the sum of £36,141, 8s. 9d. consigned in bank by the Gorbals Gravitation Water Company, in whose place the present respondents have come, as compensation for the land and other rights taken by the said Company from the entailed estates of Pollok),and to apply the sum in liquidation of the balance remaining due to Mrs Ferguson of the provision made to her by her father, the deceased Sir Hew Cravrfurd Pollok, under the disposition and bond of provision by which it is heritably secured on the entailed estate. There can be no question that the application of the consigned money to the discharge of this provision is a legitimate and proper application, it being one of the purposes expressly sanctioned by the 67th section of the Act. But the Lord Ordinary is of opinion that, while the expenses of the petition and of obtaining the necessary orders and warrant of Court are expenses which must fall upon the respondents as representing the promoters of the undertaking, they are not bound to be at the expense of the discharge, that being a private transaction which would have required to be gone into whether the money had been consigned or not, and which ought to be paid by the party discharging. Accordingly, it is not an expense provided for in the 79th section of the Act, nor can it be brought within the terms of that section otherwise than by holding the application of the money in the discharge of the incumbrance on the estate to be truly of the nature of an investment, which was the view chiefly insisted in by the petitioner, but which appears to the Lord Ordinary to be an untenable view.

“ So far as the Lord Ordinary is aware, the point is a new one in Scotland. At the debate the respondents cited the cases of Graham v. Caledonian Railway Company, 10 D. 495; Torphichen, 13 D. 1600; Erskine, 14 D. 119; and Duke of Hamilton, 21 D. 124, none of which, however, appear to touch the question. But they also referred to the following English decisions:— Earl of Hardwicke v. Eastern Counties Railway Company, in Law Journal, vol. 17, Ch. cases, p. 422; Buckingham Railway Company, 14 Eng. Jurist, 1065; and Oxford Railway Company, 27 Beav., 571. All these are decisions which, in the absence of other authority, are thought to be entitled to great weight. They are not directly in point, but have a material bearing on the present question, and the 69th and 80th sections of the English Lands' Clauses Act, (8 and 9 Vict. c. 18), under which they were pronounced, are in terms as nearly as possible identical with the corresponding sections 67 and 79 in the Scotch Act.”