Scottish Court of Session Decisions

The pursuers in this action were the trustees under the trust-disposition and settlement of the late George William Hope of Luffness, Waughton, Craighall, and Rankeillor, who had been in possession, as heir of entail, of these estates from the year 1838 to the date of his death, on 18th October 1863. The defender Stamford Robert Lumsdaine of Lathallan was the youngest son and heir of provision of the deceased James Lumsdaine, and heir of line of the deceased William Lindesay Lumsdaine of Lathallan, his eldest son. He also represented generally the said William Lindesay Lumsdaine. The defender and his predecessors were vassals of the said George William Hope in the lands of Bonnybank, part of the lands of Southern Callange, and also in the lands of Norther Callange, all included in the Barony of Craighall. The reddendo for these lands of Bonnybank and Norther Callange, payable to the superior, was a certain sum of money, a quantity of victual, together with certain kain hens and carriages, which had all been in use to be commuted for a money payment, though the superior and vassal were not exactly agreed about the rate of commutation.

For the years 1856 to 1858, while the lands were in possession of William Lindesay Lumsdaine, and for the years 1859 and 1860, while they were in possession of his trustees, and also for the years 1861 to 1863, while they were in possession of the defender, the pursuers, as trustees of the said George William Hope, the superior, claimed arrears of feu-duties, amounting in all to about £260. The defender met this demand by a claim of retention of the sums paid by himself and his predecessors for poor-rates out the said lands from the year 1844 to the year 1863, amounting in all to about £220. He founded upon the following clause contained in the reddendo of his titles—“And it is hereby provided that the said Archibald Christie and his spouse (the original vassals in the lands) and their foresaids shall be bound and obliged to paie the whole cess and public burdens, they always having allowance thereof in the first end of the foresaid feu-duty yearly at clearing.” This clause was continued throughout the whole progress.

The point practically at issue between the parties was in regard to the defender's claim of retention. The pursuers, while admitting that poor-rates were to be considered among the public burdens covered by the clause of retention in the charter, contended that the defender's right only extended to the retention of each year's poor-rates out of that year's feu-duty, and that there could be no claim for the poor-rates of back years, the feu-duties of which had been paid; and consequently, that though the defender had a right of retention of the poor-rates for the years 1856 to 1863 out of the feu-duties for those years, arrears of which were sued for, he had no claim of retention for the poor-rates of the years 1844 to 1855, the feu-duties of which had been paid.

The defender maintained that he was not only entitled to retain for the years 1856 to 1863, but also for the years 1844 to 1855.

The Lord Ordinary ( Jerviswoode) pronounced an interlocutor, of which the following part applied to this point—“Finds first, as respects the claim made by the defender for allowance and repetition from pursuers, as trustees and executors of the superior, the deceased Mr George William Hope, of poor-rates stated to have been paid by the defender's predecessors, as owners of the lands of Norther Callange, for the years 1844 to 1855 inclusive, but not demanded by or allowed to them by Mr Hope at the dates of settlement of the feu-duties for these years, and still remaining unpaid—that the said claim is not barred by prescription or otherwise, and that the defender is entitled, on instructing the amount thereof by production of sufficient vouchers of payment, to retain the same from such balance as may be found to be due by him in the present action; but finds, in respect of the failure on the part of the defender's predecessors to claim allowance for said poor-rates annually on settling the feu-duties as provided by the titles, that he is not entitled to interest upon the amount of said poor-rates prior to the date of citation in the present action, from which date finds him entitled to interest thereupon.”

Against this finding of the Lord Ordinary the pursuers reclaimed.

Adam for them.

Marshall for the respondents.

At advising—