Scottish Court of Session Decisions

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Cite as: [1872] ScotLR 9_241, [1872] SLR 9_241

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SCOTTISH_SLR_Court_of_Session

Page: 241↓

Court of Session Inner House First Division.

Friday, January 19. 1872.

9 SLR 241

Hope

v.

Webster.

Subject_1Superior and Vassal
Subject_2Feu-duty
Subject_316 and 17 Vict. c. 80.
Facts:

A vassal was bound by his charter to pay as feu-duty “two pounds Scots money, twelve capons, or twelve shillings Scots for each capon, and four shear dargs, or 6s. 8d. for each darg not performed, all in our (the superior's) option.” Circumstances in which held that the superior had sufficiently intimated his option of taking capons, and not their money conversion, and that the shear dargs could not be demanded after the year in which they were exigible was past.

Headnote:

This was an appeal from the Sheriff-court of Fife. Mr Hope of Craighall sought to remove his vassals, Mr Webster and others, from a feu in Ceres, for which, as he alleged, they had failed to pay the feu-duty. The case was brought under the Act 16 and 17 Vict. c. 80, which gives jurisdiction to the Sheriff in cases where the feu-duty is under £25 yearly. The feu-duty stipulated to be paid was “two pounds Scots money, twelve capons, or twelve shillings Scots for each capon, and four shear dargs, or six shillings and eight pennies for each darg not performed, all in our (the superior's) option.” The vassal maintained that, having tendered the money he had done all that was required of him.

After various procedure, a proof was led in the Sheriff-court, and thereafter the Sheriff-Substitute ( Beatson Bell) found that the superior had not intimated his option to take the capons, and that if he wished to do so he was bound so to intimate to the vassal, and not having done so, the remedy of the statute did not apply. Upon appeal the Sheriff ( Crichton) adhered.

The superior appealed.

Marshall for him.

Solicitor-General and Adam in answer.

The Court recalled these judgments, holding that the vassal was bound to pay or tender his feuduty to the superior, and that it was not the duty of the superior to go and ask for it. The superior had sufficiently indicated his option by taking capons for a number of years. With regard to the shear dargs, the Court held that such services could only be demanded within the year, and that if the superior did not demand them, and kept the vassal waiting to do his work, he was not entitled to ask for their money value after the time was past. They remitted the case to the Sheriff to pronounce decree of irritancy, but reserved the vassal's right under the statute to purge the irritancy by paying the feu-duty.

Judgment:

The Lord Justice-Clerk—I am of opinion that the judgment of the Sheriff is wrong and ought to be altered. It is conceded that the option of taking capons or the money conversion rested with the superior. I think it is proved that the superior sufficiently intimated his option to take the capons, and not their money conversion. For a series of years the feu-duty had been paid by delivery of capons or by payment of what was held to be their value in money. It is the duty of the vassal to pay or tender the feu-duty, not of the superior to go to him and demand it. The vassal appears to have thought that he has been paying too much, and a misunderstanding arose, the result of which was that the feu-duty fell into

Page: 242↓

arrear. The Sheriff says—“The pursuer says that he did not make any special demand for payment of feu-duties from year to year. If he had made the demand the Sheriff is of opinion that he was bound to declare whether he was to take capons or money, or shear dargs or money.” I think it is proved that the superior did declare his option of taking payment in kind.

All that the Act requires to make the action good is, that the value of the subjects shall be less than £25, and that the feu-duty should not have been paid for two years. The clause of the Act provides that the vassal may purge the irritancy incurred by payment of the arrears pursued for. This phrase is not perhaps well chosen, because the Court must have the power of adjusting the sum to be paid. The clause indicates that the amount in arrear ought to be set out in the summons; and I think that it is sufficiently stated that £12, 8s. 9 1 2d., or at least feu-duty for two years, was in arrear. I think that we should find that the feu has been irritated, reserving any question as to the nature and amount of the feuduty which the vassal is bound to pay, and should remit the case back to the Sheriff in order that he may allow the defender an opportunity of paying his feu-duty before decree is pronounced.

In regard to the four shear dargs, they cannot be demanded after the year has passed. I do not think that any money value can be asked for them, as the superior ought to have given his vassal notice if he was to require his services.

Solicitors: Agents for Pursuer— Hope & Mackay, W.S.

Agents for Defender— D. Crawford & J. T. Guthrie, S.S.C.

1872