Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Aberdeen.

The proceedings were commenced by a summary petition presented by Daniel M'Intosh, butcher, Aberdeen, against Skinner & Wilsone, advocates, Aberdeen, in which the petitioner set forth, that on 11th December 1865 he transmitted to the respondents the titles of certain heritable subjects in Aberdeen which he had purchased, in order that a writ of confirmation from the superior might be prepared. After the writ of confirmation was prepared, but before it was delivered, the petitioner and the respondents, as acting for the superior, differed about the casualties payable by the petitioner, and the petitioner declined to proceed further with the transaction, and intimated this to the respondents. The respondents notwithstanding refused to deliver up the title deeds. The petitioner prayed the Court to ordain the respondents to deliver up the deeds.

The petitioner subsequently presented a supplemental petition against the marriage — contract trustees of Captain and Mrs Fisher, the superiors of the subjects.

The defence was that the superiors or their agents were entitled to retain the title deeds till the composition was paid, viz., a year's rent of the subjects. By applying for a writ of confirmation the petitioner had agreed to pay the composition, and he was not entitled subsequently to draw back, and offer to present the heir of the last vassal for an entry, as he had done. The respondents also stated a preliminary plea that the petition was incompetent, as involving a question of heritable right.

The Sheriff-Substitute ( Dove Wilson) sustained this plea, and sisted the petition for three months, in order that the petitioner might institute proceedings in the Court of Session to determine the question of heritable right between him and the respondents.

The petitioner appealed.

The Sheriff ( Guthrie Smith) pronounced the following interlocutor:—

“ Edinburgh, 1st February 1872.—.... Sustains the appeal, recalls the interlocutor appealed against: Finds that the document called for in the petition, to wit, a disposition of certain heritable subjects in Hutcheon Street, Aberdeen, in favour of the petitioner, is his property, and was delivered to the respondents, Messrs Skinner & Wilsone, as agents for the superiors, the other respondents, in order that a writ of confirmation by them might be written thereon, but differences having arisen as to the sums payable by the petitioner in respect of said confirmation, he withdrew his request to be confirmed, after the writ had been prepared and executed: Finds that, as the writ had not been delivered, he was entitled so to do, but is liable to the respondents, Messrs Skinner & Wilsone, in the costs and eharges connected with the preparation and execution of said writ; appoints an account thereof to be given in and taxed; remits the case to the Sheriff-Substitute to ordain the respondents to give delivery to the petitioner of said disposition on payment of the taxed account; to dispose of the question of expenses, and quoad ultra, to refuse the prayer of the petition, and decerns.

Note.—It appears from the correspondence in process that the superiors of the subjects in question, belonging to the petitioner, having, in the month of December 1865, called on him to enter, he transmitted his titles to their agents, with a request that a writ of confirmation by the superior should be prepared in his favour. A draft of the writ prepared by the superiors' agents was thereafter received by the petitioner's agent and sent back for execution, on the understanding, he says, that the dues of the entry were to be double of the feu-duty. This, however, was not agreed to; and, on 19th January 1866, the petitioner intimated to the superior that he declined to enter at all, and refused to take up the writ of confirmation, which by this time had been endorsed on his disposition and signed by the superiors. Some further correspondence took place, and in February 1871 the superiors intimated that, as he had never entered, they intended to raise an action of declarator of non-entry against him. The petitioner replied that he was ready to enter the heir of the former vassal, and to pay the dues chargeable under the charter on the entry of heirs.

Page: 549↓

The petitioner now demands re-delivery of his disposition, and the respondents decline to part with it until they are paid the composition due on his entry. The Sheriff is of opinion that this is a claim to which the superiors and their agents are not entitled. The jus in re, the right of property in the document, is undoubtedly in the petitioner; the respondents have no lien over it of any kind, except for the fees connected with the preparation of the confirming writ at his request. The claim preferred practically implies that after a proprietor has asked an entry, he is irrevocably bound to take it, even although he should subsequently discover that the lands are not in non-entry at all, or that a different person altogether is the proper party to be entered, or (as is alleged in this case) that a larger sum is claimed as composition than is truly due. If a vassal wrongfully refuses to be entered, the superior's remedy is not, as the Sheriff-Substitute has found, to keep the vassal out of his titles, so as to force him to bring an action in the Supreme Court to determine the questions which have arisen as to the terms of the entry, but himself to bring a declarator of non-entry. This is the course which was taken in the analogous case of Stewart v. Cunningham, Dec. 11, 1841, 4 D. 249; and there the right of the vassal to refuse to accept a charter of confirmation after it had been prepared at his own request, does not seem to have been doubted on either side. At the time of the above decision the confirmation was contained in a separate deed—now it is a mere endorsement on the disposition; but this cannot alter the legal rights of the parties, as the writ of confirmation can easily be deleted and rendered inoperative before the disposition is delivered up. But in accordance with the above case, the petitioner must indemnify the superior's agents for the expenses which he has caused, and which, by his change of mind, have been thrown away. Matters will thus be restored to the status quo, and the various questions between the parties as to the terms of the entry will be determined in the Supreme Court, in a declarator of non-entry at the superior's instance.”

The respondents appealed.

Fraser and Duncan for them.

Mair, for the petitioner, was not called upon.

At advising—