Scottish Court of Session Decisions

This was a reclaiming note against the interlocutor of the Lord Ordinary in an action previously reported, and which was an action at the instance of “the Rev. Peter Sawers, now designating himself Peter Russell Sawers, Free Church minister, Gargunnock,” as sole surviving trustee of the late Peter Sawers, bleacher, Nether Kirkton, against Messrs John & Hugh M'Connell, bleachers, Nether Kirkton, and Hugh M'Connell, the sole surviving partner of the firm, for payment of a balance of £281, 7s. 1d., with periodical interest amounting to £30, 8s. 7d., and with interest until payment, in name of overdue rents. Payment of £50 of the sum sued for was resisted on the ground—(1) of no title to sue, the pursuer not being entitled to

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sue with his co-trustee; (2) that the property taxes and water-rents being proper charges against the landlords, the defenders were entitled to deduction thereof; (3) that the pursuer's claim for interest was unwarranted; and (4) that the defenders not having been in mora, but having been always ready and willing punctually to pay their rents on receiving the proper deductions, and having consigned the full sum due (£199, 10s. 8d.), were not chargeable with interest, and were entitled to absolvitor over and above that sum, with expenses.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 18 th November 1873.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, proof adduced, and whole process, Finds that the balance of rents due and resting-owing by the defenders to the pursuer as at 27th January 1873, after deducting property tax, was £249, 10s. 8d. sterling: Finds that the defenders have failed to instruct that the sum of £50 paid by the defenders to Messrs Cochran & Hay, per receipts produced, was paid either by authority of the pursuer, or that the same was a debt due by the pursuer, and which he is bound to repay to the defenders, or to allow the defenders deduction or credit therefor: Finds that the pursuer has received payment of the consigned sum of £199, 10s. 8d. under warrant of the Lord Ordinary, dated 18th March last: Therefore decerns and ordains the defenders to pay to the pursuer the sum of £50 sterling, in full of the sums concluded for in the present action, reserving entire all questions as to who is ultimately liable for the said sum of £50, and all claims of relief or repayment thereof: Finds in the circumstances no expenses due to or by either party, and decerns.

Note.—The question in this case came ultimately to be a very simple one, namely, whether the defenders were entitled to credit from the pursuer for a sum of £50, being five years' water-rent paid by the defenders to Messrs Cochran & Hay, upper heritors, in respect of certain dams and water-works, of which the bleachfield belonging to the pursuer, and occupied by the defenders, got the benefit.

There is no doubt whatever that the defenders paid this water-rent, being £10 a-year, in perfect bona fide, believing that it was justly due by the pursuer, their landlord, and that they would get deduction for it in settling their rent with him, or his agent or factor; and it seems also to be the case that the defenders believed that if they did not pay this water-rent they would or might be deprived of the benefit of the dams; and as their lease gave them right to the existing water power which the dams were necessary to maintain, they not unnaturally thought they were justified in continuing to pay the water-rent to Messrs Cochran & Hay. The Lord Ordinary, therefore, has felt considerable sympathy for the defenders, and he cannot help thinking that the course taken by the pursuer in repudiating the long usage of his predecessors and authors is, to say the least of it, somewhat illiberal, and that it was not unjustly characterised by the defenders' counsel as narrow and shabby.

Still, the Lord Ordinary is bound the decide the case on strict legal principles, and he has felt himself compelled to come to the conclusion that the defenders have failed to instruct either—(1) that they paid the so-called water-rent with the pursuer's authority; or (2) that the rent was legally due by and exigible from the pursuer, and that the defenders, as implied assignees of the creditors, are entitled to relief therefrom.

It appears that, in order to equalise the flow of water in Kirkton Burn, so as to make it efficient as a water power both in summer and in winter, it has been found necessary to construct at the higher parts of the burn large artificial reservoirs, for the purpose of storing the flood water and the excess available in winter and in wet weather, so as to give a constant supply in summer and in dry weather. It has also been proved that the bleachfield belonging to the pursuer has been benefitted by these operations, and that it was natural and equitable that the pursuer should contribute thereto. It is fully proved that for a period of upwards of forty years the late Mr Sawers and his trustees contributed £5 annually, and that since 1849, when the second dam was formed, they contributed an additional £5 per annum. At the date when the defenders' lease was granted the late Mr Sawers, the truster, was actually paying £10 a-year for the ‘existing water power,’ and he and his trustees, after letting that existing ‘water power’ to the defenders, continued to make this annual payment till 1864. About that year, however, Mr Sawers' trustees, with consent of Henry Sawers, the then liferenter, gave the defenders a deduction from their rent of £80 a-year, on condition that the defenders should pay the water-rent, (£10 a-year) which the landlord had hitherto paid. This arrangement was acted upon, and thus the defenders, the tenants of the bleachfield, came to pay the water rent instead of the proprietors or liferenter. The deduction of rent, however, having been only granted during pleasure, the present pursuer, when he succeeded to the liferent, refused to continue the deduction, and it is not disputed that he was entitled so to do, and the defenders have always been ready to pay their rent without the abatement. There never was any settlement of rents, however, till the present action was raised, the defenders merely making payments to account; and the defenders, who, under the arrangement of 1864 had been paying the water-rent direct to Messrs Cochran, continued to do so, supposing that it was a just debt due by the proprietors to the upper heritors.

But, then, the Lord Ordinary thinks that the defenders took the risk of so doing. In strictness, when the arrangement for abatement of rent was cancelled, matters should have reverted to their former position, and the defenders should have referred Messrs Cochran to the pursuer or his agents for payment of the water rent.

There are, indeed, strong grounds for holding that the water-rent was justly, or at least equitably, due by the pursuer. As to £5, or one-half of it, it seems to have been paid by the pursuer's authors, by whose acts he is bound, for a period of more than forty years, and as to the remaining £5, this sum has been paid ever since the second dam was constructed. But then it is possible that these payments were of the nature of voluntary contributions. No deed of agreement has been produced, and no obligation under which the payments were made. Indeed, this question as to whether the water rent is a legally exigible debt or not cannot well be tried in the present action, at least it cannot be conclusively tried, because the creditors in the supposed obligation are not parties to the present action, and are not hound

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by anything done or found therein; and this is just the misfortune of the defenders, who paid without authority, and without making sure that deduction would be allowed. The Lord Ordinary, however, reserves the question of right entire, for it may very well be that in an action at the instance of the true creditors the pursuer may be found liable for the water rent. As to this the Lord Ordinary can give no opinion. All that he has found in the present action is, that the defenders have failed to instruct a legal right to retain the water rents from the rent of the bleachfield due by them. The Lord Ordinary also leaves untouched any claim of repayment which the defenders may have against anybody other than the present pursuer.

In the whole circumstances, the Lord Ordinary thinks justice is done by awarding expenses to neither party. To a very large extent the pursuer himself is to blame for the dispute which has arisen, and for the present litigation. He seems to have appointed a factor, Mr Matthew Anderson, but he did not give this factor authority to settle questions with the present defenders, and Mr Anderson very naively depones that he is not sure whether he is the pursuer's agent or not. In Mr Anderson's cross-examination it appears that he got no instructions or information from the pursuer at all, and it is proved that it was at his request that the defenders went on simply making payments to account, without coming to half-yearly or termly settlements. Then, neither the pursuer nor Mr Anderson ever intimated, either in writing or verbally, to the defenders, that there was no water rent due to the upper heritors, or undertook that the ‘existing water power’ should be maintained, though the water rent for the dams was not paid. The pursuer himself knew the long usage of payment, and never intimated either to the defenders or to the creditors that the usage was to be inverted. This may not prevent the pursuer from now maintaining his strict legal rights, whatever these are, but it seems an equitable and sufficient ground for refusing him the expenses of an action of which he has himself been the cause.”

The defenders reclaimed.

At advising—