Scottish Court of Session Decisions

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Cite as: [1878] ScotLR 15_273, [1878] SLR 15_273

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SCOTTISH_SLR_Court_of_Session

Page: 273↓

Court of Session Inner House First Division.

Tuesday, January 15. 1878.

[ Lord Rutherfurd Clark, Ordinary.

15 SLR 273

Burgh of Kinghorn

v.

Common Agent of the Kinghorn Locality.

Subject_1Process
Subject_2Teinds
Subject_3Locality.
Facts:

Where a scheme of locality had been made final after a process extending over about sixteen years, towards the close of which, after various other opportunities had been offered, it had been opened up of consent for the purpose of allowing an heritor who objected to the locality to prove the tenor of a sub-valuation, and where that opportunity had not been taken advantage of, the Court, on his applying to have the interlocutor pronouncing the scheme final recalled, refused the motion.

Headnote:

The miniter of Kinghorn procured an augmentation of stipend in the year 1862, and a remit was made to prepare a locality. In 1867 the case was wakened of consent, and in 1868 a rectified scheme was ordered to be prepared. Interlocutors continuing the cause were pronounced in each of the three following years, and in 1872 the scheme was allowed to be seen and objected to. No objections were made to it, and it was made final on March 5, 1872. The burgh of Kinghorn then intimated for the first time by a minute that they wished to found on a sub-valuation of teinds. The Common Agent then consented to the opening of the locality, which was done on July 5, 1872. On 4th July 1873 an interlocutor was pronounced continuing the case, and thereafter it went to sleep till 9th March 1877, when it was wakened of consent. On 18th May of that year the Lord Ordinary again allowed the rectified scheme to be seen and objected to. No objections were lodged by the burgh, and on 21st December 1877 the following interlocutor was pronounced, the burgh of Kinghorn having appeared and asked to be allowed to lodge objections, after the Lord Ordinary had intimated that he would pronounce decree in absence:—

“21st December 1877.—The Lord Ordinary having advised the scheme of locality, No. 71 of process, and heard counsel for the Common Agent and the burgh of Kinghorn—Approves of said scheme as a final locality, and decerns: Further, remits to the Auditor to tax the Common Agent's account of expenses, and to report.”

Against this interlocutor the burgh of Kinghorn reclaimed, with a view of having the scheme reconsidered. A motion to that effect, which was tantamount to a motion to be reponed, was made in the Single Bills.

At advising—

Judgment:

Lord President—This is rather an interesting process of locality. It so happens that there is no question to be discussed except this of the burgh of Kinghorn. There was no record closed between the Common Agent and the heritors, and there was no interlocutor pronounced in a contentious form. The process has been dragging its slow length along from the year 1862 till 1878, nothing being done in it but purely formal matters. The rectified state was ordered by Lord Ormidale in 1868, and as soon as it was submitted to the Lord Ordinary it was approved of as a state, and then came an order allowing it to be seen. No objection was raised against it by anybody, and consequently the case was kept hanging on, and it was more than once continued so that it might not fall asleep altogether. At length the Lord Ordinary, on 5th March 1872, issued an interlocutor approving of the scheme. I think that to open up that interlocutor was a very strong step, for the matter had been depending for ten years, and nothing had been done in that time but to make a scheme, and in it there was no contentious matter. Nevertheless that interlocutor was opened up on the motion of the burgh of Kinghorn on 5th July of that year on representation being made that that burgh found that it was to their interest to have the scheme altered in respect of a sub-valuation of which they desired to have an approbation. To this the Common Agent agreed—whether he was entitled to do so or not I do not know—and the Lord Ordinary recalled his interlocutor. But what happened next? Within a day of one year the Lord Ordinary was again moved to continue the case, end from that date till the 9th March 1877 the process slept very soundly indeed. But then a minute was put in, and the Lord Ordinary held the case to be wakened by consent, a proceeding and expense caused entirely by the action of the burgh. Then on 18th May the Lord Ordinary allows all concerned

Page: 274↓

to see and to object. So at this time another opportunity was allowed to the burgh to raise the question, but they did not do so; they lay on their oars till 28th December last, when the scheme was made final. When this is done, they now come before us and cry—“Let us in yet; we are going to raise an action of proving of the tenor.” Such an abuse of process is not to be allowed, and I am for refusing the application.

Lord Deas and Lord Mure concurred.

Lord Shand concurred, and added—I may say that I think this case is one of some importance. There is no difficulty in disposing of it, but it may be of advantage in drawing the attention of members of the profession to the fact that there is no difficulty in preventing delay in the carrying through of localities. We have seen cases in which great hardship arose from such delay. The remarks I made in the case of Sinclair v. Fletcher's Trs. July 18, 1877, 14 Scot. Law Rep. 662, are directly applicable here.

The Court refused the motion.

Counsel:

Counsel for Burgh of Kinghorn (Reclaimers)— Balfour—Mackay. Agents— Dundas & Wilson, C.S.

Counsel for Common Agent— Kinnear. Agent— William Montgomery, W.S.
1878