Scottish Court of Session Decisions

This was a note by Sir George Macpherson Grant, Bart., curator bonis to Thomas Macpherson Grant of Craigo, praying for special powers to grant abatement of rents to the tenants on the estate of Craigo. The petitioner in his report to the Accountant of Court set forth that “the agricultural tenants on the ward's estates, like other farmers all over the country, have of late years suffered from a succession of bad seasons, foreign importation, and the prevailing general depression of agriculture. The tenants have hitherto, at least up to 1878, paid their rents regularly, but they have sent to the curator bonis the following application for an abatement of their rents for crop and year 1878, which were payable at Candlemas and Lammas 1879, viz.:—

Montrose, June 1879.

To Sir George Macpherson Grant of Ballindalloch, &c., Baronet.

We, undersigned tenants on the estate of Craigo and other properties belonging to Thomas Macpherson Grant, Esq. of Craigo, beg to call your attention to the depressed state of agriculture which has existed for several years, and which during the past two years has been excessive, and we respectfully request that you will take our case into consideration, and grant such a reduction of rent as in keeping with what has been done by several of the leading proprietors in this neighbourhood, or as you may deem proper in the circumstances.’—[ Here follow the names of eighteen tenants.’]

In addition to the tenants who have signed the above application, there are other two who occupy small farms on the ward's properties, and who desire to be included in the application.

The curator bonis on receiving this application made inquiry as to what had been done by the leading proprietors in the county, and he has been informed and believes that the following proprietors have each allowed an abatement of 10 per cent. from the rents of crop and year 1878, viz.:—[ Here follow the names of nine large proprietors in Forfarshire and Kincardineshire.]

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The curator bonis after receiving this information, and inquiring into the other circumstances, felt that it was necessary to give the tenants an abatement, and he was the more induced to do this in respect that some of the tenants had been unable to meet payment of their rents in full, and are in arrear for crop and year 1878. He proposes, therefore, to allow to the tenants an abatement not exceeding 10 per cent. from the rents of that crop and year, under an obligation that they shall expend the amount allowed to them on extraneous manures to be applied to the farms, so as to maintain the land in good heart and condition. In this way the land will be kept up to its normal state, and be prevented from being run out or exhausted.

The curator bonis therefore requests authority to make an abatement not exceeding 10 per cent., or such lesser abatement as he may ultimately become satisfied should be sufficient.”

The petitioner therefore prayed the Court “to allow an abatement to the agricultural tenants on the estate at a rate not exceeding 10 per cent. of their rents for crop and year 1878, said abatement to be applied in the manner specified in said report and opinion thereon, or in such other manner as may be agreed upon.”

The Accountant of Court in his opinion stated, inter alia, that “this application involves the general question whether the Court will confer on the factor discretionary power to judge of each case, and to grant such abatements as he may in his own judgment find necessary. The Accountant is not aware that such general powers have ever been granted by the Court, and it will be for the consideration of the Lord Ordinary whether the special disadvantages under which farming tenants have been suffering of late years form sufficient grounds for dealing with this application exceptionally.”

The Lord Ordinary ( Adam) remitted to Mr Charles Lyall, factor, Old Montrose, “to inquire into the circumstances set forth in the note, and to report whether any and what abatement should be allowed in each case.”

The following was Mr Lyall's report:—“The reporter has carefully considered the representations contained in the note, in so far as these relate to the application made by the tenants for an abatement on their rents for crop 1878. These representations he considered fairly stated, and whilst he can without any hesitation express an opinion that an abatement should be made, he has taken up the remit with some reluctance, as he finds it impossible for him to report in accordance with the exact terms of the interlocutor.

Under the remit the reporter is asked to inquire into the circumstances set forth in the note, and to report whether ‘any and what abatement should be allowed in each case,’ and in the Accountant's ‘opinion’ on the note for the curator bonis, under No. 7 (abatement of rent), it is stated that ‘the authority that may be given to the factor will be limited to the rents of crop and year 1878.’

The crop and year of 1878 are things of the past, and therefore the reporter finds it impossible, from any inspection he could make, to state what abatement he would recommend to be made in each case. He has, however, in terms of the remit made to him, ‘visited the various farms, seen the different tenants, and made inquiry into the circumstances set forth in the note, and he has no hesitation in stating that he would recommend that a deduction of 10 per cent. should be made from the rents of crop 1878. The reporter may here state that he has come to the conclusion that an abatement is wanted, not altogether from any recent inspection he has made, but from his long and intimate knowledge of the district, and from his conviction that the tenantry as a body have sustained heavy losses during the past few years.’

The grain crop of 1878 was about an average in quantity, but the prices were exceptionally low, especially for wheat and oats, the fiars prices for the county being—

Wheat	36/9.
Barley	29/4.
Oats	21/7.

The eastern district of Forfarshire, in which the properties under the curatory are situated, is very much dependent on the turnip crop, and the reporter is well aware that the profit from cattle-feeding from the turnip crop of 1878 may be said to have been altogether a blank.

The reporter cannot say that all the Craigo tenants are suffering in an equal ratio. To ascertain this would imply a re-valuation of every farm, and in the present depressed and transition state of agriculture it is impossible to form a reliable opinion on the value of land. That they are all suffering the reporter has no doubt, and as the abatements proposed to be allowed are of a temporary nature, the reporter can see no other way under the circumstances but to make all tenants alike. This course was adopted by several of the large landed proprietors of Forfarshire in regard to the rents of crop 1878, and many others have intimated their intention of allowing an abatement generally of 10 per cent. from the rents for crop 1879, which has been the most disastrous year for the Scotch farmer in the memory of man.

The reporter may here take the liberty of stating that on a property of considerable extent on which he is factor (Kinnordy) a similar application was made by the tenantry in 1879, and on his recommendation 10 per cent. of an abatement was allowed from the rent for crop 1878.

In conclusion, the reporter would state that he considers it for the interest of the proprietor that assistance should be given to the tenantry in exceptional times of severe depression, to enable them to keep up the condition of the land and maintain their full stock, and that in the present instance it would be good and judicious management that the curator bonis should have the power granted to make the proposed abatement.”

The Lord Ordinary ( Lee) reported the application to the First Division, adding the following note:—

“ Note.—… . . On considering the terms of Mr Lyall's report, the present Lord Ordinary is unable to find that it deals with each case separately, and in such a manner as to establish a necessity for abatement in order to avoid the loss which may be occasioned by renunciation of the lease, or the tenant's want of means to carry on the cultivation of the farm in a proper manner. Mr Lyall has not attempted to give the circumstances of each tenant. But he states that he has no doubt they are all suffering

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in an equal ratio, and he concludes by reporting that ‘he considers it for the interest of the proprietor that assistance should be given to the tenantry in exceptional times of severe depression, to enable them to keep up the condition of the land and maintain their full stock, and that in the present instance it would be good and judicious management that the curator bonis should have the power granted to make the proposed abatement.’

The Lord Ordinary thinks it his duty to report the matter to the Court, being of opinion that however desirable it may be in the present case that such powers should be granted, the question raised by the Accountant is one which ought not to be decided in favour of the petitioner without being submitted to the opinion of the Court.

The only cases referred to in which such powers appear to have been granted were those of David Milne, petitioner, Dec. 20,1834 ( 13 Sh. 222), and Murray Macgregor, petitioner, June 7, 1837 ( 15 Sh. 1092). In the latter case, however (which was that of a curator bonis to John Duke of Atholl), the petition related to three particular farms only, as to which there were reports by men of skill.

There are also certain cases in which certain powers of this description appear to have been granted to factors upon estates under sequestration after intimation to the creditors—such as Anderson, Feb. 28, 1822 ( 1 Sh. 363); Peddie, Dec. 13, 1822 ( 2 Sh. 88); and Robertson, Jan. 22, 1823 ( 2 Sh. 150). But in the later case of Brodie, March 11, 1843 ( 5 D. 1024), the petition was refused.

It appears to the Lord Ordinary that the granting of such a general power of abatement is attended with great difficulty in principle, and is not supported by practice.”

The petitioner in argument relied mainly on the proposal to apply the sum allowed as an abatement in the purchase of artificial manures to be expended on the lands.

At advising—