Scottish Court of Session Decisions

The Crofters Holdings (Scotland) Act 1886, sec. 6, sub-sec. (4), provides—“When an application is lodged with the Crofters Commission to fix a fair rent, it shall be in the power of the Crofters Commission, either under the same or under another application of the crofter, to sist all proceedings for the removal of the crofter in respect of non-payment of rent until the said application is finally determined, upon such terms as to payment of rent, or otherwise as they shall think fit.”

The Crofters Holdings (Scotland) Act 1887, sec. 2, provides—“Any crofter who has made or shall make an application to the Crofters Commission to fix a fair rent for his holding, and against whom legal proceedings have been taken for payment of rent, may apply under the same or any subsequent application to the Crofters Commission for an order prohibiting the sale of the crofter's effects upon the said holding by virtue of any decree for payment of such rent, and the Crofters Commission, if satisfied that such sale would have the effect of defeating, in the case of such crofter, the intention of the principal Act (the Crofters Act 1886), may, upon such terms as to payment of rent or otherwise as they shall think fit, grant an order prohibiting such sale till the application to fix a fair rent has been finally determined.”

The Lands Valuation (Scotland) Act 1854 (17 and 18 Vict. c. 91), sec. 31, provides—“In all cases where any lands or heritages shall be separately let at a rent not amounting to four pounds per annum, and the names of the occupiers thereof shall not have been inserted in the valuation roll, the proprietor of such lands and heritages shall be charged with and have to pay the whole of the assessments on such lands and heritages separately let as aforesaid, but every such proprietor charged with and paying such assessments shall have relief against the tenants and occupiers of such lands and heritages for re-imbursement thereof if and so far as such assessments may by law be properly chargeable upon such tenants or occupiers.”

Section 33—“Where in any county, burgh, or town, any county, municipal, parochial or other public assessment, or any assessment, rate, or tax under any Act of Parliament is authorised to be imposed or made upon or according to the real rent of lands and heritages, the yearly rent or value of such lands and heritages as appearing from the valuation roll in force for the time under this Act in each county, burgh, or town shall from and after the establishment of such valuation therein be always deemed and taken to be the just amount of real rent for the purposes of such county, municipal, parochial, or other assessment, rate or tax, and the same shall be assessed and levied according to such yearly rent or value accordingly.”

This was an action at the instance of John Finlayson Macfarlane, inspector of poor for the parish of Stornoway, and collector of public rates there, for the sum of £222, 7s. 7d., against Lady Mary Jane Matheson, Lewis Castle, Stornoway, proprietrix in liferent of the Island of Lewis. He averred that for the year from Whitsunday 1887 to Whitsunday 1888 the defender was duly assessed by the parochial board in the sum of £764, 7s. 7d. public rates in respect of her proprietorship and occupancy of various subjects. To account of this sum the defender on 14th May 1888 paid a sum of £542, 0s. 3d., leaving a balance still due by her to the pursuer of £222, 7s. 4d., which was the sum sued for.

The defender admitted these statements, and averred that she had been assessed in rates on the assumption that the rental of her tenants who paid less than £4 per annum would produce a sum of £168, 2s. 6d. sterling, but she had only recovered £102, 2s. of that sum; with regard to tenants who pay rents of £4 per annum and upwards, she had been assessed on the assumption that the rates applicable thereto would amount to £508, 16s. 8d., but notwithstanding all her efforts she had only been able to collect

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rents representing an assessment of £352, 9s. 10d.

It was admitted that she had paid the assessments applicable to the rents collected, and that these were included in the sum of £542, 0s. 3d. She further averred that any legal proceedings she might adopt against her tenants who were in arrear of rent would, in terms of the Crofters Holdings (Scotland) Act 1887, be liable to be prohibited till the crofter's application to fix a fair rent had been determined. There was no immediate prospect of their application to fix fair rents being entertained and determined.

The pursuer admitted this statement, with the explanation that the defender had not attempted to sue any of her tenants who were in arrear of rent, and that until she did so the Crofters Commission had no power to sist the proceedings.

The defender pleaded—“The defender not having recovered payment of the sums sued for in respect of rates from her tenants who pay less than £4 per annum, and in respect of rents from those who pay £4 per annum and upwards, she is not bound to pay rates in respect of the sums not recovered by her as aforesaid, and she is entitled to be assoilzied with expenses.”

The Sheriff — Substitute ( Fraser) decerned against the defender for the sum sued for.

“ Note.—The defender duly paid the rates effeiring to the amount of rents received by her as well as those exigible from her as proprietrix and occupant of the different subjects mentioned in the account appended to the petition. The rates due and now sought to be recovered are those effeiring to rents not paid, and the only question between the parties is whether she is bound to pay rates on or in respect of these unpaid rents. In my opinion she is. The rates unpaid were, along with those which have been already paid, duly and timeously assessed. No objection was then made by or on her behalf, and it appears to me that it is now too late to object or resist payment.

The parochial board is not responsible for, and indeed has nothing to do with, the collection or payment of any rents. If the defender has from any cause failed to obtain payment of any portion of those due to her, the loss must, so far as the board and the other ratepayers are concerned, fall upon her. There may be hardship in having thus to pay rates on rents not received, and which probably never will be wholly received, but in the interest of the general ratepayers the pursuer cannot take that into account. He is bound to recover if he can, and has no alternative but to use the means for enforcing payment. If he were to fail in this—his duty—or if the defender were relieved, the result would necessarily be increased rates for the following year, of which she would have to bear her share.

It is said that under the Crofters Act the defender's unpaid rents are liable to be in part reduced or entirely swept away. That is true, but it is one of the risks which as a proprietrix she runs. It does not appear, however, that she has yet attempted by legal measures to recover, or that the Crofters Commission have reduced or swept off or interfered with the past year's unpaid rents.

On the grounds above indicated I am reluctantly obliged to hold that in law the defender is bound to pay, and I give decree accordingly.”

The defender appealed to the Court of Session.

It was stated at the bar that the defender was unable to pay the rates, as in spite of all efforts the rents of the estate had not been recovered, and she had no other means by which to pay them. As she was only proprietrix in liferent she could not use the ordinary means of raising money to meet this claim which would be open to a fee-simple proprietor. She had raised fifty-five actions for payment of rent against crofters, her tenants, but on the application of the tenants to have fair rents fixed, the Crofters Commission, without hearing parties, had issued an order in terms of the Crofters Act 1887, sec. 2, under which she was prohibited from recovering by sale any rents for which she might obtain decree. The rates should come out of rent, but there was none. The source of rates had perished. Rent was not exigible for a subject that had perished— Muir v. M'Intyre, February 4, 1877, 14 R. 470; and in like manner the assessment which the statute laid upon the subject could not be exacted— Tod v. Mitchell, January 26, 1858, 20 D. 449; Gnthrie Smith, p. 391; Cassell's Law of Rating, pp. 35, and 42; Mayor of Woodstock, November 10, 1876, L.J., 2 Ex. Div. 49; Browne on Rating, p. 516; Govan Police Commissioners v. Armour, February 3, 1887, 14 R. 461. The question was, if the subject showed a profit on which it could be rated. The Valuation Act laid the burdens on the value of property as it could be “let from year to year.” The valuation roll was the basis on which the Board levied the rates, and in the usual case was conclusive of the rental. But in this case a vis major had occurred as truly as if the subject had been swept away by the sea. For after the valuation roll had been made up, the Crofters Commission interposed between the appellant and her tenants, and restrained her from recovering two-thirds of the rents at least for the year to which the roll applied. In this way the value stated in the roll, which was the warrant of the collector, had been reduced. Moreover, if the power to recover rents were arrested, the result might be a destruction of the rental as it entered the roll, and therefore as it afforded the measure of taxation. The crofters applied to have fair rents fixed in June, the roll was made up in September, but if the Commissioners reduced the rents their deliverance would draw back to the date of the crofters’ applications. Thus the basis of assessment would be destroyed.

The pursuer argued—No doubt there was hardship in the present case, but the collector was bound to assess according to the roll— M'Lachlan v. Tennant, May 4, 1871, 43 Jur. 390. It was admitted that the appellant had not recovered all her rents, but she had not exhausted her remedies. She might have obtained decree, and sold in implement thereof to the extent of one-third of the rent.