Scottish Court of Session Decisions

In 1877 a contract of excambion was entered

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into between The Lord Provost, Magistrates, and Council of the city of Edinburgh, as administrators and governors of the Trinity Hospital, on the one part, and Mrs Margaret Smith-Sligo, wife of Archibald Vincent Smith-Sligo of Inzievar House, near Dumfermline, and her husband, on the other part, with reference to the lands of Backdrum and Foredrum, which belonged to the parties respectively. The magistrates conveyed to Mrs Smith-Sligo certain parts of the lands of Backdrum, consisting of six separate pieces, all coloured blue, and each marked I. on a plan appended to the said contract, measuring in cumulo 4537 square yards and 3 square feet. Mrs Smith-Sligo and her husband conveyed to the magistrates certain parts of the lands of Foredrum, consisting of six separate pieces of ground, all coloured pink and each marked II. on the foresaid plan, and measuring in cumulo 4158 square yards. The testing clause of the said contract contained the declaration that the said Mrs Margaret Smith-Sligo and the said Archibald Vincent Smith-Sligo, with joint consent and assent as aforesaid, “hereby agree to give up that stripe of ground, part of the said lands of Foredrum, coloured yellow on said plan, for the purpose of forming part of and widening the Easter Road.”

In 1879 John Welsh, S.S.C., acquired by disposition from Mr and Mrs Smith-Sligo their property in the neighbourhood, and accordingly became possessed under the contract of excambion of the six pieces of Backdrum described above. The disposition of the property excepted the strip of ground mentioned in the contract of excambion.

In 1882 John Welsh sold to the Edinburgh Eastern Cemetery Company, Limited, certain ground, including a portion of the subjects affected by the excambion, measuring 9 695 1000 acres, as shown on a relative plan. It was a condition “that in the event of the excambion arranged with Trinity Hospital in 1877 being carried out,” the pursuer “shall be at the expense of taking down and rebuilding such parts of the existing walls as may be necessary to give effect to the excambion, and that such rebuilt portions shall be of at least the same value and character as the existing walls, or that, at the option of the company” the pursuer “shall pay to it a sum equivalent to what such removing and rebuilding would have cost.”

Subsequent experience showed that the relative plan was in some respects incorrect, and Mr Welsh conceiving that the Cemetery Company were in possession of ground in excess of their right, and of the intention of parties, raised this action against the Cemetery Company and the Governors of Trinity Hospital.

He asked declarator (1) that the lands of Foredrum and Backdrum were held subject to the contract of excambion; (2) that authority be granted to a man of skill to mark off the lands in terms of the contract; “(3) the defenders ought and should be decerned and ordained, by decree of our said Lords, to cede possession to the pursuer of, and to flit and remove from, the area or areas of ground held by them respectively, to which, in the course of the process to follow hereon, the pursuer may be found to have right under the said contract of excambion, and to execute, or concur with him in executing, all such deeds, instruments, or writings, as may be necessary for carrying out the provisions of the said contract of excambion, and particularly a deed or deeds of discharge, freeing and relieving the property of the pursuer of and from the burdens and provisions of the said contract of excambion in all time coming; (4) for joint payment by the defenders of the expenses of ascertaining the boundaries.”

He averred—“(Cond. 5) At the date of the before-mentioned dispositions, the arrangements embodied in the said contract of excambion had not been carried out, except to a very small extent. The pursuer had given up to the defenders, the Governors of Trinity Hospital, a portion of the area belonging to him at the northeast corner of his property, and had received from them an area of somewhat larger extent immediately adjoining thereto. With that exception the defenders, the said Edinburgh Eastern Cemetery Company, possess the lands of Foredrum and Backdrum, as the said lands were enclosed and possessed before the execution of the said contract of excambion, and the present action has been rendered necessary to have the rights of parties under the said contract of excambion determined and defined, that possession may be obtained of the areas to which they are respectively entitled, and also that the said areas may be discharged and relieved from the other provisions of the said contract of excambion in all time coming. The pursuer, under an arrangement with the defenders (Trinity Hospital), whereby he was to receive ground of an equivalent extent, gave up a portion of ground belonging to him lying along the east side of the Easter Road, and in addition to that piece of ground, the defenders, the Edinburgh Eastern Cemetery Company, Limited, are at present in possession of ground belonging to the pursuer, in excess of what was conveyed to them by the foresaid disposition in their favour to the extent of 404 decimal parts of an acre.”

The two sets of defenders lodged defences. They explained that the ground affected by the contract of excambion belonged solely to them, that the pursuer was no longer interested therein, that they were agreed as to the disposal of the ground, and did not desire to have the contract implemented in the meantime. The Cemetery Company denied that they possessed an excess of ground. In addition the Governors of Trinity Hospital averred—“It was further agreed by the said contract of excambion that Mr and Mrs Smith-Sligo should give up the strip of ground coloured yellow, for the purpose of forming part of and widening the Easter Road. The said strip was further excepted from the dispositions

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in favour of the pursuer, which are referred to. The pursuer has accordingly no title or interest to sue the present action.”

After certain procedure theLord Ordinary ( Wellwood) remitted to Mr Henderson, architect, to report, and having approved of the report, his Lordship, on 10th February, 1892, found “that the pursuer has no title or interest to sue this action except to secure that any obligations undertaken, and now prestable by him in connection with the contract of excambion mentioned on record, in so far as it has not already been carried out, are effectually discharged, and that he is freed and relieved from the same: Finds that the defenders, whose properties alone remain affected by the said contract of excambion, in so far as not yet carried out, do not desire that the said contract of excambion should be at present carried out and applied, and that they are agreed as to the manner in which the ground affected by it shall ultimately be dealt with: Finds that on the defenders granting, or procuring to be granted, an effectual discharge to the pursuer of his said outstanding obligations, they will be entitled to be assoilzied or to have the action dismissed, and, with these findings, appoints the case to be put to the roll that the defenders may state whether they are prepared to grant, or procure to be granted, such a discharge.”

A discharge was accordingly lodged reciting the above facts and proceeding:—“Therefore we, the said Edinburgh Eastern Cemetery Company, Limited, with consent of the said The Right Honourable The Lord Provost, Magistrates, and Council of the city of Edinburgh, as administrators and governors of the Trinity Hospital of the said city, for any interest competent to them in the premises, do hereby (without prejudice to any informal discharge already granted by us) discharge and free and relieve the said John Welsh and his heirs, executors and successors, of all obligations undertaken by him in connection with the carrying out of the said excambion: Declaring always that the obligations of real warrandice and absolute warrandice contained in the said contract of excambion and of absolute warrandice contained in said disposition in our favour, are in no way affected by this discharge; and we consent to registration hereof for preservation.”

On 21st November 1893, in respect of the execution of this discharge, “the Lord Ordinary assoilzied the defenders from the conclusions of the summons, and decerned; found the pursuer liable to the defenders in four-fifths of their expenses; allowed accounts thereof to be lodged; and remitted the same to the Auditor to tax and report.”

The pursuer reclaimed, but before the close of the arguments in the Second Division he abandoned the action.

When the case appeared in the Single Bills counsel for the pursuer moved the Court to disapprove of the Auditor's report in so far as it allowed the expenses of lodging separate defences to both defenders, and argued—Where parties in one action had the same interest, the general rule was they should be represented by one counsel. The matter was one for the consideration of the Court— Cameron v. French, October 26 1893, 1 S.L.T. 259. The action had been abandoned, but where that had been done by the pursuer the defender was not entitled to more expenses than he would have got if he had been victorious— Lockhart v. Lockhart, July 15, 1845, 7 D. 1045.

Argued for the Cemetery Company—The real object of the pursuer was to show that the Cemetery Company was in possession of more ground than he had supposed them to be. He chose to lay his action on the contract of excambion, although it was not clear how the declarator he sought would remedy his alleged wrong. There were two parties to the contract who were at one as to the arrangement of their neighbouring ground and they were both entitled to appear and defend.

Argued for the Governors of Trinity Hospital—The representation of the pursuer was that both the defenders possessed ground in excess of their right, and he concluded for decree of removal against each. The Cemetery Company were said to hold in excess of the disposition of 1882; the Trinity Hospital were alleged to hold 700 square yards given up by the pursuer without his receiving the stipulated equivalent. In point of fact, this 700 square yards had never belonged to the pursuer. It was given up to Trinity Hospital by Mrs Smith Sligo to widen Easter Road, the equivalent being a larger amount of land delivered to her under the contract of excambion than she delivered to the Hospital. It was excepted from her disposition to the pursuer. In this case there were different defenders, different subject-matter, different issues raised, and accordingly separate defences were competent.

At advising—