Scottish Court of Session Decisions

This was a petition presented by John Alexander Inglis, heir of entail in possession of Auchindinny and Redhall, for authority, inter alia, to acquire in fee-simple two sums of £481, 13s. 3d. and £1787, 15s. 6d. consolidated stock of the United Kingdom. The application was presented under sections 2 and 26 of the Entail Amendment Act 1868 (11 and 12 Vict. cap 36). The petitioner also craved the Court to find the Caledonian Railway Company and the Water of Leith Commissioners liable in the expenses of the application.

The sums in question represented the balance of the compensation money paid to the preceding heir of entail for certain lands compulsorily acquired from him by the Caledonian Railway Company and the Water of Leith Purification and Sewerage Commissioners. They were invested in consols, and held in trust for the behoof of the petitioner and his successors under a declaration of trust executed under the authority of the Court obtained in an application by the petitioner's father and predecessor in the entailed estates. The expenses of these applications had been paid by the Railway Company and the Water of Leith Commissioners.

The Lands Clauses Consolidation (Scotland) Act 1845 (8 Vict. cap. 19), sec. 67, enacts that the purchase or compensation money payable to parties under disability shall be paid into bank to the intent that it shall be applied under the authority of the Court to some one or more of the following purposes, viz., in the discharge of any debt or incumbrance affecting the land taken; in the purchase of lands; or in payment to any party becoming absolutely entitled to such money.

Section 68—“Such money may be so applied as aforesaid upon an order of the Court of Session made on the petition of the party who would have been entitled to the rents and profits of the land in respect of which such money shall have been deposited; and until the money can be so applied it shall be retained in the bank at interest, of shall be laid out and invested in the public funds or in heritable securities.”

Section 79 empowers the Court to order the expenses of the following matters, including therein all reasonable charges and expenses incident thereto, to be paid by the promoters of the undertaking, viz., “the expense of the purchase or taking of the lands … and the expenses of the investment of such moneys in Government or real securities, and of the re-investment thereof in the purchase of other lands, and of re-entailing any of such lands … and of the orders … for the payment of the principal of such moneys … and of all proceedings relating thereto … provided always that the expense of one application only for the re-investment in land shall be allowed.”

On 14th February 1899 the Lord Ordinary ( Pearson) granted warrant to and authorised the petitioner to acquire in fee-simple the stocks in question, and to the trustees under the declarations in trust to execute the necessary transfers of stock to the petitioner on the petitioner granting them a valid discharge of their whole actings and intromissions as trustees; and found the Water of Leith Commissioners and the Caledonian Railway Company “liable equally between them in the expenses of the petition and the proceedings following thereon, so far as these expenses are applicable to the obtaining of authority to acquire the said stocks in fee-simple, and also the whole expenses of the said transfers in favour of the petitioner, and the discharge or discharges to be granted by the petitioner in terms of this interlocutor, including the expense of recording the said discharge or discharges in the Books of Council and Session.”

The Railway Company and the Water of Leith Commissioners reclaimed, and argued—The Lord Ordinary was wrong in finding them liable in the expenses of this application. The petition to acquire the money in fee-simple was simply a petition to disentail; it was not an application under the Lands Clauses Acts at all. There was a distinction between petitions to disentail and petitions to uplift consigned money— Torphichen v. Caledonian Railway Company, July 19, 1851, 13 D. 1400; Countess of Stair, May 20, 1882, 19 S.L.R. 618; Stirling Stuart v. Caledonian Railway Company, July 8, 1893, 20 R. 932. The money here had got beyond the stage of being deposited in bank. The investment in consols might at first have been temporary, but the present application was the best proof that the petitioner regarded it as permanent. If indeed the petitioner proposed to invest the money in lands the company and the Commissioners might be liable. But what he proposed was tantamount to asking them to pay the expenses of an application to disentail after the money had been permanently reinvested in the purchase of lands. The respondents would not be liable to defray such expenses.

The petitioner's argument sufficiently appears from the Lord President's opinion.

Page: 552↓

Cases referred to and distinguished— Pollok v. Glasgow Water-Works Commissioners, March 5, 1869, 41 S.J. 325; City of Glasgow Union Railway v. Glover, November 23, 1870, 8 S. L.R. 147.