Scottish Court of Session Decisions

The Lands Clauses Consolidation (Scotland) Act 1845, section 79, enacts—“In all cases of monies deposited in the bank under the provisions of this or the special Act … it shall be lawful for the Court of Session 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, that is to say, the expense of the purchase or taking of the lands … and the expenses of the investment of such monies 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 incident thereto, and also the expense of obtaining the proper orders for any of the purposes aforesaid.…”

On 3rd April 1913 the Reverend the Right Honourable Baron Blythswood, heir of entail in possession of the estate of Blythswood and others in the counties of Lanark and Renfrew, presented a petition under the Lands Clauses Consolidation (Scotland) Act 1845 and the Entail (Scotland) Acts setting forth that certain portions of the said entailed estate had been acquired by the Caledonian Railway Company and by the Glasgow and South-Western Railway Company for the purposes of their undertakings, that the purchase money or compensation payable therefor had been consigned in bank, and that he was now desirous of uplifting the same and of applying it towards the purchase and acquisition as part of the entailed estate of certain lands held by him in fee-simple, and which he proposed to settle as part of the entailed estate.

On 11th July 1913 the Lord Ordinary ( Hunter), after considering a report by a man of business and also a report by a man of skill, authorised the petitioner, upon executing a conveyance of the said lands in favour of himself and of the heirs of entail, to uplift the said sums and to apply them as proposed. Thereafter on 1st November 1913 his Lordship approved of the conveyance, interponed authority to the proceedings, and found the railway companies liable to the petitioner in expenses so far as they were liable therefor in terms of the Lands Clauses Consolidation (Scotland) Act 1845 in the proportions of one-half respectively.

The Auditor having lodged his report on the petitioner's account of expenses, objection was taken by the railway companies to the following items which he had allowed as proper charges, viz., (1) the charges, amounting to eleven shillings, incidental to the service of the petition upon the next heirs of entail, (2) the expense incidental to the remit to a man of skill, (3) the charges made in connection with the employment of a man of business in so far as these were applicable to the employment of a man of skill, and (4) the fee charged ad valorem for drawing the conveyance.

On 4th March 1914 the Lord Ordinary ( Anderson) sustained the first objection, reduced the amount of the account by eleven shillings, the amount of the charges involved in said objection, and quoad ultra approved of the Auditor's report.

Opinion—This is a note of objection taken by the respondents, the Glasgow and South-Western Railway Company and the Caledonian Railway Company, to the Auditor's report on a taxation of the account of expenses of the petitioner the Reverend The Right Honourable Baron Blythswood.

The matter arises in connection with a petition presented by Baron Blythswood for authority to uplift and apply certain consigned money. It appears that Baron Blythswood is the heir of entail in possession of the estate of Blythswood and others, and that the railway companies I have mentioned acquired from him certain portions of the entailed estate. In payment of the land so acquired the railway companies deposited on deposit-receipt in bank certain sums amounting in round figures to £1300. The petition which the petitioner presented for authority to uplift and apply this money sets forth that it was brought in terms of the Entail (Scotland) Act, 11 and 12 Vict. cap. 36, sec. 26. It also makes reference to the provisions of The Lands Clauses Consolidation Act 1845, section 67, which provides that the purchase money or compensation which shall be payable in respect of any lands or any interest therein purchased or taken by the promoters of the undertaking from any heir of entail and paid into the bank shall be applied under the authority of the Court of Session, inter alia, in the purchase of other lands to be conveyed, limited and settled upon the same heirs and the like trusts and purposes, and in the same manner as the lands in respect of which such money shall have been paid stood settled.

The petitioner purchased certain fee-simple lands at the price of £1966, 2s. 9d., and he proposes that as these lands lie into the entailed estate, and as the acquisition of the lands will permanently improve the estate, they should be settled upon the series of heirs of entail mentioned in the destination; and what he desires to do is to apply the consigned money pro tanto in payment of the price of the lands so purchased by him and so proposed to be settled as entailed lands.

The Court granted the prayer of the petition, and authorised the petitioner to uplift the money so consigned in bank in order that he might apply it as he desires to do. The petitioner was found entitled generally to his expenses against the respondents, and he lodged an account of expenses, which has been dealt with by the Auditor, and the objections now stated have reference to the report which the Auditor has made upon the taxed account of expenses.

I have had occasion before in dealing with cases of this character to advert to the

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general policy of the Lands Clauses Consolidation Act of 1845. The scheme of the Act, shortly stated, was just this, to saddle the promoters of the undertaking with the expenses to which the seller of the land has been put in connection with the reinvestment of the purchase price which he received for the lands taken by the promoters. I think that under the Act of Parliament I am bound to find that all expenses reasonably incurred by the owner of the land must be borne by the promoters of the undertakings who acquired the lands. Now applying that principle to the objections in question, I have to consider the four objections which were taken to the Auditor's report by the respondents. The first objection has reference to the charges, amounting only to 11s., relating to the services of the petition upon the next heirs of entail. That amount is, as I have stated, a small sum, but the principle is not unimportant which regulates this charge. The petitioner is, as I have stated, entitled to all reasonable expenses incurred by him in reinvesting the money consigned in bank; but it is not necessary that the reinvestment should be entailed land, and accordingly the Court, as I understand the decisions, have determined that where the reinvestment falls to be made in entailed land the petitioner in such a case will not be entitled to obtain from the railway company the expense of service upon the next heirs of entail. That seems to me to be decided in terms by the case of the Baroness Willoughby de Eresby in 13 R. at p. 70, because it was there held that no advertisement of the petition or service thereof upon the next heirs of entail being required by the Lands Clauses Consolidation Act the expenses connected therewith fell to be borne by the petitioner and not by the promoters of the undertaking; and the reason is that it is not necessary that moneys obtained in the way I have suggested should be reinvested in entailed estates; and if the investment falls to be made in that particular way, then it is only right that the petitioner should bear the special expenses which are necessarily incurred in making such an investment. Accordingly I decide, as I must do, holding that the decision is perfectly applicable to the present case, that the objection which is directed against the charges made for the service of the petition is well founded and must be sustained.

But then when I come to the next objection, which has reference to the fee paid to a man of skill, I think the situation is quite different. This charge has been considered by the Auditor, and has been sustained by him; and it seems to me that although it is the case that by statute there must always be a man of business appointed in connection with those entail petitions, it does not necessarily follow that it is an unreasonable thing to employ a man of skill in connection with a matter of this sort. That is a matter which is entirely for the Auditor, and I must assume that he has considered the case upon that footing, that the land which the man of skill was examining was proposed to be entailed. Accordingly I do not see my way to interfere with the decision which the Auditor has pronounced upon this matter, and I do so simply upon this ground, that it has not been made out to me that it was an unreasonable thing on the part of Baron Blythswood to employ a man of skill in connection with the purchase he proposed making.

All that I was asked to do in connection with the charges in the account in connection with the employment of a man of business was to say what portion, if any, of the charges were applicable to the employment of a man of skill and what were not. I am not going to attempt to enter into such an examination of the charges made in connection with the employment of a man of business, even if I had thought it was unreasonable to employ a man of skill. But as I have decided in connection with that matter that it was not unreasonable to employ him, the charges in connection with the man of business' employment must be sustained in toto on this ground of decision.

The fourth objection had reference to conveyancing charges, but that has not been insisted in, and I therefore repel that objection.

“The result of the whole matter is that I sustain the objection to the extent of 11s., and quoad ultra I repel the objections, with modified expenses of two guineas against the respondents.”

The Railway Companies reclaimed, but did not insist on the objection to the charge made for drawing the conveyance. Quoad items 2 and 3 they argued—An heir of entail was not bound to reinvest consigned money in entailed lands, and if he did so the expense fell to be borne by him and not by the company. Esto that he was entitled so to reinvest it, the company was only liable for such expense as had reasonably been incurred—Lands Clauses Consolidation (Scotland) Act 1845 (8 Vict. cap. 19), sec. 79. That being so the Lord Ordinary was in error in allowing the expense of the remit to a man of skill. The following authorities were cited— Erskine v. Aberdeen Railway Company, November 29, 1851, 14 D. 119; Drummond Hay v. North British Railway Company, November 12, 1873, 1 R. 180, 11 S.L.R. 81; Lady Willoughby de Eresby v. Callander and Oban Railway Company, October 24, 1885, 13 R. 70, 23 S.L.R. 48; Stirling Stuart v. Caledonian Railway Company, July 8, 1893, 20 R. 932, 30 S.L.R. 812.

Argued for respondent—The Court was entitled before granting the application to know that what was proposed was a fair and proper arrangement, and to order such inquiry as it might think fit—Entail (Scotland) Act 1882 (45 and 46 Vict. cap. 53), sec. 23 (6). The expense of a remit to a man of skill was a reasonable charge in the sense of sec. 79 of the Lands Clauses Act ( cit. sup). That section was very wide and clearly covered such expense. Practice, since at least 1892, was in conformity with what the Auditor had done—Smith on Expenses, 357.

The Lord President intimated that the

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Court would consult the Auditor before disposing of the matter.

At advising—