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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hope v. Webster [1872] ScotLR 9_241 (19 January 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0241.html Cite as: [1872] ScotLR 9_241, [1872] SLR 9_241 |
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Page: 241↓
A vassal was bound by his charter to pay as feu-duty “two pounds Scots money, twelve capons, or twelve shillings Scots for each capon, and four shear dargs, or 6s. 8d. for each darg not performed, all in our (the superior's) option.” Circumstances in which held that the superior had sufficiently intimated his option of taking capons, and not their money conversion, and that the shear dargs could not be demanded after the year in which they were exigible was past.
This was an appeal from the Sheriff-court of Fife. Mr Hope of Craighall sought to remove his vassals, Mr Webster and others, from a feu in Ceres, for which, as he alleged, they had failed to pay the feu-duty. The case was brought under the Act 16 and 17 Vict. c. 80, which gives jurisdiction to the Sheriff in cases where the feu-duty is under £25 yearly. The feu-duty stipulated to be paid was “two pounds Scots money, twelve capons, or twelve shillings Scots for each capon, and four shear dargs, or six shillings and eight pennies for each darg not performed, all in our (the superior's) option.” The vassal maintained that, having tendered the money he had done all that was required of him.
After various procedure, a proof was led in the Sheriff-court, and thereafter the Sheriff-Substitute ( Beatson Bell) found that the superior had not intimated his option to take the capons, and that if he wished to do so he was bound so to intimate to the vassal, and not having done so, the remedy of the statute did not apply. Upon appeal the Sheriff ( Crichton) adhered.
The superior appealed.
Marshall for him.
Solicitor-General and Adam in answer.
The Court recalled these judgments, holding that the vassal was bound to pay or tender his feuduty to the superior, and that it was not the duty of the superior to go and ask for it. The superior had sufficiently indicated his option by taking capons for a number of years. With regard to the shear dargs, the Court held that such services could only be demanded within the year, and that if the superior did not demand them, and kept the vassal waiting to do his work, he was not entitled to ask for their money value after the time was past. They remitted the case to the Sheriff to pronounce decree of irritancy, but reserved the vassal's right under the statute to purge the irritancy by paying the feu-duty.
The
Page: 242↓
All that the Act requires to make the action good is, that the value of the subjects shall be less than £25, and that the feu-duty should not have been paid for two years. The clause of the Act provides that the vassal may purge the irritancy incurred by payment of the arrears pursued for. This phrase is not perhaps well chosen, because the Court must have the power of adjusting the sum to be paid. The clause indicates that the amount in arrear ought to be set out in the summons; and I think that it is sufficiently stated that £12, 8s. 9
In regard to the four shear dargs, they cannot be demanded after the year has passed. I do not think that any money value can be asked for them, as the superior ought to have given his vassal notice if he was to require his services.
Solicitors: Agents for Pursuer— Hope & Mackay, W.S.
Agents for Defender— D. Crawford & J. T. Guthrie, S.S.C.
