Scottish Court of Session Decisions

Mr Forbes of Callendar was the heir of entail in possession of the lands and barony of Herbert-shire,

Page: 213↓

in the county of Stirling, and feudally Tested therein.

In April 1873, under the Burial Grounds (Scotland) Act 1873 (18 and 19 Vict. c. 68), the Sheriff-Substitute of Stirlingshire designated and set apart, on the petition of the Parochial Board of Denny a portion of the estate of Herbertshire. The price was fixed by valuation under the Lands Clauses Act at £480, 6s. 9d., and that sum was consigned in bank, a disposition being executed by Mr Forbes in favour of the chairman of the Parochial Board of Denny.

Mr Forbes was also heir of entail in possession of, and feudally vested in, the lands and barony of Callendar in the same county, and the destination in the entail of that property was the same as in the entail of Herbertshire.

Under the Caledonian Railway Act 1876, and the Lands Clauses Consolidation Act 1845, the Caledonian Railway Company acquired certain portions of the estate of Callendar for their undertaking, the price of which, £906, 3s. 9d., was consigned in bank on May 12, 1883. The two sums thus consigned amounted to £1386, 10s. 6d.

In this petition Mr Forbes craved, under the Lands Clauses Act 1845, secs. 67 and 68, authority to invest the sum of £1335 in a certain investment in superiorities of lands, and to obtain payment of the balance of £51, 10s. 6d.

The petition craved the Lord Ordinary to decern against the Parochial Board of Denny and the Caledonian Railway Company for payment of the costs of the petition and proceedings therein, and uplifting and applying the consigned money, and of entailing the superiorities to be purchased as an investment on the series of heirs in the entails, “and that in the same proportions as the sums consigned by them respectively bear to each other,” or to do otherwise as should seem proper.

On a motion being made for expenses against the parochial board and the railway company, the Lord Ordinary directed inquiry to be made as to whether in practice such expenses in similar cases were divided equally between the parties, or in proportion to the sums consigned by them respectively. It was stated that the practice had varied.

Argued for the parochial board—It was equitable that the expenses should be apportioned between the board and the railway company in proportion to the sums consigned by them respectively.

Argued for the railway company—The general rule in the English Courts was to make such costs divisible between the parties equally (Deas on Railways, p. 350, and cases there cited; ex parte Governors of St Bartholomew's Hospital, May 20, 1875, 20 L.R., Equity Cases, p. 369), and as there might have been separate petitions with reference to each of the consigned sums, the equitable course was to divide the expenses equally between the parochial board and the railway company.