Scottish Court of Session Decisions

This was a petition at the instance of the Marquess of Ailsa, heir of entail in possession of the entailed estates of Cassilis and Culzean, under the Entail Acts, and particularly under the Acts 11 and 12 Vict. c. 36, and 38 and 39 Vict. c. 61. The petitioner craved the Court to find that a sum of £6844, 0s. 3d., expended by him on the entailed estates, had been expended “on account of improvements of the nature contemplated by the said Act 38 and 39 Vict. c. 61,” and to authorise him to uplift a sum of £1758, 4s. 4d. of consigned money, and apply the same pro tanto in repayment of said sum of £6844, 0s. 3d., and to charge the balance of said sum upon the entailed estates.

On 3rd August 1892 the Lord Ordinary on the Bills appointed Mr A. O. M. Mackenzie, advocate, to be curator ad litem to the three next heirs of entail, two of them being in minority and one in pupillarity, and further remitted to Mr George Dunlop, W.S., and Mr James Johnstone, Ayr, to report.

The curator ad litem thereafter lodged a minute objecting to certain of the items included in the account of expenditure lodged by the petitioner, viz. (1) sums amounting to £348 expended in stripping and re-slating the roofs of various farm buildings on the estates, and (2) a sum of £258 expended in erecting a new bakehouse, stable, cartshed, and wash-house in connection with a store or shop at the village of Maidens. He submitted that the operation of stripping and re-slating roofs was a repair necessary for the upkeep of existing buildings, and was not an improvement in the sense of the Entail Acts, and that a store or buildings in connection with the same were not improvements in the sense of the Entail Act of 1875.

Mr Dunlop and Mr Johnstone reported that in their opinion the items objected to by the curator were improvements in the sense of the Entail Acts. With regard to the buildings erected in connection with the store at the village of Maidens, Mr Dunlop explained that the store was of great benefit to the inhabitants of the village, as otherwise they would have to go some distance for their supplies; that the whole of the village was upon the petitioner's estate, and that accordingly there was no risk of competition. He expressed the view that the buildings were beneficial to the estate, and that if not an improvement in the sense of the Act of 1875 they were a permanent improvement in the sense of the Rutherfurd Act.

With reference to the first head of his objections the curator explained at the bar that he had ascertained from the reporters that the nature of the operations described as “stripping and re-slating roofs” was as follows—The roofs having fallen into considerable disrepair the old slates had been stripped off, the sarking had been renewed where necessary, in a few instances new joists had been put in, and the roofs had then been re-slated, the old slates being used if in good order, and new slates where required.

Curator's Authorities— Fraser v. Lord Lovat, December 16, 1841, 4 D. 266; Hope Johnstone, Petitioner, November 21, 1856, 19 D. 68.

Petitioner's Authority— Carnegie, Petitioner, January 19, 1856.