JAMES, DUKE OF MONTROSE v ROBERT CUNNINGHAM BONTINE (Court of Session)

Lord Justice-Clerk .—After hearing counsel on this note, we took time to consider the case, and are now to decide it.

In like manner, the subsequent charter of resignation in favour of William Bontine, of 23d February 1761, while it enumerates the whole lands as comprehended in the barony of Ardoch, refers to the foresaid lands and barony of Ardoch, as before held taxed ward, which, as that tenure was taken away by the statute of George II. are declared now to be held blench of the Crown, for payment of one penny, si petatur tantum .

Therefore, it is quite clear that the reddendo of the feu-lands is omitted, and that the taxed ward does not apply to them at all. Accordingly, no exemption was ever claimed for these feu-duties, but Bontine continued to pay them to the Montrose family.

The present action was raised in November 1837, so that there is no prescription against the right; and, after narrating the title of the pursuer, and the feu-duties payable by the predecessors of the defender, as narrated in the charter 1707, and that it is in arrear since 1810, concludes that it should be found and declared, that in virtue of these titles and possession, or otherwise, the pursuer has right to these feu-duties.

The Court pronounced as follows, viz. ‘Alter the interlocutor submitted to review, and find, decern, declare, authorise and ordain in terms of the libel, subject to this qualification, that the pursuer shall be at the expense of recording this decreet in the Register of Sasines, Reversions, &c., and find no expenses of process due to either party.’