LORD MURE concurred.

The Sheriff's interlocutor was recalled, and decree given in terms of the conclusions of the summons, with expenses in both Courts.

Counsel for Pursuer-Fraser-Lang. Agent -David Turner, S. L.

Counsel for Defender-J. P. B. Robertson. Agents-Keegan and Welsh, S.S.C.

Wednesday, March 15.

FIRST DIVISION.

[Lord Rutherfurd Clark.

HOME V. HOME.

Entail-Fetters-Disentail-Denuding-Election. Held that where an heir in possession of one entailed estate succeeds to another, the fetters in the entail of which prevent him from holding both, and oblige him either to forfeit and denude of the one or to relinquish the other, he is bound to elect upon the opening of the succession, and before making his election he cannot make up a title nor proceed to disentail.

Observed (per Lord President) that, although the denuding does not require to be done in an unreasonably short time, the heir is not entitled to interfere with the estate except in so far as is necessary for purposes of administration.

This was a petition by George John Ninian Home, sometime George John Ninian Logan, heir of entail in possession of Broomhouse, Berwickshire, for disentail of that estate. The petitioner was twenty-one years of age, and no consents were therefore necessary to the application.

Answers to the petition were lodged for Ferdinand Cospatrick Logan Home, the petitioner's younger brother, and the next heir-substitute, with consent of his curator, he being under age. The deed of entail of the estate of Broomhouse, which was dated 16th February 1830, contained the following clause:-"With and under the condition, as it is hereby expressly provided, that the heirs-male of my body, and the whole other heirs of tailzie above mentioned, shall be obliged constantly to use, bear, and retain the surname of Home and arms and designation of Home of Broomhouse, and none other, in all time after their succession or attaining possession of the said estate; but with power to the heirs-male of my own body, and the other heirs-male of tailzie above mentioned, to conjoin any other arms therewith, but no other surname; and in case any of my heirs-male of tailzie have already succeeded or shall succeed to another estate where they shall be obliged by the entail thereof to assume another name and designation than 'Home of Broomhouse,' then and in that case he or they shall forfeit, amit, and lose all right, title, and interest which they can have to my lands and estate, and shall be holden and obliged immediately thereupon to denude themselves of my said lands and estate hereby disponed, and to convey and dispone the same habili modo to the next heir-male called to the succession of the

said lands and estate by these presents, unless they choose to relinquish the said other estate and continue 'Home of Broomhouse,' which they are at liberty to do in their option: Excepting always in the cases of titles of honour conferred by the King's Majesty on any of my said heirsmale of tailzie, which they shall be at liberty to use and conjoin with the said name and designation of Home of Broomhouse; and with and under this further condition, that in case any of the heirs-male of my body, or of the other heirsmale of tailzie above mentioned, have already succeeded or shall succeed as heirs to any other heritable estate than the lands and others above disponed, of the annual value of three hundred pounds sterling or upwards, then, and so often as the same shall happen, such heir-male of tailzie so succeeding shall forfeit, amit, and lose all right, title, and interest in and to my said lands and estate above described; and the same shall fall, accresce, and devolve to the next heir-male hereby called to the succession thereof, in the same manner as if the heir-male succeeding as aforesaid to such other estate had been naturally dead: Declaring, nevertheless, that this irritancy shall not be incurred if the heir-male who has already succeeded or so succeeding to another heritable estate, of the value above mentioned, shall renounce and relinquish the same within a year and a day after his succession to and possession of the same jointly with my foresaid lands and estate hereby disponed."

The entailer General Home died in 1850, and was succeeded in the estate by his nephew Colonel George Logan of Edrom, who thereupon assumed the additional surname of Home; and in accordance with a relaxation in his favour of the provisions of the entail, contained in a deed of revocation and alteration dated in 1846, held the two estates of Broomhouse and Edrom till 1870. Upon his death his eldest son William succeeded as heir of entail in both estates, but as the conditions of the Broomhouse entail prevented him from holding both, he conveyed Edrom to his younger brother George, the petitioner, by a disposition in favour of him and the other heirs of entail called under the Edrom entail. On this disposition the petitioner was infeft.

In the Edrom entail there was, inter alia, the following condition :-" First, That the said George Logan, my eldest son, and the whole heirs of taillie and heirs whomsoever succeeding to the said lands and barony of Edrom, shall be bound and obliged to use, bear, and constantly retain in all time after their succession thereto the surname of Logan, and arms and designation of Logan of Edrom, with power, nevertheless, to conjoin any other surnames, arms, or designations therewith if they shall think fit."

William, therefore, retaining Broomhouse, dropped the surname of Logan; and George, dropping that of Home, thereafter bore the surname of Logan, in compliance with the deeds of entail.

William James Home of Broomhouse died unmarried on 29th September 1875, the succession to the estate of Broomhouse thereby devolving upon the petitioner, then George John Ninian Logan of Edrom. It was stated in the answers that he had adopted the surname "Home" in this petition for the first time.

v. Home

15,

The petitioner, it was averred, could not disentail Broomhouse, since, under the conditions of the two entails, he could not hold both estates, and he was bound either to forfeit Broomhouse as at the date of his succession to it, and to convey it to the respondent, or to relinquish Edrom to the next heir of entail, who was likewise the respondent. The petitioner was therefore not heir of entail in possession of Broomhouse in the sense of the 2d section of the Act 11 and 12 Vict. c. 36.

The respondent had further raised an action against the petitioner, which was in dependence at the date the petition was presented, the summons of which, inter alia, concluded for declarator that the petitioner had forfeited and lost all right, title, and interest to Broomhouse, and that he was bound and obliged to denude himself of it and convey it to the respondent, and that he should be ordained to do so. There was a further conclusion, that failing the execution by the petitioner of the necessary deeds of denudation and conveyance, the estate of Broomhouse should be adjudged to the respondent.

In these circumstances, the respondent submitted that the prayer of the petition should be refused, or, at all events, that it should not be granted before the result of the action of declarator and adjudication was ascertained.

The Lord Ordinary pronounced the following interlocutor:

"Edinburgh, 24th February 1876.-The Lord Ordinary having considered the petition and answers, and heard counsel, Finds that the petition cannot proceed until the petitioner has judicially declared that he elects to take the estate of Broomhouse, and to surrender the estate of Edrom.

"Note. This petition has been presented with the view of disentailing the estate of Broomhouse. It is not disputed that the petitioner is the heir under the destination. But it is maintained that he has forfeited the estate; or otherwise, that he has no right to disentail it until he declares his election to take it and surrender the estate of Edrom.

"Accordingly the respondent has raised an action to have it declared that the petitioner has forfeited the estate of Broomhouse; or otherwise, that he is bound to convey Edrom to the respondent. The respondent pleads that the petition should be sisted to await the issue of the declarator.

"The petitioner does not disguise that he intends, if possible, to retain both estates. His purpose is by disentailing to get rid of the condition in the Broomhouse entail, which disables him from holding Edrom along with Broomhouse. He urges that the object of the respondent might be gained if the petition were sisted, and asks that his right to proceed with the disentail shall be decided in the petition itself. It is plain that the petition may be defeated by mere efflux of time, and the Lord Ordinary is not disposed to allow this to happen. He thinks that he is bound to consider at once whether the petitioner is entitled to go on with the proceedings which he has instituted.

"At the date when the succession to Broomhouse opened to him the petitioner was heir of entail in possession of Edrom. By that entail he is bound to bear the surname and arms of Logan of Edrom.

"The entail of Broomhouse contains the following clause :-[Here follows clause as cited above.] "It is clear from that clause that the petitioner could not, so long as both entails stood, hold both estates. But if he could disentail the estate of Broomhouse, he might get rid of the condition, and thus retain the entailed estate of Edrom.

"The Lord Ordinary is of opinion that the petition cannot be allowed to proceed until the petitioner elects to take the estate of Broomhouse and relinquish the estate of Edrom. The petitioner has not declared his election, and refuses to declare it. The Lord Ordinary put it to the petitioner's counsel whether he had elected to take Broomhouse, and the counsel declined to answer the question. This was quite right, because an answer in the affirmative would involve the petitioner in an obligation to denude of Edrom, which he is anxious to avoid.

"The Lord Ordinary is of opinion that the petitioner is entitled to proceed with the disentail of Broomhouse, provided that he declares his election to take that estate and surrender Edrom. But the petitioner maintains that he is not bound to make any declaration one way or another, and that the consequence of his proceeding with the disentail must be made the subject of another action with reference to the estate of Edrom. The Lord Ordinary has not been able to adopt that view.

"It is quite true that an heir can disentail, though liable in a certain event to denude. No better illustration can be given than the case of Preston Bruce. But here there is a material difference. The event has arisen which forces the petitioner to surrender the one estate or the other. He may take the estate of Broomhouse, or he may retain Edrom. He cannot under the entails retain both. He is thus put to his election. Before he can deal with Broomhouse he must, as the Lord Ordinary thinks, declare that he elects to take it, and that in such a manner as to insure that all the legal consequences of the election shall follow. In the opinion of the Lord Ordinary he has not forfeited his right to Broomhouse. But he cannot, it is thought, be considered the heir in possession of that estate until his election is declared. It is possible that, on a construction of the clause above quoted, the petitioner may not be put to an immediate election. But until it is made his rights as heir, except for purposes of mere administration, must remain in abeyance.

"The Lord Ordinary has, for the reasons above stated, thought it right to decide the question rather than sist the petition until the issue of the declarator."

The petitioner reclaimed, and argued-He was in the position of an heir of entail, who, under the Statute 11 and 12 Vict. c. 36, was entitled to disentail. The case of Preston Bruce, 6th March 1874, 1 R. 740, was in point. In any case, the clause of the Broomhouse entail allowed him a year and a day before making his election. The respondent's counsel were not called on.

At advising

LORD PRESIDENT-I do not think that there can be any doubt about the soundness of the Lord Ordinary's interlocutor in this case. It is necessary to attend to the precise words of the clause,

and the state of the facts of the case. The petitioner's father Colonel George Logan 'possessed both estates, although under the entail of Broomhouse it is impossible for the heir of entail in possession to hold both the estates of Broomhouse and Edrom. An exception was, however, made in favour of that heir by the entailer. Upon his death, in June 1870, his elder son William took Broomhouse, but he conveyed Edrom to his younger brother, the present petitioner, who has been in possession of the latter estate since 1873. William died in September 1875, and thereupon the succession to Broomhouse opened to the petitioner, who now proposes to make up a title to that estate, and then to disentail it under the second section of the Act 11 and 12 Vict. cap. 36. In this way he wishes to get rid of the fetters of the Broomhouse entail, and to relief himself of the obligation which lies upon him upon his succeeding to it, either to give up Edrom on the one hand, or to forfeit Broomhouse and remain in possession of Edrom.

The question here raised is whether he is entitled to do this. The obligation in the Broomhouse entail relating to this must be read by itself, and the clause which follows, providing for the event of the heir of Broomhouse succeeding to another estate of the annual value of £300, in which case the heir is allowed a year and a day before making his option, has nothing to do with the present matter. It is unquestionably true that the present petitioner has already succeeded to an estate other than Broomhouse, which obliges him to assume another name than that of "Home of Broomhouse," and there cannot be a doubt that he is in the predicament contemplated under the clause of the entail. He has succeeded to Edrom and entered into possession of it; the succession has now opened to Broomhouse, which compels him to take the name of "Home of Broomhouse," and deprives him of the name of "Logan of Edrom."

The obligation is to the effect that the heir must denude of Broomhouse when the succession opens, and if he does not denude, the only other alternative is that he must give up Edrom. It is plain that the option must be exercised immediately, equally in the one case as in the other. The election must take place the moment the succession to Broomhouse opens. That is the conclusion of the whole question. The petitioner is not entitled to make up a title to Broomhouse. The deed of entail excludes him from doing so unless upon a condition which he will not gratify. I confess that if the next heir had applied for an interdict to prevent the petitioner making up his title I should not have hesitated to grant it.

While denuding is a thing which does not require to be done in a few days, or in an unreasonably short time, it is plain that the petitioner is not entitled to do anything with the estate beyond what is necessary for purposes of administration. He cannot make up a title, and I am therefore clearly of opinion that the Lord Ordinary is right.

LORD DEAS concurred.

LORD ARDMILLAN-This is a clear case. I cannot say that I entertain any doubt upon it. The latter clause which has been mentioned does not

touch the point before us. It does not relate to succession to Edrom, or to an estate held on an entail requiring the adoption of a different name and arms. As your Lordship has explained, it has nothing to do with this question.

Before this petition was presented the petitioner had succeeded to Edrom, another estate of which it was a condition that the name of the heir in possession should be other than "Home of Broomhouse. In that case he must elect. He must either forfeit Broomhouse, or, taking it, must relinquish Edrom to the next heir of entail.

In that position the petitioner holding Edrom also claims Broomhouse, and being in the course of making up a title to Broomhouse he declines to elect, and occupies the period during which he may elect in proceedings intended and calculated to get rid of the obligation altogether. He is proceeding to make up a title to Broomhouse without surrendering either estate, and without electing to take Broomhouse-a proceeding to get rid of the entail and to defeat the rights of succeeding heirs which I do not think the petitioner is entitled to adopt.

The case of Preston Bruce was different from the present. In that case there was no heir in existence, and no present date of election; and the event contemplated in the entail had not arisen, as it has here.

FIRST DIVISION.

SIR G. N. BROKE-MIDDLETON, ᏴᎪᎡᎢ . V. THE INLAND REVENUE. Assessment-Property and Income-Tax Act, 5 and 6 Vict. cap. 35-Lease-Deer Forest.

Held that a lessee of a deer forest is liable to be assessed under the Property and Income-Tax Act upon the amount of rent payable, as the annual value of the subject.

Observed, that so far as lands and heritages are concerned, the rule of assessment under the Property and Income-Tax Act is the same as under the Poor Law Act.

This was a case stated by the Commissioners for the county of Inverness for the opinion of the Court under the provisions of "The Customs and Inland Revenue Act 1874."

At a meeting of the Commissioners under the Property and Income-Tax Act, 5 and 6 Vict. cap. 35, and subsequent Acts, held at Inverness on 2d December 1875-Sir G. N. Broke-Hamilton, Bart., appealed against the assessment of £4, 15s. duty, under Schedule B, on £1520, made on him as occupier of the deer forest of Invermoriston, &c., for the year ending 5th April 1876. He paid a rent of £2000 for the furnished house of Invermoriston, with deer forest, including the privi.

v. Inld

lege of shooting deer thereon, and certain grouse shootings and fishings; and the assessor, in fixing the assessable amount at £1520, allowed a deduction of £480 in respect of the houses, with the furniture and the grouse shootings-without, however, admitting that grouse shootings were not assessable. On behalf of the appellant it was stated that the house, with furniture and grouse shootings, were under-estimated, and the assessor agreed to a further deduction of £320, thus making the estimated rent of the deer forest, with the privilege of killing deer thereon, and the schedule (B) assessment, £1200. The appellant objected to this assessment, in respect that it included the portion of the rent paid by him for the privilege of killing deer within the forest, which he maintained was not assessable under Schedule (B), and he therefore claimed to have it reduced to the annual grazing value of the forest. He stated-and this was admitted by the surveyor-that the rent paid for the forest, including the privilege of killing deer thereon, was much above the rent that would be paid for it as a sheep-farm. He referred to rule No. 7, under which the Schedule (B) duty is charged, and rule No. 1, Schedule (A), of 5 and 6 Vict. c. 35, where the properties to be charged are declared to be those "capable of actual occupation," and maintained that the forest was capable of actual occupation only in so far as the land was concerned (the mere privilege of shooting deer, for which so much was paid, not being capable of occupation), and that nothing beyond the ordinary value of the land could be charged for profits of occupation, the duty under Schedule (B) being really chargeable in respect of profits only.

In support of the assessment the surveyor referred to rule No. 7, which provided for the Schedule (B) duty being charged in addition to the duty to be charged under schedule (A), "according to the general rule in No. 1, Schedule (A), before mentioned, on the full amount of the annual value thereof." That rule extended to all lands, "for whatever purpose occupied or enjoyed;" and under the Property Tax Acts (and Valuation of Lands Acts, which ruled the Property Tax valuations), the rent, where a bona fide rent was paid, was held to be the annual value. The appellant had the exclusive use or occupation of the forest, and the rent paid by him was its agreed-on actual value. He maintained, therefore, that the appellant was chargeable on the rent actually paid under his lease, without reference to the rent the forest might bring if let as a sheep-farm or otherwise.

The Commissioners found that the assessment appealed against was made according to the amount of rent fixed in terms of the lease between the appellant and the trustees of the late James Murray Grant of Glenmoriston, dated 18th June and 2d July 1872. Therefore refused the appeal; but in respect that the assessor consented to allow the sum of £800 as a deduction from the actual rent payable by the appellant to the said trustees, restricted the amount of the assessment to £1200.

The appellant being dissatisfied with this decision, a case was required to be stated, which came before the Lord Ordinary (SHAND) in Exchequer Causes. His Lordship appointed it to be heard before the First Division of the Court.

Sir G. N. Broke-Middleton argued-A deer forest was not included in "lands, tenements, and hereditaments or heritages, capable of actual occupation," and, as matter of fact, was not occupied. There was an attempt here to assimilate the position of a tenant of a deer forest to that of an agricultural tenant. There was here, in addition to the elements present in the case of game tenants, that of exclusive use of the forest. The tenant made no profit out of his tenancy, and it was upon profit that assessment under the Act was made. That constituted the difference between assessment under the Property and Income-Tax Act, and that under the Poor Law Act, where a game tenant had been held to be in the occupation of land, and so assessable. The terms and objects of the two Acts were thus different.

Authorities-Pollock, Gilmour, & Coy., v. Harvey, June 5, 1828, 6 S. 913; Macpherson v. Macpherson, May 24, 1839, 1 D. 794, 5 Bell's Appeals 280; Sinclair v. Duffus, November 24, 1842, 5 D. 174; Menzies v. Menzies, March 11, 1852, 14 D. 451; Stirling Crawfurd v. Stewart, June 6, 1861, 23 D. 965.

At advising

LORD PRESIDENT-It is to be taken into consideration in this question that the rent of £1200 is paid for a deer forest, that is to say, it is a rent paid for the occupation of the ground of which that deer forest consists, and for the exclusive occupation of that ground for the purposes of sport; and the question is, whether the appellant is assessable under Schedule B of the Income Tax Act for that forest. Schedule B grants to Her Majesty a duty for "all lands, tenements, and heritages in Scotland, in respect of the occupation thereof for every 20s. of the annual value thereof, the sum of 21d.' In Schedule A there is a corresponding sum charged against the owner of the land, "in respect of the property thereof, for every 20s. of the annual value thereof the sum of 7d." So that every acre of land in Scotland is made the subject of assessment in this way to the amount of 7d. in the £1 for every owner, and to the amount of 24d. in the £1 for every occupier of such subject. The two assessments plainly go together. They are intended to apply, and do apply, to the same subjects, and the tax is payable as assessment upon the annual value.

Now, the way in which these assessments are to be laid on is regulated by the 60th and 63d sections of the statute. The first rule under the 60th section is this "The annual value of lands, tenements, hereditaments, or heritages charged under Schedule A shall be understood to be the rent by the year at which the same are let at rack-rent, if the amount of such rent shall have been fixed by agreement, commencing within the period of seven years preceding the 5th day of April next before the time of making the assessment; but if the same are not so let at rack-rent, then at the rack-rent at which the same are worth to be let by the year, which rule shall be construed to extend through all lands, tenements, hereditaments, and heritages capable of actual occupation, of whatever nature, and for whatever purpose occupied or enjoyed, and of whatever value,"-excepting certain sub

jects which are specified in rules Nos. 2 and 3, which are not applicable to the present case.

The 63d section has this rule No. 7-" The duties last beforementioned shall be charged in addition to the duties to be charged under Schedule A on all properties in this Act directed to be charged with the said duties, according to the general rule in No. 1, Schedule A, beforementioned, on the full amount of the annual value thereof, estimated as by this Act is directed."

In laying on these duties under this statute the subject is to be considered-what is a heritage?—and there can be no doubt that according to the description of the statute the ground in question falls within that description. Then, in the second place, the annual value is to be ascertained by the actual rent, if it is the full rent of the subject. And we have in this case the rent ascertained in quite a satisfactory way. That, the Act says, is to be taken as the annual value; and the owner is to pay on that annual value 7d. in the £1, and the occupier is to pay 24d. Now, surely all that is very clear and plain, and admits of no difficulty of construction at all. The only question raised here, as I understand it, is, whether Sir George Middleton is the occupier of a heritable subject within the meaning of the statute. Now, I should have thought that it was a great deal too late to question that unless some distinction could be shown between this statute and the Poor Law Act; because the question has been settled under that Act by the case of Stirling Crawfurd v. Stewart, and settled upon this precise ground, that the tenant of a shooting is a person in the occupation of land, and is assessable as such. He is assessable as a tenant or occupier under the Poor Law Act, and the occupier is a person to be assessed under this Act also. Therefore, unless some distinction can be pointed out between the one Act and the other, the present case is perfectly hopeless, for Mr Mackintosh, with all his ingenuity, has been unable to point out any distinction, unless it consists in this - that the present Act is intended as a tax upon profits, whether they arise from lands or from trades and professions. And that is quite true; but there is a material distinction between the provisions of the Act as regards profits arising from the one source and as regards profits arising from the other. In the case of profits arising from trades and professions, the Act says that there shall be an estimate made of what the profits are, and we know that it is a very rough and ready kind of estimate that can be made even in that case. But in the case of lands the statute requires no such estimate of profits. It fixes the mode in which the profits are to be estimated a statutory mode of proving what the profits are-and that is by taking the actual annual value of the land, which it defines to be the rent payable, if it be the full rent, or the rack-rent, as the statute calls it, or what the rent would be if it be not let. That is precisely the rule which is to be applied. So that, as far as lands and heritages are concerned, the rule of assessment under this statute, and the rule of assessment under the Poor Law Act, are precisely identical; and therefore I think the determination of the Commissioners is sound.

LORD DEAS-There is, I think, some distinction between the poor law cases and the present case. Poor-rates are required to be payable upon the annual value, taking one year with another, onehalf by the landlord and the other half by the tenant. The first thing to be ascertained in such a case was, of course, what was the annual value of the lands and heritages? That could only be ascertained by taking the rent. When it was required that one-half should be paid by the landlord and the other half by the tenant, there was a division of liability between them upon the annual value-the annual value being what was paid by the tenant. But this, you observe, was not a tax upon the profit made by the tenant, it was a tax upon the whole annual value of the subject. In the present case the one-half was not payable by either the landlord or the tenant. There is a larger tax upon the landlord and a smaller one upon the tenant. The question, however, I think, comes to be, notwithstanding the mode of division between the two, whether it is not really a division of the tax between the two of the whole annual value, just as under the Poor Law Act, with the difference simply that in the one case the assessment is equally divided, while in the other case it is unequally divided. Although there is that difference, the assessment is laid on as in the Poor Law Act itself, and if that be sound, it is no matter whether the tenant makes profit out of it or no. It is not on the footing of the amount of profit that the liability is laid on, but on the footing that the lands are of a certain annual value, and the assessment has to be divided in certain proportions between the landlord and the tenant. I have come to the same result as your Lordship in the chair.

LORD ARDMILLAN-In the case before us I do not think there is any difficulty at all. The tax is partly on the profit of the property and partly on the income. Schedule A is distinct as to its being a tax on "all lands, tenements, hereditaments and heritages, in respect of property, for every 20s. of the annual value thereof 7d." Schedule B is in the same terms in regard to the occupation of lands, tenements, hereditaments, and heritages, the amount in that case however being only 24d. in the £1. Then, proceeding to the more detailed enactments on the subject, there is section 60, where the rules for estimating lands mentioned in Schedule A-that is, for the ascertainment of the tax on the property-are laid down. You have it there again put expressly on the ascertainment of the annual value; and under section 63, which gives the detailed enactment for assessing and charging properties under the Act (Schedule B) on the occupant, you have again the very same words-the annual value. Whatever the thing be, it is a tax both in regard to the proprietor and in regard to the occupant. Now if there is in this case a rent accruing to the proprietor of the deer forest, it is the annual value of the property so far as it is paid for the deer forest. The rent is, besides, the annual value of the deer forest to the occupant. Both landlord and tenant are therefore within the enacting words of the statute. The time was when a difficulty was raised which does not occur here at all, whether game was a fit subject of such enactment or of assessment at all, on the ground that game, or