COUNCIL OF LAW KEPORTING. VOL. I. S. & D. 2 b COUNCIL OF LAW REPORTING. Jtlnnbcrs of tfje QDouncil. Chairman Siu ROUNDELL PALMER, Knt., M.P., Q.C. Vice-Chairman W. T. S. DANIEL, Esq., Q.C. EX-OFFICIO MEMBERS. THE ATTORNEY-GENERAL, SIR K. P. COLLIER, Knt, M.P. THE SOLICITOR-GENERAL, SIR J. D. COLERIDGE, Knt., M.P. THE QUEEN'S ADVOCATE-GENERAL, SIR TRAVERS Twiss, Knt. ELECTED MEMBERS. MR. SERJEANT O'BRIEN ) > Serjeants' Inn. MR. SERJEANT PULLING ) SIR ROUNDELL PALMER, Knt., M.P., Q.C. W. T. S. DANIEL, Esq., Q.C. WILLIAM FORSYTH, Esq., Q.C. ) ( Inner Temple. H. WARWICK COLE, Esq., Q.C. j T. W. GREENE, Esq., Q.C. ) ., ,, I Middle Temple. JOHN GRAY, Esq., Q.C. j JOHN A. RUSSELL, Esq., Q.C. JAMES BARSTOW, Esq. Gray's Inn. WILLIAM WILLIAMS, Esq. (Firm Messrs. Currie and Williams), Lincoln's Inn Fields [ Incorporated W. S. COOKSON, Esq. (Firm Messrs. Cookson, Waine- [ Law Society, wright, & Co.), 6, New Square, Lincoln's Inn Secretary JAMES THOMAS HOPWOOD, Esq., 3, New Square, Lincoln's Inn. THE LAW REPORTS. cotd) anlr 3Bitom Appeal Cases BEFORE THE HOUSE OF LORDS. KEPORTED BY J. F. MACQUEEN, QUEEN'S COUNSEL. VOL. I. SESSIONS 1866-7-8-9. XXIX & XXX TO XXXII & XXXIII VICTORIA. LONDON: PRINTED FOR THE COUNCIL OF LAW REPORTING BY WILLIAM CLOWES AND SONS, DUKE STREET, STAMFORD STREET ', AND 14, CHARING CROSS, PUBLISHING OFFICE, 51 CAREY STREET, LINCOLN'S INN, W.C. 18G9. SB '' A TABLE NAMES OF THE CASES REPORTED IN THIS VOLUME. PAGE PAGE ABERDEEN (UNIVERSITY OF) v. j Campbell v. Campbell. (The Irvine . 289 j Breadalbane Case) . . 182 v. The Earl of Dalhou- . 259, 462 Addie v. The Western Bank of Scotland . . 145 , Western Bank of Scot- land v 145 Advocate, The Lord, v. Hunt . 85 v. Sinclair 174 v. Steven- son . . . . .411 Alexander v. The Officers of State for Scotland 276 sie Carl ton and Hudson v. Thompson 232 Carrick v. Miller . . . 356 Carron Company (The) and Lo- thian v. Hunter . . .362 Clephane v. The Lord Provost, &c., of Edinburgh . .417 Dalhousie (The Earl of), Camp- Baird, Western Bank of Scotland bel1 v ' ' 259,462 v - 170 Deer (The Presbytery of) Bruce Barstow v. Black . . .392 Bell v. Kennedy . . . 307 Bickett v. Morris . . . 47 Black, Barstow v. . . . 392 Breadalbane Case, The. Camp- bell v. Campbell Breadalbane (The late Marquis of), The Earl of Dalhousie (Trustees of), Campbell J. A. G. C., claiming to be Earl of Breadalbane, &c. v. . . 259 Bruce v. The Presbytery of Deer 96 Buccleuch (Duke of), White v. 70 v. Diggens . Gordon . Dunlop v. Johnston 96 136 109 Eden, Forbes v. 568 132 Edinburgh (The Lord Provost, &c., of) Clephane v. . . 417 (University of), Greig r. Fleeming v. Howden , Howden v. Forbes v. Eden Fraser, Lovat (Lord) v. 348 372 40 568 24 V08C88 TABLE OF CASES EEPOETED [S. & D. VOL. I. Gordon, Diggens v. . Greig v. The University of Edin- burgh .... Henderson, Pattisou v. Howden . Fleeming , Fleeming v. v. Eocheid . Hunt, The Lord Advocate v. Hunter, Carron Company and Lothian u. . Inspector of the Poor, Leith Harbour and Docks (Commis- sioners) of v. Irvine, University of Aberdeen 0. ..... Isdale, Jack v. Jack v. Isdale Jenkins v. Eobertson Johnston, Dunlop v. Johnstone, Lee v. . Kennedy, Bell . Ker, Wellert;. Lee v. Johnstone Leith Harbour and Docks (Com- missioners of) v. Inspector of the Poor .... Lindsey v. Oswald . Longworth or Yelverton v. Yel- verton Lovat (Lord) v. Fraser McBarnet, Stuart v. Macfarlane v. Taylor . Merry and Cunningham, Wilson v. Miller, Carrick v. . Morris, Bickett v. PAGE 136 Nicol v. Paul . PAGE 127 348 Officers of State for Scotland, Alexander v. . . .276 392 Oswald, Lindsey v. . . .99 40 872 Patrick and the Attorney-Gene- 550 ral, Shedden v. . . 470 85 Pattison v. Henderson . . 392 , Paul, Nicol v. ... 127 3G2 Poor, Inspector of the, Leith Harbour and Docks (Commis- missioners of) v. . 17 289 1 1 117 109 426 307 11 Robertson, Jenkins v. Rocheid, Howden v. Rowley v. Rowley . 17 117 550 63 Shedden v. Patrick and the At- torney-General . . .470 Sinclair, The Lord Advocate v. . 174 State, Officers of, for Scotland, Alexander v. . . .276 Stevenson, The Lord Advocate v. 41 1 Stuart v. McBarnet . . . 387 Taylor, Macfarlane v. . . 245 Thompson, Carlton and Hudson . 232 Udny v. Udny 17 99 218 24 387 245 326 356 47 441 11 Weller v. Ker Western Bank of Scotland v. Addie .... 145 ---- Addie . 145 - v. Baird 170 White v. Buccleuch (Duke of) . 70 Wilson v. Merry and Cunningham 326 Yelverton, Longworth or Yelver- 218 TABLE OF CASES CITED. A. Aberdeen (Magistrates of) v. Menzies Adam v. Maclachlan Advocate (Lord) v. Hamilton v. Hunt Attorney-General v. Mansfield v. Pearson Auchterarder Case PAGE Mor. 12, 787 . . 52, 59 9 Dunl. 560 . . 224, 226 1 Macq. 46 . .49 3 Sc/ Decis. 3rd Ser. 455 . 94 2 Buss. 501 . . . 421 7 Sim. 290 . . 572 McLean & Eob. 220 ; 6 CL & Finn. 646 , 572 B. Balbougie Case Barber v. Findlater Barratt's Case Bartonshill Coal Company v. Keid Bernard's Case . . Blantyre v. Dunn Brockwell's Case . Brown v. Countess of Dalliousie . Burness v. Fennel Burnet v. Burnet Burnis v. Brown . 2 Dow, 483 . 182, 193, 206, 207 13 Sh. & Dunl. 143 . . 241 2 De G. J. & Sm. 30 . 3 Macq. 282 . 5 De G. & Sm. 289 . 10 Dunl. 542 . 4 Dm. 205 Mor. App. voce Taillie, 19 6 Bell, 541 16 Dunl. 780 . Hume's Dec. 504 . 149 330, 344 . 155 . 52 149, 155 100, 105, 106 . 149 . 242 52 c. Calder v. Dickson Caledonian Iron Foundry Company Clyne .... Carrick v. Buchanan Clarke v. Dickson Clyde Navigation Trustees v. A damson Cochranc v. Ramsay Colville v. Lander Couch v. Steel 4 Dunl. 1368 . 10 Sh. & Dunl. 133 3 Bell, App. Ca. 342 Ell. B. & E. 148 4 Macq. 931 243 . 100 149, 159, 160 17, 19, 20, 350 Fac. Coll. 28 June, 1821 .283 Mor. tit. Succ. App. 9 . . 449 3 E. & Bl. 402 . . , 340 VIM TABLE OF CASES CITED. [S. & D. VOL. I. Craig v. Galloway Craigdallie v. Aikman Crawfurd v. Patrick Cunningham v. Cunningham Cuthbertson v. Young 4 Macq. 267 . . . Ill 1 Dow, 1 ; 2 Bli. 529 . . 572 Fac. Coll. 1 July, 1803 . 535 2 Dow, 483 . 182, 193, 206, 207, 212, 230 13 Dunl. 1308 . . 120 D. Dalhousie v. McDouall Dalrymple v. Dalrymple . Davidson v. Tulloch Deposit Company v. Ayscough Dixon v. Ranken . Dodgson's Case Dunbar v. Skinner Duranty's Case . 7 Cl. & F. 817 . 2 Hagg. Cons. 58 3 Macq. 783 . 6 Ell. & Bl. 761 14 Dunl. 420 . 3 De G. & Sm. 85 11 Dunl. 945 . 26 Beav. 273 . 456 224 149 149 336 155 572 149 Easter Glens, Case of Elliott v. Johnston's Trustees 1 Reg. of Comm. of Teinds, 303, 328 . . . . 432 1 Sh. & Dunl. 51 ; 2 Shaw's App. Cases, 461 . . 75 Farquharson v. Farquharson Farrant v. Webb . Feltham v. England Forbes v. Hunter . v. Luckie . F. Mor. 12, 787 . . 52, 59 25 L. J. (C.P.) 263 . . 332 Law Rep. 2 Q. B. 33 . . 339 Fac. Coll. 3 July, 1810 . 283 16 Shaw, 374 . . . 235 Gallagher v. Piper Gellatley v. Arrol Gray v. McHardy Greig v. Kirkaldy Grey v. Pullen 16 C. B. (N.S.) 669 . 338, 339 1 Sc. Dec. 3rd Ser. 592 . 52 24 Dunl. 1043 . . . 121 13 Dunl. 975 . . 121, 124 5 B. & Sm. 970 340 Hamilton v. Edgington . Hay, &c. v. Earl of Morton Henderson v. Henderson . Hewley's (Lady) Charity Hepburn v. Brown Hoddam Case Holt's Case H. Mor. voce Prop. 12, 826 . 52 24 Sc. Dec. 2nd Ser. 116, 1054 .. 72, 73 Fac. Coll. 21 Nov. 1815, p. 29 . 100 7 Sim. 309 .. . . 572 2 Dow, 342 . in 2 Bell, 125 . 42 22 Beav. 48 . 149 S. & D. VOL. I.] TABLE OF CASES CITED. Hopetown v. Ramsay Hunt v. Hunt . Hunter v. Dickson PASE 5 Bell, 69 ... 121 31 L. J. (Cb.) 161 ; 10 Weekly Rep _ 2 J- \ _ * ^ 5 Wils. & Sh. 455 . . Ill " Indian Chief," The Inglis v. Lowrie . a- I. 3 C. Rob. 12 . . 451, 454 Mor. 6131 . . . Ill 2 Dow, 149 ; Mor. voce Taillie, App.18 . . . 106 Jeffrey v. Campbell J. 4 Shaw, 2nd ed. p. 33 111 K. Keates v. Montezuma . . Kemp v. Napier . . . Kingston's (Duchess of) Case . Kintore (Earl of) v. Lord Inverury 1 Sw. & Tr. 334 . . 67 4 Dunl. 558 . . . Ill 2 Sm. L. C. 6th ed. 679 . 120 4 Macq. 527 . . .42 L. Lapsley v. Gnerson " La Virginie," The j 1 H. .< L. Ca. 498 182, 193, 194, 207, ' gog 212 5 C. Rob. 99 . . . . 451 Leith Harbour and Docks Commissioners) Law Rep. 1 Sc. App. 17 ; 2 Macq. v. Inspector of the Poor . . J 28 ; 37 Sc. Jur. 599 . 18, 350 Leven v. Cartwright . . .23 Dunl. 1038 . . .121 Lindsay v. McTear . . . 11 Dunl. 719 ; 1 Macq. 155 . 7 Lumsden v. Lumsden . . .2 Bell, 115 . . .42 M. McAulie v. Brownlie . Macdonald v. Macdonakl . McEacharn v. Ewing . Macgregor v. Mac^regor . Mackenzie v. Houston . --- v. Mackenzie . McMillan v. The Free Church Macpherson v. Graham . McWilham v. Adams . Maulev. Maule .. Menzies v. Breadalbane . TOL. L S. & D. 22 Dunl. 975 . . . 338 1 Sc. Dec. 3rd Ser. 1065 . Ill 3 Shaw, 603 . . .225 Fac. Coll. 22 Jan. 1820 . Ill Sh. & Dunl. 29 Nov. 1829 . 287 6 Paton, 676 . . . 87 23 Dunl. 1314 . . 572, 575 Mor. 6113 . . Ill, 116 1 Macq. 120 ; 2 Sc. Decis. 3rd Ser H 1003 . 3> 4> 5> 6 , 7, 8 9 Sh. 876, 5 July, 1831 120, 124 3 Wils. & Sh. 235 . .52 TABLE OF CASES CITED. [S. & D. VOL. I. Mersey Docks and Harbour Board v. Cameron . Mixer's Case . Montrose (Duke of) v. Mclntyre . Moor house v. Lord Moray (Cov.ntess of) v. Wemyss . Morgan v. Morris . Morrice v. Sprot . Muirhead v. Muirhead Munro v. Munro . Munroe v. Douglas 11 H. L. Ca. 443 ; 35 L. J.\ . - . q 9f) (M.C.) 1 ; 11 Jur. (N.S.) I U' 4$ 146; 12 Law T. (N.S.). ^ ^ 643; 13 Weekly Rep.l 069 j ' 4 De G. & J. 575 . . 149, 150, 156, 160 10 Dunl. 896 10 H. L. Ca. 272 Mor. 9636 3 Macq. 134 . 8 Dunl. 918 . 8 Dunl. 786 . 7 01. & F. 842 . 5 Madd. 379 . 87 441, 460 . 87 . 97 . Ill 222 448, 450, 456 448, 449, 453 N. National Exchange Company v. Drew . 2 Macq. 103 New Brunswick Railway Company v.) Q H L Cft 7 gg Conybeare . . . j Nicol'sCase . . . 3 De G. & J. 420 150, 155, 156, 157 149, 150, 157 158 Oliphant v. Oliphant o. 13 Dunl. 1179 103, 106 P. - Palmer v. Palmer Pattinson v. Robertson Petrie v. Nuttall . 2Sw. &Tr. 61 . . 67 9 Dunl. 226 . . . 225 11 Exch. 569 ; 25 L. J. (Ex.) 200 120 E. Ranger v. Great Western Railway pany .... Reed v. Jackson . Ripon v. Hobart . Ritchie v. Mackay Roger v. Cooper . Rose v. Ramsay . v. Rose . Ross v. Drummond - Roxburgh v. Ker . Rust v. Smith Rutherford v. Nisbet Com- 5 H. L. Ca. 72 . 157, 166 1 East, 355 . .120 3 Myl. & K. 169 . . 50 3 Wils. & Sh. 484 . . 225 2 Shaw, 444 . . .225 Mor. 9645 . . .87 4 Wils. & Sh. 289 . . 456 6 Sh. & D. 945 ; 14 Sh. & Dunl. 454 . . . . 379 Fac. Coll. 17 June, 1813 . 106 3 Sc. Dec. 3rd Ser. 378 111,113 11 Shaw, 123 . . . 121 S. Scot v. Ramsay . Sharpo v. Sharpe . 5 Sh. & Dunl. 340 ; Fac. Coll. 5 Feb. 1787 . . 87, 92 Sandf. on Ent. 126 43 S. & D. VOL. I.] TABLE OF CASES CITED. Shedden v. Patrick . Short and Birnie v. Murray Small v. Attwood Smith v. Galbraith v. Smith . Smitton v. Tod . Smollett v. Smollett Somerville v. Gray & Co. . Stair (Earl of) v. King . Stevenson v. Newnham . Stewart v. Nicolson Stirling v. Dun . Syme v. Dickson . PAGE Fac. Coll. 1 July, 1803 ; 1 Macq. 536 ; 2 Sw. & Tr. 170 .. 472, 474, 535 Mor. 6124 . . .116 You. 407 ; 6 Cl. & F. 232 . 516 Fac. Col. 6 June, 1839 . . 572 4 Hagg. Ecc. 509 . . 67 2 Dunl. 225 . . . Ill Mor. App. voce Taillie, 12 . 379 1 Sc. Dec. 3rd Ser. 768 . 338 5 Bell, App. Ca. 82 .87 13 C. B. 302 . . . 149 22 Dunl. 73 . . 551 , 554, 556, 559, 560, 561, 563, 565, 566 3 Wils. & Sh. 462 . . 556 Fac. Coll. 3 March, 1821. .100, 102, 105 T. Thomson v. Young Torrie v. Duke of A thole . Tulloch v. Baird . v. Welsh Turnbull v. Turnbull 7 Shaw, 32 1 Macq. 65 21 Dunl. 807 . 1 Dunl. 94 1 Wils. & Sh. 80 . 225 120, 121, 124 . 120 . 241 111 u. Udny v. Udny Urquhart v. Melville Law Rep. 1 Sc. App. 441 16 Sc. Dec. 2nd Ser. 307 511 51 Walker v. Walker Wigmore v. Jay . Wishart v. Wyllie Wright v. Barley w. 2 Phillim. 153 5 Ex. 354 1 Macq. 389 9 Dunl. 1151 67 338 49 111 Y. Young v. Carmichael Mor. 9636 87 BEFORE THE HOUSE OF LORDS. SCOTCH AND DIVORCE APPEALS. JACK, APPELLANT ; ISDALE, RESPONDENT^!) 1866 WPV** Scotch Poor Law Relief of able-bodied persons. Fd). 12. Able-bodied persons are absolutely excluded from relief out of funds raised by assessment for relief of the poor under the 8 & 9 Viet. c. 83. The Poor Law Boards of Scotland have no discretionary power to grant relief to able-bodied persons, although those persons may be ready and willing to work, and are in destitution simply from the want of employment. ' The right to grant and the right to receive relief must co-exist, and arc correlative. 1.HIS case (one of great social importance) divided the learned Judges of the Court of Session in Scotland seven of them having voted for the decision under appeal, and six against it the minority including the high name of the Lord President, whose mind had been for more than twenty years applied to the subject, and who was said to have framed the statute, passed in 1845, which had generated the litigation. The sole question was whether, under the 8 & 9 Viet. c. 83, intituled " An Act for the amendment and better administration of the laws relating to the relief of the poor in Scotland" parochial boards had a discretionary power to apply funds raised by statutory assessment to the relief, either permanent or occasional, of persons who, being able-bodied, were in destitution or poverty merely from (1) Reported in the Court of Session Cases, 3rd Series. Vol. ii. p. 978. VOL. I. 2 B SCOTCH APPEALS. [L. E. 1866 the want of employment. This question the Court of Session, by the narrow majority of one vote, had decided in the negative. It was agreed on both sides that the question turned on the TCT) t *? 68th section of the Act, which section is in the following words : "That all assessments imposed and levied for the relief of the poor shall extend and be applicable to the relief of occasional as well as permanent poor : provided always, that nothing herein contained shall be held to confer a right to demand relief on able- bodied persons out of employment." The Lord Advocate of Scotland (1), and Mr. Eolt, Q.C., argued that by the old Scottish statutes tho poor were divided into two classes those who were willing to work but were not able, and those who were able to work but not willing. Besides the funds raised by assessment, there were funds the result of charitable collections at the church doors ; and it is a remarkable fact, that those voluntary collections were in ancient times sufficient; so that compulsory assessments were but little resorted to. Church- door collections were made the subject of a twofold distribution ; one moiety going to the relief of the permanent poor, the other to the relief of the occasional poor the permanent poor being the only class who were legally and absolutely entitled to relief. For with respect to occasional poor, there was this discrimination, namely, that they could not demand, although they might receive, relief at the discretion of the administrators. The occasional poor comprehended persons disabled by sickness or by want of work. Mr. Monypenny in his treatise on the Poor Law of Scotland, and Sir Henry Moncreiff, in his Life of Erskine, describe the ancient practice. [LORD CHELMSFORD : You say the fund was divisible among two classes, one entitled, and another not entitled, to relief.] That is our contention. The report made to Parliament in 1836 by the General Assembly of the Church of Scotland, shewed that the phrase " occasional poor " embraced able-bodied men suffering from a depression of trade and consequent want of employment. Then we have the Act of 1845, which must be construed with reference to the state of things and the understanding at the time (1) Mr. Moncreiff. VOL. L] SCOTCH APPEALS. of its passing. The 68th section gives the occasional poor the same right to relief as that Avhich is given to the permanent poor. The proviso, indeed, declares that the able-bodied shall not be entitled to demand relief ; but although not entitled to demand relief, they are legitimate objects of discretionary relief. In M' William v. Adams (1), the Court of Session and this House held that able-bodied men had no right to demand relief ; but Lord Moncreiff, Lord President Boyle, and Lord Jeffrey said that the right to relief was one thing, and the right to give relief was another and a very different thing. The practice in conformity with this construction has produced great public advantage in seasons of distress, and we submit that it is sanctioned by a legitimate construction of the statute (2). " 1866 JACK v. (1) 1 Macq. 120. (2) The following were remarks of the Lord President agreeing with the minority in the Court below : " I think that an able-bodied person has no right to insist on relief ; but I am of opinion that it is competent for the Parochial Board to grant relief when necessity arises when they see a fit case for it. The proviso of the 68th section enacts, 'that 'nothing herein contained shall confer a right to demand relief on able- bodied persons out of employment.' That is to say, that the occasional poor who are able-bodied, and who had no right formerly to demand relief, shall not have the right to demand relief in future. But they are not excepted from the class of occasional poor, who are now to get relief; and the only difference between them is that the right of demand does not exist in the case of the able-bodied occasional poor. That is my reading of this statute. It is not a reading which I have taken up suddenly. It so happened that, soon after this statute was passed, I had occasion to turn my attention particu- larly to this matter, in conjunction with the late Lord fiutherfurd, and we considered it very deliberately, and we arrived at the conclusion which I am now stating. That was soon after the passing of the Act. It is a view of the Act which was incidentally recognised by Lord Moncreiff and by other Judges in the discussions as to the right of the able-bodied poor to demand relief, The opinion which I have alluded to as having been expressed by Lord Euther- furd and myself at an early period after the introduction of this statute, was referred to in the annual report of the Board of Supervision, and was promul- gated in the different parishes, and from that day down to a recent period it has been acted upon throughout the whole period of the administration of this Poor-Law Act without any evil conse- quences. On the contrary, it has been most successful, for during that period the state of some portions of the country on account of agricultural distress, and of other portions of the country on account of manufacturing distress, has been such that it was found necessary to resort to that mode of relief; and by acting on the view of this statute to which I have referred, temporary relief was given to destitute able-bodied per- sons out of the funds for relief of the poor without applying to Parliament 2 B 2 SCOTCH APPEALS. [L. E. 18G6 JACK The Kespondent's argument, as stated in his printed case (for his counsel, Mr, Anderson, Q.C., and Mr. NeisJi, were not called upon to address the House), was, that no such discretionary authority as that contended for by the Appellant existed before the statute, and since the statute such power assuredly did not exist, for the proviso of the 68th section excluded it in terms which no ingenuity could get over. The case of H" William v. Adam (I) had already settled the question now raised. The decision was one by this House, which their Lordships were not likely to disregard. for extraordinary aid, as we find was necessary for England, and this was done without any evil consequences. Therefore I rest my opinion on the result of experience, noton speculation. I regret that the expressions in the statute are not so explicit as to satisfy the majority of the Court that the interpretation I am putting upon it is the sound one." (1) 1 Macq. 120. The report of the General Assembly of the Church . of Scotland made to Parliament in 1836, stated that the Scotch system of Poor Laws, introduced by the Act of 1579, c. 74, was borrowed from the English statute, 14 Eliz. c. 5. But in England provision was made not only for the " impotent poor," but also for those who, though able-bodied, were out of employment and consequently destitute. In Scotland, on the contrary, a legal right in the able-bodied was never ac- knowledged. In M' William v. Adam, 1 Macq. 121, Lord Brougham said that it was remarkable how closely the pro- visions of the English and the Scotch Acts resembled each other. " The 22nd and 24th sections of the English Act are almost copied. The 23rd, that for setting to work the able-bodied, is wholly omitted. It is difficult to avoid tho inference that the omission was designed on the part of the Scotch Par- liament." His Lordship continued : " There is the greatest difference be- tween relieving all impotent poor, and relieving all able-bodied persons who cannot find work ; and there is no absurdity in supposing that the Legis- lature intended to exclude the latter class. The relieving officer may easily discern whether an applicant is disabled by infirmity. But to ascertain whether he is unable to find work, and whether the inability does not arise from his own fault, may be very difficult. The construction, therefore, that the able- bodied are excluded from relief imputes no inconsistency to the law-giver; it rests, on the contrary, upon a solid and intelligible distinction." The remarks of Lord Brougham hold good in indivi- dual cases. But when there is a general and notorious calamity, then the inabi- lity to grant relief and the statutory necessity of withholding it become frightful to contemplate. .The contrary practice, though illegal, has worked well in Scotland. For what says Lord Ardmittan, one of the minority below? He says : " I regret that the question has been raised; because during more than one season of great distress in par- ticular classes of the community, the discretionary power challenged in this case has been of the utmost public ad- vantage, and has warded off results which might have been deplorable." Third Series of tJie Scotch Reports, vol. ii. p. 1003. VOL. I] SCOTCH APPEALS. 5 THE LORD CHANCELLOR (1) : ] SGG My Lords, I think the question turns, not partly, but 'wholly, r> upon this single Act of Parliament, the 8 & 9 Viet. c. 83 ; and the IsmLE - only legitimate purpose for which we can refer to what preceded it, is to ascertain the meaning of the words "permanent and occasional poor," occurring in the 68th section. This was the way the Lord Advocate very properly put the matter ; and it was only fair to cite the reported cases and such evidence as could be furnished, to shew that under the head " occasional poor " were included persons who were not permanently disabled, and therefore not placed upon the permanent roll to receive relief, but persons who were, from temporary illness and other causes, in a state of destitution, and objects of charity. And I take it, according to what has been pressed so much by Mr. Rott, that, under the phrase " occasional poor," would be included persons who .are in destitu- tion because, though able-bodied, they cannot get work. But what has the statute said upon that subject ? The 68th section says that, "after the passing of this Act, all assessments imposed and levied for the relief of the poor shall extend and be applicable to the relief of occasional as well as permanent poor." If the clause had stopped there (supposing that the Lord Advocate and Mr. Bolt are right in their contention), it would have entitled an able-bodied person to obtain relief. But the clause does not stop there; it goes on to say, "provided always, that nothing herein contained shall be held to confer a right to demand relief on able-bodied persons out of employment." It has been already decided almost unanimously in the Court of Session (2) (and the decision has been affirmed after great deliberation in this House), that no able-bodied person, though ho might come under the description of occasional poor, has any right to demand relief. But then it is said the person docs not demand relief in this case; or, if lie docs, it is not because he demands it that it is given to him. The Appellant's argument is that, although he could not have demanded relief, the administrators of this fund can competently give it to him whether he demands it or not. That argument appears to mo (1) Lord Crauworth. (2) M' William v. Adims, 1 Macq. 120. SCOTCH APPEALS. [L. B. 1866 to be absolutely inconsistent with the notion of a fund levied for JACK a certain special purpose, defined, as that purpose is in the 33rd ISDALE section, Vhich is that " it shall be lawful for the parochial board," at any meeting to be called for the purpose, " to resolve that the funds requisite for the relief of the poor persons entitled to relief" shall be raised by assessment. Now, my Lords, is this a person entitled to relief ? Clearly not, unless he is entitled to demand relief. I am unable to distinguish, or to see any difference in principle, between being entitled to relief and being entitled to demand relief. The whole argument rests upon the very subtle distinction that, in that last line of the 68th clause, the words are, " that nothing herein contained shall be held to confer a right to demand relief," instead of " to relief." Suppose the words had been merely " a right to relief," there would not have been a shadow of foundation for the Appellant's argument- But it appears to me that that variation in the language makes no real difference ; and although it was not actually the point decided in this House in the case of Adams and M'Wiltiam, it is impossible not to see that both Lord Brougham and Lord Truro thought that the right to give and to receive relief were correla- tive ; that if there was no right to demand, there was none to give relief. (1) It cannot be that where a fund has been raised for a (1) The following were the remarks quite unable to understand an applica- of the Lord Justice Clerk, agreeing with tion of funds authorized by statute for a the majority in the Court below : beneficial public object, which does not " I am unable to construe the Act create a corresponding legal right in 8 & 9 Viet. c. 83, in any other sense the person intended to be benefited to than that which was adopted in the claim the benefit, if it be improperly judgment of this Court and of the House withheld from him. of Lords in Adams v. M' William. " The more natural and obvious con- " The respondent reads the 68th sec- struction is, that the enactment of the tion of the statute as authorizing and 68th section was intended for the benefit empowering parochial boards to apply of that class of occasional poor who are funds raised by assessment to relief of for the time reduced by disease, bodily the able-bodied out of employment, but or mental, below the condition of being without giving these persons any legal able-bodied (and who were under the right to relief. I think, if there had older statutes proper objects of parochial been any intention to introduce so serious relief), and that the proviso (in harmony and radical a change into the Scottish with the older laws) excludes the able- poor laws, it would have been enacted in bodied absolutely from the application of express terms, and not left to an obscure this enactment. Such was Lord Braug- and doubtful implication. But I am also- ham's opinion iu Adams v. M Wittiam. VOL. I.] SCOTCH APPEALS. special purpose defined in an Act of Parliament and given into the hands of the persons whose duty it is to carry the Act into execution, it is open to them to say, " we think that you are not within the class of persons defined in the Act ; but we think you are a proper object of relief, and therefore we shall give it to you, although we are not authorized by the Act to do so." It is not unimportant to observe, that when a discretion was intended to be given for a purpose very similar to this, it is given in the 67th section. It is seen that it might be very convenient that the administrators should have the power to subscribe to hospitals, or objects of that nature, and therefore a discretion is expressly given to them in that 67th section (1). That seems to exclude the notion that they could have had any discretion if it had not been so conferred upon them. My Lords, in common, I believe, with my noble and learned friends, I do not in general like to decide a case, however strong 1866 JACK v. ISDALE. ' It is,' he said, ' a provision in the sec- tion extending the enactments to occa- sional relief, and to prevent the mere want of employment from bringing per- sons within the class of those entitled to such relief, the proviso in terms excludes them from whatever in the enactment is given' " 1 Macq. 132. The language of Lord Truro, in like manner, makes it very clear that he considered the power of the administra- tors to give relief out of the rates, and the legal right to demand a participation in the rates, to be commensurate, and that a voluntary application of the rates by the parochial board to relieve able- bodied persons could just as little be sustained as a demand of right by the able-bodied to be relieved out of the rates. He says, " The rate in which the Appellant claims to participate was made under the authority of this Act alone. The Act directs how this new statutable rate shall be applied, and de- clares in effect that no able-bodied person shall have any right to claim under the Act to be included in the list of persons entitled to participate in the rate." " To allow the rate made under this Act to be applied to the relief of a list of persons which included the names of able-bodied paupers, would certainly be inconsistent with this statute." Ib. 153, 154. Again, in the case of Lind- say v. M'Tear, decided on the same day with Adams v. \M' William, the same noble and learned Lord says, " The House is bound to declare, whether the overseers" (meaning, of course, the parochial board) " are authorized by law to apply the rate in question to the relief of these individuals, and I think that by law they are not so authorized, and that the children's rights and claims are dependent on those of the parents." (1) The words of the 67th section are, " It shall be lawful for the parochial board to contribute such sums as to them may seem reasonable and expe- dient from the funds raised for the relief of the poor to any public hospital," &c. SCOTCH APPEALS. [L. R- 1866 my opinion may be, until I have heard it all out. It may be said that this reluctance ought to be especially manifested in a case kke tne P resent > w h ere tnere nas ^ )een a m i norit y in tne Court below so numerous that the division, we may say, is nearly evenly balanced. But the question turning, as it appears to me to do, not upon any elaborate examination of old Acts of Parliament, but simply upon the construction of two or three clauses in this recent statute, and being, for my part, utterly unable to see any dis- tinction in principle between this case and the case decided in your Lordships' House fourteen years ago (1), I think it is unnecessary to occupy your Lordships' time any further with the consideration of it, and therefore, without any disrespect to the minority of the learned Judges of the Court of Session, I shall move that this appeal be dismissed. > LORD CHELMSFOED : My Lords, I entirely agree with my noble and learned friend on the Woolsack ; and if it were not for the difference of opinion amongst' the learned Judges of the Court of Session,! should have thought that there was very little difficulty in the case. Before the 8 & 9 Viet. c. 83, the relief of the poor in Scotland was provided for partly by assessment, and partly by collections at the church doors. A moiety of the collections at the church doors was blended with the assessments, and administered for the relief of the permanent poor. The other moiety, after payment of certain expenses by the Kirk Session, was distributed by them for the relief of occasional poor, and amongst these, able-boclied persons out of employment were generally included. This being the state of things, the Act. of the 8 & 9 Viet, was passed, and the 54th section provides that the whole of the church collections shall "belong to and be at the disposal of tho Kirk Session of each parish." So that after this enactment there was no longer a moiety of tho collections at the church doors to be blended with the assessment for the relief of the perma- nent poor. Anew parochial board was established, and that parochial board (1) MWilliam v. iklams, 1 Macq. 120. VOL. I.] SCOTCH APPEALS. was, in the first place, by the 32nd section, to make up every year i860 " a roll of the poor persons claiming, and by law entitled to, relief JACK from the parish or combination, and of the amount of relief given, or to be given, to each of such persons." Of course this was a roll which applied merely to the permanent poor, because those were the only persons who were ascertained at the time of its being made up. Then the 33rd section provides, that it " shall be lawful for the parochial board to resolve that the funds requisite for the relief of the poor persons entitled to relief from the parish or combination, including the expenses connected with the man- agement and administration thereof, shall be raised by assess- ment. It is quite clear, from the words of this section, that this assessment was to be applied to the persons, and solely to the persons, who were entitled to relief from the parish. Therefore, if nqthing more had been said by the Legislature, the occasional poor would not have been included amongst the persons who were to bo relieved out of this assessment. But it was the intention of the Legislature that a certain class of the occasional poor should have relief (not that they should be entitled to relief) out of this assess- ment. Accordingly, the 68th section, upon which the whole question turns, provides not that the occasional poor shall be entitled to relief out of this fund but that " all assess- ments imposed and levied for the relief of the poor shall extend and be applicable to the relief of occasional as well as perma- nent poor." Therefore, this enactment gave the parochial board a power to administer relief to occasional poor out of those funds which were originally to be an assessment for persons who were entitled to relief. But then, inasmuch as able-bodied persons out of employ- ment had been treated as occasional poor, if nothing more had been said, they would have been included within this prior part of the enactment in the 68th section ; and so, to guard against this construction, the Legislature introduced a proviso to this effect " That nothing herein contained shall be held to confer a right to demand relief on able-bodied persons out of employment." Now, taking the few sections of the Act which I have brought to your Lordships' attention into consideration, what can be more clear than this, f;hat it was the intention of the Legislature that 10 SCOTCH APPEALS. [L. K. able-bodied persons should not have relief out of this particular JACK fund, which was an assessment raised for the relief of persons entitled to relief and was to.be extended only to occasional poor by the provisions of the 68th section ? The matter appears to me to be so perfectly clear that I cannot hesitate for a moment to concur with my noble and learned friend on the Woolsack, that the appeal should be dismissed. LORD KINGSDOWN : I entirely concur with my noble and learned friends. Mr. Anderson : My Lords, I am instructed by the Kespondents to say that they do not ask for any expenses in this case. Decree below affirmed, but without costs. Solicitors for the Appellant : Messrs. Martin & Leslie. Solicitor for the Respondent : Mr. W. Robertson. VOL. L] SCOTCH APPEALS. 11 WELLEE et al, APPELLANTS ; KER et al, RESPONDENTS. Power coupled with a duty. March 1, 2, When a power, coupled with a duty, is conferred upon trustees, to be executed by them at a fixed period, and after they have come to a judgment as to the conduct of the individual to be affected, they cannot divest themselves of the power, or execute it until the time appointed ; nor can they enter into any anterior compact respecting it. The fact that the individual to be affected by the execution of the power (a youth of twenty-two) married 'three years before the time appointed for such execution ; the fact that the trustees formally approved of the marriage, and were made aware of the settlement thereon, including a provision out of the trust estate for the intended wife ; and the fact, moreover, that they gave no caution, or warning, that they might ultimately be obliged to defeat it ; all these facts made no difference in the result ; for it was held to be the duty of the trustees (the husband having, in their judgment, subsequently mis- conducted himself) to execute the power so as to restrict him to a life-interest, although the effect was to defeat the provision for the wife, as well as other claims founded on a confident expectation that the marriage settlement would not be disturbed. Per the LORD CHANCELLOR : Did the trustees, by consenting ttf the marriage and (as I think I may assume) by consenting to the settlement, deprive themselves of this power ? My clear opinion is that they did not. Per LORD CHELMSFOKD : All parties knew, or ought to have known, that the provisions of the settlement must depend on the conduct of the son. a testamentary trust settlement dated the 23rd of September, 1839, Robert Ker, of Argrennan, in the county of Kirkcudbright, directed trustees to hold his estate upon trust for the use and behoof of his eldest son Robert and the heirs of his body, whom failing, for the use and behoof of his second and other sons in suc- cession; and he directed his trustees, upon his said eldest sou attaining the age of majority, to convey to him the said estate ; but declaring that in case his said son should marry or otherwise conduct himself so as not to merit the approbation of his said trustees, the provisions made in his favour should only belong to him in life-rent, and to his issue or heirs in fee. By a codicil dated the 26th January, 1847, the testator declared that the trustees should not convey to his said eldest son his said estate of Argrennan on his attaining the age of twenty-one years, 12 SCOTCH APPEALS. [L. R. J8C6 but that the said conveyance should be postponed' till he should attain the age of twenty-five years. The testator died in 1854. His son attained the age of twenty- one on the 22nd of July, 1857. On the 21st of September, 1858, he married Miss Elizabeth Hester Bosetta Maccdpin, daughter of Colonel Macalpin, of Windsor, in the county of Mayo. On the occasion of this marriage, two distinct settlements were executed ; one in the English, and the other in the Scotch, form. The young lady's fortune was 15,000. The question' turned exclusively on the Scotch marriage settle- ment, by which the Argrennan estate was settled on the intended husband " in life-rent and on his heirs in fee ;" (1) thereby purporting to give him in effect the fee absolutely ; and he became bound, on attaining the age of twenty-five, to charge it with a jointure of 400 per annum to his intended wife. This, of course, he could only have done effectually, on the footing that he should at twenty-five acquire a dominion, which undoubtedly the conduct of the trustees induced the contracting parties and others, at the time of the marriage, to anticipate. The intended marriage was notified to the trustees, who ex- pressed their approbation of it, and entered and signed a memo- randum to that effect in their minute-book. A correspondence had previously taken place between the solicitor of the trustees (who was also solicitor of the intended husband) and the solicitors of Miss Maealpin. The solicitors of Miss Macalpin required the trustees to become parties to the settlement, of which a draft was laid before them, or, at all events, before their solicitor. They refused to become parties to it ; but with reference to the whole negotiation, the Lord Ordinaiy, on the case coming before him, expressed " his regret that they should have so proceeded as not unnaturally to foster an idea, that the husband at the age of twenty-five would undoubtedly be Fiar (2) of Argrennan." Between the marriage and his attaining the age of twenty-five, the husband unfortunately so conducted himself as, in the opinion of the trus- tees, to deserve and justify their disapprobation. They entered a formal memorandum to this effect in their Minute Book on the (1) See the third series of the Court of Session Cases, vol. ii. p. 372. (2) That is to say, absolute owner. VOL. I.] SCOTCH APPEALS. 13 18th of June, 1861. He had contracted sundry debts; and claims 1866 were put in by his creditors, whose hopes of satisfaction depended WELLEB on his getting the fee of the Argrennan estate. On the 2nd of July, 1861, he attained the full age of twenty- five (1). On the following day, to use the language of the pleadings, " in consequence of conflicting demands, the settlement of which could only be accomplished by judicial decision," the trustees insti- tuted the present suit, to obtain the direction of the Court as to the course they should pursue. The Lord Ordinary, relying upon and citing the memorandum of the 18th of June, 1861, on the 13th of February, 1863, decided that " the said Eobert Ker, junior, or any one claiming as his assignee, could not demand from the trustees any more extensive conveyance of the estate of Argrennan, than a conveyance to him in life-rent" This Interlocutor was submitted to the review of the first division of the Court of Session, who adhered to it on the 19th of De- cember, 1863. Hence the present appeal to the House. The Attorney-General, the Lord Advocate, and Mr. Druce, for the Appellants, contended, in the first place, that the power, by the words of the testamentary trust settlement, was to be executed on the son arriving at majority, and was not to be postponed till his age of twenty-five. In other words, they urged that the codicil did not apply to the eldest son. Secondly, and mainly, they insisted that inasmuch as the trustees had formally approved of the marriage which had been entered into in the full confidence that they would ultimately convey an absolute fee to the son, they were not at liberty afterwards to change their mind and restrict him to a life-rent. Mr. Eolt, Q.C., and Mr. Anderson, Q.C., for the Kespondents, were not called upon to address the House. The following opinions were delivered by the Law Peers : THE LORD CHANCELLOR : The testator died in 1854. His eldest son, Robert Ker, attained majority in 1857, and of course did not attain his age of twcuty- (1) The judgment as 'to his conduct would appear to have been come to a fortnight earlier. 14 SCOTCH APPEALS. [L. E. 1866 five years until four years later namely, in 1861. In the mean WELLEB time, between his attaining majority and his attaining the age of j/- twenty-five years, he married in 1858 ; and, for the present pur- pose I shall assume, that having married, as he certainly did, with the consent of the trustees, those trustees also approved of the settlements then made. The trustees having, subsequently to the date of the marriage, and before Robert Ker attained the age of twenty-five, been dis- satisfied with his conduct, the question now is, have they the power to confine his interest to a life-rent only ? The Appellants' counsel urged that the power extended only to each child during his minority ; for that, although by the codicil, the age of majority, so to speak, was altered from twenty-one to twenty-five, yet the power that was given in the trust deed to endure only during the minority, was not extended by the codicil to the time at which the estate was to be conveyed : namely, twenty-five instead of twenty- one. If, indeed, the power had been a power declared to endure only till the time when the child should attain the age of twenty-one, there might have been great force in the argument ; but this is a power which endures till it is put an end to, not by the child attaining the age of twenty-one, but by an act, which by the codicil takes place at a later period. Therefore, it seems to follow that this power was, according to the true construction of the will and codicil taken together, to endure as long as the property continued in the hands of the trustees. That being so, did the trustees, by consenting to the marriage, and, as I think I may assume for the purpose of this argument, by consenting to the settlement, deprive themselves of the power? Now undoubtedly, by the law of England, I should say it was clear that they could not divest themselves of this power. I hope I shall not be understood as meaning to say that there is any difference between the law of England and the law of Scotland in this respect. I do not believe there is ; but that question has not been fully canvassed, and for the purpose of this argument I do not mean to embarrass myself with it. But it seems a very strange proposition, that if a testator gives power to trustees, evidently to VOL. I.] SCOTCH APPEALS. 15 be exercised only with reference to the interests of his children, 1866 or those for whom he is providing, the trustees should be able to WELLER say, " We give up that power ;" a power which was committed to v - them, not for their own benefit, but for the benefit of others. But whether they had the power of divesting themselves or not, my clear opinion is, they never did divest themselves of that power. It appears to me that on these grounds I may advise your Lordships to concur with the decision of the Court of Session, and to affirm the Interlocutor which is appealed against. LORD CHELMSFOKD : I entirely agree with the opinion of the Lord Ordinary, and of the majority of the Judges of the Court below. The time at which the trustees were required to convey was the time at which they were to determine whether the heir should have the fee, or merely a life-rent ; and when the period for making the conveyance was deferred, it necessarily deferred to the same period the judgment as to the kind of conveyance which was then to be made. It was evidently the testator's intention that the trustees should exercise their judgment upon a review of the conduct of the son at the time when the estate was to be conveyed to him. Before that period it is clear that they could not have deprived themselves of the exercise of future judgment by giving him the fee ; and there seems to be no reason why they should have been able to antici- pate the time of passing judgment upon his conduct by restricting him. to a life-rent at an earlier period than his age of twenty-five. It was possible that before twenty-five he might have conducted himself so as to excite the disapprobation of the trustees, but that at that age he might have redeemed himself in their estimation by subsequent good conduct. There was apparently no intention that the heir should either have the fee conveyed to him, or that he should be deprived of it by any judgment of the trustees before the period when they were bound to make the conveyance. But the more important questions are, whether it was competent for the trustees to undertake that their power should not be exercised so as to prejudice the rights and interests created by the marriage settlement ; and if this was within their competency, whether they have, in fact, so undertaken. SCOTCH APPEALS. [L. K. i860 It appears to mo that the trustees could not either abandon or fetter the exercise of the power entrusted to them. It was a power WEIXEE COU p} c ^ w jt n a duty of a most important character. It was evi- KEB - dently intended that it should be retained and freely exercised down to the time when they were called upon to convey the estate. But even assuming that the trustees might have bound them- selves not to interfere with the rights and interests created by the marriage settlement by giving their consent to it, in point of fact no such consent was ever given. That they consented to the marriage is clearly proved, and this would of course prevent their afterwards making it the ground of objection to the conveyance of the fee to the heir. But it is not correct to say that the consent to the marriage carried with it a consent to the marriage settle- ment. The trustees' names were designedly omitted as consenting parties to the settlement. But if they had consented to the settlement, it would, in my judgment, have made no difference. All parties knew, or ought to have known, that the provisions of the settlement could only be contingent and conditional, depend- ing upon the conduct of the son till his age of twenty-five, LORD KINGSDOWN : I entirely agree with my noble and learned friends. Interlocutors affirmed, and the appeal dismissed with costs. Solicitors for the Appellants : Damville, Lawrence, & Graham. Solicitors for the Respondents : Dodds & Hendry. *" (1) Reported in the 3rd series of the ever, must be capable of yielding a Court of Session Cases, vol. ii. p. 1234. net annual income, though it be not ' (2) See the Mersey Docks Case, beneficial to the owner, decided on the 22nd of June, 1865, (3) 4 Macq. 931. In this case the which will speedily appear in " Mr. decision of the House was that " Crown Clark's House of Lords lleports." And property, as well as property devoted see likewise the reports of " The Law to or made subservient to the Queen's Journal," " The Jurist," " The Law Government, is exempt from poor-rate ; Times," " The Weekly Eeporter," and but property held upon trust to create " The New Reports," all of which give or improve docks and harbours in sea- accounts of the Mersey Docks Case; port towns, though having a public from which it appears that Trustees, character, and though devoted to public as the legal occupiers of hospitals or purposes, is nevertheless subject io In- lunatic asylums, are rateable to the rated for the relief of the pw." poor; the real occupants being paupers (4) Lord Cranworth. sick or insane. The occupation, how- VOL. I. 2 C % VOL. I.] SCOTCH APPEALS. 17 THE COMMISSIONERS OF THE LEITHj HARBOUR AND DOCKS .... {APPELLANTS. THE INSPECTOR OF THE POOR et dl . RESPONDENTS (1). Poor-rate Immunity of the Crown Liability of Harbours and Docks General Liability 8 & 9 Viet. c. 83 ; 23 & 24 Viet. c. 48. The statutes which authorize assessments for relief of the poor are silent as to the Crown. Hence the Crown is subject to no poor-rate. To this immunity a wide signification is ascribed ; for not only are the palaces of which Her Majesty is in actual occupation deemed free from assessment, but even the House of Lords is held to be exempt, on the ground that it is regal. So likewise Government offices, as the Post-office, the Horse Guards, and the Admiralty, escape this impost, simply because they are in the service of the Crown. In the days of Lord Mansfield, Lord Kenyan, Lord Ellenlorovgli, and Lord Tenterden, an opinion prevailed that property held for public purposes (though unconnected with the Crown, the State, or the Government) was exempt from poor-rates. This opinion was shaken by Lord Denman, and substantially overturned by Lord Campbell; but it was not finally extin- guished till the judgments of the House of Lords pronounced last session in the English case of the Mersey Docks (2), and in the Scotch case of the Clyde Navigation Trustees v. Adamson (3). Per the LORD CHANCELLOR (4) : We are all agreed that the principle of the Mersey Docks Case and that of the Clyde Navigation Trustees v. Adamson are the same, and not to be distinguished. Adjudged by the House that the Leith Commissioners were liable to be assessed for the relief of the poor in respect of their docks and harbours 18 SCOTCH APPEALS. [L. R. 1866 as owners and occupiers of lands and heritages within the meaning of the ^^ statutes, not for their own use, but exclusively for the benefit of the public, OF^mf LOTH there bein S no exemption of property held for public purposes unless held by HARBOUR AND the Crown or for the Crown. DOCKS v Res Judicata : INSPECTOR OF Th&i the Court has decided against a poor-rate for one year, is no reason why it should not decide in favour of a poor-rate for another and a different year, in respect of the same property, and in a suit between the same indi- viduals. The doctrine of res judicata does not apply to such a case. 1.HE action was brought in January, 1861, by the inspector of the poor and three owners, or occupiers, of property in the parish of North Leitli against the above commissioners, to have it de- clared that they w r ere liable to be assessed for the relief of the poor, under the 8 & 9 Viet. c. 83, in respect of " all lands, quays, harbours, wharves, docks, sheds, cranes, &c., the property of, or occupied by, them ;" and that in estimating the yearly value of the said subjects, all harbour-dues, &c., and all miscellaneous dues collected by them, should be included and taken into account. The commissioners' defence was, in the first place, res judicata, they averring that the very question raised in this case had been already decided in a previous suit between the same parties (1). Secondly, the commissioners asserted that the property sought to be charged was " held by them solely and exclusively for the benefit of the public, and that the revenues were appropriated to the maintenance of the harbour, and the liquidation of debts in- curred in the construction of the works." The Lord Ordinary, on the 20th of March, 1862, found and declared in terms of the several declaratory conclusions of the summons. In other words, he decided in favour of the claim, and against the commissioners. A reclaiming note was presented by the commissioners to the First Division of the Court of Session, who, on review, confirmed the Lord Ordinary's decision ; and hence the present appeal. The Attorney- General, the Lord Advocate, and Mr. Anderson, Q.C., appeared as counsel for the Appellants; and contended, in the first place, that the decision of the House of Lords in the case of the Leith Harbour Commissioners v. The Inspector of the Poor (I), (1) See 2 Macq. 28. VOL. I.] SCOTCH APPEALS. 19 pronounced in 1855, was res judicata, and decisive of the present 1866 appeal, which was substantially between the same parties, and with reference to the same subject matter. Secondly, they insisted on exemption from poor-rate because DOCKS here the property vested in the commissioners was held by them, INSPEGTOE OF not for private, but exclusively for public purposes. In course of the argument the Lord Chancellor stated the opinion of all their Lordships to be that the principle of the decision in the case of the Mersey Docks, and in the case of the Clyde Navigation Trustees v. Adamson, both pronounced by the House last session, was the same and not to be distinguished. The only exemption, his Lordship added, from poor-rate was that of the Crown, to which a- very extended signification had been attached, so as to include prisons and rooms at the assizes. The several points pressed by the Appellant's learned counsel were deemed so clear against them that at the close "of their remarks, the Eespondents' counsel, Mr. Rott, and Sir Hugh Cairns, were not called upon to address the House ; and the following opinions were forthwith delivered by the law peers. THE LORD CHANCELLOR : My Lords, the question in this appeal, though one of great im- portance, does not appear to me, after the examination which the matter has received at your Lordships' hands, to be one of any difficulty. It is not a matter of surprise that the subject should have been brought more than once under discussion. Erroneous views of it have been taken by very eminent Judges from time to time. Lord Mansfield, Lord Kenyan, Lord EllenlorouffJi,ai\d Lord Tenterden thought that there was a distinction in respect of the rateability of property when 'it was not occupied '"by beneficial owners. That question was raised in the great case of the Mersey DocJcs, which finally came to be adjudicated upon here in the last session of Parliament ; and which, after a very elaborate consideration by the Judges, as well as by your Lordships, was finally decided in favour of the rateability of all trustees or commissioners having harbours, docks, wharves, and other property of the same sort in their pos- session, in respect of which they levied harbour dues, tolls, or other 20 SCOTCH APPEALS. r L. ft. 1866 sums of money. It was held that all these were liable in England according to the language of the statute of Elizabeth (1) (and there OF THE LEITH _ no difference in the language of the statutes which regulate HARBOUR AXD ... DOCKS tke poor-law in Scotland"), with this single qualification, that as INSI-ECTOB OF the Crown is not mentioned in the Poor-law Acts, the Crown is not IOR ' bound ; and, therefore, Her Majesty's palaces (including the build- ing in which your Lordships are now administering justice), and other establishments which can be said to be in the occupation of the Crown, are not rateable. But it was distinctly held that harbours, docks, rivers, and wharves, are not in the occupation of the Crown, and conse- quently are rateable. Therefore, upon this general principle, I think there is no doubt that the property in the present case is rateable. I certainly thought, and I believe both my noble and learned friends thought, that the very point had been decided last session in Adamsons Case (2); but from the argument of the Lord Advocate, I was induced to look at the Journals to see what was the actual interlocutor which came by appeal before your Lordships ; and it certainly does appear that some matters which were held in the Mersey Docks Case to be chargeable, did not form the subject of that interlocutor; and, therefore, there has not been any strict adjudication with respect to all that which is now sought to be held rateable in the present case. As it was not all included in Adamsons Case, it has not been finally adjudicated upon. But that which was deficient in point of adjudication in Adamson's Case, will now be made good by your Lordships' decision in this case. And it must be now held in Scotland, as in England, that the commissioners or trustees of docks, harbours, wharves, and everything of the sort, are liable to be rated in respect of their receipts, whatever be the purposes (other than Crown purposes) to which those receipts are to be applied. There remains the single point of res judieata, which, I think, will appear to your Lordships to be more plausible than substan- tial. Some ten or eleven years ago the question was raised as to the liability of the commissioners of this very harbour to contri- (1) 43 Eliz. c. 2. (2) Clyde Navigation Trustees v. Adamson, 4 Macq. 931. VOL. I.] SCOTCH APPEALS. 21 bute to the rate for the year from Whit-Sunday, 1846, to Whit- Sunday, 1847. They denied liability ; and pleaded, amongst COMMISSIONERS other things, that " The subjects were held by them solely and HAEBOUR AND exclusively for the benefit of the public ; and further, that the rates Do ^ KS and revenues leviable being by law limited and appropriated to INSPECTOR OF i-i- THE POOR. the maintenance and repair of the harbour, and the liquidation of the debt incurred in the construction of the works, they were not liable for the assessment." That case, however, turned, as appears by Mr. Macqueens re- port of it, on a totally different point (1). And the affirmance of a (1) The Court of Session on the situated in that parish, and they arc 19th of December, 1852, decided that the sum of 7680, appointed to be paid annually out of the revenues of the harbour and docks of Leith, was liable to be assessed for the poor, under the 8 & 9 Viet. c. 83, for the year from Whit-Sunday, 1846, to Whit-Sunday, 1847. The assessment amounted to 518 8s., for which they decreed against told you may recover such proportion, if it is improperly assessed, from the parish of South Leith. But a Court of justice must not thus deal with the suitors who come to it for relief. It appears to me, therefore, that both the form and the principle of this decision are entirely wrong, and therefore the course which I propose to take is simply the commissioners of North Leith, and declared that they and their successors in office were liable to pay poor-rates on the said sum of 7680 from Whit- Sunday, 1847, and in all time there- after ; but reserving to the said commis- sioners their relief against the inspector of the poor of South Leith, to the extent of such portion of the said sum (if any) as might be found to be assess- able to the parish of South Leith. Upon the appeal all that was said by the law peers was as follows: The LORD CHANCELLOR CRANWORTII : There is no authority whatsoever in the Poor Law Act to rate a sum of money. In order to have made this interlocutor sustainable in point of form, it should have imposed a rate, not upon the fund, but upon the commissioners, as being .the owners and occupiers of the docks. Another objection, which is quite un- answerable, is this, that here these gentlemen are rated in the parish of North Leith for the whole of these docks, although only a part of them is to move your Lordships that this inter- locutor be reversed, but that the judg- ment of the House shall be so drawn up as not to prejudice the parties with respect to any rate that may be im- posed hereafter. LORD BROUGHAM : I entirely agree. The interlocutor of the Court of Session was reversed with the following guarded declaration : " This judgment of reversal is not to prejudice or affect any question which shall here- after arise as to the liability of the said commissioners to be assessed for the poor, by virtue of the Act 8 & 9 Viet. c. 83, for the harbour, docks, and sub- jects vested in them as owners, tenants, or occupiers, as in the pleadings is mentioned. And it is further ordered that, with this declaration, the cause be remitted back to the Court of Ses- sion in Scotland f to do therein as shall be just and consistent with this decla- ration and judgment." The Judgment of the House was pronounced on the 6th of February, 1855. 2 Macq. 28. 22 SCOTCH APPEALS. [L. K. 1866 part of the decision below, so far as it was affirmed, had reference COMMISSIONERS not to the general question of rateability, but solely to the pay- OF THE LEITH 1 1 k e made for a par ticular year. Care, however, was taken HARBOUR AND DOCKS by the House to guard itself from expressing any opinion as to INSPECTOR OF the general question of the rateability of harbours and docks. THEOOR. ^g pj ea o f res judicata is just as invalid as the other objections ; and I shall, therefore, move your Lordships to affirm the decision appealed from. LORD CHELMSFORD : My Lords, I will not enter into the consideration of the former judgment in favour of the Appellants (1), and the effect of the declaration which accompanied it in this House, further than to say that whether the declaration is to be regarded as a reser- vation of the question of the liability of the commissioners to be assessed for the sum of 7680 in some other manner and form, or a reservation of the question of their general liability for poor-rates, it would equally leave the point open for future consideration, whether they were liable to any assessment for the relief of the poor in respect of the harbours, docks, and subjects vested in them as owners, tenants, or occupiers. It appears to me that the argument for the Appellants has not sufficiently attended to the nature of a plea of res judicata. The maxim of the civil law, " res judicata pro veritate accijpitur" applied only when the identical question, which had been once judicially decided, was again raised between the same parties the rule laid down in the Digest, lib. xliv. t. 2, s. 3, being " exceptionem, reijudi- catas obstare, quoties eadem questio inter easdem personas revocatur" This plea, therefore, is exactly analogous to a plea in the English Courts of "judgment recovered ;" (2) in which it is necessary, in order to make the judgment operate as an estoppel, that it should be between the same parties and upon the same subject matter coming directly in question, either in the same Court, or in another Court of co-ordinate jurisdiction. Without considering whether the pursuers are different or sub- stantially the same in the present and in the former action, or (1) 2 Macq. 28. and Evidence, Lush's 2nd ed. vol. i. (2) As to the plea of "Judgment pp. 257, 258, 264; vol. ii. pp. 257, recovered," see Saunders on Pleading X388. VOL. I.] SCOTCH APPEALS. . 23 whether the circumstances under which the question is now raised 1866 have been changed from what they were before by the Act of the COMJUSSIONEBS 23 & 24 Viet. c. 48, it is sufficient to say that the proceeding in ^ AI E UB L E the present case being for a different rate from that upon which the DOCKS , former judgment proceeded, the caiise of action is different, and INSPECTOR OF the plea of res judicata is consequently inapplicable. TH f In a case to which the plea of res judicata properly applies, and an appeal is made to the House, its jurisdiction is not taken away by effect being given to that plea. On the contrary, it is then deciding upon the whole subject of the appeal. The only question in such a case would be whether there was a previous judgment between the same parties on the same subject matter ; and that once established, there would be no possibility of going behind the judgment and examining the grounds on which it proceeded ; for, as long as it remained in force and unreversed, it would be conclu- sive between the parties. But I think the plea of res judieata cannot in this case be maintained. LORD KINGSDOWN : ' My Lords, I quite agree with my two noble and learned friends. Interlocutors affirmed, and appeal dismissed with costs. Solicitors for the Appellants : Messrs. Maitland & Graham. ' Solicitors for the Eespondents : Messrs. Simson & Wakeford. VOL. I. 2 D 24 . SCOTCH APPEALS. [L. B. 1866 LOED LOVAT eaZ APPELLANTS; April 26. FEASEE OF ABEETAEFF et e contra . . . EESPONDENT, Heir and Executor Costs. How far an executor is entitled to be relieved from costs incurred by him in resisting the demands of creditors, the testator having made his debts,. " due at his death," a charge upon his real estate, and having also declared that they should " in nowise affect or diminish " his personal property. Circumstances under which the House decided that such costs ought not to be allowed to an executor, Lord Kingsdown dissenting. Opinions of the Lord Chancellor (1), of Lord CTidmsford, and of Lord Kingsdown. Practice Acquiescence. Where a'reclaiming note from a Lord Ordinary's interlocutor to the First Division had not been insisted in, and where the interlocutor was conse- quently allowed to stand; Held, by reason of this acquiescence, that an appeal to the House of Lords was excluded. JL HE Honourable Archibald Fraser, being heir of entail in posses- sion of the Lovat family estates in the county of Inverness, and also owner in fee simple of the estate of Abertarff in the same county, conveyed by certain instruments of entail and testa- mentary settlement executed in 1808 and 1812, the Abertarff estate to the above Eespondent and the heirs male of his body ; whom failing, to the above Appellant Lord Lovat and the other heirs of entail appointed to succeed to the Lovat estates ; " but tinder burden of the settlor's debts which might be due by him at his death ; which debts should in nowise affect or diminish his executry or other funds or effects." Under these deeds the Eespondent supposed and was advised that the Abertarff estate was his in fee simple ; but the Court of Session in 1848 decided that he held it under the fetters of entail ; and in 1851 he executed, by order of the Court, a deed so settling the title. The settlor, besides being the absolute owner of Abertarff, wa& (1) Lord Cranwortli. VOL. I] SCOTCH APPEALS. - 25 also possessed of considerable personal property, to which, upon his 1866 death in 1815, the Eespondent succeeded as his general disponee LOVAT and representative in mobilibus. FBAS'EB In 1851, the Eespondent commenced an action against Lord Lovat and the other substitute heirs of entail of Abertarff, to have it declared that it was held under the burden of paying the settlor's debts and of relieving the executry thereof; but more particularly of a debt of 6,186 paid by the Eespondent to the settlor's creditors, and 2,791, the expense of litigation incurred by the Eespondent in resisting their demands. The Lord Ordinary found that the Aberiarff estate was liable in payment of the 6,186 and might be attached and sold in satis- faction thereof. Against this judgment a reclaiming note was presented by the Appellant to the Judges of the First Division, who on the 7th July, 1859, refused the note on the ground that " it was not insisted in." Against this decision Lord Lovat appealed to the House of Lords. With respect to the 2,791 claimed for the expense of litiga- tion, the Lord Ordinary found that the Abertarff estate was liable in payment thereof, subject to taxation. But this decision was re- called by the First Division, who, in lieu thereof, found that the Eespondent was entitled to 331 subject to taxation, " but to no other portion of the 2,791." The Eespondent presented to the House of Lords his cross appeal againsj this judgment, so far as it rejected his claim of 2791 ; while, on the other hand, the Appellant Lord Lovat com- plained of it by his principal appeal in so far as it subjected the Abertarff estate to the payment of 331, by taxation reduced to 323. The Lord Advocate and Mr. Bolt, Q.C., appeared for the Ap- pellant Lord Lovat. The Attorney General and Sir Hugh Cairns, Q.C., for the .Respondent Mr. Fraser. The facts of the case and the topics relied upon by counsel in the construction of the instruments are fully set forth and D2 2$ SCOTCH APPEALS. [L. K. 1S66 examined in the following opinions delivered by the Law LOT AT i eers : v. My Lords, a deed of entail and settlement was executed on the 13th of August, 1808, by the Honourable Archibald Fraser, then of Lovat in the county of Inverness, whereby he conveyed and disponed his lands of Abertarff to the above Appellant Lord Lovat, whom failing, to* various heirs substitute named in the deed, but under the burthen of such debts as might be due from him at his decease, which debts, however, he declared " should in nowise affect or diminish his executry or other funds or effects unless given and conveyed by him to the said Lord Lovat and the other substitutes above mentioned." Power was reserved to the settlor of revoking or altering the deed at any time during his life. By another deed, bearing date the 2nd of July, 1812, the settlor, reciting the deed of 1808, and his power to revoke or alter the same, expressed his intention to exercise that power to the extent of appointing his grandson Archibald Thomas Frederick Fraser, the above Respondent, and the heirs male of his body, to succeed to the said property immediately after himself on failure of heirs of his body, whom failing, to the persons named in the said former deed to succeed as heirs substitute in the order therein mentioned. The settlor died in 1815, and he did not give his executry to Lord Lovat ; so that the debts due from him at his decease became a charge on the entailed estates. The Eespondent, the Institute named in the deed of 1812, was a minor at the death of his grandfather the settlor, and his curators or trustees disputed his obligation to execute a deed of entail, pursuant to the deeds to which I have referred ; contending that he was entitled to the lands in question in fee simple. The Appellant, Lord Lovat, and the other persons interested after him under the deeds of 1808 and 1812, thereupon raised an action of declarator of entail against the Eespondent, insisting on their right to have a proper deed of entail executed for the pur- pose of carrying into effect the provisions of those deeds. This led to a very'protracted litigation, which ended in establish- VOL. I] SCOTCH APPEALS. t 27 ing the liability of the Eespondent to execute a deed of entail in 1866 conformity with the deeds of 1808 and 1812. And such deed was LOTAT accordingly prepared under the sanction of the Court, and in February, 1851, was executed by all necessary parties. This deed contained a declaration that the settlement thereby made was under the burden of payment of all the just and lawful debts of the settlor. The Kespondent thus became seised of the lands, burthened as aforesaid, to him and the heirs male of his body, whom failing, to Lord Lovat, and the heirs male of his body, whom failing, to the other substitutes named in the deed of 1808. In December, 1851, the Respondent commenced the present action against Lord Lovat and his sons, and against the other heirs substitute named in the deed of entail, concluding that it ought to be declared that the several sums therein mentioned, making together 6186, were just and lawful debts of the settlor due at his decease, and that they had been paid by the Eespondent as his general deponee and representative in mobilibus ; and further, that it ought to be declared that the lands included in the deed of entail executed in February, 1851, were held under burthen of the payment of all the debts of the said settlor due at his decease, including these debts, and under the burthen of relieving the executry of the said Archibald Fraser from the payment thereof, and that the said lands might be sold there- for; and further that it might be declared that the Respondent was entitled to be relieved out of the entailed lands of the sum of 2791 Is. 9d. } as the expenses of litigation incurred by him bond fide and beneficially for the heirs of entail, and that the said lands are liable in payment thereof, and to be attached and sold therefor. The Respondent stated in his condescendence that several of the sums making up the 6186 had been due to creditors of the deceased who claimed and raised actions against him to recover sums greatly exceeding the amount which they ultimately suc- ceeded in establishing as due to them ; and that he resisted these demands, and so litigated, not only lond fide, but also beneficially for the estate ultimately liable ; but he alleged that the expenses of the litigation amounted to 2782, or, as stated in the summons, 28 SCOTCH APPEALS. [L. E. 1866 2791, and which sum, therefore, he insisted was a charge on the MyM LOYAT entailed lands in addition to the 6186. Lord Lovat and the other Defenders contended that the entailed lands, in the circumstances which had occurred, were not liable to bear the burden of the debts of the deceased ; and so they dis- puted the right of the Kespondent to the relief he sought, both as regarded the 6186 and the 2791. The record having been closed, the Lord Ordinary pronounced an interlocutor on the 17th of June, 1853, finding that " by the express terms of the clause in the deed of entail, dated 8th of February, 1851, the payment of all the just and lawful debts due by the late Archibald Fraser, of Lovat, at his death, is declared to be a burden on the entailed lands, and in no wise to affect or diminish his executry, except only in the event of the executry being given and conveyed to the Defender and the other substi- tutes, which contingency never emerged. Finds that this deed of entail was prepared under the directions of, and has been approved by, the Court of Session, and that the insertion of the aforesaid clause was objected to by the Defender, but that his objections were repelled in this Court and in the House of Lords. Finds that there is nothing in the provisions contained in the deeds of the 15th of August, 1808, and the 2nd of July, 1812, which either according to their true meaning or legal effect, are incon- sistent with the sound construction of the aforesaid clause in the deed of entail of 1851. Therefore finds and declares that the lands included in the deed of entail of 1851 are held under the burden of payment of the debts due by the deceased Honour- able Archibald Fraser, of Lovat, and of relieving his executry of the same." The Defenders being dissatisfied with the decision of the Lord Ordinary, lodged a reclaiming note to the First Division of the Court of Session ; but that Court concurred with the Lord Ordinary, and adhered to his interlocutor. By a further interlocutor, dated the 20th of November, 1855, the Lord Ordinary found and declared that the various sums specified in the first conclusion of the summons, amounting to 6186, were just and lawful debts of the deceased, and had been paid by the Kespondent as general disponee and representative in VOL. I.] SCOTCH APPEALS. mobilibus, but he declined to make declarator that the entailed 1866 lands were liable to the payment of these debts until the pursuer LOVAT should have produced certain discharges specified in the inter- locutor. And as to the last conclusion of the summons, the Lord Ordinary found that the pursuer was not entitled to relief out of the entailed lands as to the said sum of 2791j and he assoilzied the Defenders from that conclusion of the summons. The Appellants reclaimed against this interlocutor to the First Division of the Court. And as to so much of the interlocutor as relates to the last conclusion of the summons i.e., to the 2791, the sum claimed for expenses of litigation, the First Division re- called the interlocutor ; but, quoad ultra, they adhered to it, and refused the reclaiming note, and they remitted to the Lord Ordinary to allow parties an opportunity of substantiating their respective averments as regarded the said sum of 2791. , By an interlocutor of the 8th of June, 1858, the Lord Ordinary found that the Kespondent was entitled to relief in respect to the sum claimed as aforesaid for expenses of litigation, with certain specified exceptions, and subject to taxation. And by another interlocutor, of the 17th of the same month of June, he found that the discharges required by the interlocutor of the 20th of of November, 1855 had been produced ; and he therefore found and declared that the lands included in the deed of entail of the 8th of February, 1851, were liable to the sum of 6186, and might be attached and sold for payment thereof. Against these two last interlocutors the Respondent lodged a reclaiming note ; and by an interlocutor of the First Division, made on the 7th of July, 1859, it was found that the reclaiming note, so far as related to the interlocutor of the 17th of June, 1858 (1), was not insisted in, and therefore they refused to recall the same ; but as to the interlocutor of the 8th of June, ^1858 (2), they recalled it, but found that the Respondent was entitled out of the entailed lands to a sum of 331, part of the sum of 2791 claimed for expenses of litigation, subject, however, to taxation ; but was not entitled to any further part of the 2791. The result of taxa- tion was that this sum of 331 was reduced to 323. (1) i.e. The interlocutor fixing the (2) i.e. The interlocutor finding the estate with 6,186. Respondent entitled to the costs of liti- gation. SCOTCH APPEALS. [L. E. i860 Both parties were dissatisfied with this result. Lord Lovat, and those entitled after him to the entailed lands, disputed the liability * of the lands to make good the 323. On the other hand, the "F RARER pursuer contended that the Court ought to have declared the whole of the 2791 (subject, if necessary, to taxation) to be a charge on the entailed lands. Appeals to the House were presented by each party. The first appeal was by Lord Lovat and his sons, complaining, not only of the charge of 323 for expenses, but also of the charge of 618G for the debts. Your Lordships intimated in the course of the arguments of counsel, that as to the sum of 6186, you could not entertain any appeal ; for as the reclaiming note lodged against the Lord Ordinary's interlocutor of the 17th of June, 1858, which had declared the entailed lands liable to the payment of that sum, was not insisted in, the parties must be taken to have acquiesced. The question, therefore, on Lord Lovat s appeal, was confined to the charge of 323 ; while, on the other hand, the question on the Respondent's cross appeal was as to his alleged right to the entire sum incurred in litigation, namely, 2791. The question in both appeals was substantially the same, i.e., as to the proper interpretation of the clause in the deed settled by the Court of the 8th of February, 1851, declaring that the entailed lands were to be held " with and under the burden of payment of all the just and lawful debts of the settlor, due at his death ; which said debts should in nowise affect or diminish his executry or other funds, property, and effects." On the part of Lord Lovat and the hejrs substitute of entail, it was contended that nothing is charged on the lands which was not a debt which the deceased was liable to pay in his lifetime ; that the costs of litigation now sought to be added to the amount of such debts not only were not debts of the deceased, but were occasioned by unjust demands, set up after his death by persons claiming against his executor sums as due from him which were not so due. On the other side it was insisted that the charge of " just and lawful debts due from the deceased at his death," must be taken to include all costs fairly incurred in ascertaining what those VOL. I] SCOTCH APPEALS. 31 debts really were, and, more especially, the cost of resisting 1866 excessive demands unjustly made against the executry. IV is L^! T now for your Lordships to decide between these conflicting v - arguments. My advice to your Lordships is in favour of Lord Lovat, and the parties entitled after him as heirs substitute in the entail. I do not think that any part of the sum constituting the expenses of litigation can be treated as having been charged by the settlor on the entailed lands. The question is, in strictness, whether these expenses are so charged by the deed of the 8th of February, 1851. But as that deed recites the previous deeds of the 15th of August, 1808, and the second of July, 1812, and appears on the face of it to have been framed in order to carry into execution the pur- poses of those deeds, I should have been very unwilling to act on the deed of 1851 independently of the prior deeds, if there had been (which I do not think there is) any conflict between them. And I am willing to consider the subject as depending on the true effect of the deeds of 1808 and 1812, the purpose of those deeds being, as I think, effectually embodied in the deed of 1851. The question, therefore, may be thus stated : When a testator charges his real estate with the payment of his debts in exonera- tion of his personalty, and when after his death a creditor sues the executor and puts him to cost in resisting so much of the demand as was unfounded, can the executor recover those costs from the real estate ? He may certainly recover the amount of the debt which has been established by the creditor, and which I assume the executor to have paid. But I cannot discover any principle for fixing the real estate with the costs of litigation to which the executor has been wrongfully put, by a person setting up against the testator's estate an unfounded claim of debt. If such costs have been properly incurred by the executor, he may retain them out of any funds coming to his hands as executor. But that is because they have been costs necessarily incurred in the due administration of his testator's estate. And the rule in England, and, as I conceive, in Scotland also, is, that the costs of adminis- tration are paid out of the general personal estate. Lord Currie- 32 SCOTCH APPEALS. [L. R. 1866 nm (1) treats it as clear that in Scotland an executor properly LOVAT incurring costs for the benefit of third parties claiming under the Fa^EB. testator, is entitled to be indemnified out of the executry estate itself, and not out of the estate for the benefit of which they were incurred. This is, I conceive, in exact conformity with the law of England. There is a great deal of discussion among the Judges who de- cided this case in Scotland, as to how far all, or any part of this sum claimed for expenses ought or ought not, to be considered as properly incurred. But to all such inquiries I think that Lord Lovat and the other heirs of entail are entitled to say, that in such a question they have no concern. If improperly incurred they must fall personally on those who incurred them. If pro- perly incurred they will constitute a valid claim against the exe- cutry or personal estate of the testator. But in no view of the case can they be treated as a debt due and owing by the deceased at his death. Costs incurred by an executor in 'resisting an ex- cessive demand against the estate of the deceased, whereby the demand established is reduced in amount, cannot be put higher than costs incurred in resisting a demand which wholly flails. But surely if, when a claim is set up against an executor, the party claiming fails in establishing any demand whatever, it would be strange to say that the costs of resisting such an unfounded demand was a debt due from the testator at his decease. They may be costs against which the executor is entitled to be pro- tected, but this would be not because they could be called a debt due from the testator, but because they formed part of the general costs of administration. It was argued that when there is a charge on an estate, and the amount of that charge has to be raised by sale or mortgage, the sum to be raised will include the costs of raising it. That is undoubtedly so. The persons entitled to an estate burthened with debts take it subject to a definite charge, i.e. definite when the amount of the debts has been ascertained ; but they who call themselves owners are not in fact owners till they have first satis- fied the charge. They are bound to have by some means the full amount of the charge forthcoming ; and it is obvious, therefore, (1) Court of Session Cases, 2nd Series, vol. xxi. p. 1173. VOL. I J SCOTCH APPEALS. 33 that they must at their own cost get at the necessary amount. 1866 But this bears no resemblance to the costs incurred in ascertain- LOVAT ing what the amount of the charge is. FBASEB. I am therefore of opinion that your Lordships ought to dismiss the appeal against the interlocutor complained of by Lord Lovat so far as relates to the 6186 ; to reverse the interlocutor complained of by Lord Lovat as to the 323; and to affirm the interlocutor complained of by the cross appeal of Mr. Fraser as to the 2791. But under all the circumstances I think there ought not to be any costs of appeal. LORD CHELMSFOKD : My Lords my opinion has fluctuated a good deal during the course of the argument ; but I have at last arrived at the same conclusion as that of my noble and learned friend on the wool- sack. I agree with him in his general views with respect to the primary liability of the personal estate to bear the cost of liti- gating debts which 'are made a charge upon the real estate. I consider the true question in this case to be, whether any intention is expressed or necessarily implied in the deed of entail of 1851, that this burthen should be shifted from the executry and laid upon the entail. By the deed of 1851 the estate is entailed " with and under the burthen of payment of all the just and lawful debts of the said deceased Archibald Fraser due or addebted by him at his death which said debts" (it is added) "shall in nowise affect or diminish his executry or other funds, property and effects." Under these words the question arises whether the costs incurred by the exe- cutor in litigating the claims of the creditors of Archibald Fraser can be construed to be just and lawful debts" or necessary inci- dents to such debts, within the meaning of the deed. This being upon my view merely a question of construction, it is immaterial to inquire whether the litigation was for the benefit of the entailed estate or not, or whether Abertarjf acted prudently or otherwise in defending the action. It may be admitted that as executor he was not bound to pay debts without previous investi- gation : that when the actions were brought against him he had no alternative but submission or defence ; and that his submission 34 SCOTCH APPEALS. [L. E. J866 would have burthened the entail more than his resistance. All LOVAT this may be conceded, without in any degree affecting the question FRASER ^ *^ e * rue meanm g an( l construction of the deed. The "just and lawful debts" of Archibald Fraser, due at his death, are alone to be a burthen upon the entail. Under this description everything incident to or inseparable from the debts would be included. For instance, suppose the debts bore interest, and interest accrued upon them, after the death of Archibald Fraser, it would, as a matter of course, follow the principal, and contribute to increase the burthen upon the entail. But the costs and expenses of an action brought to enforce the payment of a debt are not necessarily incident to it ; and when a person is pro- viding for the payment of his just and lawful debts, probably the last thing he thinks of is the idea of their becoming the occasion of litigation. Is there anything in the language of the deed to show that the entailer had in his view anything beyond the debts themselves as a burthen upon the entailer. I think rather too much stress was laid in the argument on the words employed to express the en- tailer's meaning. It was said that the expression " shall in nowise affect or diminish his executry " manifested the intention of the entailer that the executry should be discharged from every liability which in any manner might be incurred by reason of the debts due from Archibald Fraser. But the word " nowise " seems to have been used merely to intimate more emphatically that the debts themselves were not in any event to be paid out of the executry. The settlor never having anticipated that any costs could be incurred with respect to the only debts in his contemplation, viz., the "just and lawful debts of Archibald Fraser due at his death," made no provision for such an event. In the absence of any specific direction upon the subject, there is nothing to exonerate the executor from his original liability to satisfy such costs out of the general personal estate. If in this case the executor and the heir in tail had been dif- ferent persons, the executor, upon actions being brought against him by the creditors of Archibald Fraser, might have given notice to the heir, and taken his directions as to defending VOL. I] SCOTCH APPEALS. 35 them, and might have refused to make any defence unless the heir would guarantee him against the costs. But the same person being both executor and heir in tail, he could not by any act F v - of his own shift the burthen of the costs from the executry to the entail. The narrow view (as it may be considered) which I have taken of this question, renders it wholly unnecessary to advert to the distinction acted upon in the Court below between the litigation being profitable or unprofitable to the entail, or the defences being proper or improper, as indicated by the award of costs in the several actions. The costs, whether properly or improperly in- curred, could not be converted into debts retrospectively due from Archibald Fraser at his death, and must all of them, in my opinion, be paid out of the personal estate. I agree with my noble and learned friend on the woolsack as to the costs of the present appeal. LOKD KlNGSDOWN : My Lords, this case has occasioned much difference of opinion in the Court below, and I am sorry to say that such difference extends to your Lordships' House, for I confess that I find myself unable to concur in the views of my noble and learned friends who have already addressed you. Lord Handyside was of opinion that none of the costs could be thrown on the estate, holding that the case was the same as if, without any special charge, the heir of entail in possession had resisted any action brought against him in that character, in which case the expenses would have fallen upon him personally (1). But when the interlocutor of Lord Handyside was brought before the Inner House it was recalled (2), and it was remitted to the Lord Ordinary to allow parties, before answer, an oppor- tunity of substantiating their respective averments as regards the claim for the amount of these costs. The question then came before Lord Kinloch as Lord Ordinary, who was of opinion that under the terms of the entail, burdening the lands of Adertarff and. others with the debts of the grantor, and declaring that " these debts shall noways diminish any executory (1) Second Series Court of Session Cases, vol. xxi. p. 1160. (2) Ibid. p. 11G4. 36 SCOTCH APPEALS. [L. E. 1866 or other funds, property, or effects," the expense londfide incurred in having the debts so charged fairly expiscated, and their amount adjusted, is in sound construction a consequent of the debts, and equally chargeable on the entailed lands with the debts themselves. He accordingly pronounced an interlocutor on the 8th of June, 1858 (1), in which . he found the pursuer entitled to relief out of the lands and estate ofAlertarff of the expenses, whether incurred by himself or his agent, or found due by him to his antagonists, disbursed or incurred by him, of having the debts chargeable against the said lands and estate, and the amount thereof fairly settled and adjusted, but of no other expenses ; and with regard to the five litigations, the costs of which are in dispute, he found the pursuer entitled to them (with the exception of the costs incurred in a particular question), subject as regards his own costs to taxation, and he remitted it to the auditor of the Court to examine the accounts of expenses of which the pursuer claimed relief, and to separate and tax the same consistently with the fore- going findings and report. The intention of this interlocutor, as I understand it, was to decide that the pursuer was entitled to the costs of the five actions, so t far as the proceedings taken by him in each action were properly taken with the view previously expressed, viz., that of having the debts chargeable against the estates, and the amount thereof fairly settled and adjusted, and to direct the disallowance of all expenses not falling within that category, and to refer it to the auditor to inquire and determine what expenses under that declaration were properly chargeable on the estate. I do not think that when the case came before the Inner House any of the Judges, except Lord CurriehUl, dissented from the principles of Lord Kinloctis judgment. Lord Ivory discusses the question in a most able and elaborate judgment, in which he supports the view of Lord Kirdoch in an argument which it seems to me extremely difficult to answer. Lord Deas agrees with Lord Ivory as to the general principle, and the Lord President, though in some degree objecting to the form of the summons, I think intimates that he does not disagree with the general views of the Lord Ordinary (2). (1) Second Series Court of Session Cases, vol. xxi. p. 1164. (2) Ibid. p. 1166. VOL. I.] SCOTCH APPEALS. < The ground upon which, the decision of the majority of the 1866 Judges, disallowing the costs in four of the actions, proceeds is, that LOVAT inasmuch as in those actions the Defendant was ordered to pay FOASER. costs to the pursuer, the defence of them must necessarily, in the opinion of the Courts who decided them, have been improper. I cannot concur in that conclusion. A Defendant in a suit is often ordered to pay costs, not on the ground that there was any- thing in his conduct deserving of ensure, either in the fact of resisting a Plaintiff's claim, or in the mode in which the resistance was conducted, but on the principle that a Plaintiff who succeeds in establishing a demand is primd facie entitled to receive the costs to which he has been put in making it out. But an executor or trustee who is ordered to . pay costs to the claimant is entitled (unless he has forfeited his right by some laches or misconduct) to recover from the estate which he has defended not only the costs which he has incurred to the adversary, but also the costs which he has paid to his own solicitor. The real question is, therefore, in what position did Aberiarff stand when these actions were defended by him or on his behalf. The disponer could not as against his creditor relieve his personal estate from the payment of his debts, or his executor from the liability of being sued for them. But the executor was entitled to be repaid out of the real estate whatever he might be compelled to pay out of the personalty. He stood therefore really in the situation of a person who, in admitting or resisting claims, was acting on behalf of others, that is, of those who were entitled to the real estate. In other words, he was trustee for them. He could not take their directions as to the payment of the sums demanded, or the resistance to the claims, for he was himself the first institute under the entail, and his issue male were the first substitutes ; and though, as it seems he has no issue male, Lord Lovafs succession has now become highly probable, at that time it was very remote. When some of these demands were made, Abertarff was a minor, and the rest were brought forward very soon after he came of age. He could have no knowledge of the circumstances or amount of them. He could have no sinister interest in resisting them ; indeed, whether they fell on the real 33 SCOTCH APPEALS [L. E. i860 or the personal estate, lie supposed that he alone was interested in LO^T the matter. In all cases the resistance occasioned a substantial ,., c - reduction of the original demand, though in some the costs 1" RASER. exceeded the amount of the reduction. It may turn out upon inquiry that some part of these costs may have been improperly incurred, and if so they will be disallowed ; but I agree in Lord KinlocJis judgment, that such expenses as were properly incurred ought to be allowed. I should be inclined to introduce the word O "properly" before the words "disbursed or incurred," and the words " properly incurred " before the words " in the said litiga- tions ;" and with these variations, which are merely intended to express more clearly the meaning of Lord Kinloch, to affirm the interlocutor of the 8th of June, 1858, and reverse the interlocutor of the 7th of July, 1859, so far as it recalls the interlocutor of the 8th of June, 1858 (1). When an estate is devised to trustees in trust to raise and pay the amount of a testator's debts, the trustee is entitled to be re- imbursed out of the estate whatever expenses he has properly incurred in ascertaining the amount, or in raising the sums neces- sary for paying it. When the estate is charged with debts, but no express trust is created for paying them, the heir or devisee becomes, I apprehend, a trustee for the purpose. If he be the absolute owner subject to the charges, of course no question arises ; but if he have no in- (1) The following is the passage in tions set forth by the pursuer in his Lord KinlocKs interlocutor, to which minute, finds the pursuer not entitled Lord Kingsdown refers : " Finds the to relief of the expenses, whether in- pursuer entitled to relief out of the curred by himself or found due by him lands and estates of Abertarff and to his antagonists in any of the said others contained in the deed of entail litigations, disbursed or incurred in the executed by him under authority of question whether the pursuer or Mr. the court, on 8th February, 1851, of Fraser of Lovat was the party liable in the expenses, whether incurred by the claims therein advanced : with this himself to his own agent, or found exception, finds the pursuer entitled to due by him to his antagonists, dis- relief of the expenses in the said liti- bursed or incurred by him in having gations, whether incurred by him, or the debts chargeable against the said found due by him as aforesaid, but lands and estates, and the amount subject to taxation by the auditor as thereof fairly settled and adjusted, but betwixt agent and client, so far as con- of no other expenses ; and more par- sisting of expenses incurred by him to ticularly, with regard to the five litiga- his own agent." j VOL. I.] ' SCOTCH APPEALS. 39 terest, or only a limited interest, then he stands, I think, in the 1866 same position with any other trustee. LOVAT The peculiar situation in which Abertcurff stood, of representing the executry to which the creditors had a right to resort, seems to me to strengthen his claim to be considered a trustee. Assuming that he has acted prudently and properly in requiring the debts to be made out, he ought not to be subjected personally to costs which have been incurred in protecting the estate which he represents. But the testator has declared that the debts (and impliedly, therefore, in my opinion the costs of ascertaining them), shall not diminish his executry. The necessary consequence seems to me to be that they must fall upon the real estate. But as a majority of your Lordships think differently, of course the judgment will be as proposed by the Lord Chancellor. The judgment of the House was as proposed by the Lord Chancellor (1). Solicitors for the Appellants : Messrs. Grahames & Wardlaw. Solicitors for the Respondents : Messrs. Loch & McLaurin. (1 ) See supra, p. 32. VOL I. 40 SCOTCH APPEALS. [L. E. 1866 HOWDEN ... - APPELLANT; v--v~ June 12. THE HON. C. FLEEMING et al - EESPONDENTS. Strict Scotch Entail Irritant Clause. Case in which it was held that the irritant clause in a strict entail was not rendered nugatory by the use of a word which, though unhappily chosen, expressed nevertheless with sufficient distinctness the meaning required for validity. Capability of the word "MADE": The irritant clause, after nullifying all contraventions, closed with these words : " sicklike as if the same had never heen made " : Held, that the word made, though translated concessa, was capable of being applied to the contracting of debt. Emphasis or Surplusage : field, also, that the entire passage quoted was not restrictive of what went before, but was rather emphatic, or at the worst, amounted to no more than mere illustration or surplusage. J.HE action was commenced in September, 1862, by the late Lady Clementina Elphinstone Fleeming, Viscountess Hawarden, sister and heiress of entail to the 14th Baron Elphinstone ; and by her husband, Viscount Hawarden ; for the purpose of obtaining from the Court of Session a decree declaring that certain estates in the county of Lanark were, by the several instruments set forth in the pleadings, strictly and validly entailed according to the requirements of the Act, 1685. There were three distinct deeds, in which the wording of certain clauses formed the subject of dispute and litigation. The first was the entail of the Wigton Estate executed by her Ladyship's ancestor, John, Earl of Wigton, in 1741, and being executed by the Earl of Wigton, was called the Wigton entail. The second was the entail of the Waterhead Estate, executed by a family trustee on the 29th of December, 1847. And the third was the entail of the Cunibernauld Estate, executed by certain statutory trustees on the 10th of July, 1850. Of these three estates Lady Clementina, Viscountess Hawarden, was the heiress of entail. The Wigton entail, however, was the on6 on which the argument arose and to which the discussion was confined, it being agreed that the Waterhead entail and the VOL. I] SCOTCH APPEALS. 41 Cumbernauld entail were in no material respect different from 1866 the Wigton entail, the three being represented as " expressed in HOWDEN precisely the same words, and of course subject to the saino construction." The defence put in by Mr. Howden, as trustee of the estate of the late Lord Elpliinstone, was mainly that the deeds in question were ineffectual as deeds of strict entail, "in respect that the irritant clause therein did not apply to or embrace the prohibition against the contracting of debt, nor did it strike at adjudications led or diligence used against the lands for debt contracted." The irritant clause on which the question turned was as follows : " If it shall happen any of the heirs of tailzie above-mentioned to contravene the provisions and limitations above written, or any of them as the same are above expressed, then, and in that case, all such acts and deeds of contravention are not only hereby declared to be null and void to all intents and purposes, sicklike as if the same had never been made; but also the heir so contravening shall lose all title to the said lands, and they shall belong to the next heir," &c. It further appeared that in the first investiture by Crown Charter of resignation in 1751, and in all the title deeds follow- ing thereon, the word " made," above quoted at the close of the irritant clause, was translated by the Latin word concessa. On the case coming before the Lord Ordinary (1), the present Appellant argued, first, that the word "made," in the irritant clause, restricted the import of the previous words occurring therein to debts constituted by written instruments, because he contended that though one may make a writing one cannot accurately be said to make a debt; secondly, the Appellant relied on the word concessa, which he affirmed could never be used as applicable to the contracting of debt; and thirdly, the Appellant insisted on the judicial rule that in dealing with strict entails, when a clause admits of two constructions, that which " makes for liberty " is to be preferred (2). The Lord Ordinary, however, overruled these objections, and decided that the entails in question were in all respects valid and effectual, and his interlocutor to that effect was adhered to and (1) Lord Einlvch. (2) Third scries of Court of Session Cases, vol. iii. p. 753. 42 SCOTCH APPEALS. [L. R. 1866 confirmed by the Second Division of the Court of Session on the H^EN 24th of March, 1865. F T - , In support of the present appeal to the House, the Attorney- General (1) ; and Mr. Eolt, Q.C., for the Appellant, deemed it unnecessary to remind their Lordships of the rule that Scotch entails, by reason of their locking up property, were strictissimi juris. That they were subject to a severe and peculiar construc- tion had often been decided by the House. Thus what said Lord Wensleydale in the Earl of Kintore v. Lord Inverury (2), " If an expression in an entail fairly admits of two meanings, that con- struction is to be adopted which destroys the entail, rather than that which supports it." Mere intention goes for nothing ; for as Lord Brougham observed in the Hoddam Case (3), " There can be no doubt as to the intention of the party. No man means to make a bad entail. But he must carry it into effect. He must execute it validly." This being so we have here an entail with a prohi- bitory clause complete and unobjectionable. But the question is as to the closing paragraph of the irritant clause, which we say is clearly inapplicable! to the contracting of debt. The words are, " sicklike as if the same had never been made." The word made is restrictive of the preceding words in the clause, and cannot include debt or the contracting of debt. But if there were room for doubt as to the import of the word debt, can there be any when we find it translated into concessa. What is concession ? He who is in debt cannot concede it. The words in the investiture are, " Omnia talia facia declarantur vacua et nulla eodem modo ac si ead'em nunqum fuerant concessa" Debts, therefore, in spite of this interdiction may be contracted ; adjudications may be led ; and the estate may be evicted. Omissions too, are forbidden by the entail ; but omissions cannot be made still less can they be conceded. Lord Campbell in Lumsden v. Lumsden (4), said that the word deeds as occurring in that case, " were spoken of as made or granted, terms only applicable to written instruments ;" and so we in the present case assert that the irritant clause, qualified by the word " made," applies, if it applies at all, only to contraventions by written instru- ments, and cannot extend to debts otherwise contracted, which the (1) Sir Raundett Palmer. (3) 2 Bell, 125. (2) 4 Macq. 527. (4) 2 Bell, 115. VOL. I.] SCOTCH APPEALS. 43 irritant clause, restricted as we contend it ought to be, clearly 1866 overlooks (1). HOWDEN At the close of the argument on behalf of the Appellant, the Lord Chancellor (2) remarking that it was deemed unnecessary for the Eespondent's Counsel (Mr. Anderson, Q.C., Sir Hugh Cairns, and Mr. Pattison of the Scotch Bar), to address the House, the following opinions were delivered : THE LOED CHANCELLOR (2) : My Lords, upon very intelligible grounds, the Courts of Scot- land and this House, have always construed deeds of entail strictly, so as to give no encouragement to the fettering of the ordinary circulation of property. And if it can be fairly done, the Courts in Scotland and this House, which is for these purposes the same as a Court in Scotland, will be (so to speak) astute in so construing a deed as to hold that it does not create an entail. But although the rule of construction in favour of a free circulation of property has been for a long time adopted and acted upon, it must not be a rule that is to lead Courts of justice and this House to pretend to see doubts and difficulties where there are none ; and to put a construction upon words which no person, looking at them fairly, can possibly for a moment entertain. Now let us see what the point is here. The entail has, in gremio, the three ordinary prohibitions ; a prohibition against alienation, a prohibition against diverting the course of descent chalked out in the deed, and a prohibition against incurring debts whereby the lands might in future get into the hands of creditors ; and then follows this irritant clause : " and further providing that if it shall happen any of the heirs of tailzie above mentioned to contravene the provisions and limitations above written, or any of them," that is if the heirs of entail shall either do the positive act of alienating, or the positive act of diverting the course (1) To shew how critical is] the ex- remarking, that "here the most im- amination of Scotch entails when chal- portant of all omissions occurred lenged in judicio, we may refer to the namely, the omission of one of the case of Sharpe v. Sharpe, where the three constituent parts of a proposition, want of a nominative was held fatal, the subject of what is predicated." although capable of being supplied by Sandford on Entails, 126. the context, Lord Brouyliam logically ('2) Lord Cranworth. 44 SCOTCH APPEALS. [L. R. 1866 of succession, or the negative act (as I read it) of incurring debts, HOWDEN whereby the lands might, as we should say in this country, be , v - taken in execution ; " then, and in that case, all such acts and , FLEEMISG. deeds of contravention," words that clearly include acts of omis- sion, as well as commission (if it be said that omission is not an act, I would appeal to the very language I have used, "acts of omission," which is a very common expression) " then and in that case all such acts and deeds of contravention are not only hereby declared to be void and null to all intents and purposes," (then just leave out the few following words, and proceed) " but also the heir so contravening shall ipso facto amitt, lose, and tine, all right to the said lands and estate," &c. What are the words that are said to create the doubt ? They are these, " sicklike as if the same had never been made." Now it is said that an act of omission cannot be made, and that therefore you must so construe these words as to confine them to acts of commission, which, although not very accurately, we may say are acts " made." To this there are two answers, which are perfectly satisfactory to my mind, namely, first, that inasmuch as the words are " sick- like as if the same had never been made," and inasmuch as the word " same " applies to all the deeds and acts of contravention specified, and those deeds and acts include acts of omission as well as of commission, if the word " made " is not aptly used, it is only that the party who prepared the deed has used a word incautiously that does not include everything that was intended. But I do not think that signifies; for if the word "made" is applicable only to deeds properly so called, then I say the passage must be read reddendo singulos singulis; that is, if there is any contravention, then, in every case, the estate is to go over, and the party is to lose it, and further, all deeds of contravention shall be deemed void to all intents and purposes, " sicklike as if the same had never been made." And this latter construction applies exactly, as well to the subsequent Latin instrument, the deed of investiture, as it does to the original deed of entail. Whether the Lord Ordinary arrived at the conclusion to which he came upon right grounds, it is not material to inquire, but I think there is not the least doubt that the Lord Ordinary and the Court of Session both arrived at the VOL. I.] SCOTCH APPEALS. 4 proper conclusion, and therefore I have no hesitation in moving 3866 your Lordships to affirm the interlocutors appealed from. HOWDEN V. FLEEMING. LORD CHELMSFORD : My Lords, the words " sicklike as if the same had never been made" are, in my opinion, not explanatory or interpretative, but merely emphatic; and if you give a qualifying and restrictive sense to these words, then, although it is perfectly clear that acts, as well as deeds of contravention, were intended to be rendered null and void, you would have to strike the word " acts" entirely out of the irritant clause. The question is so very clearly put by the Lord Justice ClerJc, that I can only adopt his language in expressing the same opinion. His Lordship says (6) : " It* rather appears to me that the sentence ' sicklike as if the same had never been made" is only surplusage, quite unnecessary to the completion of the irritant clause, or to working out or explain- ing its meaning, but that it is neither intended, nor, according to the grammatical structure of the sentence, is it calculated, to restrict what goes before it. I am well aware that it may not have been intended to restrict what goes before, and still it may have that effect according to the construction which is given to deeds of entail. But I think it is neither intended, nor, according to the proper grammatical structure of the sentence, is it calculated, to have that effect. A declaration of irritancy which is followed by such words as ' in so far as' would be very different, because a sentence introduced by the words ' in so far as' clearly imports a limitation of what goes before. And in like manner, if you were to say that all acts and deeds 'are to be irritated to this effect that,' you would then limit what goes before by that which follows. But I think the true meaning of the words ' sicklike as if is not to limit what goes before, but that it is an attempt to expound by an illustration the meaning of that which goes before." That is very clearly expressed. I entirely agree with it, and I think your Lordships ought to affirm the decision of the Court below. (1) Court of Session Cases, Third Series, vol. iii. p. 754. 46 SCOTCH APPEALS. [L. E. 1806 LORD WESTBTJRY : HOWDKK My Lords, I think the judgments appealed from are extremely FLEEMING. satisfactory, and that both the Lord Ordinary and the Judges of the Second Division have arrived at the right interpretation of the 9 language of this entail. Interlocutors affirmed and Appeal dismissed with cost-s. Solicitors for the Appellant : Messrs. ConneU & Hope. Solicitors for the Kespondents : Messrs Tatham & Proctor. , VOL. I.] SCOTCH APPEALS. 47 BICKETT ........ APPELLANT; i860 MOERIS et Ux EESI-ONDENTS. " "jvly is. Riparian Ownership Alvcus of a running Stream. The soil of the alveus is not the common property of the respective owners " on the opposite sides of a river ; the share of each belongs to him in severally and extends usque ad medium Jikim aquce ; but neither is entitled to use it in such a manner as to interfere with the natural flow of the stream. A fence or bulwark on the bank is allowable ; but the alveus is sacred. Any encroachment by one proprietor may be resisted by the other ; and the onus of proving that the act is not an encroachment falls on the party doing it, who is primd facie held responsible. Mere apprehension, without some show of injury, will not ground a complaint ; but it is not necessary to obtain or to be guided by scientific opinions. Per Lord Westbury : This decision establishes the important principle that an encroachment on the alveus of a running stream may be com- plained of, without the necessity of proving that damage has been sus- tained, or is likely to be sustained. Personal Bar against objecting to an appeal. Where, with the acquiescence of both parties, a Judge Ordinary deviates from the Cursus Curice, he thenceforth ceases to act judicially, and becomes an arbitrator, subject to no appeal. But if the party against whom the Judge Ordinary qua arbitrator decides, reclaims to the Inner House, and there obtains a reversal, he is personally precluded from afterwards objecting to an appeal by his opponent to the House of Lords. J.HE Appellant and Eespondents were owners of property, directly opposite eacli other, on the banks of the river Kilmarnock, in Ayrshire. In October, 1860, the Appellant applied to the Eespondents for permission to carry certain contemplated building operations a specified distance into the channel of the stream. The Eespon- dents agreed ; and an arrangement was concluded, giving the Appellant permission, in consideration of a payment of 10, to extend a wall or building, then standing on the premises, into the alveus as far as was indicated by a red line laid down on ;m ordnance map, subscribed by both parties in token of their assent. VOL. I. 2 F 48 SCOTCH APPEALS. [L. K. 1866 The AppeJQant proceeded to build, but in such a direction that BICKETT the Respondents, on the 4th December, 1861,, applied to the Court f Session for a suspension and interdict against him, and on the 5th February, 1862, brought an action to have it declared that the Appellant had no right to erect buildings on the solum of the river beyond the red line aforesaid, and further concluding for a declaration that his erections had gone beyond the stipulated limit, and also praying that he should be ordered forthwith to pull down and remove them in so far as complained of. In support of their case the Respondents submitted the follow- ing as pleas in law : 1. The Respondents are entitled to decree for removal of the buildings and other encroachments complained of, and for inter- dict, as concluded for. 2. The Appellant has no right to encroach upon the bed of the river, opposite to the property of the Respondents, without their consent ; and the encroachments complained of, being injurious to their property, and not only in contravention of the contract, but in violation of their rights under their titles, and at common law as the proprietors 'of the opposite bank, they are entitled to decree, in terms of the several conclusions of the summons. 3. The Respondents having reasonable grounds to fear that the Appellant, who has already encroached by his operations upon the bed of the river, intends to continue his operations, and encroach farther, and may again encroach, are entitled to interdict against future encroachment. The Appellant, by his defence, denied the Respondents' allega- tions, and rested his case on the following pleas in law : 1. As proprietor of the subjects in question the Appellant was entitled to erect the buildings now complained of, and the Respondents have no right or title to object to the same. 2. The Appellant not having in point of fact built upon the bed of the river beyond the line indicated upon the map, the present action ought to be dismissed. 3. The property of the Respondents not being in any way injured, or threatened to be injured, by the buildings erected by the Appellant, the Respondents have no title or interest to object to the wall built by the Appellant in the bed of the river. VOL. L] SCOTCH APPEALS. 49 4. The said buildings were commenced, carried on, and com- pleted in the full knowledge and with the acquiescence of the Kespondents. Mo RIS . The Lord Ordinary, on the 16th July, 1862, allowed to both parties "a proof of their respective averments," but instead of remitting the case to the Jury Court (the proper course), he, with the consent of both parties, " appointed the proof to be taken by commission." When the result of the commission was reported, the Lord Ordinary found that the Kespendents " had failed to prove " their case ; and therefore his Lordship " repelled the reasons of sus- pension, and assoilzied the Appellant from the conclusions of declarator, removing, and interdict, and found the Appellant entitled to expenses." The Eespondents reclaimed to the Second Division of the Court of Session, who altered the Lord Ordinary's interlocutor, and ulti- mately, on the 20th of May, 1864, decided that " the erection complained of was in the alveus of the river ex adverso of the Eespondents' property, and had the effect of diverting to a certain extent the flow of the water, and was therefore an illegal encroach- ment on the Kespondents' rights." Accordingly, the Second Division " found and declared, decerned, and ordained, prohibited, and discharged, in terms of the conclusions of the summons of declarator; and in the suspension and interdict, suspended and interdicted as craved, and declared the interdict perpetual, and found the Eespondents entitled to expenses." The principle of this decision, as collected from the opinions of the Judges reported in the Court of Session Cases (1), was, that a riparian proprietor is not entitled to erect a building or make any change in the alveus of a stream, without the consent of the opposite proprietor ; for the alveus of a stream is not the common property of the owners of the opposite banks, but each is absolute pro- prietor to the medium filum fluminis, which constitutes the line of division between them (2). (1) 3rd Series, vol. ii. p. 1082. gable, see Lord Advocate v. Hamilton, (2) See W ishart v. Wyllie, 1 Macq. 1 Macq. 46, shewing that the soil of the 389. For the distinction between alveus in rivers navigable is in the rivers navigable and rivers not navi- Crown. 2 F 2 50 SCOTCH APPEALS. . [L. K. 18C6 Against the judgment of the Second Division the present appeal BICKETT to the House was presented; but the Kespondents presented a T, '"' petition against its reception, on the ground that the cause being one which by statute was appropriated to trial by jury, and the parties having ly consent deviated from the prescribed course, the decision was in fact by arbitration, and consequently was not appealable. This petition was referred to the appeal committee, ' who reported that the question of competency should be argued, along with the merits, at the bar of the House. Under these circumstances, Mr. Bolt, Q.C., and Mr. Anderson, Q.C., (with Mr. G. F. Anderson], appeared as counsel for the Appellant : There were two questions for their Lordships' determination. The first was, as to the general legal right of a riparian owner, independently of agreement. The law of Scotland on this point was not different from that of England. The bed of a river was the property of each riparian owner to the middle of the stream, and each was entitled to make use of it, so long as he did not injure his neighbour or interfere with the flow of the water. Yet here the Appellant was dragged into court simply for building on his own property and taking in a small strip of the alveus a strip which at one end was only about two feet six inches wide, and which gradually grew less towards the other end. [THE LORD CHANCELLOR : What is the depth of this river ?] Mr. Bolt : Not more than two feet where it is deepest. The doctrine of the Court below is much too strong. They affirm broadly that no erection whatever, great or small, can be made by a riparian owner on his side of the river. But we contend that, unless the erection complained of does some material damage to the Respondents, they have no right to interfere by action or by interdict. Injury must be shewn. It is not enough that the operation is in alveo. According to the Roman law, there is no ground for an interdict, unless what is complained of be cum in- commodo accolentium (1). And in the analogous case of buildings, it has been decided by the Court of Session that the proprietor (1) Dig. B. 43, t. 13, s. 3 ; and see Ripon v. Eobart, 3 Myl. & K. 169. VOL.1.] .SCOTCH APPEALS. 51 of an under-tenement is not entitled, without proving injury, to object to a projection of the frontage by the owner of the upper BICKETT tenement (1). MORRIS. The next question was, whether what the Appellant has done was not fully warranted by the agreement. [LORD WESTBUKY : It is clear that neither of you have proved, or can prove, that the red line was departed from or adhered to.] That may be so. But on whom is the onus of proof? It is for the Respondents (who w r ere Pursuers below) to make out their case. They have failed to do so, and therefore the decision of the Inner House ought clearly to be reversed. According to this decision any encroachment, however small, by one riparian owner, would justify complaint from the opposite proprietor. [LORD WESTBURY : If I build a boat-house, though it injures no one, it would seem that any riparian owner, however distant, may complain.] Here the Kespondents saw day by day the work going on, and they did not object till 1200 had been expended on the building. The appeal is alleged to be incompetent ; but the ground taken by the Respondents constitutes an objection to their own reclaiming note, upon which the Lord Ordinary's interlocutor was reversed ; and they are now precluded from questioning the jurisdiction of the House. The Attorney- General (2), and Mr. W. A. 0. Paterson, for the Eespondents : This appeal is incompetent. The Court below had no right to decide without a jury. They, therefore, did not act judicially, but as arbitrators. [LORD WESTBURY : But you appealed from the Lord Ordinary to the Inner House.] (1) Urquhart v. Melville, 2nd Series, vol. xvi. p. 307. (2) Sir Eounddl Palmer. 52 SCOTCH APPEALS. [L. K. 1866 The Attorney-General: Both parties desired the Inner House to w-v--' BICKETT decide the case (1). V. ORRIg> [LoKD WESTBUEY : Do you dispute the proposition, that if there is no damage there can be no action for an encroachment ?] The Attorney- General : Some acts necessarily import damage and this is one of them. All obstructions in the bed of a river are illegal. A precise specification of consequences may be impossible. The law will presume injury from the mere fact of encroachment. But in this case there was proof of actual damage ; or, at all events, of that reasonable apprehension which in such a case is legally equivalent. With reference to erections in alveo, the maxim is, potior est conditio prohibentis : Blantyre v. Dunn (2) ; Hamilton v. Edington (3) ; Burnis v. Brown (4) ; GeUatley (5). Lord KilJcer- ran, in reporting the Scotch case of Farquharson (6), lays it down that although a riparian proprietor may build a fence to fortify his land against the stream, "he must not use any operation in the cdveus" To the same effect is the decision in The Magistrates of Aberdeen v. Menzies (7). And the law is even more authoritatively stated in Menzies v. Breadalbane (8), which came to this House, and was adjudged by the advice of Lord Eldon. The following are the opinions which were delivered by the Law Peers on the motion for judgment : THE LOED CHANCELLOE (9) : My Lords, the first question to be considered is the competency of the present appeal. It appears to me that this is one of the actions " appropriate to the Jury Court," under the 28th section of the Scotch Judicature Act, the 6 Geo 4, c. 120, being an action on account of an injury to land in which the title was not in ques- tion. By the word " title," I do not understand to be meant the (1) There was some controversy on (7) Morr. Diet. 12,787. this point at the Bar. (8) 3 Wils. & Sh. 235. (2) 10 Dunlop, 542. (9) Lord Chelmsford, who succeeded (3) Morr. Diet, voce Prop. 12, 826. for the second time to the Great Seal (4) Hume's Dec. 504. on Lord CranwortKs second resignation (5) 1 Macpherson, 592. of it. (6) Morr. Diet. 12, 787. VOL. I.] SCOTCH APPEALS. 53 right to do the act which occasioned the injury, but the title to 1866 the land itself, to which the injury is alleged to be done. BICKETT The complaint is, that the Defender encroached by building MOBBIS beyond a certain line upon the sdlum of the river called the water of Kilmarnock, opposite the Pursuers' property. It is in respect of their property in the land that the Pursuers dispute the right of the Defender to encroach upon the river ; but the title to the land affected by the encroachment is not at all in question. It was contended by the Appellant that there being no claim for damages in the summons, it was a case not within the 28th section of the Judicature Act; but it seems to me that this section is not confined to cases where damages are demanded, but that it extends to all the enumerated causes of action where a question of fact is to be tried, proper for the determination of a jury. The cause ought, therefore, in regular course, to have been remitted to the Jury Court, and the Lord Ordinary had no authority to order the proofs to be taken by commission. But it was quite competent to the parties to agree that the proof should be taken by commission instead of by a jury ; and this having been done, the question arises whether the case was not removed from the regular course of proceeding, so that it could no longer be regarded as a trial in curia,) and subject to appeal. It is unnecessary to consider the 49th section of the 13 & 14 Viet. c. 36, allowing the Lord Ordinary to take evidence by com- mission in causes not specially enumerated in the 6 Geo. 4, "as appropriate to be tried by jury," because I have already expressed my opinion that the present cause is one of those enumerated in that 'Act. Whether, after having consented to the proof being taken by commission and reported to the Lord Ordinary for his decision, the parties had precluded themselves from presenting a reclaiming note to the Inner House, is a question which it appears to me to be unnecessary to decide. The Pursuers, having failed before the Lord Ordinary, themselves carried the cause into the Inner House by reclaiming note, thereby asserting their right to appeal from the Lord Ordinary's interlocutor. Having obtained from the Court of Session an interlocutor reversing the interlocutor of the Lord 54 SCOTCH APPEALS. [L. E. 18C6 Ordinary, it would be opposed to every notion of propriety and jus- BICKETT tice if the Pursuers could successfully resist the Defender's right to r - question the interlocutor upon the ground of incompetency. By MORRIS. T. L taking the step of appealing to the Inner House, the Jrursuers, 111 my opinion, have precluded themselves from objecting that the in- terlocutor pronounced in their favour is not subject to all the con- sequences of other interlocutors, and therefore appealable to this House. The next question to be determined is one of fact, namely, whether the Appellant has extended his buildings beyond the line permitted by the agreement. Upon this subject the evidence is conflicting, and impossible to be reconciled. The whole difference between the parties depends upon the fact whether the letter D on the plan given in evidence accurately represents the junction between the new wall and the old. If it does, then the new wall is properly represented by the blue line, and there has been an en- croachment beyond the agreed limit. If, on the contrary, the letter C on the red line is the point at which the new wall strikes the old, then the Appellant is within the limit prescribed by the agreement. Both parties agree that for a certain part of the new building the foundation of the old wall has been used. This being so, and the building running in a straight line throughout its length, I do not well see how any other than the blue line can be taken to represent the extent of the encroachment. The Judges of the Second Division have come to this conclusion; and even if I were disposed to form a different opinion from them, I should be very unwilling to overrule their judgment upon a question of fact of so doubtful a nature. I therefore assume, as an established fact, that the Appellant has exceeded the limit conceded to him by the agreement. The important question in the case is, whether the Eespondents were entitled to a declaration that " the Appellant had no right or title to erect any building, or otherwise to encroach upon or to in- terfere with that part of the solum of the river which is immediately opposite their property, beyond a certain line, and to a decree ordering him to take down and remove the building or other eretions, in so far as these extend into, or encroach upon the solum of the river beyond the said line, and interdicting them from VOL. I.] SCOTCH APPEALS. 55 erecting any building, or otherwise encroaching upon the solum 186G of the river beyond the line in question." BICKETT There is a general statement in the pleas in law of the encroach- M ^ q ments complained of being " injurious to the Eespondents' pro- perty," but no proof was given by them of any actual injury, but only of a probability of injury from the building being advanced further into the river than the line agreed upon. The result of the opinions of the Judges of the Second Division appears to be, that a riparian proprietor has no right to erect any building in alveo fluminis ; and if he does so, although the oppo- site proprietor may be unable to prove that any damage has actually happened to him. by the erection, yet, if the encroach- ment is not of a slight and trivial, but of a substantial description, it must always involve some risk of injury. Lord Benliolme said : " Without my consent" (i. e., the consent of the proprietor of the other side of the river), " you are not to put up your building in the channel of the river, for that in some degree must affect the natural flow of the water. What may be the result, no human being with certainty knows, but it is my right to prevent your doing it ; and when you do it, you do me an injury, whether I can qualify damage or not." And Lord Neaves said : " Neither can any of the proprietors occupy the alveus with solid erections without the consent of the other, because he thereby affects the course of the whole stream. The idea of compelling a party to define how it will operate upon him, or what damage or injury it will produce, is out of the question." These views appear to me to be perfectly sound in principle, and to be supported by authority. The proprietors upon the opposite banks of a river have a common interest in the stream, and although each has a property in the alveus from his own side to the medium filum fluminis, neither is entitled to use the 'alveus in such a manner as to interfere with the natural flow of the water. My noble and learned friend, the late Lord Chancellor, during the argument, put this question : " If a riparian proprietor has a right to build upon the stream, how far can this right be supposed to extend ? Certainly (he added) not ad medium filum, for, if so, the opposite proprietor must have a legal right to build to the same extent from his side." It seems to me to be clear that 56 SCOTCH APPEALS. [L. K. 1866 neither proprietor can have any right to abridge the width of the BICKETT stream, or to interfere with its regular course ; but anything done in alveo, which produces no sensible effect upon the stream, is JMOIIKIS. * allowable. It was asked in argument, whether a proprietor on the banks of a river might not build a boat-house upon it ? Undoubtedly this would be a perfectly fair use of his rights, provided he did not " thereby obstruct the river or divert its course ; but if the erection produced this effect, the answer would be, that essential as it might be to his full enjoyment of the use of the river, it could not be permitted ; a fortiori, when the act done is the advancing solid buildings into the stream, not in any way for the use of it, but merely for the enlargement of the riparian proprietor's pre- mises, which must be an infringement upon the right and interest of the proprietor on the opposite bank. Upon principle, then, the Respondents had a cause of action in respect of the Defender's building, and were entitled to a declara- tion against the encroachment, and a decree to have the obstruction removed. The authorities cited in the argument at the bar sup- port the principle, and establish a satisfactory distinction. The proprietors on the banks of a river are entitled to protect their property from the invasion of the water by building a bulwark, ripse riiuniendze causa, but even in this necessary defence of them- selves, they are not at liberty so to conduct their operations as to do any actual injury to the property on the opposite of the river. In this case, mere apprehension of danger will not be sufficient to found a complaint of the acts done by the opposite proprietor, because, being on the party's own ground, they were lawful in themselves, and only became unlawful in their consequences, upon the principle of sic utere tuo ut alienum non Isedas. But any operation extending into the stream itself is an interference with the common interest of the opposite riparian proprietor, and, therefore, the act being primd faeie an encroachment, the onus seems properly to be cast upon the party doing it to shew that it is not an injurious obstruction. There only remains the question of acquiescence to be con- sidered. There is no doubt as to the principle of the cases of persons standing by and permitting acts to be done which they VOL. L] SCOTCH APPEALS. 57 are entitled to prevent. It is only just that a person who has i860 been encouraged to continue expensive operations by the seeming BICKETT consent of him who might have stopped them, should be able to defend himself against any subsequent attempt to treat them as an encroachment upon the rights of the party who has so misled the other into the confidence that his acts were sanctioned. But, in all such cases, knowledge of the acts done is essential to stop the party who has suffered the encroachment upon his rights from afterwards objecting to it. In this case, there was an agreement between the parties, and it does not appear that the Pursuers knew ' at first that the Defender was exceeding the limits prescribed by the agreement. As soon as they were aware of the fact they objected to it. The Defender, however, chose to go on in the face of the Pursuers' objection. His proper course, would have been to sus- pend his works until it could be ascertained whether he kept to the permitted line or not. If he determined to proceed, in spite of the objection, it is difficult to understand how he can now claim the benefit of the principle of acquiescence, or how he can reason- ably complain that he is compelled to .reduce his building within the limits agreed upon. My Lords, for these reasons, I think the decision of the Second Division ought to be affirmed. LORD CKANWORTH: There is no doubt that the Respondents agreed with the Ap- pellant that, to a certain extent, they would not object to his advancing his building into the bed of the river ; so that if the limit to which that agreement extended has not been transgressed, there can be no ground^ of complaint on the part of the Eespon- dents. If the limit has been transgressed, then there arises a second question, namely, whether, independently of any agreement, the Appellant had not, by the law of Scotland, a right to erect the buildings which he has erected in the alveus of the river. In the the hearing of this case at your Lordships' bar, the two questions were argued in the order in which I have just stated them; that is, first, whether the Appellant's buildings had been carried further into the river than the line agreed to by the Respondents ; and secondly, whether, by the law of Scotland, there was anything to 58 SCOTCH APPEALS. [L. E. 1866 prevent the Appellant, independently of consent, from erecting \^-v^"' * BICKETT the buildings in question. MORRIS I w *^ * a ^ e a different course, and consider, first, what rights the Appellant had, independently of contract or consent. By the law of Scotland, as by the law of England, when the lands of the two conterminous proprietors are separated from each other by a running stream of water, each proprietor is prima facie owner of the soil of the alveus or bed of the river ad medium filum aqufe. The soil of the alveus is not the common property of the two proprietors, but the share of each belongs to him in severalty, so that if, from any cause, the course of the stream should be per- manently diverted, the proprietors on either side of the old chan- nel would have a right to use the soil of the alveus, each of them up to what was the medium filum aquze, in the same way as they were entitled to the adjoining land. The Appellant contended that, as a consequence of this right, every riparian proprietor is at liberty at his pleasure to erect buildings on his share of the alveus, so long as other proprietors cannot show that damage is thereby occasioned or likely to be occasioned to them. I do not think that this is a true exposition of the law. Kivers are liable, at times, to swell enormously, from sudden floods and rain, and in these cases there is danger to those who have buildings near the edge of the bank, and indeed to the owners of the banks generally, that serious damage may be occasioned to them. It is impossible to calculate or ascertain beforehand what may be the effect of erecting any building in the stream, so as to divert or obstruct its natural course. If a building should be carried out to the middle of the stream, that is, to the whole extent of the proprietor's right in the alveus, no one can fail to see that there might be great danger in case of floods. If the proprietor on one side, can make an erection far into the stream, what is there to prevent his opposite neighbour from doing the same ? The most that can be said in favour of the Appellant's argument is, that the question of the probabilities of damage is a question of degree, and so if the building occupies only a very small por- tion of the alveus, the chance of damage is so little that it may be disregarded. But this is an argument to which your Lordships cannot listen. Lord Benliolme says truly, that what may be the VOL. L] SCOTCH APPEALS. 59 result of any building in the alveus no human being knows with certainty. The owners of the land on the banks are not bound to BICKETT obtain, or be guided by, the opinions of engineers or other scientific ... " 7 MOKRIS. persons, as to what is likely to be the consequence of any obstruc- tion set up in waters in which they all have a common interest. There is, in this case, and in all such cases there ever must be, a conflict of evidence,' as to the probable result of what is done. The law does not impose on riparian proprietors the duty of scanning the accuracy or appreciating the weight of such testimony. They are allowed to say, " We have all a common interest in the un- restricted flow of the water, and we forbid any interference with it." This is a plain, intelligible rule, easily understood, and easily followed, and from which I think your Lordships ought not to allow any departure. It was said in argument, " Then, if I put a stake in the river, am I interfering with the rights of the riparian proprietors ?" To this I should answer, de minimis non eurat prtetor. But further, it might be demonstrated in such a case, not that there was an extreme improbability, but that there was an impossibility of any damage resulting to any one from the act. It is, however, unneces- sary for us to speculate on~any such infinitesimal obstruction. No one can say that in this case the extent to which the Appellant has built into the river is so small as to be, like the case of a stake driven into the soil, inappreciable. I find nothing in the cases or text books to which we were re- ferred, at variance with the view I have taken of' the law. And the cases of the Town of Aberdeen v. Menzies (1) ; and Farquliar- son v. Farquliarson (2), cited by the Lord Justice Cleric, are in exact conformity with it. I therefore come, without hesitation, to the conclusion that the Appellant had no right, independently of contract or consent, to build, as he has built, into the bed of the river. That being so, the only other question is, whether what the Appellant has done has been done with the sanction or acquies- cence of the Respondents. For if it has, then, whatever may be the rights of other proprietors on the banks of the river, it does not lie in his mouth to complain. This is a mere question of fact, (1) Morr. Diet. 12, 787. (2) Ibid. SCOTCH APPEALS. [L. E. 1866 and must be depided by an examination of the evidence. I have BICKETT given to the proofs on both sides my best attention, and the con- MOKBIS elusion at which I have arrived is the same as that of my noble and learned friend on the woolsack. The burthen of proof was clearly on the Appellant. He has erected a wall which, ex Tiypothesi, by the law of Scotland, he was not justified in erecting. But then he says to the Eespondents, " You cannot be heard to complain of what I have done, for you agreed that I should be at liberty to do it. You in substance sold to me your right to make the objections you are now making." The Appellant, in order to sustain this case, must shew, first, what his agreement with the Respondents was ; and secondly, that what he has done was warranted by that agreement. I am of opinion, with my noble and learned friend, that the Appellant has failed to shew that the Respondents had bound themselves not to object to the line of wall actually built. With respect to the question raised by the Appellant as to acquiescence, I have only to say that I concur with my noble and learned friend on the woolsack. On the point of competency it is not necessary to give an opinion. I should have been very slow to hold that the Pursuers, having themselves presented a reclaiming note to the Inner House, and obtained the benefit there of a decision in their favour, reversing that of the Lord Ordinary, can now say : " We will profit by that which is in substance an appeal to the Inner House, and treat that as a regular proceeding in curia, and yet hold that an appeal from that decision is ultra vires" LOED WESTBTJKY: My Lords, upon the question of competency, it must be under- stood that the decision of your Lordships proceeds upon its being personally incompetent to the Respondents to raise that objec- tion. This is a case of very considerable importance, because, as far as I know, it will be the first decision establishing the important principle that an encroachment upon the alveus of a running stream may be complained of by an adjacent or an ex adverse pro- prietor, without the necessity of proving, either that damage has VOL. I.] SCOTCH APPEALS. 61 been sustained, or that it is likely to be sustained, from that cause. 1866 The examination that has been given at the bar to the cases cited BICKETT upon that point of law, certainly had led me to the conclusion MORRIS that it has not yet been clearly established by decisions. I have felt much difficulty upon it, because, undoubtedly, a proposition of that nature is somewhat at variance with the principles and rules established on the subject by the civil law. I am, however, con- vinced, that the proposition, as it has been laid down in the Court below, and as it has received the sanction of your Lordships in your judgments, is one that is founded in good sense, and ought to be established as a matter of law. When, however, it is said, that proprietors of the bank of a running stream are entitled to the bed of the stream as their property usque ad medium filum, it does not, by any means, follow, that that property is capable of being used in the ordinary way in which so much land uncovered by water might be used ; but it must be used in such a manner as not to affect the interest of riparian proprietors in the stream. Now, the interest of a riparian proprietor in the stream is not only to the extent of preventing its being diverted or diminished, but it would extend also to prevent the course being so interfered with or affected as to direct the current in any different way that might possibly be attended Avith damage at a future period to another proprietor. In the bed of a river, there may, possibly, be a difference in the level of the ground, which, as we know,' has the effect of directing the tide or current in a particular direction. Suppose the ordi- nary current flows in a manner which has created for itself by attrition a bay in a particular part of the bank ; if that were obstructed by a building, the effect might be to alter the course of the current, so as to direct the flow with a greater degree of violence upon the opposite bank, or upon some other portion of the same bank ; and then, if at that part of the bank to which the accelerated flow of the water in greater force is thus directed, there happens to be a building erected, the flow of the water, thus pro- duced by the artificial obstruction, would have the effect, possibly, of wearing away the foundation of that building at some remote period, and would thereby be productive of very considerable damage. I SCOTCH APPEALS. [L. K. 1866 It is wise, therefore, to lay down the general rule, that, even BICKETT though immediate damage ' cannot be described, even though the actual loss cannot be predicated, yet, if an obstruction be made to the current of the stream, that obstruction is one which constitutfs an injury which the Courts will take notice of, as an encroachment which adjacent proprietors have a right to have removed. Inthi.s sense, the maxim has been applied by the law of Scotland, that melior est conditio prohibentis, namely, that where you have an interest in preserving a certain state of things in common with others, and one of the persons who have that interest in common with you desires to alter it, melior est conditio prohibentis, that is to say, you have a right to preserve the state of things unimpaired and unprejudiced in which you have that existing interest. My Lords, upon these grounds I entirely concur with your Lord- ships, and with the Court below, in the conclusions at which you and they have arrived. ' Interlocutors appealed from affirmed; and Appeal dismissed ivith costs. Solicitor for the Appellant : Mr. KarslaJce. Solicitors for the Respondents : Messrs. Loch & McLaurin. VOL. I.] DIVOKCE APPEALS. 63 KOWLEY, THE WIFE APPELLANT; ig66 EOWLEY, THE HUSBAND KESPONDENT. Compromise of a Divorce Suit favoured. Where a suit is in derogation of the marriage contract, the Divorce Court will favour an arrangement which prevents the scandal and opprobrium of a public investigation. Difference when the Suit is for Restitution. Where a suit is not in derogation of the marriage contract, but, on the contrary, is for restitution of conjugal rights, the Divorce Court, in the exer- cise of its jurisdiction, will disregard all private arrangements ; subject, how- ever, to the interposition of the Court of Chancery by injunction on proper occasions. Misconduct after Compromise of a Divorce Suit. The wife's suit for dissolution was compromised, both parties agreeing to execute a deed of separation with the usual clauses ; she specially engaging " not to institute other proceedings in the Divorce Court." In the face of this undertaking, she presented a new Petition for dissolution, alleging adul- tery committed by her husband subsequently to the agreement, and also renewing the allegation of the adultery and cruelty relied upon in the suit which had been compromised : Held, that misconduct by the husband after the agreement had not the effect of reviving the wife's remedies, as in the case of condonation, and, con- sequently, that she was precluded from suing on any facts anterior to the compromise. IVlBS. ROWLEY married the above Bespondent on the 2nd of July, 1844. In October, 1848, she left him, alleging cruelty on his part. In January, 1849, she returned to him. In September, 1849, she again left him, and refused to renew cohabitation ; where- upon he commenced a suit against her in the Consistorial Court of York for restitution of conjugal rights. To this suit Mrs. Rowley set up, by way of defence, an allegation that he had been guilty of adultery and cruelty, and she prayed that a decree of divorce a mensd et thoro should be pronounced in her favour on those grounds. The Court decided in her favour, but the cause was carried by appeal to the Privy Council, where, on the 29th of December, 1853, an order was made to the effect that Mrs. Rowley VOL. I. G 64 DIVOKCE APPEALS. [L. K. 1866 had failed in proving the cruelty and adultery pleaded, and that BOWLEY she must return to her husband. In January, 1854, she did so, KO-WLEY kut she left him again in the November following, and never afterwards cohabited with him. In 1858 the Divorce Court was established, with jurisdiction to dissolve the marriage contract. On the 25th of February, 1860, Mrs. Rowley, having a separate income, filed her Petition in the new Court, praying for dissolution of her marriage on the ground of cruelty and adultery. In this Petition she did not confine her charges of cruelty or adultery to occasions subsequent to the suit in the Consistorial Court, but adduced several charges, dated in 1848 and 1849, which either were, or might have been, adduced in that suit which had been decided against her. The Kespondent having pleaded to the Petition in the Divorce Court, the cause came on for trial before the late Judge Ordinary, Sir CressweU Cresswdl, and a special jury, on the 12th of March, 1861, when it was withdrawn from the jury upon the following memorandum of agreement, drawn up and signed by the respec- tive counsel of the parties : A juror withdrawn, and Petitioner to move at the proper time to have the Petition taken off the file ; the Kespondent consenting to the application. The Eespondent undertaking to execute a deed of separation, with covenants not to molest the Petitioner, nor to put in force the sentence of the Privy Council, and other usual covenants, including a covenant to allow the Petitioner to choose her own place of abode. The Petitioner undertaking not to institute other proceed- ings in the Divorce Court. In consequence of this agreement the issues were not submitted to the jury. Subsequently, however, in the course of the year 1861, Mrs. Rowley, in the face of her agreement, moved the Judge Ordinary to direct her Petition of 1860 to be again set down in the list of causes for hearing and trial. This motion, Sir CressweU CressweU, without much hesitation, rejected. Mrs. Rowley appealed to the full Court of Divorce. On the 4th June, 1862, that Court decided against her, by affirming the deci- sion of the Judge Ordinary. Nevertheless, on the 9th of May, 1863, Mrs. Rowley filed a fresh VOL. I.] DIVOECE APPEALS. 65 Petition in the Divorce Court, praying a dissolution of her marriage, by reason, as she alleged, of her husband's adultery and cruelty. This Petition contained paragraphs charging the same alleged acts of adultery as were averred in her original Petition. But it also charged acts of adultery which Mrs Rowley alleged came for the first time to her knowledge in March, 1863. The other paragraphs charged acts of cruelty identical with those alleged in her original Petition. The husband's defence set forth the compromise, and insisted that Mrs. Rowleys new suit was in breach of her agreement. The Judge Ordinary, Sir James Wilde, on the 26th of January, 1864, held that Mrs. Rowley was bound to abstain from proceed- ings with reference to all matters anterior to her agreement, but that she was at liberty to sue for subsequent adultery, cruelty being out of the question, as the parties were separated. So ruling, the Judge Ordinary made the following observations as to the import and effect of the agreement : Upon what ground is it contended that this Court ought to permit Mrs. Rowley thus to withdraw herself from her own engagements ? It has heen ingeniously argued, that the adultery charged to have been committed in 1862 revived the previous cruelty, as it would do in an ordinary case of a condonation. Now, condonation is that species of forgiveness or reconciliation which, in furtherance of the marriage bond, the law has declared to be binding only on condition of future good conduct. But here there is no such condition to be found. The agreement has been violated. Why should not the Court give it effect ? There is, indeed, a class of suits in which restitution of conjugal rights, and the aid of the Court to enforce the obligations of marriage is sought ; and to such, a volun- tary agreement to live separate is no answer (1). But in cases like the present, where the Court is asked to derogate from, not to enforce, the marriage bond, it is far otherwise. If cohabitation is to be no longer continued, and choice is to be made between the legal and public remedy, and the voluntary and private arrange- ment, who can doubt between them ? Expense, exposure, uncertainty ; the exhi- bition in open Court of vows broken and duties neglected, to the great scandal of the public, upon whom it is forced, as well as the parties to whom it is the sole legal 1866 ROWLEY v. ROWLEY. (1) Sed vide Hunt v. Hunt, L. J. (N. S.) vol. xxxi, Part 1, Chanc. ; W. Rep. vol. x, p. 215, where Lord Chan- cellor Westbury held (reversing a decree off the Master of the Rolls) that a wife was entitled to an injunction to restrain her husband from proceeding against her for restitution of conjugal rights in the Divorce Court, he having covenanted by a deed of separation that he would not endeavour to compel her to cohabit with him by any legal proceeding. The case was carried to the House of Lords, where, after argument, it became abated without judgment. QQ DIVOECE APPEALS. [L. E. 1866 resort such is the price that must be paid for a remedy which begins by bring- v *~ v ^' ing the marriage into disrepute, and ends by impairing or dissolving it. In IWLET contrast with this, a voluntary agreement to live apart almost ceases to be an ROWLEY. evil, and should find no lack of favour from the Court, when it is designed to replace the greater evil of a public judicial sentence. The result is, that the Court declines to give any directions for the mode of trial ; and, on proper application, will entertain the question whether the husband is not entitled to be dismissed from this suit. Mm Rowley appealed to the full Court, who made no order on the appeal, but directed that, in case the Respondent did not, before the end of Easter Term, 1865, apply for dismissal of the Petition, Mrs. Rowley might ask the Judge Ordinary's directions as to the mode of trial. On the 26th of May, 1865, the Eespondent moved for dismissal of Mrs. Rowleys Petition, and on the 30th, the Judge Ordinary dis- missed it accordingly. Mrs. Rowley now determined to appeal to the House of Lords (1), and accordingly, in due time, presented her Petition, praying their Lordships to reverse, vary, or alter the Judge Ordinary's decree, and also praying such other and further relief in the premises as to the House in its great wisdom might seem meet. In support of the appeal Dr. Deane, and Dr. Twiss, contended that the agreement formed no bar to the Appellant's second suit as to matters which had not been put in issue by her first suit. The adultery which came to her knowledge in March, 1863, was clearly a ground for relief which could not have been waived by an agree- ment entered into in ignorance of them. Secondly, the Appellant's counsel insisted, that although her remedies were waived so far as grounded on the charges actually put in issue by her first suit ; yet the waiver was not absolute, but conditional ; the agreement being in the nature of condonation, which binds only on the foot- ing of subsequent good conduct. Here, however, instead of good conduct following the agreement, the husband commits adultery ; the wife's remedies thereupon revive ; so that by the ecclesiastical law, which governs the Divorce Court, her title to redress is now as unquestionable as if the agreement had never taken place. In (1) Under the 23 & 24 Viet. c. 144, the House from the decisions of the s. 3, which gives a right of appeal to Judge Ordinary per saltum. VOL. I.] DIVOECE APPEALS. 67 support of these propositions, Smith v. Smith (1); Keats v. Monte- 1866 zuma (2); Palmer v. Palmer (3); and Walker v. Walker (4); were EOWLEY cited. The Court below had admitted that Mrs. Rowley was at liberty to sue for adultery committed subsequent to the agreement ; but this could only point at judicial separation, whereas she demanded divorce a vinculo on the two grounds of adultery and cruelty charged by her first Petition, and charged, with aggravations, Jby her second. Mr. Philbrick for the Eespondent : By the words of the agreement, " The Petitioner undertakes not to institute other proceedings in the Divorce Court." These plain words require no argument to fortify their import. The parties are bound by reciprocal obligation, the husband undertaking to execute a deed of separation with the usual well-known covenants. He engages not to molest her, and she, on the other hand, under- takes to let him live in peace. This arrangement has no analogy or resemblance to condonation, of which the essence is forgiveness, and a renewal of cohabitation. Here there is no forgiveness on either side and a renewal of cohabitation would not only have been inconsistent with the compact, but would have put an end to it (5). The true doctrine in such a case, is that wholesome one affirmed by the Judge Ordinary ; that where the suit is derogatory to the mar- riage, the Court will favour an arrangement which prevents the scandal and opprobrium of a public investigation. THE LORD CHANCELLOR (6), at the close of the argument, after stating the facts and examining the pleadings, expressed himself as follows : My Lords, the whole question, in this case, turns upon the mean- ing of the words in the agreement : " The Petitioner undertaking (1) 4 Hagg. E. C. 509. any time be together for five minutes (2) 1 Sw. & Tr. 334. after either of them had requested the (3) 2 Sw. & Tr. 61. other to depart, the deed of separation (4) 2 Phillim. 153. should instantly become void. No (5) Macqueen on Husband and Wife, such clause, however, is required, as p. 341. A great conveyancer invented a renewal of cohabitation will of itself the " five minutes clause," providing vacate the deed. that if the husband and wife should at (6) Lord Chelmsford. 68 DIVOKCE APPEALS. [L. B. 1866 not to institute other proceedings in the Divorce Court." It ap- EOWLEY pears to me to be difficult to apply any other than one meaning to EOWLET these words. It is not contended that they amount to an under- taking never to institute any other proceedings. But they seem to have been intended to prevent future proceedings in respect of matters forming the ground of a Petition for a divorce which had oc- curred prior to the agreement. The parties agreeing to live separate upon certain terms which had reference solely to the future, it can hardly be supposed that they meant to leave it open to the wife to institute fresh proceedings upon unknown acts of adultery com- mitted prior to the Petition, which might afterwards be discovered. The Appellant must be taken to have been acquainted with the extent of the redress to which she was entitled for the infidelity of her husband, and to have known that in order to obtain a dissolu- tion of the marriage she must be able to prove his cruelty as well as adultery. She must have been aware of every act of cruelty which she could possibly have alleged against her husband upon the first Petition. And when she consented to a separation, and entered into an undertaking not to institute other proceedings in the Divorce Court, she must have known that future cruelty of her husband towards her being unlikely, she was by the agreement most probably limiting her remedy for any fresh adultery upon her husband's part, to a judicial separation. The learned Judge Ordinary very properly rejected the sup- posed analogy between this case and a case of condonation. In the latter case there is a conditional forgiveness ; here there was an absolute release. I think the decree quite correct, and that it ought to be affirmed. LOED CEANWOKTH: The whole question turns upon these words at the end of the agreement, "The Petitioner undertaking not to institute other proceedings in the Divorce Court." Now, I concur with my noble and learned friend in thinking that those words must mean, not to institute other proceedings in respect of anything up to that time, not limiting it merely to those matters which had already been put in issue. That being so, it necessarily follows that inas- VOL. I.] DIVORCE APPEALS. 69 much as she has now instituted proceedings founded in part upon 1866 something which occurred before that time, the suit cannot be BOWLEY sustained, and consequently the decree appealed from must be affirmed. Order appealed from, affirmed ; and appeal dismissed. Appellant's Solicitors : Messrs. Brooks & Dulois. Respondent's Solicitor : Mr. diaries J. Grattan. VOL. I. 2 fl 70 SCOTCH APPEALS. [L. K. 1866 - JAMES WHITE et d . APPELLANTS ; July 12, 13. AND THE DUKE OF BUCCLEUCH etal. . . '. KESPONDENTS. Practice Jurisdiction Issues Uncertainty Eight of way Ees judicata Costs. 1. Where proceedings are taken out of the ordinary cursus curice with the assent of the parties, all subsequent interlocutors in the course adopted, though pronounced adversely, are in the nature of awards, and not subject to appeal. 2. Where, in an action of declarator of right of way, the Defender had consented to judgment against him upon issues describing the footpath claimed as leading " by or near " a red line on a plan in process, the Court had subsequently directed an engineer to lay off the footpath so consented to " in such manner and such a line as to make the footpath least burdensome to the Defender ." Held, 1, That the Court, by so doing, had departed from the cursus curice. And, 2, That all the interlocutors following on that depar- ture were extra-judicial and not appealable. 3. That the judgment was vague and uncertain in consequence of the alternative form of the issue " by or near." And 4. Affirming the judgment of the Court below, that a minute abandoning three out of five footpaths claimed in the summons, and lodged before closing the record, was irregular as a minute under the Judicature Act ; and that it was too late to receive another minute in the same terms after closing the record, and after judgment upon the issues as to the other two footpaths had been given, although some conclusions of the summons were still undisposed of. 5. Semite, judgment of absolvitor, quoad the three roads, the right to which was never put in issue, would not be res judicata in another action to establish such right. 6. An appeal against interlocutors made after a departure from the ordinary course of the Court, dismissed without costs, the House being of opinion that the i par ties had been led astray by the Court below. IN 1846, the Appellants raised an action before the Court of Session against the late Earl of Morton, concluding inter alia, that it should be declared that the five roads or footpaths described in the summons, and lying between Aberdour and Burntislanct, in Fifeshire, were public rights of way, and that the Defender should be ordained to remove obstructions, and interdicted from inter- fering with the free use by the public of the right of way. The Earl of Morion, by his defence, maintained that these footpaths were his private property, and not burdened, with any public right VOL. I] .- SCOTCH APPEALS. 71 of way. On the 7tli of March, 1851, before the record was closed, ISGG the Appellants lodged a minute, by which they " abandoned the WHITE cause, in so far as related -to three of the footpaths, reserving their THE D KE QF right to bring a new action as to these, in terms of the Judicature BUCCLEUCH. Act (6 Geo. 4, c. 120), and the relative Act of Sederunt. Upon this minute being lodged, the Lord Ordinary (Robertson) appointed the Defender to give in an account of his expenses relative to the part of the cause abandoned, and remitted the same to the auditor to tax and report. On the 31st of May, 1851, the record was closed. Thereafter, the Court remitted to Mr. Wylie, a civil engineer, to make a plan of the ground, shewing the line of foot- path claimed, and the places where the two branches thereof entered [and left the Defender's ground. Mr. Wylie prepared a plan, on which the footpath claimed was delineated by a red line. By interlocutor of the 18th of July, 1854, the Court approved of two issues, and appointed them to be the issues for trying the cause. The issue as to one of the roads claimed was as follows : 1 1. Whether, for the said period of forty years, or for time imme- morial, there existed a public right of way or branch foot-road for foot-passengers, leading by or near the broad red line, as shewn on the plan, No. 424, of process, from the Kirk WynA of the old or easter village of Aberdour, in a southerly direction along the eastern side of what is known as the Mitt Meadow, to or near the Teinds Barns, and thence in an easterly direction through or betwixt a row or double row of old trees till it joins the pathway first above de- scribed at or near the Heughs, at or near the aforesaid northern extremity of the Whiteaands Bay, and thence by that pathway to Starleyburn, and thence through the remaining portion of the Defender's lands to the kirkton of Burntisland, or to the harbour and royal burgh thereof. The issue as to the other road claimed was in the same terms, mutatis mutandis^ Shortly before the day fixed for trial the Defender lodged a minute, by which he consented to a judgment against him in the same way as if a verdict had been found for the Appellants on the issues in the cause. Lord Morton thereafter presented a note craving, that, since the right of path had been conceded, it was necessary, for the protection of his property, that the footpaths should be judicially 2 H 2 72 SCOTCH APPEALS. [L. K. 1866 defined and laid off. The Court thereupon, by interlocutor of the WHITE 23rd of December, 1854, remitted the process, with the issues and THE DUKE OF ^ ie mmu * e consenting to judgment, to Mr. Wylie, with directions BCCCLEVCH. to him "to lay off and mark on the ground, and also on the plan prepared by him, the footpath so consented to, with the en- trances to the same, in such manner and in such line as to make the footpath least burdensome to the Defender, and so as to inter- fere as little as might be with the use and occupation of the ground by the Defender, and, at the same time, so as fully to answer the right of footpath between the places mentioned in the issues, and without interference with that line of way." Mr. Wylie made an interim report desiring instructions with reference to a proposed diversion of the footpath between the Kirk Wynd and the Teinds' Barns, mentioned in the issue, from the broad red line, as deli- neated on the plan therein referred to, on to a private cart-road belonging to the Defender, which ran parallel to the red line between a row of trees and a stone wall. The Appellants objected to this diversion, but the Court, by interlocutor of date the 10th of March, 1855, found that the Appellants were not entitled to a footpath separate from that cart-road. On the 29th of Novem- ber, 1856, their Lordships approved of the final report and relative plan prepared by Mr. Wylie, on which plan the footpath between the Kirk Wynd and the Teinds Barns was marked upon the cart- road ; and found the Appellants entitled to the footpaths so marked on the plan. The Appellants subsequently moved the Court to ordain tho Respondents, against whom the action had been transferred on the death of Lord Morion, to remove certain obstructions from the footpath ; but the Court, by interlocutor of the 6th of December, 1861, refused the motion (1). In January, 1862, the Appellants moved the Court to dispose of the remaining conclusions of the summons, and to find them entitled to expenses. The Court, instead of dealing with this motion, ordered the parties to be heard on the competency of the Appellants' minute of abandonment, dated 7th of March, 1851 ; and their Lordships by interlocutor, dated the 21st of May, 1862, found that this minute was incompetent, and appointed it to be (1) See Hay,&c. v. Earl of Morton ; 24 Court of Session Cases (2nd Series) 116. VOL. I.] SCOTCH APPEALS. 73 withdrawn, on the ground that it was lodged before the record had ISGG been closed, whereas to make it competent under the Judicature \v mTE Act it should not have been lodged till after that step had been THE D ^ KE op taken (1). To meet this view the Appellants lodged a new minute BUCCLEI-CH, in precisely the same terms as the former. The Court, however, by interlocutor of the 6th of June, 1862, held that the Appellants were not entitled in the then state of the process to abandon in terms of their second minute ; and found and declared, in terms of the declaratory and prohibitory conclusions of the summons, as regarded the footpaths laid down on Mr. Wylie's plan, and settled by the interlocutor of the 22nd of November, 1856, to be the foot- paths to which the public were entitled : quoad ultra their Lordships assoihied the Kespondents, but found the Appellants entitled to certain expenses, which were modified to 750 by interlocutor of the 31st of March, 1863 (2). The present appeal was taken against the interlocutors of the 10th of March, 1855, the 29th of November, 1856, the 6th of December, 1861, the 21st of May, 1862, the 6th of June, 1862, and the 3rd of March, 1863. Mr. Anderson, Q.C., and Mr. C. Grey Wotherspoon, for the Ap- pellants, argued that all the interlocutors appealed against were erroneous. The right of the Appellants to the footpath in the red line marked on the plan was judicially established by the Defender's minute of consent to a judgment, as if a jury had returned a verdict ; and the Court, therefore, had no right or power afterwards to deprive them, or the public, of any portion of the footpath as they had done, by diverting that portion of the red line between the Kirk Wynd and the Teinds Barns on to the cart-road. The cart-road was never claimed, and never conceded. The Appellants would not have accepted it in lieu of a correspond- ing portion of their red line ; for, among other reasons, the cart- road was not in all circumstances a safe route, while the road by the red line was. The road so diverted was described in the issue by reference to the plan in process; that line, and that alone, should have been given to the Appellants. (1) See Hay, &c. v. Earl of Morton ; 24 Court of Session Cases (2nd Series) 10" 4. (2) Ibid, 1056. 74 SCOTCH APPEALS. [L. E. 1866 [LORD WEBTBURY : I observe that the second issue describes the Vtas footpath as situated "by or near" the red line. This is an issue J* which contains a vitious amount of uncertainty, and upon which no THE DUKE OP BUCCLEUCH. satisfactory judgment could have been pronounced by any Court.] The alternative " by or near " was no doubt sanctioned by the Court, but this was to meet the case of any variation in the proof. By the Defender's concession, however, no proof was required; and the proper course, in those circumstances, was to have given the route as laid down by the red line. At all events, the footpath should not have been placed upon a dan- gerous, private, ill-kept, cart-road. In, this matter it was sub- mitted the Court had clearly acted ultra vires. : [THE LORD CHANCELLOR : Both ultra vires and ex via.] Quite so; that was the way the Appellants desired to put it before their Lordships. The interlocutor of the 6th of March, 1855, pronounced upon Mr. Wylies interim report, and which directed this diversion of the footpath, should, therefore, be reversed. [LORD WESTBURY directed attention to the fact that the inter- locutor of the 6th of March, 1855, followed upon that of the 22nd of December, 1854, by which Mr. Wylie was directed to lay off and mark on the ground, and also on the plan, the footpath in such a line as to maJce the footpath least burdensome to the Defender*, and inquired whether that interlocutor of 1854 was not the basis of those which followed, as to the diversion of the footpath, and must not be taken to involve a consent by the parties to the de- parture from the strictly judicial duty or functions of the Court ; and that, if that were so, whether there had not been a departure from the cursus curite by the parties, which rendered any appeal against the subsequent relative interlocutors incompetent.] Their Lordships would observe that the interlocutor of 1854, in addition, stated that the line to be laid down was " the footpath so consented to," which surely meant the red line. The Appellants most certainly never intended to consent to anything that might deprive them of a footpath by the red line. They urgently pro- tested at the time against any generosity being shewn to the noble VOL. I] SCOTCH APPEALS. 75 Defender by laying down any other footpath than the one they had 1866 gained. But, again, the interlocutor of 1854 merely contained WHITE directions to Mr. Wylie. It could not injure the Appellants till T j acted upon ; and the Appellants had appealed the interlocutor, BUCCLEUCH. which judicially declared the alteration of the footpath. That was the interlocutor by which the Appellants were aggrieved. It was a judicial act, and was competently brought up by the appeal. It might have been that the red line would have been considered by Mr. Wylie to be the least burdensome to the Defender ; in which case the Appellants would have had no reason to complain of the interlocutor of 1854. It was clear neither party, for a moment, thought that the Appellants had consented to take anything but the red line, or that there should be a departure from the cursus curife in the mode of disposing of the case. There was not the slightest indication of such a view in the Respondent's printed case presented to their Lordships. The Court had also erred in refusing to order the removal of obstructions. Then as to the abandonment of the three roads. The minute of 4th of March, 1851, was, no doubt, lodged three months before the closing of the record ; but, if bad on that account, as a minute under the Judicature Act, it was, at all events, good as an aban- donment at common law ; Caledonian Iron Foundry Company v. Clyne (1) ; Shands 1 Practice (2). The Lord Ordinary had not, it was true, pronounced in terms the usual interlocutor receiving the minute of abandonment ; but, in effect, he did the same thing by appointing the Defender to lodge his account of expenses " relative to the part of the cause so abandoned." The Defender had acquiesced for eleven years in that abandonment ; the Court itself had im- pliedly confirmed it by approving the issues, which related solely to the remaining two roads, " as the issues for trying the cause ;" although, at the last moment, their Lordships started and sustained the objection to the minute of 1851. The Defender could not take advantage of this objection after such a long acquiescence: Elliott v. Sir J. L. Johnstons Trustees (3). But, even if the minute of 1861 was bad, the minute of 1862, lodged long after the record was closed, and before the cause was disposed of, was good. . (I) 10 S. & D. 133. (2) Vol. i. p. 494. (3) 1 S. & D.;51, affirmed, 2 Shaw's Appeal Cases, 461. 76 SCOTCH APPEALS. [L. E. i860 At the conclusion of the argument for the Appellants, their WHITE Lordships, after consultation, desired the Counsel for the Eespon- OP dents * conn * ne their argument to the question of abandonment Mr. Bolt, Q.C., and Mr. Hall (of the Scotch Bar), for the Ee- spondents, argued that both the minutes of abandonment were pro- perly disregarded by the Court below. The minute of 1851 was bad under the Judicature Act, because it was lodged before the record was closed. It was also bad at common law, because it had not been followed by the usual interlocutor, declaring it to have been received. The minute of 1862 was made too late. The record contained all the conclusions and B allegations applicable to the five roads ; so when the Court came finally to dispose of the case, there was no other course open to them than to give a decla- ration as to the two footpaths conceded by the Eespondents, and to assoilzie as to other roads claimed. This branch of the case was purely one of practice, and their Lordships would be slow in such a matter to interfere with the ruling below. Mr. Aiiderson, Q.C., replied. THE LORD CHANCELLOR (1) : My Lords, this is an appeal against six interlocutors of the Second Division of the Court of Session, and, in the course of the argu- ment, your Lordships indicated a very strong opinion that, as to four of them, the appeal was incompetent. The Court below had no power whatever to direct a road to be laid out equally convenient with that to which the public were clearly entitled. They have not given the public any way which they had been accustomed to use; but they have consulted the convenience of the Defender, and they have directed Mr. Wylie to ascertain a road which will be equally convenient to the public with that to which they were entitled, and not inconvenient to the Defender. There is no doubt whatever, therefore, that in this interlocutor, the Court having proceeded ultra vires, all the subsequent interlo- cutors which were founded on this, as their basis, were taken out of the judicial course, and, consequently, were not a subject of appeal. (1) Lord CMms/ord, VOL. I] SCOTCH APPEALS. 77 The only remaining question, therefore, relates to the question isco as to the minute of abandonment, upon which, undoubtedly, there WHITE speared to be some difficulty during the course of the argument, T D u : , but it is one which, on consideration, it seems to me may be very easily determined. The minute that was originally given in on the 4th of March, 1851, was in these terms : " Deas, for the Pur- suers, stated that he abandoned the cause in so far as it related to the rights of way or footpaths described in Articles 2nd, 3rd and 5th of the revised condescendence, reserving the Pursuer's right to bring a new action relative to the roads and portions of the cause thus abandoned, in terms of the statute 6 Geo. 4, c. 120, and relative Act of Sederunt, without prejudice to the Pur- suer's right to proceed with the said cause as regarded the whole other matters and roads involved therein as accords." Upon that there was an interlocutor by the Lord Ordinary of the 7th March, 1851, in these terms : " The Lord Ordinary, having considered the minute by which the Pursuers abandon this cause in part, appoint the Defender to give an account of expenses relative to the part of the cause now abandoned, and remits the account thereof, when lodged, to the auditor to tax the same and to report, and quoad ultra continues the cause till to-morrow." Now it must be observed, in passing, that that minute of aban- donment was never perfected, because, according to the practice which is laid down in Mr. Shand's book (1) (a book of authority), there should have been a payment of the expenses which the Lord Ordinary directs to be ascertained. And the next step to be taken by the pursuer should have been to obtain an interlocutor of the Lord Ordinary, that " in respect the expenses due to the Defender had been paid, allows the Pursuer to abandon this cause, dismisses the action, and decerns, with the expense of extract." Nothing of that kind was done, and, therefore, at the time of the closing of the record, which was on the 31st of May, 185 J, there was no complete abandonment of these causes of action. A new minute was given in, the date of which is the 2Gth of May, 1862, exactly in the terms of the former minute of 1851. Now it may be observed, with regard to the new minute, that it was only under this statute of the 6 Geo. 4, that such a (1) Practice of the Court of Session, p. 343. 78 SCOTCH APPEALS. [L. R 1866 minute could have been given in at that time, when the record WHOT was closed, and the statute of the 6 Geo. 4 only gives power to m -.^ Pursuer to abandon the whole cause of action. But this was an Tin: DUKE OP abandonment only of a part of the cause of action, and, therefore, on that ground, as it appears to me, it was incompetent. But the Court deals with both these minutes of abandonment. First of all, in a judgment of the 21st of May, 1862, with regard to the first, the minute of 1851, the Lord Justice Clerk says it " con- tains an incompetent proposal/' which I understand to mean that it was incomplete that it was a mere proposal that it was never carried into effect by a proper allowance of the abandonment after the payment of the expenses. And the rest of the Judges are of opinion that an abandonment of an action under the statute (and this professes undoubtedly to be an abandonment of the action under the statute) is only competent after the record is closed. Now, my Lords, without entering into a consideration of whether there can be a part abandonment of a cause, or whether there can be an abandonment of a cause before the record is closed, I think your Lordships may decide in favour of these interlocutors upon a distinct and specific ground which is applicable to this particular case. The minute of abandonment of March, 1851, was incom- plete, as I have shewn, at the time when the record was closed ; but the record was closed in these terms on the 31st of May, 1851 : The interlocutor is, " Declares the record to be closed on the ad- justed revised condescendence for the Pursuer, No. 9, and the adjusted revised answers, No. 50, of process." Now, my Lords, there can be no doubt at all that the record was closed with respect to the five roads stated in the revised condescendence, and forming, therefore, part of the record ; and that it was absolutely necessary for the Court to dispose of those claims upon the record which were made by the Pursuer, because they were not withdrawn from the record. Although, practically, the case was confined to the trial of the issues with regard to two of the roads, still those claims remained on the record, and it was absolutely necessary for the Court to dispose of them. Now, in order to dispose of them, the Court considered it necessary, first of all, to direct the minute of March, 1851, to be withdrawn, and afterwards, in their interlo- cutor of the 6th of June, 1862, to find that the Pursuers were " not VOL. I.] SCOTCH APPEALS. 79 entitled to abandon in terms of the said minute." These minutes i860 s -~r"" / being out of the question, the claims as to those three roads had to WHITE be disposed of; and the only mode in which they could possibly be TH *. disposed of, as there was no evidence in support of them, and B as they were not withdrawn, was to enter an absolvitor for the Defender, and therefore the Court directed that absolvitor to be entered. I was a good deal struck by the observations which were made by u my noble and learned friend (Lord Wesfbury), in the course of the argument, as to the danger which might arise to the public supposing this interlocutor were to stand, with an absolvitor of the Defenders, because it might then be said that that would entirely conclude the public against any future claim with respect to these rights of way. I have very great doubts whether that would be the effect of it. Supposing any future claim to be made in respect of these roads, I doubt very much whether the public would be concluded by this interlocutor. I think it would be quite competent to the party prosecuting such a claim to shew the cir- cumstances under which that interlocutor was pronounced ; and, undoubtedly, if the circumstances could be shewn, it never could be said that it was binding against the public. Under these circumstances, I submit to your Lordships that this interlocutor is perfectly correct. But a question may arise as to what ought to be done with the costs in this case. It appears to me (I say it with very great deference to the learned Judges) that they have led the parties completely astray. They ought not to have gone on judicially to pronounce those several interlocutors which have been declared to be incompetent. They unnecessarily, and, as I venture to say, improperly, kept the parties before them, when the parties themselves had proceeded in a way which took the case out of the jurisdiction of the Court. Under these circum- stances, I submit to your Lordships that, in dismissing this appeal, \ve ought to dismiss it without costs. LORD CRANWORTHJ My Lords, I entirely concur with my noble and learned friend in the conclusion at which he has arrived in this case. When the jury had returned a verdict (for we must consider it as if they had 80 SCOTCH APPEALS. [L. E. 18G6 returned a verdict) that there was a right of way " by or near the VfctM red line >" it; was P atent tliat the Court had got a finding that r - ver se could not be applied. How were the Court to deal with THE DIKE OF f . BCCCLEUCH. this ? It is not necessary for rne to say : indeed I should feel myself at a loss to say exactly what, according to practice, ought to have been the course pursued. It is plain that issues have been directed which did not exhaust the subject. How was that to be supplied ? The best way to put it for the Appellants is this, to treat it as a finding, as no doubt it was a finding, that there was in some direc- tion or other a public right of way from the one point to the other. That was found by the jury. The precise line was not found. I do not say that it was open to the Court, but, perhaps, it was open to them, to have them put in some course of inquiry, either by reference to Mr. Wylie, or by some other mode, to ascer- tain what was the course of the public right of way, whether along the red line, or if not along the red line, how far, and in what direction diverging from it. If that had been done, whether it was the proper course or not, it might have led at least to an ultimate finding upon that which was the point really to be decided namely, what was the line of the public right of way ; if that had been done, I think if an interlocutor had been made upon that subject, it might have been right, or it might have been wrong, but it would have been upon a totally different footing for us to consider from what it is at present. But what the Court did was to direct an inquiry, which upon no possible ground could they have a right to direct namely, an inquiry, or rather a reference to Mr. Wylie, telling him, not to ascertain what the line was, but to make out a new and convenient line, as little as possible burdensome to the Defender. That might be, by way of arrange- ment, an extremely convenient course to pursue: but it imme- diately took the whole proceeding out of the ordinary cursus curise, and therefore it was incompetent afterwards for the parties to appeal against anything that was done in pursuance of that refer- ence. That is the ground upon which my noble and learned friend has rested his view of the case upon the merits, and I entirely concur with him in the conclusion which he has arrived at on this, the first point in the case. VOL. I.] SCOTCH APPEALS. 81 My Lords, with regard to the second point, it has always been 18G<; the rule of your Lordships' House to be as slow as possible to WHITE interfere with anything that is mere practice. What really was THE -^ KK OF the case here was this : The parties having entered this minute BVCCLEUCH. of the 4th of March, 1851, abandoning the cause quoad the three roads, the record is afterwards made up containing the whole of the condescendence and the whole of the answers, embracing all the five roads. I fully enter into the feeling of the Court, there- fore, that when the cause came finally to be disposed of, and they were bound to make a deliverance as to the whole, it was necessary for them to treat the record as they found it ; and the result being in their view that there was a proper finding, or a proper disposal of the case as to the two roads, but no proof at all having been given as to the three other roads, the absolvitor was a necessary consequence. I confess, I do not feel apprehensive as to any effect which this decision will have upon any of the public who may hereafter assert such a right ; because I consider that it is perfectly clear that, even if such a decree as this can be given in evidence, it can be conclusive only if, upon the face of it, it shews that there has been an adjudication. But upon the face of this decree it would appear that there has been no adjudication. I also think that the proposal which my noble and learned friend has made to your Lordships, with regard to the costs of this appeal, is a right one, because, after all, it is an error on the part of the Court which has led the parties into taking the course which they have taken. Therefore I concur with my noble and learned friend that the appeal should be dismissed without costs. LORD WESTBURY : My Lords, I entirely concur in the conclusions at which my noble and learned friends have arrived. From the moment that the consent of the parties to a verdict, and afterwards to a judg- ment, upon the inartificially framed issue, was substituted for a regular proceeding, this cause was taken out of the ordinary and regular course of judicial procedure. No doiibt, the original issue was inartificially framed ; but it contained within it materials for answering by the jury two questions one, whether there was a 2 SCOTCH APPEALS. [L. E. iseu road along the red line; the other, if not along the red line, WH'^E whether there was a road along any other and what line. The verdict that was taken by consent, or rather the judgment, J.HE J_M Kl'j Oi 1 ' BUCCLECCU. wa s a simple affirmative to that issue ; an affirmative, therefore, which could not be applied to either one of the questions. In reality, the issue ought to have been directed to be tried, and the insufficiency of the consent ought to have been observed. But, instead of that, the Court have endeavoured to correct the error, and to supply the defect by taking a course which certainly was not within their judicial authority ; but which not having been complained of by either party, must be attributed entirely to the consent of the parties. What the Court did was embodied in the interlocutor of the 22nd of December, 1854 : and that is certainly not a deliverance in pursuance of any judicial power ; it is nothing in the world more than an embodiment of certain terms which may have been approved of by the Court, and which appear to have been acquiesced in by the parties. Now that was the basis of all that was subsequently done ; a basis constituted of the consensus of the parties, and not of the exercise of any judicial authority. It is impossible to interfere with that ; it rests upon matters which are not brought before us, and which we cannot remove. Therefore, that standing, all that subsequently follows is an emanation of the original agreement to take this matter out of the ordinary path of judicial determination. On that ground therefore, my Lords, the appeal is wholly incom- petent ; or rather, it is one which we are incapable of entertaining. We cannot apply the ordinary rules of law to proceedings based on an order which is utterly at variance with the ordinary rules of law. Now, with regard to the other point, undoubtedly I entirely concur in this, that full credit must be given to the Judges of the Court below with regard to a mere matter of practice, unless we are enabled to ascertain, in a manner which admits of no possible doubt, that there has been a miscarriage in the application^ their rules of practice; but in this respect, though originally I felt some anxiety and doubt on the point, I am now satisfied that there has been no miscarriage in point either of substance or of form. It was undoubtedly competent, I 'apprehend, by the law and prac- OF VOL. I.] SCOTCH APPEALS. 83 tice of Scotland, to the Pursuer, anterior to the closing of the ISGI; s ""^c~** / record by minute, and also by amendment, to have restricted the WHITE conclusions of the summons in his action, provided that minute THE ^ KE was so dealt with by the Pursuer as to become an irrevocable BVCCLEVC thing, and to accompany the summons in such a manner as that, when the record was closed, it might plainly appear to be closed upon that restricted summons. But, without entering further upon that, what was done by the Appellant was different from that course of procedure altogether. It is true he delivered in a minute in March, 1851, to which I abstain from giving any kind of desig- nation, because there has been a controversy as to whether it con- tains the necessary elements of a minute of restriction or not ; but even if it was a minute of restriction, the course taken by the Appellant afterwards was one which certainly justifies the form of the interlocutor which was finally pronounced, because it is plain that the Appellant thought proper to demand judgment upon the summons, which, so far as the closed record is concerned, appears to be unrestricted upon the whole of the pleadings, which pleadings were addressed to the five rights of road that were the subject of the original cause of action. The result was, that, as the record so made up and closed, unquestionably the Defender was entitled to an absolvitor from that which was disproved, and from that also which had been abandoned. My anxiety at first was, lest the form of absolvitor should involve in it an apparent conclusion that the question had been tried and determined on its merits ; but I think we ought not to permit any doubt of that kind to interfere with the ordinary form of judicial expression of interlocutors in Scotland, because I must take it for granted that these interlocutors are so worded that the real truth of the nature of the absolvitor might easily be ascertained upon an examination of the interlocutor, or of the matters on the record, in a process to which that interlocutor would naturally open the door for investigation or proof; On these grounds, therefore, my Lords, I entirely concur with my noble and learned friend, that there is no reason to alter the form of the interlocutor in that respect ; and that this appeal must fail. But inasmuch as it fails in consequence of there having been a common understanding to pursue a path which was a by-path ; 84 SCOTCH APPEALS. [L. E. i860 and not the ordinary judicial high-road, I think, as that has been -^^ the result of agreement, it would be hard to dismiss this appeal v - -with costs by reason of our being incompetent to deal with matters THE DI;KE OF * x BCCCLEUCH. which both parties seem to have supposed that we should be corn- ~- petent to deal with. Therefore I approve entirely of the motion, proposed by my learned friend to be submitted to your Lordships, that the last interlocutors should be affirmed and the petition of appeal dismissed without costs. The following qwstion was then put: That the interlocutors of the 21st of May, 1862, the 6th of June, 1862, and the 28th of February, 1863, be affirmed, and the appeal dismissed, without costs. LORD WESTBURY : Would your Lordships allow me to suggest that our intention is to affirm those interlocutors which discharge the minute, and grant the absolvitor ? But inasmuch as it is not competent to the House to entertain the appeal upon the first interlocutors, it would be incompetent to the House to affirm those interlocutors. " I would, therefore, with submission to your Lordships, suggest that your Lordships should dismiss, without costs, the appeal as to all the interlocutors, except the interlocutors discharging the minute, and granting the absolvitor, but affirm those last interlocutors, the appeal in respect of those interlocutors also being dismissed with- out costs. LORD CRANWORTH : I think that would be very much the effect of the question as it was put by my noble and learned friend on the woolsack. The principle is, that we do not affirm those interlocutors which we think were grounded upon the original interlocutor of December, 1854, which took the case out of the common r cursus curise. We do not reverse them, and we do not affirm them. We are not competent to deal with them. LORD WESTBURY : Those interlocutors were emanations from the consent of the VOL. I] SCOTCH APPEALS. 85 parties, and from the consent of the parties alone can t'hey derive 1866 any authority ; therefore they are not affirmed. WHITE V. THE LORD CHANCELLOR : I believe the result of the way in which I put the question to the House is precisely what your Lordships have suggested, namely, that we take no notice at all of those interlocutors upon which the appeal is incompetent, but, with regard to the other interlocutors, we affirm them, and dismiss the appeal without costs in respect of the whole. Certain Interlocutors affirmed, and Appeal dismissed, but without costs. Solicitors for the Appellants : Simson & Wakeford. Solicitor for the Eespondents : William Robertson. THE LORD ADVOCATE OF SCOTLAND . APPELLANT; 1867 AND Feb. 11. JAMES HUNT RESPONDENT. Prescriptive Possession under the Act of 1617, c. 12 Parts and Pertinents Regalia. To be effectual, prescriptive possession must begin with a title, and must continue under it for forty years. The title originally may have been infirm or invalid, but by the required possession for forty years all challenge and impeachment are excluded. What is alleged to be " part and pertinent" must be shewn to have been possessed as belonging to the principal estate. Mere contemporaneous occu- pation will not suffice. The onus of proof is on the party who sets up the claim. Discontiguity, per se, is not a bar. The Eoyal Palace of Dunfermline, claimed by the Kespondent as " part and pertinent " of his Barony of Pittencrie/, and possessed by him for forty years, but without any initiatory grant or title : Held (reversing the decree below), to be the property of Queen Victoria, and her royal successors. 1 HE suit was instituted in January, 1854, by the Lord Advo- cate of Scotland (1), on behalf of the Crown, and of the Commis- (l) Mr. Mohcrtiff. VOL. L 2 I 86 SCOTCH APPEALS. [L. R. 1867 sioners of Woods, Forests, and Land Eevenues, in order to have it Lo Rr) found and declared that the ancient royal palace of Dunfermline, A SCOTLAND P ^ tne count y f Ftf e > w * tn tne ru i ns an( ^ grounds thereof possessed by the Respondent, Mr. Hunt belonged to, and formed part of, the patrimony and property of Her Majesty Queen Victoria. Mr. Hunt resisted the demand, alleging that the palace was " part and pertinent " of the barony of Pittencrieff, his property, and that he had possessed it as such " part and pertinent," for forty years, so as to satisfy the requirements, and give him the benefits, of a pre- scriptive title under the Act of 1617, c. 12 (1). The Lord Ordi- nary (2) decided against Mr. Hunt, but the First Division of the Court of Session, on the 31st of January, 1865, gave judgment in his favour, holding that, for more than forty years, Mr. Hunt and his predecessors had, by virtue of charter and seisin, possessed and enjoyed, as their own exclusive property, the palace, ruins, and grounds in question, as part and pertinent of the barony of Pitten- creiff. Against this decision the Lord Advocate appealed to the House, and the case was fully argued last session, when the then Attorney- General (3), Mr. Anderson, Q.C., and Mr. Ivory, appeared as counsel for the Appellant. They admitted the forty years' possession, but contended that, by the law of Scotland, this of itself was unavailing : there must be a written title. A clause " of parts and pertinents," even in the case of a barony, and although accompanied by possession, would not do, unless it were shewn that the property claimed had been possessed as parcel of the barony and appertaining to it. The onus of proof was on the Respondent, and he had given no proof to establish anything beyond the naked fact of an unexplained possession. His title deeds negatived his claim. So far from shewing that this palace ever formed " part and pertinent " of his barony, they shewed the contrary. Not an inch of the property now in question touched the land of the barony. Lands not belonging to it are interposed on all sides ; a circumstance which, (1) Another point relied upon by this case as decided below. 3rd Series, Mr. Hunt is not here stated. For the Court of Session Cases, vol. iii. p. 426. reason of omitting it, see the opening (2) Lord Mackenzie. of the Lord Chancellor's Speech, infra, (3) Now Lord Cairns. p. 88, and see the very full Report of VOL. I.] SCOTCH APPEALS. though not conclusive against Mr. Hunt's claim, strengthens the 1867 presumption against it. In addition to these arguments, the Ap- LORD pellant's counsel urged that this palace came within the category of the greater regalia, and could not have been conveyed without v - ... HUNT. express specification. They cited the following authorities: viz. - Stair (1) ; ErsJcine (2) ; Young v. Carmicliael (3) ; Countess of Moray v. Wemyss (4) ; Earl of Stair v. King (5) ; Bell's Prin. (6) ; Napier on Prescription (7) ; Menzies Lectures (8) ; Scot v. Eamsay (9). Sir Eoundell Palmer, Q.C., and Mr. Lee, on behalf of the Kespon- dent : The Act of 1617, c. 12, was for quieting the enjoyment of pro- perty. Its policy was to exclude inquiry where forty years' pos- session was complete. The Sovereign especially was not to dis- turb the title in such a case. The palace here had, perhaps, been better cared for than if it had been in the hands of those who act for the Crown. The title required for prescription need not originally be valid. An express grant is not required. By pos- session .even radical defects are cured, it being no longer compe- tent to insist on them. Discontiguity is no objection. Even regalia may pass as part and pertinent of a barony. The follow- ing authorities were relied upon: Stair (10); ErsTtine (\T) ; Duke of Montr ose v. Mclntyre (12) ; Rose v. Eamsay (13) ; Mackenzie v. Mackenzie (14) ; Countess of Moray v. Wemyss (15) ; Eoss's Leading Cases (16). The case stood over till the llth of February, 1867, when judg- ment was pronounced. THE LOED CHANCELLOR (17) : My Lords, this suit was originally an action of reduction and declarator, impeaching the Eespondent's title to a larger portion (1) 2, 3, 73. (10) 2, 3, 60, 61, 73, and 2, 12, 8. (2) 2, 63, and 3, 7, 4. (11) 3, 7, 4. (3) Morr. 9636. (12) 10 Dun. 896. (4) Morr. 9636. (13) M. 9645. (5) 5 Bell, App. Ca. 82. (14) 6 Patton, 676. (6) 2020. (15) M. 9636. (7) Page 277. (16) Vol. iii. pp. 316, 338. (8) Pages 527, 545. (17) Lord Chelmsford. (9) 5 Sh. Dun. & Fac. Coll. 5 Feb. 1787. 88 SCOTCH APPEALS. [L. E. 1867 of ground than that which was afterwards the subject of dispute. LORD In the progress of the litigation the claim was limited to the having ADVOCATE or ^ t found and declared that the Respondent had no legal right or foC OTL AND *> title to the Royal Palace of Dunfermline, or to the ruins thereof, or to the ground whereon the same was situated and immediately adjacent thereto." The pleas in law of the Respondent state separately and distinctly the express conveyance, by description of boundaries, and the pos- session as part and pertinent of the Barony of Pittencrieff. The case, however, is narrowed down to the latter ground of defence, that of " part and pertinent ; " for, according to the opinion of all the Judges, the right founded on the express or special title is entirely out of the question ; so that the only title upon which the Respondent can found himself is the possession of the ground, upon which the ruins of the palace stand, for forty years as part and pertinent of the Barony of Pittencrieff. Of the possession of the ground for more than the requisite number of years there is no doubt ; and the only question is, whether the Respondent can shew a habile title to which that possession can be lawfully ascribed. The statute respecting prescription of heritable rights, passed in the Scottish Parliament of 1617 (1), shews clearly the possession (1) " The Act of 1617, c. 12, statutes their heirs and successours, nor by any and declares, " that whosoever His Ma- other person pretending right to the jesty's lieges, their predecessors and au- same by virtue of. prior infeftments, thors, have brooked heretofore, or shall publicke or private, nor upon no other happen to brook in time coming, by ground, reason, or argument competent themselves, their tennents, and others of law, except for falsehood, provided having their rights, their lands, bare- they be able to shew and produce a nies, annual rents, and other heritages, charter of the said lands and others by vertue of their heritable infeftments foresaids, granted to them or their pre- made to them by His Majesty, or others decessors by their said superiours and their superiours and authors, for the authors preceding the entry of the said space of forty years continually and forty years' possession, with the instru- together following and ensuing the ment of saising following thereupon, date of their said infeftments, and that or where there is no charter extant, peaceably, without any lawful inter- that they shew and produce instru- ruption made to them therein during mentsof saising, one or more, continued the said space of forty years, that such and standing together for the said space persons shall never be troubled, pur- of forty years, either proceeding upon sued, nor inquieted in the heritable retour, or on precept of dare constat." right and property of their said lands The whole of this extract was read by and heritages foresaid by His Majesty, the Lord Chancellor as part of his or others their superiours and authors, address. VOL. L] SCOTCH APPEALS. 89 which was meant to be protected. The Act describes it as a possession which must begin with a title, and which must endure " for the space of forty years continually and together following and ensuing: the date of the infeftinents." The title under which the possession commenced may have been an infirm and invalid one, but if the party can shew that he has possessed the subject of the infeftment for forty years, he is safe from all future interrup- tion. The subject claimed need not be expressly mentioned in the charter. It may be comprehended within the terms " parts and pertinents." But in such a case it will not be sufficient to prove that the alleged pertinent has been occupied with the principal subject; it must be occupied as belonging to such subject; for when the statute says that the parties must be " able to shew and produce a charter of such lands and other foresaids granted to them," it seems clear that something more is necessary to be proved than a joint possession of the principal subject of the charter with that which is alleged to be part of or pertinent to it. Some objections were made, on the part of the Appellant, to the possibility of the ground in dispute being part and pertinent of the Barony of Pittencrieff. It was said, in the first place, that its discontiguity from the barony rendered it incapable of becoming pertinent. As far as I understand the map, the ground in dispute in no part touches the Barony of Pittencrieff. But whether the intermediate land belongs to a different owner, or to the same owner under a different title, is quite immaterial, for it is clear from the text writers, and also upon the authority of decided cases, that discontiguity is no objection to a subject becoming part and pertinent, even where it is included in the titles of another party. Of course, in such cases the prima facie presumption will be against the claim, but it may be over- come by sufficient evidence. Another objection, urged by the Appellant, was, that a royal palace cannot be prescribed for against the Crown. It is denied on the part of the Respondent that this ever was a royal palace. But it appears to me that the view of the Appellant is the more correct one. The Lordship of Dunfermline, in which the palace and ground adjacent was included, belonged originally to the Monastery of 1867 ;L ORD HUNT. 90 SCOTCH APPEALS. [L. E. 1867 Dunfermline, and was annexed to the Crown on the dissolution of that monastery, in 1593. The lordship was afterwards granted ADVOCATE OF ^y King James to his Queen (Anne of Denmark), and the heirs of v - the marriage ; whom failing, to the King's heirs and successors in the Crown of Scotland. Charles I., when Prince of Wales, was infeft as heir of the marriage ; but when he came to the throne, it must have been considered that the dominium utile of the lordship became consolidated with the superiority belonging to the Crown, for thenceforth it appears to have been regarded as Crown pro- perty. Perhaps the best proof of this is, that after the Kevolution, King William and Queen Mary, with consent of Parliament, granted a tack (1) of the Lordship and Koyalty of Dunfermline ; and in the dispositive clause, after the general words, these are added, "which may pertain, or are known to pertain, to their Majesties, or to their royal grandfather as lord of the said .Royalty and Lordship of Dunfermline, by any manner of way, or which did ever at any time bygone pertain to their Majesties' dearest grandmother as Lady of Dunfermline, or to King James VI. of blessed memory, by any Acts of Parliament, or otherwise how- soever, or to the Abbot's convent and monastery thereof of old." But, assuming that the ground in dispute was inter regalia, it does not appear to me that this would be any conclusive objection to the Eespondent's prescriptive claim, although it might render proof of it much more difficult. It was quite competent to the Crown expressly to annex the piece of ground on which the palace stood, to the Barony of Pittencrieff upon its creation, but I very much doubt whether property of the Crown .could pass under the general words of " parts and pertinents " to a principal subject with which it had never been previously connected. But, waiving the consideration of this point, and assuming the right of the Respon- dent to prescribe against the Crown, and considering the Respon- dent's title to the Barony of Pittencrieff as the only habile title upon which his claim can be founded, I proceed to examine the different charters and instruments relating to that barony, so far as they bear upon the question of the ground in dispute being part and pertinent of it. It is quite clear that the palace did not originally belong to the (1) A long lease. VOL. I] SCOTCH APPEALS. 91 Barony of Pittencrieff, but was within the Lordship of Dunferm- 1807 line, which was part of the possessions of the Monastery of Dun- LO RI) fermline. We must, therefore, look to some period subsequent SCOTLAND P to the creation of the barony for the origin of the alleged rela- v - tion to it of the piece of ground in question. But, on refer- ring to this later period, it will be found that the palace was dealt with by various charters long after the date of the crea- tion of the barony, and that in all the subsequent charters dealing with the barony, when annexations to it were made, they were always specifically mentioned. For instance, in a charter of 1675, the Crown grants " the Barony of Pittencrieff, with . the addition of the fourth part of the lands of Newlands, and five acres of land called Newrancroft, now annexed and incorporated into one entire barony, in all future time to be called the Barony of Pittencrieff" In the charter of 1687 the marsh lands of Pittencrieff are stated to be parts and pertinents of the barony. The piece of ground in question never became part of the barony, but is named in subse- quent charters as distinct and separate from it, down to the Crown charter of resignation in favour of James Hunt, in 1816. Now, it is scarcely possible to believe that the palace and ground ever were made part and pertinent of the Barony of Pittencrieff, be- cause not only is each addition to the barony expressly mentioned, but those lands which were acquired from time to time, and were never annexed to the barony, are always described as being sepa- rate from it ; and it is inconceivable that no mention should have been made of such an acquisition as the palace. More especially does this seem remarkable, as in some of the charters it is con- sidered of importance enough to be descriptive of a boundary "juxta palatium de Dunfermline" But, then, it is urged by the Eespondent that there having been originally a render of a red rose for the Barony of Pittencrieff in the later charters, when all the additions had been made to the barony, and the several other subjects were occupied with it, the whole together were united in the single reddendum of a red rose. I confess that I do not see the importance of this argument unless it can be assumed (which is the question to be decided) that the palace had in some way become part and pertinent of the barony. 92 SCOTCH APPEALS. [L. E. 1867 A close examination of the charters leads me to the conclusion ^ that they have a negative and excluding force with respect to the AnvocATE OP palace being part and pertinent of the barony. And the case of SCOTLAND r * v. Scott v. Ramsay (1) seems a strong authority m favour of the Ap- ' pellant. There the piece of glebe land in dispute was entirely surrounded by the Defender's Barony of Gogar, and had been pos- sessed with the barony, and no doubt as part of it, for upwards of seventy years. But it appearing that although a former owner of the barony had agreed with the Presbytery of Edinburgh to pur- chase this glebe at an annual feu duty of 4, and although the owners of the barony had possessed the glebe and paid the feu duty for the long period mentioned, yet inasmuch as it appeared that there was no infeftment made of the glebe, no habile title existed to which the possession could be ascribed, and the Pursuer conse- quently prevailed. So in the present case, the Eespondent is unable to shew a charter of the ground in dispute, or to prove that it was ever held as part and pertinent of the Barony of Pittencrieff. He therefore fails to defend himself against the claim of the Crown ; and I am com- pelled to come to the conclusion that the interlocutor appealed from must be reversed. LOED CRANWORTH: My Lords, it must be taken as a fact that the Eespondent and his predecessors had been, before the raising of the action for more than forty years in the undisturbed possession of the land in dis- pute. The only question therefore is, whether he can shew a valid title by which that possession can be supported. The express or special title was not the title relied on at your Lordship's bar, any more than in the Court below ; and I therefore proceed to consider the other title put forward, namely, that this piece of land, the site, in fact, of the ancient palace of Dunfenn- line, has for more than forty years been held and enjoyed by the Defender and his predecessors as part and pertinent of the Barony of Pittencrieff. When that barony was created, it certainly did not comprehend the Palace of Dunferirdine, which in fact formed part of the Lord- (1) 5 Shaw & D. 340. VOL. I.] SCOTCH APPEALS. 93 ship of Dunfermline granted by King James the Sixth, and con- 1867 firmed by Parliament to Anne of Denmark, and the heirs of her body J~^, by the King. Queen Anne, reciting her title to the palace as part of ADVOCATE OF the Eoyalty of Dunfermline, by charter, dated the 1 5th of February, . 1596, and confirmed by Parliament, granted the office of guardian or ' constable of the palace to the Earl of Tweeddale, and the heirs male of his body. This office continued to exist and to belong to the Earls of Tweeddale, and by a royal charter of the 14th of February, 1669, was made part of the tenandry of the Grange of Dunfermline, then granted and confirmed to the then earl, his heirs, and assigns. The office is described in the charter as the hereditary office constabularies et custodia palatii nostri de Dunfermline. From which it is plain that the palace was not then part or pertinent of the Barony of Pittencrieff it still was a royal palace. The question is, therefore, reduced to this : has the Bespondent shewn that between 1669 and 1803, the date of the charter under which he claims title, this piece of land, on which are the ruins of the palace, has ceased to be the property of the Crown, and has it become part and pertinent of the Barony of Pittencrieff. The law of Scotland requires, in order to establish a title by prescription, not only that the party insisting on it shall prove possession for the required period, but also that he shall shew a proper feudal title on which his possession has rested. Now here, I think, the Kespondent has failed to shew any such title. I do not doubt the correctness of the doctrine that possession of land for the required period may found a title by prescription, as well by shewing title to a barony with parts and pertinents, as by shewing a bounding title including expressly, and by name, the lands in question. But then the person relying on such a title must shew not only that he has possessed the lands in question for the required period, but further, that he has held them as part and pertinent of the barony. The description part and pertinent of the barony is but a compendious mode of describing what might have been described by setting out the boundaries ; and when it has been ascertained that these words have been used in a charter to designate particular lands, the legal consequences will be the same as if the lands had been described by metes and bounds. The question is, whether the enjoyment relied on has been VOL. I. 2 K 94 SCOTCH APPEALS. [L. R. 1867 an enjoyment founded on the land being part and pertinent of the LORD barony, or on some other title, or on no title whatever. The onus A SCOTLAND F of P ro f * a on tne person setting up the title. It is for him to v - shew that he has been holding that which is in dispute as being part and parcel of the barony ; and it is plain that whether he succeeds in shewing this must depend on all the circumstances of the case. No general rule can be laid down as to what is or is not sufficient to establish such a case by evidence. Here the only facts relied on are, first, that the place in dispute has, for more than forty years, been inclosed with and treated as part of the policy (1) of Piitencrieff ; and second, that unless it has been held as part and pertinent of the barony it has been held without any title at all. The last point may be disposed of at once. If to suppose that the place in question had been held without any title at all, merely by usurpation, could be treated as a reductio ad absurdum, there would be great force in the argument. But so far from this being the case, it appears to me, as it did to Lord Deas (2), to be ex- tremely natural that, as the palace had become a ruin, and as it had long ceased to be a royal residence, nothing could be more probable than that a neighbouring proprietor, on whose lands the ruins abutted, should try to include them in his policy, treating them almost as derelict property. I can readily understand that, the owners of Pittencrieff might suppose that if, even without any title, they inclosed these ruins, and made walks and plantations about them (admitting, as they seem to have done, all respectable persons to enjoy the recreation of walking in the grounds), they were only putting to a beneficial use that which all other persons seemed to have abandoned. It remains, then, to be considered whether the Respondent has shewn that the place in question, at the date of the Crown charter of 1803, was held and enjoyed as part and pertinent of the barony of Pittencrieff. It may be assumed that it formed part of the policy of Pittencrieff, but that is consistent with its not forming part of the barony. (1) " Policy " means ornamental grounds. (2) See Lord Deas's opinion, Third Series of the Court of Session Cases, vol. iii. p. 456. VOL. I.] SCOTCH APPEALS. 95 But there are circumstances connected with the case which make it highly improbable that the place in dispute can be in- eluded among the parts and pertinents of the barony. When a piece of land, not originally part of a barony, is included in a new charter as part of the barony, and is there described by metes and bounds, the Crown, in granting the new charter, can be in no doubt as to what is granted, and of what the barony is thus made to consist. But when there is nothing on the face of the charter to shew that more land is included in it than was com- prised in the preceding charters, nothing to shew that more was meant to pass under the words " parts and pertinents " than had been previously included under those words, it must be incumbent on the party who insists on such a title to shew that the Crown intended under these general words to include the additional land, or, at all events, that the additional land had come to be generally known and treated as part and pertinent of the barony. Otherwise the Crown might be granting that which it did not intend to grant, and which, from the language used, would not appear to be granted. This observation applies with peculiar force to a case like the present, where the Crown had itself the dominium utile as well as the dominium diredum of the land in question. It can hardly be inferred, without proof, that the Crown in- tended, under the words "parts and pertinents of the Barony of Pittencrieff" to include its own lands, not shewn to have ever been known, or reputed, as being part and pertinent of the barony ; still less can such an intention be inferred when the subject matter includes a royal palace, or the ruins of a royal palace. It is highly improbable that the Crown, if it intended to part with such a pos- session, should effect its object otherwise than by an express de- scription of that which it meant to alienate. But there are observations, leading to the same result, deducible from the charters of the barony, of which the palace, as I have already remarked, was certainly no part or pertinent in 1669. The subsequent charters of the Pittencrieff Barony, dated respectively in 1675, 1687, 1690, and 1762, enumerate expressly and speci- fically all its acquisitions, but they are wholly silent as to the piece of ground which forms the subject of this litigation. VOL. I. 2 L 1867 LORD * 96 SCOTCH APPEALS. [L. R 1867 I concur with my noble and learned friend in advising your Lo7 D Lordships to reverse the interlocutor complained of. ADVOCATE OF SCOTLAND Ordered and adjudged accordingly. V. t>T ' Solicitor for the Appellant : Horace Watson. Solicitors for the Kespondent : Grahames & Wardlaw. ' 1867 BEUCE et al. APPELLANTS; March 22. . AND THE PEESBYTERY OF DEER et al. . . . RESPONDENTS. Clmritable Bequest. When a charitable bequest is capable of two constructions, one which would make it void, and the other which would render it effectual, the latter must be adopted. Costs. The awarding of costs out of charity estates an encouragement to ground- less litigation. IX this case (1), the Court of Session decided that a bequest by James Bruce, of Innerquhomery, for the benefit of the poor of the presbytery of Deer, in Aberdeen shire, was valid and effectual. The Appellants, on the other hand, as next of kin of the de- ceased, contended that the gift was void for uncertainty. They appealed to the House. The Attorney-General (2), Mr. Anderson, Q.C., and Mr. John Skelton, were of counsel for the Appellants. Sir Roundell Palmer, Q.C., Mr. Young, and Mr. A. B. Shand, for the Respondents. At the conclusion of the argument on behalf of the Appellants, their Lordships delivered judgment, as follows : THE LOED CHANCELLOR (3) : My Lords, this case appears so clear as to render it unnecessary to call upon the counsel for the Respondents. The question arises (1) Reported below, 3rd Series of Court of Session Cases, vol. iii. p. i06. (2) Sir John Eolt. (3) Lord Chelmsford. YOL. I.] SCOTCH APPEALS. 97 upon the following short clause in the will of James Bruce: 18C7 UVJ " The whole of the balance of my property I leave to poor of this BRCCE presbytery, to be divided, I mean the interest, by the sessions THEPRESBY- of the several churches, but to be paid to all Christians except TEBYOF PEEK. Eoman Catholics." This is contended by the next of kin to be void for uncertainty. It is quite clear that this was intended as a charitable bequest ; and therefore it must be carried out, if the general object of the testator can be ascertained. When it is said that charitable bequests must receive a benignant construction, the meaning is, that when the bequest is capable of two constructions, one which would make it void, and the other which would render it effectual, the latter must be adopted; and I agree in the remark made by my noble and learned friend, Lord Cranworth, in the case of Morgan v. Morris (1), where he says : " There has always been a latitude allowed to charitable bequests, so that when the general intention is indicated, the Court will find the means of carrying the details into execution." The bequest in question seems to me to define with sufficient certainty the subject, the objects, and the administrators of the charitable gift. The subject is " the balance " or residue of the testator's property. This is admitted, on the part of the Appel- lants, to be perfectly clear, and the objects are, in my opinion, sufficiently defined. The testator says, "I leave to poor of this presbytery." Now, the word " poor " in the context is equivalent, in my opinion, to the expression " the poor ;" but it is not to the poor everywhere, but to the poor " of this presbytery," which must be taken as a local description. In popular language, it may mean the territory over which the jurisdiction of the Church Court, called the Presbytery, extends. Adopting the word in that sense, we have the objects sufficiently defined to be the poor of a par- ticular district. It is said that the bounds of presbyteries vary from time to time. But at any given time they must have a certain limit, and the expression " the presbytery of Deer, in the county of Aberdeen," where the testator lived at the time when he made his will, is involved in no uncertainty at all. Therefore, the subject and the objects are, in my opinion, clearly (1) 3 Macq. 134. 98 SCOTCH APPEALS. [L. E. 1867 defined ; and we have only now to consider whether the adminis- BRVCB trators of the charitable gift are also described with sufficient 'THE PRESET- eerta i n ty. The words are, " to be divided, I mean the interest, by OF DEEB. the sessions of the several churches." That must mean to be dis- tributed not to be divided but to be distributed by the kirk sessions of the several churches. " The sessions of the several churches," without condition or qualification, must, in my opinion, mean " the kirk sessions of the established church." Then, the result is, that it is a gift to be administered by the kirk session, according to the discretion of the kirk session, amongst Christians of all denominations, except Roman Catholics, within the bounds of the presbytery. All this appears to be sufficiently clear, and, therefore, I submit to your Lordships that the interlocutors ap- pealed from ought to be affirmed ; and, as it has been agreed on the other side, the costs are to come out of the estate. LORD CRANWORTH : My Lords, I quite agree, and only doubt whether, in cases of this sort, the House has not been a little too lax in allowing costs to come out of the estate; because such allowance rather en- courages appeals, when they are known and felt to be absolutely desperate. LORD WESTBURY was of opinion that if the Respondents had not been indulgent, the Appellants would not have been allowed costs by the strict rules of justice in the House. LORD COLONSAY concurred. Interlocutors affirmed ; Appeal dismissed, but with directions that the costs of the appeal should le paid out of the estate. Solicitors for the Appellants : Bireham, Dalrymple, Drake, & Bircham. Solicitors for the Respondents : Grahames & Wardlaw. VOL. I.] SCOTCH APPEALS. LINDSEY, et al. .%.... APPELLANTS ; 1867 March 21, 22. OSWALD, et al. KESPONDENTS. Entail Alienation distinguished from Alteration of the Order of Succession. Alienation is a destruction of the succession rather than an alteration of its course. It removes the subject alienated from the operation of the tailzie, and leaves it as if no tailzie existed. A deed, however, may in form partake of the character of an alienation, and yet not cease on that account to be a deed altering the order of succession. A DEED of entail executed on the 22nd of January, 1790, by the trustees of Eichard Oswald, of Aucliencruive, in the county of Ayr, satisfied the requirements of the Act, 1685, c. 22, with this exception, namely, that one word the word " irredeemably " occurring in the clause prohibiting alienation was written on an erasure. That clause was as follows : " It shall not be in the power of any of the heirs male, general, or of tailzie, who shall succeed to the said lands and estate, to sell, alienate, impignorate or dispone the said lands and estate, or any part thereof, either irredeemably or under reversion." The usual clause against altering the order of succession was as follows : " It shall not be in the power of any of the heirs male, general, or of tailzie, who shall succeed to the said lands and estate, to alter, innovate, or change the order of succession herein prescribed, or to do any act or deed that may import or infer any alteration, innovation, or change thereof, directly or indirectly." In October, 1838, the heir of entail in possession, Ricliard Alexander Oswald, conveyed, by a gratuitous mortis causa deed, to trustees the whole property, heritable and personal, which should belong to him at his death, and directed his trustees to turn the same into money for distribution among certain beneficiaries. He died on the 19th of June, 1841. On the 19th of June, 1881, his trustees instituted the present suit against the subsequent heirs of entail, to have it found that the deed of the 19th October, 1838, constituted an effectual VOL. L 2 M SCOTCH APPEALS. [L. E. 1867 conveyance to them of the lands and estates embraced by the LINDSEY entail. OSWALD. & defence was lodged by the heirs of entail, and the usual con- descendence and answers followed. The Lord Ordinary assoilzied the heirs of entail ; holding that although the erasure was admitted, and although it was an erasure in substanfialibus which might affect the clause prohibiting alienation yet inasmuch as the other clause above set forth, prohibiting any alteration in the order of succession, was, in all respects, perfect and complete, there was enough in that clause to bar the gratuitous mortis causa instrument set up by the trustees. On a reclaiming note to the Second Division of the Court of Session, judgment was pronounced, adhering to the Lord Ordi- nary's interlocator, with expenses. The trustees thereupon presented their appeal to the House of Lords. Mr. Anderson, Q.C., and Mr. Young, appeared for the Appellants, but in the course of their argument were requested to confine themselves to the question how far the clause prohibiting a change in the order of succession was, or was not, of itself sufficient to bar the deed of the 19th of October, 1838 ; because if it were sufficient to do so, the point as to the erasure in the other clause that pro- hibiting alienation would not arise. Under this direction, the Appellants' counsel contended that the deed of the 19th of October, 1838, was not a deed altering the order of succession, but a deed of alienation ; whereby the maker alienated from himself to third parties. The distinction was well known, and had been long established in the law of Scotland (1). It was, in fact, recognised by the Act, 1685, which expressly requires both interdictions, as things differing from each other, and essential to constitute a valid entail. The ruling judicial authority is Syme v. Dickson (2), where the successful argument was that which the Appellants now rely upon. That the deed here is to trustees and gratuitous is of no moment. Neither is it material that it is mortis causa. The case of Carrick v. Buchanan (3), relied upon by the Eespondents, is not (1) Brown v. Countess of Dalhousie, (2) Fac. Coll. 3rd March, 1821. Mor. App. voce Taillie, No. 19 ; Hender- (3) Bell's App. Ca. vol. iii. p. 342. son v. Henderson, 21st Nov. 1815. VOL. L] SCOTCH APPEALS. 101 analogous, though even there Lord Fullerton stated that a deed 1867 might be an alienation though gratuitous. Richard Alexander LINDSEY Oswald, the maker of this deed of trust, was, in so far as respected OSWALD alienation, an owner in fee simple. He did that which the defect in the entail left him at liberty to do. His deed of alienation has put an end to the entail, and the decree appealed from ought, therefore, to be reversed (1). The Attorney-General (2), and Mr. Andrew R J Clark, for the Respondents, were not called upon to address the House. THE LOKD CHANCELLOR (3) : My Lords, the object of the action is to have it declared that the Pursuers, as trustees under a trust disposition and settlement, executed by Richard Alexander Oswald, on the 19th of October, 1838, had full right to the whole lands, means, and estates, heritable and moveable, real and personal, which belonged to the said Richard Alexander Oswald. The Defenders, in answer, allege that Oswald had no power to make the trust disposition and settlement, being prohibited by a deed of tailzie, dated the 22nd of January, 1790, under which he was heir of entail in possession. The deed of tailzie was made by trustees in execution of a trust contained in a tailzie of the estate of Auchencruive, dated the 24th of March, 1780. The deed of 1790, however, must be regarded as an independent tailzie, and not as depending upon any reference to the prior deed of 1780. The deed of 1790 contains two prohibitory clauses, upon one of which the whole question turns. The first of them is a pro- hibition against changing the order of succession ; the second is against alienation. In this latter clause, the word " irredeemably " is written upon an erasure, in essentialibus, so that the whole clause is vitiated, (1) The argument of the Appellants' the Court of Session Cases, 3rd Series, counsel is given shortly, because it is vol. ii. p. 249. so fully commented upon by the Law (2) Sir John Holt. Peers. See the report of the case in (3) Lord Chdmsford. 2 M 2 102 SCOTCH APPEALS. [L. B. 1867 and there is, consequently, no valid prohibition against aliena- w " v "* / i- LINDSEY tion. ~ v ' The only prohibitory clause which is effective is that against altering the order of succession. The question, therefore, is, whether the trust disposition and settlement of the 19th of Oc- tober, 1838, is to be regarded as an alteration of the order of succession ? The deed in question is a mortis causa disposition by Oswald to trustees, and the purposes of the trust are declared to be for pay- ment of the trustor's debts and legacies ; and after these payments in trust, during the life of his widow, when she should think proper, to sell and dispose of the trust estate and effects, and invest the moneys in the funds and pay the whole of the dividends to her, and after her death to lay out and invest 30,000 for the use of the trustor's granddaughter, with trusts for his grandchildren and nephews and nieces ; and, on failure of all the preceding trusts, the residue to be distributed under the English Statute of Dis- tributions. , The Appellants contend that this deed is an alienation of the estate, and not a mere alteration of the order of succession. First, because the trustees are singular successors ; and secondly, because it directs an entire conversion of the estate into money, and so produces not a mere alteration, but a complete termination of the order of succession ; and in support of this view they rely strongly upon the case of Syme v. Dickson (1) as a decision which ought to govern the case. Now, upon this case it must be observed that the deed was a disposition to trustees for payment of debts, and therefore in its terms an alienation within the prohibitory clause. The trustee, in order to take it out of the operation of that clause, endeavoured to give the deed the character of one effecting an alteration of the succession. But, unless the Pursuer could have satisfied the Court that if it actually altered the order of succession, it was not by means of a deed which amounted to an alienation, he could not have succeeded. I do not understand Syme v. Dickson to be an authority for the proposition apparently contended for by the Appellant, that if the deed had been one altering the order of (1) Fac. Coll., 3rd March, 1821. VOL. I.J SCOTCH APPEALS. 103 succession, it could not at the same time have been an alienation. There seems to be no reason why a deed should not at once violate both prohibitions. . v - r OSWALD. But the argument of the Appellants appeared to make the object - of the two prohibitory clauses so entirely different, as to be capable of only separate and distinct infringements. Thus, after speaking of the three cardinal prohibitions against alienation, against contract- ing debts, and against altering the order of succession, and after adverting to the distinction preserved between them in the Statute of 1685, and the Act of Parliament of 1848, they quoted the follow- ing words of Lord Futterton in Oliphant's Case (1) : " The question is brought to this point, whether the deed of 1816 is an alienation, or an alteration of the order of succession. No doubt every ques- tion of this kind may be stated so as to raise an apparent difficulty. For a deed altering the order of succession is an alienation as to those heirs who are excluded, and, on the other hand, an aliena- tion is a most effectual alteration of the former order of suc- cession." These observations were made on a case in which the entail effectually prohibited alienations, but did not prohibit alteration of the order of succession ; and Lord Fullerton, remarking that " the deed was in the ordinary technical form of a deed of alteration," added an observation which completely meets the present case. He said : " I do not think that a disposition leaving the disponer in full possession, and conveying the estate after her death to a third party, would have been an alienation, but an alteration of the order of succession." In the present case, it seems impossible to deny that the trust disposition and settlement of Richard Alexander Oswald, if per- mitted to take effect, would innovate and change the order of succession, and divert the estate into a different channel. The observation of Lord Fullerton is in exact accordance with the interlocutor of the Lord Ordinary, and with the unanimous judg- ment of the Second Division in the present case. With such a weight of authority against the Appellants, I have no hesitation in advising your Lordships to affirm the decision complained of. (1) 13 New Series, 1179. SCOTCH APPEALS. [L. E. 1867 LOED CRANWORTH: *-* LINDSEY My Lords, before the passing of Lord Rutherford's Act, in 1848, OSWALD, a defect in any one of what have been called the " three cardinal prohibitions " did not make the tailzie void, but simply left to the heir of taiLzie in possession the liberty to do the act not duly pro- hibited, the other provisions of the tailzie remaining in force ; and in this case, the question having arisen in 1841, must be solved irrespectively of the Act of 1848. I assume for the present argument that there is here no valid prohibition against alienation; and, therefore, if what was done by the mortis causa deed of 1838 is to be treated as an alienation of the entailed estate by Richard Alexander Oswald, and not as an altering of the order of succession, then the Appellants are right, and the Court below wrong. But I am opinion that what was done by the mortis causa deed, assuming it to apply to and to com- prise the entailed lands, was, as to these lands, not an alienation within the meaning of the statutes regulating entails, but an altering of the order of succession. A distinct meaning ought to be given to every one of the three restrictions; and therefore, although every alienation may popularly be described as altering the order of succession, yet that is not the meaning of the word " alienation " as used in the statutes. Alienation is a destruction of the succession rather than an alteration of its course. It removes the subject alienated from the operation of the tailzie, and leaves it as if no tailzie existed. If that be a correct interpretation of the language of the statutes when they speak of alienation, as I cannot doubt it is, there was here no alienation ; for alienation to be valid, if made by an heir of tailzie not prohibited from alienation, must be made by him while he is in possession as heir of tailzie. He may in his lifetime by alienation destroy the succession ; but as soon as he dies his power over the entailed property is an end, and the title of the person next in succession under the tailzie takes effect. And if the right of that person is defeated by the mortis causa deed, the effect of that deed is to divert the course of succession from the person entitled under the tailzie, and to carry it to the person or persons entitled under the mortis causa deed. It can make no VOL. I.] SCOTCH APPEALS. 105 difference that the person claiming to be entitled under the mortis 1867 eausd deed is thereby directed to sell. He can only do that after LINDSEY he has succeeded to the estate in an order of succession different OSWALD from that described by the tailzie. On these short grounds, the decision of the Court below appears to me to have been perfectly correct. LORD WESTBUEY : My Lords, I am ready to grant, for the purpose of the present judgment, to the Appellants, that the erasure contained in the prohibitory clause against sale, alienation, and impignoration, vitiates the whole of that prohibition. I am also ready to grant, or to assume, for the purpose of the present argument, that if the settlor in the deed of 1838 had been an unrestrained fee simple proprietor, the lands in question might have been taken as passing by virtue of that instrument. It may be unnecessary to mention (but perhaps it may be desi- rable to do so, in order to shew that we have not forgotten it) the well-established principle, that an heir of entail, according to the Scotch law, is absolute fiar, and has all the characteristics of a fee simple proprietor, save to the extent to which he is restrained by the fetters of the entail. One other observation may be necessary, namely, that this is a case inter Tiseredes ; and deeds of entail being by Scotch law good at common law, it is here simply necessary to inquire, whether the deed of 1838 is struck at by any prohibition, because if there be a prohibition within the terms of which that deed falls, it will be sufficient to avoid the instrument. The argument on the part of the Appellants consists of two pro- positions : one forming the. major premise of their syllogism, the other the minor. Their first proposition was this : No gratuitous deeds of alienation fall within the terms of a simple prohibition against altering the order of succession. They attempted to main- . tain that general proposition by two or three cases, the principal of which were, first, the case of Syme v. DicJcson (1), and then, secondly, Lady J)alhousie's Case (2). Now, in the case of Syme v. DicJcson, there was a prohibition against alienation ; but there was (1) Fac. Coll. 3rd March, 1821. (2) Morr. App. voce Tailzie, [No. 19. 106 SCOTCH APPEALS. [L. R. 1867 no prohibition against altering the order of succession. The instru- LUJUSEY ment which was executed by the heir of entail had an immediate o * operation, because it conveyed to trustees the lands then belonging to him, and which he should possess at the time of his death. And the trust was present and immediate, namely, to sell those lands. It was not a revocable instrument, nor was a life rent reserved to the grantor. That deed, therefore, was struck at by the prohibition against alienation. But the contention was to give it a different character from that of alienation, and to bring it, if possible, within the character of a deed altering the order of succession. The Court of Session, however, held that it was an alienation, and refused to bring it within the compass of any prohibition, if there had been a prohibition against altering the order of succession. That case by no means proves this conclusion, that a gratuitous deed of alienation may not be bad as an instrument altering the order of succession. In Lady Dalhousies Case, the heir of entail executed a disposition in favour of himself and the heirs male of his body. It was held that, inasmuch as the estate of the disponer was reserved to the disponer, it was not an alienation, but was a deed altering the order of succession. With regard to this first general proposition of the Appellants, it appears to me to be effectually disproved by the language of the Judge in the case of Oliphant (1), and also by the decision of this House in the case of Innes v. Ker (2), both of which cases appear to me effectually to dispose of the assertion that a gra- tuitous deed of alienation cannot be struck at by a clause against altering the order of succession. The next proposition, the minor premise of the Appellants, is that this particular instrument of 1838 is a deed of alienation, and being a deed of alienation, they say it cannot be brought within the compass of the prohibition against altering the order of suc- cession. Now it is in this proposition, as in most instances of false reasoning, that the error of the Appellants principally lies. This deed has none of the characteristics of alienation. In the first place, the life-rent of the settlor is absolutely reserved. In the next place, the deed is purely mortis causa, and, therefore, in its (1) 13 Dun. 1174. App. No. 18 ; and Roxburgh v. Ker, (2) 2 Dow. 149 ; Morr. voce Tail lie, Fac. Coll. 17th June, 1813. VOL. L] SCOTCH APPEALS. 107 own nature revocable. In the third place, it is expressly made 1867 subject to revocation ex capite lecii, even at the last moment of the LINDSEY grantor's life. Now what is the character of an instrument of that OSWALD kind ? Can it be properly termed an alienation ? It has no ope- ration whatever inter vivos ; it has no operation until the death of the settlor. Then on the death of the settlor, what is the effect ? Why, that under the original deed of entail, the heir of tailzie under the destination in that deed becomes entitled. But what would be the operation of this trust deed of 1838 ? Its only ope- ration, its only object, aim, and purpose, would be to give to the estate a different owner from the successor that would be entitled to it under the destination of the entail. But can any one say that an instrument the object and effect of which are clearly to alter the ownership at the death of the settlor, is not an instrument which has for its sole purpose and aim, and its only operation, to give to the estate a different succession at the death of the settlor ? An instrument of which these things may be truly predicated cannot be called an alienation except by a misnomer. It is nothing to say that it would be competent to the trustees to feudalize their titles under that deed. If they had done so, the destination of the deed still remained revocable, having no effect whatever on the enjoyment of the property till the death of the settlor. These are the' characteristics, not of a deed of alienation operating in presenti inter vivos, but of an instrument the effect of which is postponed till the death of the settlor, and then intended to operate upon the destination contained in the deed of entail by substituting a new line into the order of succession. LORD COLONSAY : My Lords, I concur entirely in the conclusion at which your Lordships have arrived. It appears to me that this deed in form partakes of the cha- racter of an alienation, but it does not on that account cease to be a deed altering the order of succession. I see it stated in the written argument for the Appellants, that " a deed altering the succession is a deed whereby an heir of entail in possession of the estate under a destination to himself and his heirs male, resigns it in favour and for new eufeftment to himself and his heirs general. 108 SCOTCH APPEALS. [L. K. 1867 In such a case, the heirs general take through him and not from LINDSEY him." Now, it is true that that is a most common mode of OSWALD altering the order of succession; but it is not the only mode of altering the order of succession. I know of no authority for holding that an alteration in the order of succession may not be effected, although the heir in possession does not first convey to himself. Indeed I think the Appellants were unable to sustain this argument even in their printed case, because in a subsequent part of it they fall off from that position, and seem substantially to admit that if this deed had been one conveying the estate to trustees in the manner in which it is attempted to be conveyed, with instructions to make it over to another set of heirs, in that case it would have been a deed altering the order of succession. That implies that a conveyance to trustees, though it be in form an alienation, may still be a step in the alteration of the order of succession, and that it is not merely by a resignation in favour of himself and his heirs that an alteration in the succession can be effected. This leads us to look at the nature of this deed. The deed is one which was made by Mr. Oswald for the purpose of settling affairs at his death. It is a deed conveying to trustees, but it was revocable, and not to take effect during his life. In every sense it was a mortis causa deed, a gratuitous deed. And that being the nature of the deed, it attempts to put the estates into the hands of trustees, with directions to do certain things. One of these things is to give a life-rent to a party who is not entitled to a life- rent under the entail. Therefore it is a deed which, if effect be given to it, would take away the immediate succession to the estate from the heirs who were appointed by the entail. It has not the ordinary force of an alienation. It was not designed to serve the ordinary purpose of an alienation. It is not what I think is meant by "alienation" under the Statute of 1685. It is not a de presenti conveyance in effect. The party did not divest himself of the estate ; he did not put it away from him ; he did not give it over to any other person. And therefore, though partaking in form of the character of alienation, it is not a conveyance such as is contemplated under the clause of the entail which prohibits alienation, but it is an attempt to alter the order of succession ; VOL. L] SCOTCH APPEALS. 109 and it is, therefore, a contravention of that clause of the entail which effectually prohibits alterations of the order of succession. I abstain from giving any opinion upon a point which was raised in the argument as to the effect of the erasure. I do not think it necessary to do more than assume that it might be con- clusive, at all events, against " irredeemable alienations ;" nor do I give any opinion upon the further point, whether such a general conveyance would be effectual to carry an estate settled by way of entail, but not particularly mentioned in the general conveyance. That question may afterwards come before the House, but at pre- sent I abstain from expressing any opinion on it. Interlocutors appealed from affirmed, and appeal dismissed with costs. Solicitors for the Appellants : Preston & KarslaJce. Solicitors for the Eespondents : Loch & Maclaurin. 1867 < v^ LlNDSEY V. OSWALD. MKS. DTJNLOP APPELLANT; AND . April 2. JOHNSTON -. KESPONDENT. Post-nuptial Settlement Husband's subsequent Bankruptcy Wife's Claim. A post-nuptial settlement, in so far as it secured a separate provision for the wife during coverture, held to have been voluntary and gratuitous, and to have been revoked and superseded by the husband's subsequent bankruptcy (1). Per LORD COLONSAY : Grants by a husband to his wife, stante matrimonio, are revocable, unless special circumstances are established to make out an exceptional case. ON the 30th of October, 1860, the Appellant, then a spinster, married George Moore Dunlop, without ajsettlement. She had no siderable as to render him insolvent, the settlement will be void under the 13 Eliz. c. 5 ; that is to say, it will be set aside by creditors entitled to im- peach it: Macgueen on Husband and (1) By the law of England, a volun- tary settlement in favour of a wife is valid if made by a husband not indebted at the time. When, however, the hus- band is indebted at the time of making the settlement, and his debts are so con- Wife, p. 274. SCOTCH APPEALS. [L. R. 1867 fortune. He had 10,000. After the marriage he embarked in w-v^ DCNLOP trade. JOHNSTON. n tne ^9th of March, 1861, when perfectly solvent, he executed a post-nuptial settlement, whereby, reciting that it was incumbent on him to make a suitable provision for his wife, he directed his trustees to invest 5000 on good security, and to make payment of the interest, dividends, or income thereof to her during the sub- sistence of the said marriage, for the better aliment and support of herself and family, and for the education of any child or children who might be born of the said marriage ; declaring that the said income should be alimentary, and not assignable by her, and that the jus mariti and rights of the husband's creditors should be barred and excluded. The deed contained a clause whereby the wife accepted its pro- visions in full satisfaction of jus relictas, and of all other claims, legal or conventional, that might arise to her by survivorship. Soon after the execution of this deed the husband got into difficulties. On the 6th of August, 1863, he was declared a bank- rupt, and his property was sequestrated for creditors. Then the question arose, what was to be the effect of the post-nuptial settle- ment ? one child having been born of the marriage, and the mother being deserted by her husband, who had fled to America. On the 23rd of February, 1864, the above Kespondent, trustee on the husband's sequestrated estate, instituted the present suit to have the settlement reduced and rescinded, in so far as it secured for the wife the income of the 5000 during the marriage. The wife lodged her defence. The Lord Ordinary held that the provision for the wife, in so far as the income of the 5000 was directed to be paid to her during the subsistence of the marriage, was but a revocable donation inter virum et uxorem, revocable by the husband, and actually revoked by the sequestration and the trustee's suit. The settlement, therefore, within the limits speci- fied, was reduced and rescinded. And upon a reclaiming note to the Second Division the judgment of the Lord Ordinary was ad- hered to. Hence the present appeal to the House ; the wife suing in forma pauperis. Mr. Eobert Horn, of the Scotch bar (Mr. Eupert Potter, of tha VOL. I] SCOTCH APPEALS. Ill Equity bar, with him), on behalf of the Appellant contended, in the 1867 first place, that there could be no revocation of this settlement, DUNLOP because the husband had absolutely divested himself of the 5000 onerously, and in fulfilment of a natural and legal obligation to sup- port his wife and children during the marriage. In illustration and support of this proposition, the following authorities were cited, namely : 1 Sell's Comm. (1), where it is laid down that "a husband may so dispose of a part of his estate as to secure to the wife a fund of subsistence effectual against all debts subsequent to the trans- action" : Macdonald v. Macdonald (2) ; Smitton v. Tod (3) ; TurribuH v. Turnbull (4); Bell's Principles (5), where he affirms that "a provision for the wife's use during marriage may be made post- nuptially, if the husband be solvent at the time" ; Inglis v. Lowrie (6) ; Macpherson v. Graham (7) ; Macgregor v. Macgregor (8) ; Jeffrey v. Campbell (9); Kemp v. Napier (10) ; Morriee v. Sprot (11) ; Wright v. Harley (12) ; Craig v. Galloway (13) ; Bust v. Smith (14). Secondly, Mr. Horn urged that revocation of the post-nuptial settlement was excluded, by reason of its having been executed by the husband and accepted by the wife in satisfaction of her jus relictse, and other rights, which might accrue to her by survivor- ship. The authorities cited on this point were the following: Hepburn v. Brown (15); Hunter v. Dickson (16); Macdonald v. Macdonald (2). Thirdly, Mr. Horn argued that the post-nuptial deed of settle- ment was irrevocable, inasmuch as it provided for the aliment, support, and education of the children of the marriage, citing the following authorities : Turnbull v. Turnbull (4) ; Smitton v. Tod (3) ; Kemp v. Napier (10) ; Wright v. Harley (12). The other arguments adduced in support of the appeal are fully examined in the opinions of the Law Lords. (1) Page 634 ; see also 1 Bell's Comm. (9) 4 Sh. 32, 2nd ed. p. 33. 642. (10) 4 Dun. 558. (2) 10th July, 1863. 1 Macp. 1065. (11) 8 Dun. 918. (3) 12th Dec. 1839 ; 2 Dun. 225. (12) 9 Dun. 1151. (4) I Wil. & Sh. 80. (13) 4 Macq. 267. (5) Sect. 1944. (14) 14th January, 1865 ; Scotch ' (6) Morr. 6131. Cases, 3rd Sen vol. iii. p. 378. (7) Morr. 6113. (15) 2 Dowl. 342 ; 6th June, 1814. (8) Fac. Coll. 22nd Jan. 1820. (16) 5 Wil. & Sh. 455. 112 SCOTCH APPEALS. [L. R. 1867 At the close of Mr. Horn's argument, their Lordships, without DCNLOP calling on Mr. Anderson, Q.O., Mr. Scott, and Mr. Colt, the counsel v : of the Eespondent, delivered judgment as follows : THE LORD CHANCELLOR (1) : My Lords, That portion of the provision for the wife which is to exist during the subsistence of the marriage is the only part of this post-nuptial contract which is impeached ; and that is really the only question raised in this case. The decision appealed from is objected to, by the Appellant, on the ground that the post-nuptial settlement in question is executed in implement of his natural and legal obligation to aliment and provide for his wife and children during the marriage. But what is this natural and legal obligation ? It is to support and aliment his wife and children, during the marriage, according to his ability. There is no natural obligation recognised by Scotch law to divest himself of a portion of his property and put it out of his control to provide for his wife and children. On the contrary, it would rather appear to be his natural duty to preserve his right, as head of the family, to dispense his means according to a just view of his obligations, and not to deprive himself of the exercise of that discretion by making an absolute and irrevocable disposition of any portion of it to his wife. The Appellant, in the next place, insists that the provision in the contract is onerous, because it was granted by the husband, and accepted by the Appellant, in lieu and satisfaction of her common law rights and claims against her husband's estate. But these legal claims of the wife only come into operation after the death of the husband. Her legal claim, during the subsistence of the marriage, is to proper aliment and support, which is rather to be regarded in the light of an obligation on the husband than of a right in the wife, which she can relinquish, so as to render a deed onerous which is founded on such a relinquishment. The third, and last, ground upon which the Appellant insists, is, that the provision in question is onerous and irrevocable, because it is granted for the aliment, support, and education of the children of the marriage, as well as for the aliment of the Appellant her- (1) Lord Chdmsford. VOL. L] SCOTCH APPEALS. 1] self. Now, a donation by a father to his children is not revocable, 1867 like a donation by a husband to his wife. But I agree with the DUNLOP Lord Ordinary, that this cannot be held to be a provision in favour of the children. The post-nuptial contract sets forth, as its in- ductive cause, the propriety of making a " suitable provision " for the wife ; it does not constitute a jus crediti, or direct prestable right, in the children. Upon the whole, my Lords, it seems to me clear that the inter- locutors appealed from are well founded in principle and upon authority ; and I submit to your Lordships that they ought to be affirmed. LOKD EOMILLY : My Lords, I entirely assent to the views that have been ex- pressed by the Lord Chancellor. I understand the principle of the Scottish law to be, that all donations between husband and wife are revocable, subject, however, to certain exceptions : first, where the husband is performing a natural obligation; and, secondly, where there is a consideration for the donation which makes the contract onerous. It is important, therefore, to consider what is meant by " a natural obligation." Now, I apprehend that, though there is, in one sense, a natural obligation on a husband and father to support his wife and children during his life, that is not the meaning of the words " natural obligation," as used to support a donation from a husband to a wife, because the law enforces that already. Ac- cordingly, by a contract to support his wife and children a husband binds himself to do nothing more than he is compelled to do without entering into any such contract. But the support of his wife and children after he has ceased to exist, is not an obligation which can be enforced by law ; and this is " a natural obligation" which will not be performed unless he himself performs it. That is " a natural obligation" within the meaning of the exception which makes such a contract onerous ; and, consequently, if the husband makes a deed or contract for the support of his wife and children after Ijis death, after the marriage is over, that, I apprehend, is the per- formance of " a natural obligation" which will support a contract of this description. 114 SCOTCH APPEALS. [L. R. 1867 There is, therefore, as it appears to me, an important distinction DVXLOP to be drawn with respect to that part of the argument which was JOHNSTON P resse( l upon us with so much ability by Mr. Horn, when he tried to put the natural obligation of supporting a wife stante matrimonio on exactly the same footing as the support of the wife after the marriage is over. It is upon this ground, my Lords, and, con- sidering that the sole question we have to consider here to be one which relates to a provision for the support of the wife during the marriage, and not at all after the marriage, that it does not appear to me that this case comes within the exception which would prevent the application of the rule of the Scotch law, by which all donations between husband and wife are held to be revocable. So, also, I think, there is no consideration of an onerous cha- racter in any other respect, because the abandonment by the wife of the jus relictee only applies to what she gives up after the marriage is over, and can hardly apply to that which exists during the time that the marriage is subsisting. It is, confessedly, not before us to consider whether the contract be or be not a good one after the marriage has been concluded. I also concur in the observation which has been made by the Lord Chancellor with respect to this question, that the children of the marriage are not the objects of the deed, but that the wife is the object of the contract, and that this is a contract made ex- pressly and directly for her benefit. When Mr. Horn suggested that, if there had been no bankruptcy, and if the husband had neglected his wife and children, the Scottish Courts would not, under this contract, have sequestrated this fund, and made some provision for the wife and children, it occurred to me as probable, that even without the contract, such a proceeding might have taken place under the Scottish law, and that the Courts might have sequestrated this fund, and appointed some person to have control over it, and to apply it to the support of the wife and children ; there being, I apprehend, according to the Scottish law, though not according to English law, an obligation on the part of the mother to support her own children. For these reasons, my Lords, I am of opinion that the decision of the Courts below was correct, and that this appeal ought to be dismissed. VOL. I.] SCOTCH APPEALS. 115 LORD COLONSAY: ISGT My Lords, I concur in the conclusion at which your Lordships have arrived. All the arguments that could be advanced in suv> JOHNSTON. port of the appeal have been urged by the counsel for the Appel- lant. He has stated every point, and cited every case that could be brought at all to bear on the matter, and with that ability and research with which those who have been accustomed to hear him speak are well acquainted : but, my Lords, I think all that learning and all that ability have failed to establish a good case on the part of the Appellant. There is a clear distinction, in the law of Scotland, between rights that exist under an ante-nuptial, and under a postnuptial contract. And there is a clear distinction between rights granted by a husband in favour of a wife, which are to take effect after the marriage is terminated, and those which are attempted to be granted by the husband, in favour of a wife, to take effect during; the subsistence of the marriage. But the broad argument that was maintained on the part of the Appellant would go far to obli- terate these distinctions. And, indeed, it would come to this, that without any special circumstances, in every case the gift of a sum of money, made nominally by way of provision by the husband to his wife, stante matrimonio, is effectual, and cannot be revoked. That seems to be the substance of the argument. Now I cannot admit that such is the doctrine of the law. The doctrine of the law is, that grants by a husband in favour of his wife, stante matrimonio, are revocable ; and special circum- stances must be established in order to make out an exceptional case. Now I do not find in this deed, or in any of the circum- stances stated with reference to the condition of the husband or the wife, anything that can constitute a special and exceptional case. The wife brought no fund into the common stock. The husband was not in circumstances that required him to make any provision of this kind. There is no special circumstance that I see asserted there is none urged there is nothing that could account for what he did, except that he chose to make a grant to his wife when he was under no obligation whatever to make it, or, in other words, by way of donation. If the doctrine of VOL. I. 2 N 116 SCOTCH APPEALS. [L. E. 1867 natural obligation to provide for a wife and children were to be DIPKLOP carried to the extent that has been contended for here, then, in * . every case, and without any special circumstances whatever, the provision could be maintained. But there is no legal obligation on the husband, as your Lordships have observed, to set apart a portion of his own estate : there is not even any natural obligation upon him to do so ; for I concur in the remark of one of your Lordships, that the natural mode of providing for a wife and children, stante matrimonio, is by the husband's prudent and judi- cious management of his means. The cases which have been referred to in which any countenance has been given to the doctrine that has been pressed upon us, were all cases of special circumstances. Even if we go back to the case of Short and Birnie v. Murray (1), that was a case in which the husband had reserved his own life-rent, and it was by an ingenious argument suggested that it was a present provision for the wife, because, although the husband had reserved his life-rent, the wife could go into the market and dispose of the fee. But, in that case, the provision was one that was not to take effect during the husband's life, but he was to have the benefit during his life of the income arising out of that fund. So also in other cases that have been referred to. The case of MePherson v. Graham (2) was a very special case indeed. That was the case of a renunciation of the husband's jus mariti ; and, in that case, there had been an actual possession of the fund by trustees, and a payment of it to the children of the wife after her death. The marriage had been dissolved by death, and the husband came forward to claim those sums which the trustees had paid to the children in fulfilment of his own deed. That, again, was a special case. So, also, in the recent case that has been referred to : Bust and Smith (3). That was a case of a very peculiar kind, in which the wife was carrying on a separate business for the maintenance of the family a special circumstance to be taken into consideration. In short, in all the cases referred to there were special circumstances which warranted the supporting of the provision. But the present case is without special circumstances. It is nothing but a provision made without any onerous considera- (1) Morr. 6124. (2) Morr. 6113. (3) 14th of January, 1865 ; Scotch Cases, 3rd Ser. vol. Hi. p. 378. VOL. I.] SCOTCH APPEALS. 117 tion, and without any circumstances that could constitute a special 1867 occasion for its being made. DCNLOP It is said that the wife renounces her legal rights. I do not j * think, in this case, that comes to be a matter of great importance. The question here is not in regard to the wife's rights after the dissolution of the marriage. We have nothing to do with these. It does not appear that there was any such importance attachable to the renunciation by her of her legal rights as to raise this deed into the condition of an onerous one. The rights of the children were not renounced they are reserved ; and exist even on the dis- solution of the marriage. I concur, therefore, with your Lordships in thinking that the Appellant has not succeeded in making out a case. THE LORD CHANCELLOR: The Appellant in this case is a pauper, and therefore we say nothing whatever about costs. Interlocutors appealed from affirmed, and appeal dismissed. Solicitor for the Appellant : John Greig. Solicitors for the Eespondent : Bannister & Eobinson. JENKINS APPELLANT; ISG? AND April 5, BOBEETSON et al KESPONDENTS. Dezree by Compromise Res Judicata. A decree obtained by arrangement between the contending parties, the Court bestowing no judicial examination on the merits of the question, can never be res judicata. Declarator ; its Power and its Utility in determining a Rigid of Way. Per LOED COLONSAT : My opinion is, that" when an action of declarator to establish a right of way is fully and fairly tried, the verdict and the judg- ment, on becoming final, conclusively settle the question at issue as regards the public. Per LORD EOMILLY : According to the English law, no party would be 118 SCOTCH APPEALS. [L. E. 1SG7 precluded by a prior judgment. But in the action of declarator which obtains in Scotland (a very desirable one), the whole question of right may be gone into ; and if the Court comes to a judicial decision I am by no means pre- pared to say that it will not bind all. IN I860, the provost, bailies, and councillors of the burgh of Elgin, in the county of Moray, and certain other individuals, com- menced an action in the Court of Session, " for behoof of the in- habitants and of the public," to have it found and declared that there existed a public right of way for foot passengers along the right bank of the river Lossie, near the town. The owners of the land affected put in their defence; and issues having been adjusted, the cause came on for trial, and the jury returned a verdict for the Pursuers. The Defenders moved for a rule to shew cause why a new trial should not be granted, on the ground that the verdict was against evidence. The Court granted a new trial. In this state of matters a compromise was effected, whereby the Pursuers, the provost, bailies, and councillors, and others aforesaid, who had instituted the litigation, and got a verdict establishing their claim, abandoned it, and agreed not only that the Defenders should be assoilzied from the conclusions of the action, but that the Pursuers should pay to them 200 for expenses. A formal minute to this effect was drawn up and signed by the parties ; and it was followed by a written consent, signed by their respective counsel, to the effect " that the order for a new trial should be discharged, that the authority of the Court should be interposed to the minute, and that a decree in terms thereof should be pronounced." In pursuance of this arrangement, the Court, on the 15th of May, 1862, pronounced judgment absolving the Defenders from the whole conclusions of the action, and decreeing against the Pursuers for the amount of expenses agreed upon. It was under these circumstances that the above Appellant, William Jenkins, a shoemaker in Elgin, and William Halkett> Alexander Youngson, and Alexander Simpson, who were then asso- ciated with him, determined to bring again before the Court the question which had thus been adjudicated upon, or, rather, com- promised. VOL. I] SCOTCH APPEALS. 119 On the 5th of March, 1863, they commenced the present action by a summons substantially identical in its terms and in its prayer with that which had started the prior litigation. To shew that the conclusions were practically the same, the Respondents set them out in parallel columns as an appendix to their case. The Defenders to this fresh action were the above Respondents, against whom the jury had awarded a verdict, but in whose favour the Court had by compromise pronounced a decision. The following were the " pleas in law " advanced by the De- fenders against the new action : 1. " Res judicata, in respect of the decree of absolviter above-mentioned." 2. " The interests of the Pursuers in the alleged right of way having been com- petently and effectually represented in the former action of declarator, which was instituted and conducted with their knowledge and consent, they are, in virtue of the said decree of absolvitor, barred from insisting in the conclusions of this action." 3. " The Pursuers are not entitled to insist in the conclusions of the present action until the said decree of absolvitor is reduced, or otherwise competently set aside." 4. " As the Pursuers do not aver or found upon any grounds of action in this process which were not raised or embraced within the former action, the decree of absolvitor pronounced therein, even if not amounting to res judicata, is effectual to bar the Pursuers from insisting in the conclusions of the present action as laid." The " pleas in law " of the Pursuers were these : 1. " The plea of res judicata ought to be repelled, in respect that the present Pursuers were not parties to the former action." 2. "So far as they assumed to represent the public, it was illegal and incom- petent for the Pursuers of the former action, while holding a verdict in their favour, to consent to decree of absolvitor, and the present Pursuers are in no way affected thereby." 3. "In a declarator of right of way, the right to sue is commensurate with the right to use, and the Pursuers, as members of the community, are entitled to insist in this action." 4. " In respect of the immemorial use and possession, the public are entitled to the right of way claimed, and the Pursuers to decree as concluded for." One of the Defenders associated with Jenkins namely, William Grigor, a solicitor, in Elgin had a separate plea in law, which was as follows : " The decree of absolvitor is a decree inforo ; and the same not having been reduced, the Pursuers are not entitled to insist in the present action." 18G7 JENKINS v. ROBERTSON. 120 SCOTCH APPEALS. [L. E. 1867 The Lord Ordinary (1), on the 9th of December, 1863, decided JENKINS as follows : EOBE^RTSON " Finds, primo, that tlie Pursuers have set forth and hold a sufficient title to be heard for their own interest, and to crave judgment in this case, and therefore repels the first plea in law for the Defenders (res judicata) ; but, secundo, sustains the second plea in law stated for the Defendant, Grigor ; and in respect thereof assoilzies the several Defenders from the conclusions of the summons, and finds the Pursuers liable to the Defenders in expenses." Upon a reclaiming note, the First Division of the Court of Session, on the 9th of June, 1864, adhered to the interlocutor complained of, and refused the desire of the reclaiming note, with expenses. The appeal to the House was by William Jenkins alone. For him appeared as counsel, Mr. Scott (of the Scotch Bar) and Mr. /. S. Will; who contended that the decree of absolvitor relied upon by the Respondents was no bar to the present action. It was procured from the Court below, without judicial examination, by a collusive pecuniary arrangement, to which the Appellant was no party. The Court bestowed no thought on the merits of the case ; they went on the agreement of the parties. The plea of res judieata, therefore, was wholly inapplicable. The parties to the former action had no authority to represent or bind the public. The Appellant sued in his own right ; he did not affect to repre- sent any other interest. The hardship on the owner, who is ex- posed to repeated actions, is more apparent than real. If both A. and B. fail in such a case, it is not likely that C. will take the field. Practically, no evil is experienced. The following autho- rities were cited for the Appellant, namely: Maule v. Maule (2) ; Tulloch v. Baird (3) ; Torrie v. Duke of Athole (4) ; Stair (5) ; . ErsJcine (6) ; Cutlibertson v. Young (7) ; Duchess of Kingston's Case (8) ; Reed v. Jackson (9) ; Petrie v. Nuttall (10) ; Broom's Legal Maxims (11) ; Taylor on Evidence (12) ; Story's Eq. Juris. (13). (1) Lord Jerviswoode (8) 2 Smith's Lead. Cas. (2) 5th July, 1831 ; 8 Sh. 876. (9) 1 East, 355. (3) 21st May, 1859 ; 21 Dun. 807. (10) 11 Ex. 569, and 25 L. J. (X.S.) (4) 1 Macq. 65. 200. (5) 2, 7, 10. (11) Page 322. (6) 2, 2, 5. (12) 1495-6. (7) 13 Dun. 1308. (13) Vol. ii. s. 858. VOL. L] SCOTCH APPEALS. 121 The Attorney- General (1) and Mr. Anderson, Q.C., for the 1867 Respondents, argued that the decree of absolvitor bound the JENKINS Appellant, having been pronounced after litis contestation with those who were entitled to represent him. The action was of a popular character, having for its object the vindication of a public right. The public were, in fact, the Pursuers, through the instru- mentality of certain named litigants ; consequently, an absolvitor from its conclusions was effectual against all the world. Were this not so, when would litigation terminate? The following authorities were cited for the Respondents, namely : Stair (2) ; Erskine (3) ; Rutherford v. Nisbet (4) ; G-reig v. Kirkaldy (5) ; Leven v. Cartwriglit (6) ; Gray v. McHardy (7) ; Torrie v. Duke of Atliole (8) ; Hopetown v. Eamsay (9). THE LORD CHANCELLOR (10) : My Lords, the interlocutor in the former action having been the result of a compromise between the parties, it cannot be con- sidered as ajudicium ; nor can it be admitted as resjudieata. 1 confess, however, that there is one part of the question on which I entertain very considerable doubt, and that is whether any individual may constitute himself the representative of the public in an action of declarator of a public right of way, so as to preclude an action by any other person, and to make the plea of res judicata a bar to such action. But, my Lords, whatever doubt I may entertain on that point, I feel so much respect for the opinion of the majority of the learned Judges in Scotland, that I desire merely to express that doubt, that I may not be supposed to agree entirely in the conclusion at which they have arrived. My Lords, I think that these interlocutors should be reversed, and the case remitted to the Court below to be proceeded with. LORD ROMILLY : My Lords, I concur in the opinion which has been expressed by the Lord Chancellor. I apprehend that, according to the English (1) Sir John Eolt. (6) 12th June, 1861 ; 23 Dun. 1038. (2) 4, 39, 1, and 40, 16. (7) 4th June, 1862 ; 24 Dun. 1043. (3) 4, 3, 1. (8) 1 Macq. 65. (4) 27th Nov. 1832 ; 11 Shaw, 123. (9) 5 Bell, 69. (5) 21st May, 1851, 13 Dun. 975. (10) Lord Chelmsford. 122 SCOTCH APPEALS. [L. K. 1867 law, no party would be precluded in such a case as the present by JENKINS & prior judgment ; and that all the effect that could be given to KOBERTSON ^ would be that that judgment should be given in evidence upon any subsequent trial of the question. But, though that be so, I cannot but remember that the English law is not familiar with that form of action (which appears to me a very desirable one) which obtains in Scotland, called an action of declarator, in which the whole question of the right may be gone into. And I am by no means prepared to say that if the question had been fully gone into and fully discussed, and the Court had come to a judicial decision on the subject, that decision would not have bound all persons subsequently who attempted to try the same question. In many parts of the argument which has been put before your Lordships by Mr. Scott (certainly a most able argument) he pointed out that the Pursuers could not represent the public. If that be so, the public can never be represented in any similar action, because they must always be in the same situation, and the litigation could never be concluded. Therefore, having regard to this particular form of action, I should not be disposed to dissent from the Court below on the first point. But on the second point I entertain a very clear opinion. Res judicata, by its very words, means a matter upon which the Court has exercised its judicial mind, and has come to the conclusion that one side is right, and has pronounced a decision accordingly. But when an action of declarator is brought, and a verdict is obtained by the Pursuers, which is set aside, and an arrangement afterwards takes place by which, in consideration of the payment of a sum of money, an interlocutor is pronounced for the De- fenders, and the Court simply registers that interlocutor, without expressing any judicial opinion on the subject, I am of opinion that it is contrary to all principle to consider that such a trans- action can be treated really as res judicata. It is admitted that it cannot be res judicata if it is done by collusion or by fraud. It is argued that in this case no fraud is alleged or proved ; but it is very difficult in any case of this description to prove fraud ; and if this were held to be a judgment binding strangers, by reason of its being res judicata, it would follow that in every case, where any person had brought an action of declarator, which had been com- VOL. I.] SCOTCH APPEALS. promised, the public would be bound unless some stranger could 1867 prove that the judgment had been obtained by fraudulent collusion between the parties. I am of opinion that this is not the mean- ing of res judicata according to the law of any civilized country. I am also of opinion that it was not competent for the Court in the present proceeding to go into the question whether this was a reasonable compromise or not. It was impossible that the Court could ascertain that. In my opinion res judicata signifies that the Court has, after argument and consideration, come to a decision on a contested matter; here the Court exercised no judicial function upon the subject. It has merely exercised an administra- tive function by recording the interlocutor which had been agreed to between the parties. LORD COLONSAY : My Lords, upon the first point which has been argued here, namely, whether in a case of this kind, a verdict and judgment obtained on the question of a public right of way, is, or is not, to be conclusive against another party attempting to try the same question, I confess I have a very decided opinion. My opinion is, that when, in a case of this kind, an action of declarator to establish a public right of way is fully and fairly tried upon the issue whether it is a public right of way or not, the verdict and judg- ment upon that point, when allowed to become final, conclusively settles that question as regards the public. My Lords, I apprehend there is a material distinction between the law of Scotland and the law of England in regard to this matter, I mean as to the mode of raising and trying the question. I am not aware that in the law of England there is any such thing as an action of declarator to establish a right of public way, open to any individual in the community who may choose to raise it ; but there being such a right open by the law of Scotland, then comes the material question whether, by the same law, there be not also a check to the repeated revival of such an inquiry. It is because the door is so widely open that there is and must be a mode of shutting that door in due time ; and, I apprehend, the dicta we have on this subject are very clear and conclusive. We have the dictum of a very eminent Judge, Lord Futterton, indi- VOL. I. 'JO 124 SCOTCH APPEALS. [L, E. 1867 cated in two cases (1); and we have the doctrine enunciated, I JENKINS think, by Lord 8t. Leonards in one case (2), leading to the same v. result that if the question is tried, say at the instance of the llOBEBTSON. heritor, in order to have a declarator upon the question of a public right of way, and if that action has been instituted against parties who truly have an interest to maintain the public rights, a judgment in his favour in that action would be a conclusive judgment. Now, in this particular case the parties who raised the action of declarator were the parties who, perhaps, of all others had most interest in having this public right of way established, I mean the inhabitants of Elgin, or those who represented the inhabitants of Elgin, and some other persons who resided in the neighbourhood. If the case had gone on to a conclusion in the ordinary course by a verdict and judgment, and if, for instance, the verdict had been in favour of the heritor in this case, instead of against the heritor, and had become final, it would have been conclusive, because the interest of the public was fairly represented. What we look to, in such a case, is, whether the interest has been fairly represented. If it has been fairly represented, then that interest is for ever concluded by the verdict and judgment. But it may be a different matter if, when an action of this kind has been instituted, something is done by arrangement of the parties which interferes with the ordinary course of justice, and takes the case practically out of the hands of the Court. I do not think there has been any case cited, or that there is any case to be found in the books, adverse to the decision that has been pronounced upon the first point in the present case. The only case that has been at all relied on is one in which a question was raised as to Us pendens. That was not a judgment on this point. The question there was, whether a second action raised while the first was in dependence was to be allowed to be proceeded with, or whether it was to stand over until it was seen whether the first action was proceeded with fairly. If the parties who brought the first action had sold or betrayed the interest of (I) Greig v. The Magistrates of (2) The Duke of AtJiole v. . Torric ; Kirkaldy, and Maule v. Mauh ; 1 Macq. 65. oth July, 1831. VOL. I] SCOTCH APPEALS. 125 the public, or had abandoned the case without cause, then there 1867 would have been no resjudicata, and the second action might have JENKINS been allowed to go on. But it was not decided that, if the first RO BE R TSOV case was fairly tried out, the second case would be allowed to pro- ceed further. It was no judgment upon that point. I think that all our authorities, and the dicta of Judges, go to this, that where a case is tried in reference to an interest, and that interest has been fairly represented, others who stand in the same interest are not entitled to renew it. That principle is not peculiar to questions of public way. It is recognised in other cases where there are class interests. Now, what is the interest here? The interest is the interest of the public in this right of way. And what is the con- clusion sought by the action ? To have it declared that there is this alleged public right of way. The question at issue is, public right of way or no ? What right had the Pursuers in this action to try that question ? As members of the public they had a right and interest to try it, and as such they were allowed to try it. In that trial they stood upon and represented the interests of the public. Therefore, I am clearly of opinion that the judgment was right upon the first point. But then comes the second point, namely, whether by reason of the compromise or transaction between the parties the same effect can be given to the judgment in all respects as if the case had been allowed to proceed in due and ordinary course. That was considered in the Court below as a question of great difficulty. Every one of the Judges expressed his opinion upon that question with hesitation. I myself, in the Court below, expressed my opinion upon that point. I by no means entertained a confident opinion upon it, though I was not disposed to alter the judgment of the Lord Ordinary. I have now heard the case argued again, and I feel that there is an element in it which I am bound to say I think may be founded upon as sufficient to sustain the judgment proposed by my noble and learned friend; I mean that there was something given for the settlement of the case ; it was, to a certain extent, purchased. Now, that is a point which, I think, may be regarded as displacing the ordinary course of pro- cedure. Another course might have been followed by the De- fenders in the action, they might have followed out the notice 126 SCOTCH APPEALS. [L. K. they gave for trial by a special jury ; and if they had obtained a JENKINS verdict, or if the other party had failed to maintain their action, HOBEKTSON. the case might have stood in a different position. But when the Defenders in the action, the heritors, give something to the other party for allowing them to obtain a judgment, that intro- duces an element as to Avhich I cannot say that it does not suffi- ciently sustain the decision about to be now pronounced. THE LORD CHANCELLOK : I apprehend that your Lordships are of opinion that the inter- locutors ought to be reversed, and that the case must be remitted to the Court of Session to be proceeded with. LORD COLONSAY : If the case is remitted to the Court of Session to be proceeded with, it will start from the point at which it was when the Lord Ordinary pronounced his interlocutor, which has been brought under review, and which was affirmed by the Inner House. The other inquiry is left open. Interlocutors reversed ; and cause remitted to the Court of Session to le proceeded with. Solicitors for the Appellant : Holmes & Co. Solicitors for the Eespondents : Martin & Leslie. VOL. I.] SCOTCH APPEALS. 127 NICOL et al APPELLANTS ; 1867 AND May 14. PAUL RESPONDENT. Ancient Decrees TJteir Interpretation. A liberal interpretation should be given to the language of decrees which have been supported by long usage, and by the acquiescence of parties who had an interest in disturbing them. But when it appears plainly on the face of a decree that certain things are omitted, no rule requires that the omitted things shall be deemed to have been included. Teind (V) Claim on Land formerly waste, but now made productive. Waste land overlooked in ancient decrees for teind becomes subject to teind when rendered productive by modern cultivation. Against the demand of a parish minister claiming teind, certain ancient decrees were produced by the heritors to shew that the lands sought to be fixed had already been charged ; but as the decrees did not appear to have been exhaustive, the Court of Session (acting as a Court of Teind), ordered an inquiry, and their order was affirmed by the House : Held, however, that where a decree for teind purports in terms to have valued all the lands of a parish, no question can afterwards be raised as to any of the lands which it embraces being teindable. IN 1862, the Respondent, as minister of the parish of Banchory- Devenick, in the county of Aberdeen, brought an action against the heritors for an augmentation of his stipend. The case came before the Lords of Council and Session as Commissioners of Teinds. The heritors resisted the claim, contending that the teinds of the parish had been duly valued, and that the ascertained amount of them was satisfied by the existing stipend. In support of this contention they relied on certain decrees of valuation, and on the fact that for upwards of forty years the teinds had been regarded as exhausted, and that the minister had, during that period, annually drawn sums from the Exchequer in aid, or in sup- plement, of his receipts from the teinds. By the law of Scotland, as laid down by Mr. Buchanan (2), teinds are due from all cultivated and pasture lands, being one-fifth of the rental, unless the amount payable by the heritors has been fixed in (1) Tithes. (2) Law of Teinds, p. 53. VOL. I. 2 T 12 8 SCOTCH APPEALS. [L. K. 1867 a suit for valuation. The question was, whether there had been jJJ^ such a valuation and such an acquiescence as barred the demand. The Court of Session (Second Division) directed an inquiry, in so far favouring the minister's claim ; and hence the present appeal by the heritors. The Lord Advocate (1), Sir EoundeU Palmer, Q.C., and Mr. Forbes, appeared for the Appellants. The Attorney-General (2), and Mr. Hall, for the [Respondents. The merits of the question, and the grounds on which the House disposed of it, appear very clearly from the following opinions. LORD CEANWOBTH : My Lords, the proceeding in this case was instituted by the Rev. William Paul, minister of the parish of Banchory-Deveniek, in the county of Aberdeen, and its object was to have an increase of his stipend fixed upon certain lands in the parish which he alleged to have never been valued for teind (3). The minister lodged a minute in Court, stating that there were unvalued lands in the parish, the rental of which he alleged to be 4960. And if that were so, then the teinds would be capable of being augmented to the extent of one-fifth, which would be about 500. The Lord Ordinary made a remit to the teind clerk to inquire whether there were any free teinds, and the teind clerk reported that there was undoubtedly a certain amount of free teinds, and that if the unvalued moss and grass lands were to be taken into account, there was a considerable amount of free teinds. Upon that, the Lord Ordinary, without expressing any opinion himself, or hearing any argument, remitted the case to the Inner House, and the Inner House, shortly afterwards, appointed the minister to condescend articulately upon the lands which he alleged were subject to teind. That was done, and, afterwards, answers were put in by the heritors ; and then, before going into proof, an argument was had before the Inner House which was very much in the nature of an argument upon relevancy, the question being whether, sup- (1) Mr. Gordon. (2) Sir John Holt. (3) Tithes. VOL. L] SCOTCH APPEALS. 129 posing the statement of the condescendence to be true that there 1867 were lands unvalued, the minister had made out to the satisfaction NICOL of the Court that he was entitled to have, and ought to have, an p v - augmentation of his stipend. The Inner House declared the stipend to have been, for the year 1862, of a certain specified amount, and concluded by Declaring that this modification, and the settlement of any locality thereof, shall depend upon its being shewn to the Lord Ordinary that there exists a fund for the purpose. The cause having been remitted to the Lord Ordinary, the parties went into proof, and the Lord Ordinary reported that the question whether there were or were not free teinds depended on the question, whether the decrees of valuation relied on related to the whole lands, or only to parts of them. Substantially, he may be taken to have found for the heritors, that is, the Respondents, in omnibus, against the claim of the minister. It is necessary to call your Lordships' attention shortly to the condescendence and to the answers in this case. The condescen- dence on the part of the minister averred, in distinct articles, that particular lands in the parish which he set forth had never been valued for teind, and therefore remained liable to his demand. The answer of the heritors was, that all the lands on which he so condescended had, in substance, already been valued, and, therefore, none remained liable. The question is eventually narrowed to the point whether, in respect of two' particular portions of land, the barony of Findone, or some of the lands therein, and the barony of Portlethen, the heritors have or have not made out that the whole of those lands had been valued for teind. The heritors relied, in respect of the barony of Findone, upon a decree of valuation made in 1682, which they contended embraced the whole barony of Findone. With regard to the barony of Porttethen, they relied upon a similar decree made in 1709, which they contended exhausted the whole barony of Portlethen. The statement of the minister with reference to Findone is as follows : A large extent of the lands and barony having been at the date of said decree uncultivated, and partly in moss, was not included in the decree along with the 2 P 2 130 SCOTCH APPEALS. [L. B 1867 arable lands, which alone were thereby valued, and in respect of which the tenants paid victual rent. The waste or moss lands were unvalued, but have now been ^ ICOL improved and converted into teindable subjects. PAUL With regard to Portlethen, the minister asserted that a great part of it was uncultivated, and either in moss or grass, and had since been reclaimed and become teindable. The Lord Ordinary decided in favour of the heritors. But the Inner House, on the 5th of February, 1865, pronounced the following interlocutor, now appealed against : Recal the interlocutor complained of, in so far as regards the objections stated by the minister in the 10th, llth, and 14th Articles of the revised condescendence " (as to Findone and Portlethen) ; " and Find, that according to the time construction and effect of the decree of, valuation of 1682, the teinds of those portions of the barony of Findone, if any, which are not embraced within -the special subjects enumerated in the rental produced by the Pursuer, and adopted as the basis and limits of the decree of valuation, are unvalued : Find, that the teinds of the lands of Bardayhill, Calsayend, and Meddens, mentioned in the said decree, are not valued by said decree : Find, that the terms of said decree are not such as to exclude a proof or inquiry, before answer, that the teinds of the parcels of lands mentioned in the llth Article of the condescendence, or any of them, are un- valued : Finds, that according to the true construction and effect of the decree of valuation of 1709, the teinds of those portions of the barony of Portlethen, if any, which are not embraced within the special subjects enumerated in the pre- pared state of the proof which forms the basis and limit of the decree of valua- tion, are unvalued : Remit to the Lord Ordinary to direct such inquiry as may be rendered necessary by this interlocutor, and to proceed further as shall be just. The ground on which the Inner House proceeded was, that it did not appear on the face of the decrees of 1682 and 1709, that the lands which were thereby valued for teinds must of necessity include all the lands referred to by the minister's condescendence. Where a decree purports in terms to have valued all the lands of a parish for the purpose of ascertaining the teind to which the heritors are liable, no question can afterwards be raised as to any of the lands which it embraces being teindable. The decree concludes everything. So where it purports to have valued any part of a parish known by some general designation, as a barony, no question can be afterwards raised as to the lands included under that designation, except by shewing that the lands now passing under that designation comprise subjects which did not form part of what was valued under that game name by the decree. VOL. I.] SCOTCH APPEALS. 131 The Court below were of opinion that, though the lands valued i^J might possibly have comprehended the lands now sought to be NICOL charged, yet that was not the necessary construction of the PAUL. decrees. The Court, therefore, allowed the parties to go to proof. The ground on which the Appellants complain of this ruling is, that the decrees, fairly interpreted, do necessarily comprise all the lands which at the respective dates of the decrees constituted, and now constitute, the barony of Findone and the barony of Portletlien. Whether they are warranted in this contention depends entirely on the true construction of the decrees themselves. I have satisfied myself that the interlocutor complained of properly admitted the parties to proof ; and my opinion is, that it was in all respects right, and I move that the appeal be dismissed, with costs. LORD WESTBURY: My Lords, the suit, and the determination of it, are matters of very great concern generally to the heritors in Scotland. No doubt, the payments made by them and the value of their estates have for a long period of years been calculated upon the belief that these decrees of valuation would not be lightly disturbed. And I think it very desirable that the principle should be established that a very liberal interpretation should be given to the language of these decrees, so as to support long usage, and the conclusions that fairly may be derived from the acquiescence of persons who had an interest in disturbing them if ngt well founded. Where, therefore, there are general words of designation found in a decree of valuation, which may fairly be considered as com- prehending a whole district, such as a parish or barony, effect should, I think, be given to those general words. But the decree appealed from in the present case rests upon a rule of construction which preserves unaffected the general prin- ciple to which I have referred. The argument of the Appellants was, that inasmuch as the word "barony" occurs in the libel, the barony, as an entire thing, must be considered as comprehended in the words " the lands libelled ;" and so it might have been if these words had not been followed by a specific enumeration. I think the words of the decreet plainly 132 ' SCOTCH APPEALS. [L. R 1867 cany on the face of them sufficient evidence that the valuation is NICOL confined to the lands which are specified, and that it was not PAUL intended to take into consideration the generality of the word " barony ;" or to embrace the other lands, then uncultivated, which might be included within the precincts of the barony. Notwithstanding, therefore, the general rule, which I trust will be adhered to, of giving, in favour of long usage and acquiescence, a liberal interpretation to the words of the decree, yet as the decree in the present case carries on the face of it clear evidence that none but certain specific lands were taken into account, I think it is impossible to give to the decree a greater extent. I concur in the observations of my noble and learned friend, and think it unnecessary to add anything to what he has said. LORD COLONSAY : My Lords, I have felt considerable anxiety in regard to the course that should be taken in this case ; and I have heard with very great satisfaction the observations which have now been made by my noble and learned friend who last addressed the House as to the importance of supporting decreets of valuation when they can fairly and properly be supported, and these observations apply with additional force to decreets which are in the predica- ment in which this decreet is. For your Lordships may perhaps have observed that this is one of the many decreets, the proceedings in regard to which were destroyed by a calamitous fire a long time ago, and which were endeavoured to be set up, to the best ability of the country at the time, by ordering such extracts of those decreets as had been given out to be brought back into Court, and by form- ing from these extracts a record of those decreets. But one effect of that destruction by fire is, that materials which might otherwise have been referred to in order clearly to explain or to support the decreet, are no longer accessible and available for the purpose. If, however, it appears on a fair reading of the decreet that a part only of the lands mentioned in it were valued ; still more, if it appears from positive statement on the face of it that certain lands were not valued, then I apprehend that the Court has no other course than to hold that these lands stand unvalued, and whether the reasons assigned for not having valued them are valid reasons VOL. L] SCOTCH APPEALS. 133 or not, the fact remains that they were not valued, and the Court 1867 must deal with them accordingly. NlcOL In the present case, the judgment of the Court has dealt with p *^ two classes of lands mentioned in the decreet. It has held that, with regard to one of them, the decreet shews that that class of lands was not valued at all. I perfectly concur in that finding of the Court. I think it is plain upon the face of the decreet that those parcels of land were not valued, but were excluded from valuation. For , the decreet says that "as to the rent of the said lands of BarclayhiU, Calsayend, and Meddens, and money rent of Badentoy, the said Commissioners find and declare that the rent of the said lands is not lyable in payment of teind duty, the samen being payed upon the accompt of moss inaill alleuarly." It is quite true that they had no power to pronounce any lands free from teind, and a finding to that effect, if it did nothing else, would be simply inept ; but the meaning of the finding here is, that those parti- cular lands being in their opinion free from teind they had not valued them. That is the true meaning of it, and, that being so, they stand unvalued. The reason why they were not valued is assigned on the face of the decreet, and the Court will judge of the validity of the reason. But, in regard to another portion of the lands in question I mean the lands that are not so expressly excepted from valuation a question involving more general principles arises, whether, taking first the case of Findone, the valuation is to be read as com- prehending the whole of the lands libelled. It appears from the libel that the action was brought for the purpose of having a valuation made of the heritor's lands libelled, and it describes them in this way : " That the teinds, parsonage, and vicarage of the said persewars, their lands, baroine, and others underwritten, viz., the lands and baronie of Findone, the lands of CooJcstoune, Calsayend, Meddens, and Badentoy, with their pertinents, lying within the parochine of Banchory-DevenicJc and sheriffdome of Kincardine, are yet unvalued." There Calsayend, Meddens, and Badentoy, aTe not stated as parts of the barony of Findone, but the lands and barony of Findone are also brought forward to be valued. Now, what was meant by the lands and barony of Findone f It is said to be not uncommon to talk of all the lands in a barony, and 134 SCOTCH APPEALS. [L. E. 1867 the barony itself, cumulatively, as the lands and barony of so-and- jj^ so. That is the construction which the Lord Advocate endeavoured p * to put upon the words " the lands and barony of Findone " as they occur here. But I think it is clear that there may be lands of Findone which form a part, and only part, of the barony of Fin- done, that the barony of Findone may comprehend other lands besides the lands of Findone, and I think it appears that there were lands in the barony of Findone which were not part of " the lands of Findone," because I observe it is stated in the record and not contradicted ; and it seems to be assumed by the parties, that the lands of BarclayJiill formed part of the barony of Findone, and they are not dealt with in the decreet as part of the lands of Findone. It is thus made clear that the expression " the lands and barony of Findone" does not mean the same thing as "the lands of Fin- done," because the barony of Findone comprehended at least Bar- clayTiiU, which was not part of the lands of Findone, and it may have comprehended other lands which were not part of the lands of Findone. The minister, the Defender in the present action, says that there were a great many other lands besides Barclayliill which were not part of the " lands of Findone ;" and when we see that there was one parcel of land which was part of the barony of Findone, but which did not form part of the lands of Findone, and was not valued, it is not unreasonable to suppose that inquiry may shew that there were other parcels in the same condition. The minister says that there were, and he has specified a number of such lands in Article 3 of his condescendence. Now all that the Court has done is to say that this decreet does not exclude inquiry, and that inquiry should be made. That is the whole extent of the judgment, and I think that is a reason- able judgment. The Court has not said upon whom the onus may rest, or how long the onus may rest, upon the Pursuer or upon the Defender. That is left open for consideration. It may shift in the course of the inquiry. Some evidence may be adduced which will throw the onus upon the one side, and other circum- stances may be proved which may throw it upon the other side. It is upon the balance of the whole evidence that the Court has eventually to determine whether, upon a fair construction of this VOL. I] SCOTCH APPEALS. 135 decreet, it did or did not comprehend any ol those parcels of 1867 land which the minister describes in Article 3 of the eondescen- NICOL dence. * PADL. Then, with regard to the barony of PortletTien, the same general observations apply, though the special circumstance I last alluded to does not occur in that case. But the same principle applies. I may, however, observe that I think it would have been better if, in making up the record, the minister had been required to condescend ujtbn the particular lands in the barony of Portletlien, which he says were not valued for teinds. He has done so in regard to Findone, but he has not done so in regard to Portlethen. Had this been done, it would have limited the inquiry to those particular lands. That, however, may still be open to correction. I do not think that we can alter the judgment by reason of that not having been done. The record does not appear to have been objected to on that account. Upon these grounds, my Lords, I am of opinion that the judg- ment which has been suggested by your Lordships is the correct one. In regard to Findone, I observe it stated in the condescend- ence, and apparently in the opinions of the learned Judges in the Court below, that the decreet was based upon the rental produced by the heritor. I am not quite sure that that was so, for as I read the decreet of valuation it states that the minister produced another rental, and it rather appears that he referred that rental of his to the oath of the heritor, and that the heritor deponed upon that rental. Now, it was upon the result of that oath that the valuation proceeded, and we have not before us either the oath or the rental produced by the minister. They are probably among the things that have vanished. That is one of several reasons why there may be difficulty attending the inquiry, but I do not think it affects the merits of the judgment that has been proposed. Interlocutor affirmed, and appeal dismissed with costs. Solicitor for the Appellants : W. Eobertson. Solicitors for the Respondent : Martin & Leslie. " 136 SCOTCH APPEALS. [L. R. ,1867 MB. AND MRS. DIGGENS APPELLANTS ; May 20. GOEDON et al. RESPONDENTS. Conquest Ante-nuptial Trust. The word "conquest," when used as a verb active, and not as a noun sub- stantive, has a wide and flexible signification. ' Where a lady had, by ante-nuptial settlement, assigned and conveyed to trustees whatever she might " conquest or acquire " during the marriage : Held, that the words, " conquest " and " acquire," so used, were sufficient to pass to the trustees property of every kind which during the marriage had come to her by succession. Costs Appeals not encouraged. That expenses have not been awarded in the Court below, is no reason for refusing costs when the decree complained of is affirmed. To rule otherwise would but encourage litigation. JjY ante-nuptial settlement, the above Appellant, Mrs. [Diggens, assigned and conveyed to trustees whatever property she might conquest or acquire during the marriage. She succeeded, stante matrimonio, to a moiety of her father's estate, and to 1500, which the Respondent, as the sole acting trustee, claimed for the pur- poses of the settlement. Mrs. Diggens resisted the claim, asserting that she had not " conquested or acquired " the property in ques- tion so as to bring it within the operation of the trust. Her chief argument was, that the words u conquest " and " acquire " designated the earnings of her industry, her genius, or her economy ; but had no reference to what might come to her by succession, donation, or inheritance. The I^ftrd Ordinary decided in her favour, but the Second Division gave judgment against her; whereupon she, with the concurrence of her husband, appealed to the House. The Attorney-General (1), Sir Eoundell Palmer, Q.C., and Mr. Anderson, Q.C., were heard for the Appellants. Mr. Gi/ard, Q.C., and Mr. Young, for the Respondents. (1) Sit John Holt. VOL. I] SCOTCH APPEALS. 137 The following opinions set forth fully the facts of the case, the 1867 merits of the question, and the grounds of the ultimate decision. DIGGENS V. GORDON. THE LOUD CHANCELLOR (1) : My Lords. Under the marriage contract of Mrs. Diggens's father and mother, dated the 27th of March, 1828, the father (Ealph Compton Nisbet), after binding himself and his heirs and executors to pay to his wife, in case she survived him, an annuity of 150, for securing such annuity bound and obliged himself to settle and vest a heritable bond for 3000 in trustees, the interest to be paid to himself during his life, and after his death to be applied in payment of the widow's annuity ; " and the principal sum, after the death of both the parties, to go to the child or children of the marriage, but in such proportions and at such times as the father might direct by ^ writing under his hand, and failing of such writing to be divided equally amongst the children of the marriage." There were two daughters of the marriage. The father having survived his wife, by a deed of direction dated the llth of July, 1855, appointed one half of the 3000 above mentioned to the Appellant by her then name of Mary Wilhelmina Nisbet, reserving his own life-rent ; and the deed contained these words : " I dispense with the delivery hereof, and declare these presents to be good, valid, and effectual although found lying by me, or in the custody of any other person to whom I may intrust the same, undelivered at my death." Mary Wilhemina Nisbet, now Mrs. Diggens, by her ante-nuptial contract of marriage with Mr. Diggens, dated the 4th of January, 1860, assigned, disponed, conveyed, and made over to trustees (of whom the Respondent Gordon is the sole acting one), " all sums of money, goods, gear, and effects, and heritable and moveable estates of every description, wheresoever situated, which she might conquest or acquire during the subsistence of the intended mar- riage." On the 2nd of November, 1863, the father, Mr. Nisbet, died intestate, leaving heritable and moveable estates of considerable SCOTCH APPEALS. [L. B. 1867 value, to which the Appellant, Mrs. Diggens, and her sister, became DIGGENS entitled under " the deeds of directions," in equal moieties. The questions upon the appeal are, whether the sum of 1500, appointed to Mrs. Diggens, and the moiety of her father's heritable and moveable estates, belong to the Eespondent, as trustee under the Appellant's marriage contract, as having been " conquested or acquired during the subsistence of the marriage." In the construction of every instrument, whether will or deed, words must prima facie be assumed to have been intended to be used in their ordinary sense ; and if they have a technical meaning that meaning must likewise prevail, unless it is apparent from the context, or from the whole purview of the instrument, that they require a different interpretation. The word "conquest," is a word of technical signification, and, according to Mr. Bell, in section 1974 of his^ Principles of the Law of Scotland, " when used substantively in marriage contracts, comprehends whatever is acquired, whether heritable or moveable, during the marriage by industry, economy, purchase, or donation ; but not what comes by succession, or legacy, or accession to a sub- ject already acquired." The ordinary provision of conquest inserted in marriage con- tracts applies only to the husband's acquisitions during the mar- riage. Lord Cowan, in his judgment in this case says, "A provision made by a wife of her conquest during the marriage is unprecedented, and so far as any known style of contract of mar- riage can be relied on, or any reported decision on questions of the kind discloses, there is no instance on record of a wife providing in general terms, or specifically ' conquest ' in its limited sense, to her husband and children." A wife (as was observed in argument) may acquire considerable sums during the marriage by the exercise of her musical or literary talent, or by carrying on business ; but, as the Lord Justice Clerk remarks, " She cannot in any legitimate sense conquest or acquire anything ; because whatever she acquires of moveable property passes to her husband, and if any heritable estate comes to her by succession that would not be conquest, and if by donation that would be the very opposite of conquest of the marriage." Of course provision might be made respecting a wife's acquisi- VOL. L] SCOTCH APPEALS. 139 tions during the marriage under the term " conquest " in a marriage ISG? contract, if it was clear that the word was meant to be used in the DIGGKNS same technical sense as when applied to a husband's acquisitions. v - But the absence of any precedent of a deed in which a wife has made provision for her conquest, in the same sense in which a husband's conquest is provided for, raises a presumption that when the technical word is found in a clause in a marriage contract dealing with the wife's property, it is not intended to be used in its strict and technical sense* The word in the present case is not used substantively, but as a- verb ; as to which Mr. Bell, in section 1975, says : " The word conquest is also sometimes used as a verb ' what we shall conquest or acquire,' or its meaning is qualified by descriptive words, and the extent varies with the expression." By this I understand that the word " conquest " when used as a- verb is more flexible than when used as a substantive. Being then at liberty to depart from the technical sense of the word, if there is a manifest intention that it was not to be technically applied, the question arises whether in the deed itself sufficient grounds are not to be found for the adoption of a different construction. In an ordinary provision of conquest, the husband is the absolute proprietor during his life of everything which comes under that denomination, and may dispose of it during his life- time for onerous causes ; but not gratuitously. Every acquisition made by the wife during the marriage belongs to him, unless his jus mariti is excluded. There is nothing in the smallest degree analogous to this in the marriage contract of the Appellants. The whole of the wife's heritable and moveable estates of every descrip- tion which she may "conquest or acquire," are assigned to trustees, and they are empowered, with the consent of the wife alone, to sell any of the heritable estates, and convert them into money, both the parties binding themselves to execute all deeds necessary for vesting the heritable estates in the trustees; and the husband is deprived of the power of touching the smallest portion of the property. Such a trust as this is utterly at variance with a provision of conquest. From the nature of the deed in its constitution of this trust, and from the character of its provisions, I am satisfied that SCOTCH APPEALS. [L. E. 1867 the words " conquest" and " acquire" were not used in a strict and Dwo^-s technical sense, but were meant to comprehend every thing which * might fall to the possession of the wife during the marriage. This will include the 1500 acquired under the deed of direction of the llth July, 1855, as well as the moiety of the father's heritable and moveable estates. I therefore agree with the Judges of the Second Division, and think their interlocutor ought to be affirmed. LOED CRANWOKTH : The questionis, whether the 1500, and Mrs. Diggenss share in the heritable and moveable estate of her father, were duly assigned by her to the trustees appointed by the ante-nuptial contract entered into on her marriage. The question turns entirely on the point whether the property to which she so became entitled passed under the description of heritable and moveable estate which she miglii conquest or acquire during the subsistence of the marriage. The Court below held that it did ; but the Appellants dispute the correctness of that decision, on the ground that property to which she succeeded as heir, portioner, and next of kin of her father, or to which she became entitled under her father's deed of direction, is not conquest according to the Scotch law. It cannot be disputed that when, in a marriage contract, the intended husband makes in the ordinary form a provision of con- quest in favour of his wife or children, the word " conquest" has a well established definite meaning, which I assume would not include any part of that to which Mrs. Diggens became entitled on her father's death. A provision of conquest seems to have been an ancient mode of making a settlement for the benefit of wife and children, sufficient, probably, in early times, but ill suited to the exigencies of the present day. It was founded, as I collect from the opinion of the Lord Justice Cleric, on the hypothesis that the spouses were bound together in a sort of partnership, to endure during the marriage, and then at the death of the husband the result of their gains during the marriage, whether from industry, frugality, or purchase, was to be ascertained. This was analogous to the profits of a commercial partnership, and the result was VOL. I] SCOTCH APPEALS. 141 treated as the "conquest" on which the contract of the husband 18G7 in favour of his wife and children attached. ; DIGGENS But it is impossible to attribute to the word " conquest," as used in this marriage contract, the same meaning as that which attaches to it in an ordinary provision of conquest by a husband. What is to constitute conquest, properly so called, cannot be ascer- tained till the death of the husband ; but here the assignment of what the wife shall conquest or acquire operates immediately on the accruing of her title to the property assigned. It is all to be held by trustees during the marriage, on trusts irreconcilable with her retaining, or her husband retaining, any power or control over it. The argument, however, of the Appellants was, that though the incident of conquest, properly so called, to which I have referred I mean its leaving everything under the husband's control until his death, might be inapplicable to the assignment contained in this settlement, yet it would be right to interpret the words "which he may conquest or acquire," as embracing only such things as constitute conquest, properly so called. Now, it is admitted on all hands that a provision of conquest by a husband does not extend to or affect any heritable or moveable estate which may come to him. during the marriage J by succession or legacy ; and therefore, reasoning by analogy, the Appellants contend that the words used in this ante-nuptial contract ought not to be taken as extending to the share of her father's heritable and moveable estate to which she succeeded on his death. I can- not agree to this argument. If no technical meaning is to be attributed to the words " conquest or acquire" no one would hesi- tate to say that a married daughter when her father dies and leaves a large property which descends on her, acquires that property during the marriage. She certainly acquires it at some time, and if she does not acquire it during the marriage, when does she acquire it? No authority has been produced to shew that any technical meaning has ever been attributed to these words " con- quest or acquire," except in the case of a provision made by the husband, when from the nature of the contract into which he is entering, the word " acquire " cannot have its ordinary meaning. ' Even if it were necessary to adduce arguments to shew that the word " acquire " ought to have its ordinary meaning attri- 142 SCOTCH APPEALS. [L. B. 1867 buted to it, there are cogent arguments on the face of the deed DIGGENS leading to that conclusion. In the first place, the assignment GORDOX kere * s ky the ^tended wife, not by the husband ; and it is highly improbable that a lady, one of two only daughters of a gentleman of fortune, should, on her marriage with an officer in the navy, think of entering into an engagement to settle what she should earn during the marriage by her own personal talents or exertion. Arguments were ingeniously put to shew that she might, during the marriage, as an authoress or an artist, earn large sums to which she might intend her contract to refer. This seems to me highly improbable, and quite inadequate to justify the Court in giving to the words used a technical instead of their ordinary meaning. Besides which, as was truly said at the bar, all which a married woman might so earn would from time to time, as it might be realized, become the property of the husband. But what seems to me to shew conclusively that it is not to earnings or acquisitions in the nature of conquest, .technically interpreted, that the deed referred, is the circumstance that the property assigned is to go to trustees, who are to deal with it during the marriage in the mode prescribed by the contract. This is inconsistent with conquest in its technical sense. It was ad- mitted that there is no authority for holding that a provision of conquest had ever been made the subject of an assignment to trustees ; and I am persuaded that no such case does or can exist. Such a trust would, in fact, be inconsistent with the nature of conquest. On these grounds I think that the decision of the Court below was right. It was argued, however, that different principles may be appli- cable to the 1500 to which the wife was entitled under her parents' marriage contract, and the deed of direction executed by her father. The argument was, that though the precise amount to which she eventually became entitled was not ascertained till after the death of her father in 1863, yet she had an absolute indefeasible title to some part of the 3000 secured by the mar- riage settlement of her parents to their children ; and so, it was contended, she could not be said, in any sense, to have acquired that sum during the marriage. But this is a very subtle refine- ment. She had not any part of the 3000 at the time of the VOL. I] SCOTCH APPEALS. 143 marriage, and it is reasonable to understand her contract as 1867 extending to everything not then in her possession, but which DIGGENS should come to her by any means during the marriage. She ~ v ' makes over to the trustees a small sum of bank stock of which she was possessed at the time of the marriage ; and the reasonable construction of the language used is, that she meant to deal with all of which she should afterwards become possessed in the same mode in which she dealt with that which she already possessed. My opinion is, that the interlocutor of the Inner House ought to be affirmed. LOED WESTBUEY concurred. LOED COLONSAT : The attempt, in this case, to put on the word " conquest " the particular construction which the Appellants contend for, is, to my mind, a perfect novelty. The word " conquest " here occurs in a marriage contract, and it is introduced into that marriage contract with two accompanying circumstances, which prevent me from giving to it the interpretation that the Appellants contend for. In the first place, it has reference to what may be acquired by the wife. That in a marriage contract is a novelty ; and it would be very difficult of application; I would say almost impossible of application, if the word "conquest" be taken in the sense in which it is understood in reference to a provision of " conquest " in a marriage contract. In the second place it is an immediate con- veyance to trustees to be operative during the subsistence of the marriage. That again is entirely inconsistent with an ordinary provision of conquest in a marriage contract. These two circum- stances seem to me to take the word " conquest " out of the inter- pretation which the Appellants contend for. I am not quite certain whether the Appellants contend for the interpretation of " conquest " in this marriage contract in the same sense in which " conquest " provided by a husband is understood or, in the limited sense in which the word " conquest " is held to be appli- cable to heritable rights ; but they endeavour to make that par- ticular meaning of the word "conquest" communicate itself to the next succeeding word " acquire ;" so that the word " conquest " VOL. I. 2 Q 144 SCOTCH APPEALS. [L. E. 1867 is to destroy the ordinary meaning of the word that next follows DIGGENS i** ^e use ^ ^e wor d ^ ere was s i m ply a mistake ; because in v ' its strict technical sense it would lead to a construction contrary to all precedent, contrary to law, and it might, I think, lead to contending for impossible consequences. But if you get rid of the technical meaning of the word, the meaning of the contract itself, and the purpose and object of the parties, are perfectly plain ; it was intended to carry whatever was acquired by the wife during the subsistence of the marriage. I therefore think that the judgment of the Court below is perfectly right. Sir Roundell Palmer : Will your Lordships permit me, as you have said nothing at present about expenses, to recall to your re- collection the fact that the Court below thought this a case in which no expenses should be given. LOED WESTBUKY : My Lords, it has never been your Lordship's habit to give encouragement to appeals ; and such encouragement would be given if, where no expenses have been allowed in the Court below, your Lordships adopted the course of not giving costs on appeal. LOED CEANWOETH : I concur with my noble and learned friend. Interlocutor affirmed, and Appeal dismissed with Costs. Solicitor for the Appellant : William Robertson. Solicitors for the ^Respondent : Martin & Leslie. YOL. L] SCOTCH APPEALS. 145 j- APPELLANTS ; THE WESTERN BANK OF SCOTLAND, WITH ITS LIQUIDATORS J ' afar* 4,11,12; May 20. ADDIE RESPONDENT. FIKST AND SECOND APPEALS. ADDIE APPELLANT; THE WESTERN BANK OF SCOTLAND, ) _ Tnrrrn . n^w [ RESPONDENTS. WITH ITS LIQUIDATORS J CROSS APPEAL. Joint Stock Company SliaretaJcing Contract Fraud Irrelevancy of the Allegations Doctrine as to Companies, Directors, and Managers. Suit to rescind a sharetaking contract, and for restitutio in integrum, or, alternatively, for damages : Held, under the circumstances, unsustainable. Per THE LOKD CHANCELLOR : Notwithstanding numerous irreconcilable decisions, the true doctrine seems to be, that where a person has been drawn into a contract to purchase shares by the fraudulent misrepresentations of directors, and where the directors, in the name of the company, seek to enforce that contract, or where the person who has been deceived institutes a suit to rescind it, the misrepresentations are imputable to the company, and the purchaser cannot be held to his contract. Per THE LORD CHANCELLOR : If an untrue statement is made, founded on a belief destitute of all reasonable grounds, or which the least inquiry would immediately have corrected, it may fairly and correctly be charac- terised as misrepresentation and deceit. Per THE LORD CHANCELLOR : If the directors employed the manager to make false representations as to the stability of the company, the effect would have been the same as if made by the directors themselves. Per THE LORD CHANCELLOR : I entertain considerable doubt whether the Pursuer in this case has connected the directors sufficiently with the alleged, misrepresentations to make them imputable to the company. That the direc- tors knew of the manager's endeavours to get the Pursuer to take shares is nowhere alleged ; nor is it alleged that the manager gave authority to the local agent from whom the misrepresentations were immediately derived. Per LORD CRANWORTH : The Court below framed issues for a jury trial ; but I think no such trial was necessary, because no relevant case was stated. Per THE LORD CHANCELLOR : No issues ought to have been directed. Per THE LORD CHANCELLOR : A company cannot retain any benefit which they have gained through the fraud of their agents. Per LORD CRANWORTH : Corporate bodies may be made responsible for the frauds of agents, to the extent to which they have profited by such frauds. VOL. I. 2 E 146 SCOTCH APPEALS. [L. E. 1867 WESTERN BANK OF SCOTLAND v. ADDIE. ADDIE v. WESTEBN, BANK OF SCOTLAND. Per THE LORD CHANCELLOR : If, instead of seeking to set aside the con- tract, the person defrauded prefers an action of damages for the deceit, such action cannot be maintained against the company, but only against the directors. Per LORD CRANWORTH : An' incorporated company cannot, in its cor- porate character, be called on- to answer in an action for deceit. Per LORD CRANWORTH : Hestitutio in integrum can be had only where the party seeking it is able to put those against whom it is asked in the same situation as that in which they stood when the contract was entered into. Per THE LORD CHANCELLOR : Whether the change of a company from unincorporate into corporate, for the mere purpose of more conveniently winding up its affairs, renders restitutio in integrum impracticable, is a question which, if it were necessary to determine, I should wish to consider more carefully. Per LORD CRANWORTH : The incorporated company cannot be sued for frauds committed by directors before the incorporation. Per THE LORD CHANCELLOR : That the complainant was himself a member of the company whose agents had committed the fraud, would not be a valid objection to his suit for redress; nor would it be an answer that his suit might prejudice those who had innocently acquired their shares after he had acquired his. JLJEE Western Bank of Scotland was established in 1832, at Glasgow, under the 7 Geo. 4, c. 67 (1), as an unincorporated joint stock banking company. After an apparently prosperous career of twenty-five years, it collapsed on the 9th of November, 1857, with a deficiency of 3,000,000 sterling. On the 8th of December, 1857, for the purposes of a voluntary winding-up, the concern was incorporated and registered under the Joint Stock Companies Act of 1856, as amended by the Joint Stock Companies Act of 1857, in pursuance of an unanimous resolution passed at a general meeting of the shareholders ; and liquidators were appointed. The Kespondent, Mr. Addie, had fifteen shares, and was in- terested to the extent of a moiety of other thirty shares in the company, from 1848. In November, 1855, he purchased 135 further shares at 76 per share ; making, with costs and charges, in all, 10,313 10s. 2d. He subsequently had to meet calls. In November, 1859, he commenced the proceeding (out of which these appeals arose) against the Western Bank of Scotland and its liquidators, to have the "contract or bargain of sale and (1) An Act to regulate the mode in which copartnerships for banking in Scotland may sue and be sued (20th of May, 1826). VOL. L] SCOTCH APPEALS. purchase" of the said 135 shares rescinded, and the Pursuer "reponed and restored thereagainst in integrum, on the ground that the purchase of the said 135 shares had been induced by false and fraudulent representations contained in the reports of the directors." The summons concluded alternatively for 26,000 damages. The action, though nominally against the bank, was, in effect, against the shareholders. The creditors had been paid : and one of the points of defence was, that Mr. Addie had for years received dividends and joined in or sanctioned the management, and taken part in proceedings affecting the constitution of the bank, as a member of a body which, by legal construction, he thus charged with fraud. Mr. Addie put in the following pleas in law : 1. The Pursuer is entitled to decree of reduction and payment as concluded for, in respect that the directors and manager of the "bank made false representa- tions to the Pursuer as to the condition of the tank, and as to the value of the shares, and in respect that the Pursuer was thereby induced to buy said shares. 2. The Pursuer is entitled to decree of reduction and payment as concluded for, because, in making the said purchase of shares, he was under essential error ; and, separatim, because that essential error was produced by the misrepresentation of the bank, or of parties acting for and entitled to act for the bank. 3. The Pursuer is entitled to decree of reduction and payment as concluded for, because his agreement to purchase the said shares was induced by the fraud and misrepresentations of the bank, or of parties acting for, and entitled to act for the bank. 4. At all events the Pursuer is entitled to be reimbursed for, and kept indemni- fied against, the loss and damage he has sustained, and to that effect to obtain decree in terms of the conclusion for damages. The following were the pleas in law of the bank and liqui- dators : 1. The statements and representations alleged to have been made falsely on the part of the directors, officials, or agents of the bank, form no good ground for re- duction of the transfers in favour of the Pursuer, such statements and representa- tions having been unauthorized by the company, or by the contract of copartnery of the company. 2. The Pursuer having been himself a shareholder of the company at the date of the alleged false representations, is not entitled to maintain the action. 3. It being impossible to effect restitution in integrum between the Pursuer and the bank, the Pursuer cannot maintain this action. 4. The Pursuer is barred by acquiescence, and by his own actings as a partner of the company in respect of the shares in question, from insisting in the action. 5. The present position and circumstances of the company and partners thereof, 2 R 2 1867 WESTERN BANK OP SCOTLAND v. ADDIE. ADDIE v. WESTERN BANK OF SCOTLAND. 148 SCOTCH APPEALS. [L. R. 1867 WESTERN" BANK OP SCOTLAND v. ADDIE. ADDIE v. WESTERN BANK OF SCOTLAND. differ so materially from their position and circumstances when the Pursuer became a partner of the bank in 1855, that he cannot maintain this action either to the effect of rescinding the transfers in his favour or for damages. 6. The Pursuer is liable to the creditors of the Western Sank for the debts due by the bank, and is not entitled to any relief that would tend to discharge him from that liability. 7. In any event, the Pursuer is bound to pay the calls in full, whatever may be his rights as against his co-contributories. The First Division of the Court of Session, on the 2nd of February, 1864, found as follows : Find that the Pursuer has stated matter relevant to entitle him to go to trial. On the 9th of February, 1864, the First Division approved of issues and ordered them to be tried " as regarded the conclusions other than the conclusions for damages" The issues were these : " Whether the Pursuer was induced to make the said purchase by false and fraudulent representations made by the said bank as to the state of its affairs ; and whether the Defenders are resting-owing to the Pursuer the sums contained in the schedule hereunto annexed, or any part thereof?" or, K Whether the Pursuer has barred himself from repudiating the said purchase ?" These issues were tried before a jury in January, 1855, and a verdict was returned for Mr. Addie. A bill of exceptions, however, was tendered by the counsel for the bank to the ruling of the presiding Judge. But those exceptions were, on the 9th of June, 1865, overruled. The appeal of the bank to the House of Lords was against the interlocutor of the 2nd of February, 1864, sustaining the relevancy ; against the interlocutor of the 9th of February, 1864, approving of the issues, and ordering their trial ; and against the interlocutor of the 9th of June, 1865, overruling the exceptions. Mr. Addie presented to the House a cross appeal against the in- terlocutors of the 2nd and 9th of February, 1865, impeaching them partially on the ground that issues tendered by him had been re- jected ; that issues tendered by the bank had been adopted ; and that the question of damages had been superseded. The Attorney- General (1), Sir Roundett Palmer, Q.C., and Mr. Shand, were of counsel for the Appellants. They insisted that the (1) Sir John Bolt. VOL. L] SCOTCH APPEALS. 149 alleged misrepresentation, if such it could be called, was not by the company, the shareholders, but by the manager without authority, through a local agent ; and all that was said was, that the purchase of the shares would be " a good investment." The dolus is nowhere brought home to the shareholders. It is not imputed to the company, nor even charged distinctly against the directors. The demand, therefore, is unsustainable : Burness v. Fennel (1) ; Barratfs Case (2) ; Holt's Case (3) ; Durantys Case (4). But even if the directors were to blame, they were not agents of the company to commit a fraud. The remarks of Lord Cranworth in The New Brunswick Railway v. Conybeare (5) are strong to this effect. But here the complainant is himself a partner, seek- ing redress against his brother shareholders after two years' ac- quiescence. "When a contract is executory, and restoration is practicable, there may be an equity to have it set aside on the ground of fraud. But when the jus tertii intervenes, redress is excluded. Here the other innocent shareholders are entitled to consideration : Stevenson v. Newnliam (6). A contract is not void, but optionally voidable, on the ground of fraud, things remaining entire, which in this case they are not. Other interests have attached, and rescission is excluded : Clarke v. Dickson (7). Here the delay is of itself conclusive : Mixer's Case (8), overruling Brock- welVs Case (9). In Davidson v. Tulloch (10), the action was against the individuals charged with the fraud. The Scotch law is the same as the law of England as to void and voidable contracts. The reports of directors are matters inter socios : Deposit Company v. Ayscough (11). On the whole, we conceive that Mixers Case, (1) 6 Bell, App. Ca. 541. (2) 3 D. J. & S. 30. (3) 22 Beav. 48. (4) 26 Beav. 273. (5) 9 H. L. C. 736. (6) 13 C. B. 302. (7) E. B. & E. 148 (1858). In this case Lord Campbell, C. J., said, " The Plaintiff cannot rescind the contract and sue for money had and received. He must seek his remedy by special action for deceit ; and recover, not the original price, but whatever is the real damage sustained." (8) 4 De G. & J. 575 ; Lord Camp- bell in this case said, " Mixer mnst be considered to have become a share- holder in June, 1856. He acted on the contract. He executed the deed. He received dividends, and thus derived a benefit from his contract. Even after the bankruptcy, he did not say he would repudiate the contract." (9) 4 Dru. 205. (10) 3 Macq. 783. (11) 6 E. & B. 761. 1867 WESTERN BANK OF SCOTLAND v. ADDIE. ADDIE v. WESTERN BANK OP SCOTLAND. 150 SCOTCH APPEALS. [L. E. 1867 WESTERN BANK OF SCOTLAND v. AJDDIE. ADDLE v. WESTERN BANK OF SCOTLAND. already referred to, governs the decision of this appeal, and is irresistible. The Dean of Faculty, Mr. Gr. M. Gi/ard, Q.C., and Mr. Balfour, for the Eespondent, urged that the chief object of this suit (which is addressed to the Court in its equitable character) is restitutio in integrum, in other words, a complete restoration to the party defrauded, without reference to the perpetrators of the fraud, who have gained by it, and, consequently, are not objects of judicial protection. Voet (1) tells us that the praetor grants this remedy "to circumvented individuals, restoring them to their pristine state." Brissonius (2) agrees with Voet. He says not a word of restitution to any but the victims ; with this reasonable qualifica- tion, that he who seeks restitutio in integrum must not himself retain an advantage. Thus PotTiier (3) intimates that, " if the thing bargained for has ceased to exist, as if the horse which I have purchased has died of the malady in respect of which I sue the seller, it will be sufficient for me to give back what remains of the animal, as the skin, if it is demanded. But I am to be recouped in all respects." The law of Scotland, and, we think, the law of England, agree here with the Eoman and the French law. By all these systems, a contract procured by fraud is absolutely void, and not merely voidable. Especially is this the case in Scotland. No Scotch decision, no Scotch writer of authority, countenances the opposite doctrine ; which seems, indeed, to be of but recent re- cognition in England. The question of relevancy is the cardinal one in this case. There are no creditors in the field. The contest is with the other shareholders. But are they entitled to retain that which has come to them by fraud ? The negative of such a proposition has the sanction of this House, as appears by the remark of Lord Wesfbury in The New Brunswick Company v. Cony- leare (4), decided after Mixer's Case, on which the Appellants so much rely. To the same effect is the prior case of The National Exchange Company v. Drew (5). The English cases, which involve contests with creditors, go beyond our contention. The only ques- tion is : " Shall the company be allowed to retain this money ? " (1) B. 4, tit. 1. (3) De Vente. (2) Voce Eestituere. (4) 9 H. L. C. 711. (5) 2 Macq. 103. VOL. I] SCOTCH APPEALS. 151 At the close of the argument on the 12th of March, the Lords 1867 intimated that, as the decisions conflicted, they would take time to WESTERN consider the case, with a view to the laying down of some general rules. On the 20th of May, the following opinions were delivered : THE LOED CHANCELLOR (1) : My Lords, this is an appeal against interlocutors of the First Division of the Court of Session in an action instituted by the Kespondent against the Western Bank of Scotland and the official liquidators appointed to wind up the affairs of the bank. The summons in the action demands a reduction and restitution in integrum against two deeds of transference of 135 shares in the bank, and the repayment of the sum of 10,313 10s. 2d., being the price of the said shares, and also of the sums of 1685, 1685, and 13,500, being the amounts respectively of three calls made upon such shares, and alternatively it demands damages in respect of the transaction. The following are the facts stated by the Pursuer in his conde- scendence, and admitted by him in answers to the Defender's state- ment. The Defenders are a joint stock banking company, established in 1832, which carried on its business at Glasgow and elsewhere down to November, 1857, when it stopped payment. The paid-up capital amounted to 1,500,000, divided into 30,000 shares of 50 each. By the deed of co-partnership, the business and affairs of the company were to be regulated, conducted, and carried on by a governor and deputy governor, six extraordinary and six ordinary directors, who were constituted the representatives of the company, and to whom the whole management of its business and affairs was intrusted ; and the ordinary directors, together with the manager, or, failing him, or in his absence, the cashier of the company, were to constitute the ordinary board of directors and committee of management of the company. And by one of the articles of the deed it is declared that it shall be lawful for the directors to pur- chase, for behoof of the company, any of the shares of the capital ADDIE. ADDIE t?.' WESTERN BANK OF SCOTLAND. (1) Lord CJielmsford. 152 SCOTCH APPEALS. 1867 WESTERN BANK OF SCOTLAND v. ADDIE. v. WESTERN BANK OF SCOTLAND. stock which may either be offered for sale by private bargain, or shall come to be publicly sold. Prior to the year 1855, the Pursuer was the proprietor of fifteen shares in the bank, and interested to the extent of one-half in thirty shares belonging to a dissolved firm of Addie & Co. He was also a customer, and kept his private account with a branch of the bank at Coafbridge. In November, 1855, the directors sold to the Pursuer 135 shares belonging to the bank, at the price of 76 per share, amounting in all to the sum of 10,200, which were transferred by two separate deeds of transference, dated respectively the 30th of November and the 4th of December, 1855. The transaction of the sale of these shares was conducted through Mr. John Taylor, the manager of the bank. In the June of each year meetings were held, when the directors submitted to the shareholders reports as to the state of the affairs of the bank for the year ending in the previous month of May. By the terms of the co-partnership deed no partners, except the ordinary board of directors, were entitled to examine the books of the company. The reports submitted by the directors to the different meetings of the' shareholders held from the years 1851 to 1855, both inclusive, represented the business of the bank as highly prosperous, and that its affairs were in a satisfactory and flourishing condition. In particular, the report for the year 1855 stated that for the year ending May, 1855, the business of the bank had been eminently successful, and that its affairs were in a sound and satis- factory condition ; that, after providing for bad and doubtful debts, the profits for the year available for dividend were upwards of 153,000. These reports were untrue. Not long after its institution, the bank sustained heavy losses through bad debts, and, in 1851, had lost half its capital. In May and June, 1855, the bad debts had reached the amount of 1,360,000 ; and the bank had at that time lost 1,000,000 of its capital, or more than one-half thereof. The result brought out in the report for the year 1855 was obtained by taking as good assets of the bank the whole of the bad and irrecoverable debts. The reports were prepared by Taylor, the manager, and, as the Pursuer alleges in his condescendence, were VOL. I.] SCOTCH APPEALS. 153 submitted to the shareholders for the fraudulent purpose of con- cealing from them the actual condition of the bank, and inducing a belief that it was in a sound and prosperous state, and of keeping up the price of the shares, and inducing the shareholders and others to purchase the shares belonging to the bank. The Pursuer further alleges in his condescendence that in No- vember, 1855, Taylor, for the fraudulent purpose of effecting a sale of part of the shares belonging to the bank, caused Thomas Tor- ranee, the agent for the bank at Coafbridge, falsely to represent to the Pursuer that a purchase of shares in the bank would be a good investment, Taylor well knowing that it would not ; that the Pur- suer had no means of knowing the true state of the bank, except from the information communicated to the shareholders at the annual meetings by the reports of the directors and by the decla- rations and payments of dividends ;' that, relying on the truth of these reports, and in particular on the report of 1855, and on the fraudulent representations made to him by Taylor through Tor- ranee, the Pursuer purchased and paid for the 135 shares, and accepted transferences thereof, and that, instead of the shares being worth 76 per share, they were worthless, or at least of incon- siderable value. Subsequently to his purchase of the shares, the Pursuer re- ceived the following dividends upon them : 270 on the 27th of December, 1855; 283 10s. on the 12th of July, 1856 ; 283 10*. on the 24th of December, 1856 ; and 294 17s. Qd. on the 10th of July, 1857, amounting in the whole to 1131 17s. 9d. During the period of the bank's carrying on business it was an unincorporated company, but having stopped payment on the 9th of November, 1857, it was resolved by the shareholders to wind up voluntarily under the Joint Stock Companies Act, 1856, and, on the 8th of December, 1857, the company was registered and in- corporated under the Joint Stock Companies Act, 1856, as amended by the Joint Stock Companies Act of 1857. In the course of the liquidation, in which the Pursuer took part as one of a committee to assist the liquidators, it was found that losses to the extent of 3,000,000 had been incurred, and in consequence two calls were made upon the shareholders, which the Pursuer paid, to the amount of 16,875, under protest. 1867 WESTERN BANK OF SCOTLAND v. ADDIE. ADDIE v. WESTERN BANK OF SCOTLAND. 154 SCOTCH APPEALS. [L. K. 1867 WESTERN BANK OP SCOTLAND v. ADDIE. APDIE v. WESTEKN BANK OF SCOTLAND. Upon this state of facts, the Pursuer, by two of his pleas in law, alleged that he was entitled to the decree of reduction and pay- ment as concluded for: 1. In respect that the directors and manager of the bank made false representations to him as to the condition of the bank, and that he was thereby induced to buy the shares in question. 2. That essential error was produced by the misrepresentation of the bank. The Defenders, by their pleas in law, alleged that the Pursuer's averments were not relevant or sufficient in law ; that the state- ments and representations of the directors or agents of the com- pany were unauthorized by the company ; that the Pursuer being a shareholder, the representations complained of were made by the directors on behalf of himself and the other shareholders ; that restitution in integrum being impossible, the Pursuer could not maintain the action; and that he was bound by acquies- cence. The record having been closed, and the Defenders having been heard before the Lord Ordinary, on their objections to the relevancy, his Lordship appointed the Pursuer to give in issues. Issues having been lodged, the Lord Ordinary reported the cause to the First Division of the Court of Session. After hearing counsel, their Lordships pronounced an interlocutor appointing the parties mutually to lodge cases on the whole questions of law and relevancy involved. Cases for both parties were accordingly lodged ; and the Pursuer having proposed certain issues, and the Defenders a counter-issue, the Lords pronounced an interlocutor that the Pursuer had stated on record matter relevant to entitle him to go to trial ; and that as the Pursuer insisted in the conclusions for reduction, and for restitution or repetition, the case, as regarded those preliminary conclusions, should be tried and disposed of, and that the issue proposed by the Pursuer was the appropriate and suitable issue. Against this interlocutor the Defenders have appealed ; and the first question which your Lordships have to consider is, whether the case stated by the Pursuer is a relevant case or not. In determining the relevancy of a Pursuer's case, the Court must look not only to the cause of action stated in his condescendence, but also to any admissions made by him upon the Defenders' state- .VOL. I.] SCOTCH APPEALS. 155 ment of facts, which are thereby adopted by him, and become part of his own case. Upon the statements and admissions of the Pursuer two u questions arose : 1st. Whether he was entitled originally to rescind the con- tract for the purchase of the shares in question ; and, 2ndly. Whether he was debarred of his right by the change which had taken place in the condition of the company at the time when his action was brought. Upon the first question, the Court had to determine how far a company is bound by the misrepresentations of its managing body, upon which there are numerous irreconcilable decisions. In Dodgson's Case (1), Vice-Chancellor Kniglit Bruce held that " directors cannot be the agents of the body of shareholders to commit a fraud ; and that the directors only were liable for their conduct." This opinion was adopted by Vice-Chancellor Parker in Bernard's Case (2), where he said : " Dodgson's Case shews that the directors cannot be the agents of the company to commit a fraud ; and, therefore, even if Mr. Bernard had been induced to take shares by the misrepresentation of the directors, that was no reason why he should not be a contributory." But in BrockweWs Case (3), where the directors of the Royal British Bank, in their published reports, misrepresented the state of the company, and Brockwell, relying upon the truth of the reports, purchased some new shares which were issued by the company, upon which it was sought to make him a contributory, Vice-Chancellor Kindersley held (principally upon the authority of the case of the National Exchange Company v. Drew, decided in this House (4) ) that reports made by directors to a company, if they get into circulation, must be considered as reports of the company ; and Broekwell was re- moved from the list of contributories. The words " if they get into circulation " must mean, " if they are designedly published," for the Vice-Chancellor could never have intended to hold that if reports addressed to the shareholders, and to them alone, get into the hands of third persons by private and unauthorized circulation, they must be taken to be reports for which the company are responsible. 1867 WESTERN BANK OF SCOTLAND v. ADDIB. ADDIE v. WESTERN BANK OF SCOTLAND. (1) 3 DC G. & Sm. 85. (2) 5 Ibid. 289. (3) 4 Dru. 205. (4) 2 Macq. 103. 156 SCOTCH APPEALS. [L. K. 1867 WESTEKN BANK OF SCOTLAND v. ADDIE. ADDIE v. WESTERN BANK OF SCOTLAND. This case of Broekwell was overruled by Lord Chancellor Campbell and the Lords Justices in Mixers Case (1), which was also a case connected with the British Bank. The Lord Chancellor, in his judgment, said : " Clearly there was fraud, and gross fraud, on the part of the directors, and I have no doubt that Mixer was induced by fraud to take his shares. I think, however, that it was a fraud on the part of the directors which cannot be attributed to the company;" and the Appellant was continued upon the list of contributories. In that case the true reason was given why, even if the purchase of shares was induced by the fraud of the company, the person defrauded could not resist his liability to contribute as a share- holder. " It is a settled rule," the Lord Chancellor said, " that a contract obtained by fraud is not void, but that the party de- frauded has a right to avoid it if he does so while matters remain in their former position." In the case of the National Exchange Company of Glasgow v. Drew, opinions were expressed as to the responsibility of a com- pany for the fraudulent misrepresentations of its directors, which are entitled to the highest consideration. My noble and learned friend, Lord Cranworth, said : " What is the consequence of the company receiving a report, and publishing it to the world ? I confess that, in my opinion, from the nature of things, and from the exigencies of society, that must be taken, as between the company and third persons, to be a representation by the company. The company, as an abstract being, can represent or do nothing. It can only act by its managers. When, therefore, the directors, in the discharge of their duty, fraudulently, for the purpose of misleading others as to the state of the concerns of the company, represent the company to be in a different state from that in which they know it to be, and when the persons to whom the representation is addressed act upon it in the belief that it is true, I cannot think that society can go on without treating that as a misrepresentation by the company." And Lord St. Leonards said : " I have certainly come to this con- clusion, that if representations are made by a company, fraudu- lently, for the purpose of enhancing the value of their stock, and they induce a third person to purchase stock, those representations (1) 4 De G. & J. 575 (16 July, 1859). VOL. L] SCOTCH APPEALS. 157 so made by them for that purpose do bind the company. I con- sider representations by the directors of a company as representa- tions by the company, although they may be representations made to the company, it is their own representation." These opinions received the sanction of Lord Chancellor West- ~bury, in the case of the New Brunswick and Canada Railway Com- pany v. Conybeare (1), where he said, " I certainly am not at all disposed to advise your Lordships to throw any doubt upon this doctrine, that if reports are made to the shareholders of a com- pany by their directors, and the reports are adopted by the share- holders at one of the appointed meetings of the company, and these reports are afterwards industriously circulated, misrepre- sentations must undoubtedly be taken, after their adoption, to be representations and statements made with the authority of the company, and therefore binding upon the company." My noble and learned friend, Lord Cranworth, in this last case, adhering to the opinion which he had expressed in the cases of Eanger v. The Great Western Railway Company, and the National Exchange Company v. Drew, suggested a distinction as to the effect upon the company of misrepresentations by the directors, which seems to me to explain the expressions of " misrepresenta- tions of directors being misrepresentations of a company," and " misrepresentations of directors being binding upon a company," and to place the question upon its true ground. My noble and learned friend said, " The principle " (of making a company respon- sible for the misrepresentations of the directors), " cannot be carried to the wild length that I have heard suggested, namely, that you can bring an action against the company upon the ground of deceit because the directors have done an act which might render them liable to such an action. That I take not to be the law of the land, nor do I believe that it would be the law of the land if the directors were the agents of some person not a company. The fraud must be a fraud that is either personal on the part of the individual making it, or some fraud which another person has impliedly authorized him to be guilty of." The distinction to be drawn from the authorities, and which is sanctioned by sound principle, appears to be this : Where a person (1) 9 H. L. C. 725. 1837 WESTERN BANK or SCOTLAND v. ADDIE. Alum; v. WESTEKN BANK OF SCOTLAND. 158 SCOTCH APPEALS. [L. E. 1867 WESTERN BANK OP SCOTLAND v. ADDIE. ADDIE v. WESTEBN BANK OF SCOTLAND has been drawn into a contract to purchase shares belonging to a company by fraudulent misrepresentations of the directors, and the directors, in the name of the company, seek to enforce that contract, or the person who has been deceived institutes a suit against the company to rescind the contract on the ground of fraud, the misrepresentations are imputable to the company, and the purchaser cannot be held to his contract, because a company cannot retain any benefit which they have obtained through the fraud of their agents. But if the person who has been induced to purchase shares by the fraud of the directors, instead of seeking to set aside the contract, prefers to bring an action for damages for the deceit, such an action cannot be maintained against the com- pany, but only against the directors personally. The action of Mr. Addie is for the reduction of the deeds of transference of the shares, and alternatively for damages. But as it is brought against the company, it will follow, from what has been said, that he cannot recover unless he is entitled to rescind the contract. The question then arises, Does he shew upon the statement of his case that the false reports of the directors, and particularly the report of 1855, were the proximate and immediate cause of the purchase of the shares by the Pursuer ? I do not think that it is necessary that they should be the sole cause ; for, to repeat what I said in NicoTs Case (1), " Supposing that the reports of the directors formed a material part of the inducement to take the shares, without which the purchase would never have been made, I cannot think that the effect of them is destroyed because other influences were at the same time at work which contributed to the success of these false representations." But, where fraudulent reports are made the ground for rescinding a contract for the purchase of shares, the fraud is not to be estab- lished by impressions received from these reports at some former period, however distant ; but they should be clearly shewn to be in the mind of the person at the time of the negotiations for the purchase, and to have been one of the causes leading to the con- tract. Apart from these reports there is no statement of any representations made to the Pursuer by the directors, or by their authority. That the directors knew of Taylor's endeavours to in- (1) 3 De G. & J. 420. VOL. I.] SCOTCH APPEALS. 159 duce the Pursuer to take shares in the bank is nowhere alleged. Although merely agents of the company themselves, and there- fore, according to the well-known rule, they could not depute any other person to act for them, yet if they had employed Taylor to make false representations of the stability of the bank to the Pursuer, it would, in my opinion, have been of the same effect as if they had been made by themselves. But not only is there no statement in the case of any such delegation of authority to Taylor, but it is not even shewn upon the record that Taylor had any per- sonal communication with the Pursuer. Taylor (it is stated) em- ployed Torranee, the agent of the bank at Coafbridge, where the Pursuer kept his account, to endeavour to get him to take shares. But it is not alleged that Taylor instructed Torranee to speak of the prosperity of the bank, and to tell the Pursuer that he con- sidered it to be a good investment for his money, nor that Torranee did not at the time believe in the stability of the bank. Therefore, though this was a case in which, as the Pursuer was seeking to rescind a contract from which the company had derived benefit, his action was maintainable ; yet I entertain considerable doubt whether in his statement he connected the directors suffi- ciently with the alleged misrepresentations to make them imputable to the company, and whether he did not fail to state a relevant case upon the record on this ground. But on the question, whether the Pursuer was not deprived of his right to rescind the contract by the change in the character and condition of the company, which appears from his condescen- dence and admissions, I have no doubt that the relevancy of his case altogether failed. Whether the change of the company from an unincorporated to an incorporated banking company, for the purpose of more con- veniently winding up its affairs under the Joint Stock Companies Act, 1856, so changed the nature and character of the shares pur- chased by the Pursuer as to render a restitutio in integrum imprac- ticable, is a question which, if it were necessary to determine, I should wish to consider more carefully. It was undoubtedly one of the grounds upon which the case of Clarice v. DicJcson was decided. In that case a mining company was, with the Plaintiff's assent, registered as a company with limited 1867 WESTEBN BANK OF SCOTLAND v. ADDIE ADDIE v. WESTERN BANK OP SCOTLAND. 160 SCOTCH APPEALS. [L.K. 1867 WESTERN BANK OF SCOTLAND v. ADDIE. ADDIE r. WESTERN BANK OF SCOTLAND. liability, and was wound up under the Winding-up Ad. In an action for money had and received to recover back the amount paid for the purchase of the shares, the Court held that the action was not maintainable. Mr. Justice Erie said : " He has changed the nature of the article ; the shares he received were shares in a company on the cost-book principle, the Plaintiff offers to restore them after he has converted them into shares in a joint stock cor- poration ;" and in this opinion Mr. Justice Crompton agreed. Mixer's Case, to which I have referred, was a case between an alleged shareholder and the creditors of the company ; and it may be thought that different considerations will apply where the ques- tion arises between a company and the person who has been fraudu- lently induced to become a shareholder ; but the case of Clarke v. Dickson shews that there is. no distinction between the cases. There the action was against three directors of a company, to re- cover back money paid by the Plaintiff for shares which he was induced to purchase by the false and fraudulent representation of the Defendants. In that case the company was being wound up under the Winding-up Act, and it was during the process of wind- ing-up that (as in this case) the Plaintiff for the first time disco- vered that the representations by which he was led to make the purchase were false. The Court held that the Plaintiff was not entitled to recover. Mr. Justice Crompton, after adverting to the rule of law, " that a contract induced by fraud is not void, but void- able at the option of the party defrauded, said : " It seems to me to follow that when that party exercises his option to rescind the con- tract he must be in a state to rescind ; that is, he must be in such a situation as to be able to put the parties into their original state before the contract." It may seem to be a hardship on the Pursuer that he should be compelled to keep the shares because, in ignorance of the fraud practised upon him, he retained them until an event occurred which changed their nature and prevented his returning the very thing which he received. But he is not without remedy. If he is fixed with the shares he may still have his action for damages against the directors, supposing he is able to establish that he was induced to enter into the contract by misrepresentations for which they are responsible. But in his present action the Pursuer could VOL. L] SCOTCH APPEALS. 161 not have recovered damages against the company ; and therefore, I'oth on tho claim in his summons for restitution and repayment, and also lor damages, the Pursuer stated no relevant ease upon the record , and the first interlocutor, " finding that the Pursuer has stated on record matter relevant to entitle him to go to trial," ought not to have been made, and no issues ought to have been directed. All which followed upon this interlocutor must of course tall with it ; but as various questions were raised aud argued at the bar upon the subsequent proceedings, it may be right to notice them. The issues approved by the Court were afterwards tried by the l.onl President and a jury, and a verdict was found tor the Pursuer. A bill of exceptions was tendered to his Lordship's summing-up, both on the ground of misdirection aud nondirection. A rule was after- wards granted to set aside the verdict as contrary to evidence and for a new trial. This rule, aud tho bill of exceptions, came on for argument at the same time, when the Court of the First Division pronounced two interlocutors of tho same date, one of them dis- allowing the exceptions, which is appealed from, and tho other setting asi;!e the verdict and granting a new trial. The issues were : 1. Whether the Pursuer was induced to make the purchase by false and fraudulent representations made by the bank as to the state of its affairs ; and whether the Defenders are resting-owiug to the Pursuer tho sums contained in the schedule hereunto annexed, or any part thereof? or, 2. Whether the Pursuer has barred himself from repudiating the said purchase? In his charge to the jury the Lord President told them that if the case should occur of directors taking upon them to put forth in their report statements of importamv in regard to the affairs of the bank false in themselves, and which they did not believe, or had no reasonable ground to believe, to bo true, that would be a misrepresentation and deceit The counsel for the IVfenders except ed to this direction, so far as it related to the directors having no reasonable ground to believe the truth of the state- ments in the reports; aud they also called upon tho Lord President to direct tho jury that, upon the evidence before them, the action was not maintainable in law. and that the Pcfemlers \\ero entitled to a verdict upon the first issue, and that, upon the evidence, the Pursuer had in law barred himself from repudiating the purchase, VOL. I % 28 1S67 VKSTKRN BANK OF SCOTLAND t\ ADPIE, ADDIK v. WKSTERK BANK OF SCOTLAND. 1G2 SCOTCH APPEALS. [L. K. 1867 and the Defenders were entitled to a verdict on the second issue. WESTERN The Lord President declined to give these directions, and the bill BANK OF Q f exce ptions was tendered. The interlocutor, as already inen- tioned, disallowed all these exceptions. I agree in the propriety of this interlocutor, so far as it relates " to the exception on the ground of misdirection. In the argument WESTERN U p On this exception the case was put of an honest belief being SCOTLAND, entertained by the directors, of the reasonableness of which it was said the jury upon this direction would have to judge. But sup- posing a person makes an untrue statement, which he asserts to be the result of a "bond fide belief of its truth, how can the bona fides be tested except by considering the grounds of such belief ? And if an untrue statement is made founded upon a belief which is destitute of all reasonable grounds, or which the least inquiry would immediately correct, I do not see that it is not fairly and correctly characterized as misrepresentation and deceit. The other exception upon the refusal of the Lord President to direct the jury to find for the Defenders on both the issues may be disposed of by reference to what I have already said upon the appeal against the first interlocutor on the subject of relevancy. I ex- pressed a doubt whether, upon the record, there were proper allega- tions to connect the directors with the representations which in- duced the Pursuer to purchase the shares. At the trial the evidence upon this point was equally deficient. Taylor was not called, and no authority was shewn to have been given to him by the directors for the employment of Torrance to persuade the Pursuer to purchase shares. The Pursuer himself did not prove that he had any communication with Taylor. But as he swore that he " purchased on the faith of the reports and what Torrance told him," I do not think that the Lord President could have withdrawn the case from the jury upon this first issue ; because if the reports formed a material part of the inducement to the purchase, then whether Torrances representations were brought home to the directors or not, there were sufficient misrepresentations proceed- ing directly from themselves which were proper for the considera- tion of the jury. But it will be collected from what I have already said, that the exception on the ground of the Lord President having refused to YOL. I.] SCOTCH APPEALS. direct the jury that the Pursuer had in law barred himself from repudiating his purchase was a good exception. The exception is not, perhaps, worded with exact precision, but I think it is suffi- ciently so to have required the Judge to give the proper direction to the jury. The Defenders evidently pointed to some act of the Pursuer by which he had barred himself from rescinding the purchase of the shares ; referring probably to his receipt of divi- dends, and to the part he took in assisting the liquidators in the winding-up. As this exception ought .to have prevailed, the interlocutor dis- allowing all the exceptions cannot be maintained. There are one or two other points which were raised in the course of the argument which deserve a short notice. It was said, if the fraud is imputable to the company from the representations of the directors, as the Pursuer was a shareholder at the time the representations are his own, as one of the company to himself through his agent. I think the fallacy of the argument lies in this : In a suit instituted against a company to rescind a contract to purchase shares which the purchaser was induced to enter into by the misrepresentations of directors, the misrepresentations are not regarded as actually made by the company, but they are not permitted to retain the benefit of a contract which has been fraudulently obtained for them by their agent. And although, according to the strict rules of the common law, a man cannot be Plaintiff and Defendant at the same time, yet in a Court of equity (and equity as well as law is administered in the Scotch Courts) it could not, in my opinion, be a valid objection to a suit to set aside a contract for fraud, that the complainant was a member of the company, by the fraud of whose agents, technically imputed to the company, he was drawn into the contract. Another objection which was urged against the right of the Pursuer to be relieved from his contract was, that it would pre- judice the interests of other innocent shareholders who had acquired shares after the Pursuer became possessed of those in question. In answer to this argument I would only observe that these subsequent shareholders either bought their shares under circumstances which compel them to hold them, or they also were induced to join the company by false representations. If they are 2 S 2 1867 WESTERH BANK OF SCOTLAND v. ADDIE. ADDIK v. WESTERN BANK OF SCOTLAND. 164 SCOTCH APPEALS. [L. E. 1867 WESTERN BANK OF SCOTLAND v. ADDIE. ADDIE v. WESTERN BANK OF SCOTLAND. bound to continue to be shareholders, I do not see upon what principle they can contend, that their purchase of shares prevents the contract of the Pursuer being impeached for fraud; and if they, like the Pursuer, have been deceived into the purchase of their shares, and abstain from taking proceedings to exonerate- themselves from liability, there is no reason why their forbearance should hinder the Pursuer from taking steps to rid himself of a contract into which he has been drawn by a similar fraud. It only remains to observe, that although the interlocutors- directing the issues ought to be reversed on the ground that the Defenders were entitled to judgment on the question of relevancy,, yet upon the Pursuer's cross appeal it appears to me that upon the record there ought to have been no issue with respect to his claim to damages. His action being against the company for the fraud of the directors, the Pursuer could only recover in such action if he were entitled to rescind the contract. If his claim rested in damages, he ought to have proceeded against the directors, who- would alone have been liable to him in that form of action. Upon a review of the whole case, I must advise your Lordships- that all the interlocutors appealed from ought to be reversed (1). LORD CEANWOKTH : My Lords. The Kespondent, who was Pursuer in this action, sought relief on one of two grounds. First, he claimed the right of repudiating altogether the contract for the purchase of the 135 shares, on the ground that he was induced to enter into that con- tract by the fraud of the directors, which he alleged ought to be treated as the fraud of the company ; or, secondly, if from lapse of time, or from the mode in which he had, after the purchase, dealt with the shares, he is precluded from that relief, then he claimed to recover from the Appellants compensation to the full extent to which he had been damaged by having been fraudulently led to enter into the contract. The extent of relief would, in fact, be the same, on whichever ground it might be made to rest. Relief under the first head, which is what in Scotland is desig- nated restitutio in integrum, can only be had where the party (1) See Lord Colonsay's remarks, infra p. 169, as to the effect of the reversal on the state of the cause. VOL. L] SCOTCH APPEALS. 165 seeking it is able to put those against whom it is asked in the same situation in which they stood when the contract was entered into. Indeed, this is necessarily to be inferred from the very ex- pression, restitutio in integrum ; and the same doctrine is well understood and constantly acted on in England. The question, therefore, on this head of relief is, whether, assum- ing the existence of the fraud alleged by the Respondent, and that it was a fraud which he was warranted in imputing to the company for whom the directors were acting, the facts alleged are such as entitle him to relief by way of restitutio in integrum; whether u relevant case is stated warranting that relief. The learned Judges below were of opinion that they ought not to pronounce any judg- ment on this point until the facts had been investigated by a jury trial ; and they accordingly framed issues for that purpose. But. with all deference to them, I think no such trial was necessary, because, on the facts stated and admitted on the record, no re- levant case is stated entitling the Pursuer to relief against the Appellants. The company, by whose directors the fraud is alleged to have been committed, was an unincorporated banking company, carry- ing on business under the provisions of 7 Geo. 4, c. 67, with a capital of 1,500,000, divided into 30,000 shares of 50 each. Assuming that this company, by its directors, fraudulently induced the Respondent to purchase 135 of these shares, so as to entitle him to relief against the company, he cannot insist on restitutio in integrum unless he is in a condition to restore the shares which he so purchased. But this is impossible. The purchase was made by him in 1855, and in 1857 he was party to a proceeding whereby the company from which the purchase was made was put an end to. It ceased to be an unincorporated and became an incorporated company, with many statutable incidents connected with it which did not exist before the incorporation. This new company is now in course of being wound up ; but even if that were not so, if it still were carrying on the business of bankers, restitutio in integrum would have been impossible. The Respondent might in that case have given up 135 shares of the new company, and these shares might have been as valuable as, or even more valuable than, the shares which he was induced to purchase, but they would not 1867 WESTERN BANK OP SCOTLAND v. ADDIE. AIMMI: 17. WESTERN BANK OP SCOTLAND. 166 SCOTCH APPEALS. [L. K- 1867 WESTERN BANK OF SCOTLAND v. ADDIB. ADDIE v. WESTERN BANE OF SCOTLAND. have been shares in the same company ; and unless he was in a position to restore the very thing which he was fraudulently in- duced to purchase, he cannot have relief by way of restitutio in integrum. The time had gone by during which the Respondent could repudiate the contract. The circumstances were so changed that he could not put the Appellants in the condition in which they were before the fraudulent sale to him. I agree with the learned Judges below, that the circumstance that the shares, from mismanagement or otherwise, had become depreciated in value subsequently to the purchase by the Pursuer, would of itself have been of no importance. He might still have been able to restore that which he was fraudulently induced to purchase. But what in fact took place was not a depreciation but a destruction of the thing purchased; the unincorporated company in which he had been induced to purchase shares no longer existed. The view which I thus take of this case makes it unnecessary to consider whether there are not other grounds excluding this particular relief. But although the Eespondent is excluded from redress in, this form, it remains to consider whether he may. not recover compensation in damages, and so obtain relief as beneficial as- that from which he is thus barred. But here, too, I am of opinion that the Eespondent must fail. He comes too late. The Appellants are not the persons who were guilty of the fraud ; and though the incorporated company is, by the express provisions of the statute under which it was incorporated, made liable for the debts and obligations incurred before the incorporation, I cannot read the statute as transferring to the incorporated company a liability to be sued for frauds or other wrongful acts committed by directors before the incorporation. An incorporated company cannot, in its corporate character, be called on to answer in an action for deceit. But if, by the fraud of its agents, third persons have been de- frauded, the corporation may be made responsible to the extent to which its funds have profited by those frauds. If it is supposed that in what I said when the case of Ranger v. Great Western Railway Company was decided in this House, I meant to give it as my opinion that the company could in that case have been made to answer as for a tort in an action for deceit,. VOL. I.] SCOTCH APPEALS. 167 I can only say I had no such meaning. In that case I came to the conclusion, without hesitation, that no fraud had been com- mitted ; and therefore the question of the liability of the company, on account of the suggested fraud, did not arise. The allegation of Ranger was, that by the fraud of Mr. Brunei, the company's engineer, he had been induced to contract to do, and had done, works for them at a price grossly below their real cost, say for 20,000 instead of 40,000. The company got the full benefit of what he had so done; and in what I said, I merely wished to guard against its being supposed that I assented to the argument that there would be no means of reaching the company if the fact of the fraud had been established. By what particular proceeding relief could have been obtained is a matter on which I did not intend to express, and, indeed, had not formed any opinion. It was unnecessary that I should do so. An attentive consideration of the cases has convinced me that the true principle is, that these corporate bodies, through whose agents so large a portion of the business of the country is now carried on, may be made responsible for the frauds of those agents to the extent to which the companies have profited from these frauds ; but that they cannot be sued as wrong-doers, by imputing to them the misconduct of those whom they have employed. A person defrauded by directors, if the subsequent acts and dealings of the parties have been such as to leave him no remedy but an action for the fraud, must seek his remedy against the directors personally. It is not out of place here to point out that the principles in- sisted on for the Respondent would, if adopted by your Lordships, lead to great injustice. Here the fraud is alleged to have been committed, not by the incorporated company now in process of being wound up, but by the persons who were trading in November, 1855, as an unincorporated company under the Banking Act, 7 Geo. 4, c. 67. It is true that many, I suppose most, of the persons who were responsible, so far as they were responsible, for the acts of the directors in 1855, became members of the new incorporated company ; but they did not thereby transfer to the new company the liability to be sued in consequence of frauds previously committed by the agents of the unincorporated com- 1867 WEOTEKN BANK OF SCOTLAND v. ADDEG. ADDIE v. WESTEBN BANK OP SCOTLAND. 168 SCOTCH APPEALS. [L. E. 1867 WESTERN BANK OP SCOTLAND v. ADDIK. v. WESTERN BANK OP SCOTLAND. pany; still less could they make other persons, who were not members of the unincorporated partnership when the fraud was committed, liable to be sued because they joined with them in procuring an incorporation under the statute. On these short grounds I have come to the conclusion, that no relevant case is stated on this record entitling the Respondent to relief against the Appellants, either by way of restitutio in inte- grum, or by way of damages. The consequence is, that no issues ought to have been directed; and, therefore, the interlocutors of the 2nd of February, 1864, and the 9th of February, 1864, must be reversed. This being so, the trial and all connected with it necessarily falls to the ground. We are, however, bound to dispose of the interlocutor of the 9th of June, 1865, disallowing the exceptions to the ruling of the Lord President at the trial, and against which the Appellants have appealed. His Lordship told the jury, that if the directors put forth in their report important statements which they had no reasonable ground to believe to be true, that would be misrepresentation and deceit, and in the estimation of the law would amount to fraud. I confess that my opinion was, that in what his Lordship thus stated, he went beyond what principle warrants. If persons in the situation of directors of a oank make statements as to the condition of its affairs which they londfide believe to be true, I cannot think they can be guilty of fraud, because other persons think, or the Court thinks, or your Lordships think, that there was no sufficient ground to warrant the opinion which they had formed. If a little more care and caution must have led the directors to a conclusion different from that which they put forth, this may afford strong evidence to shew that they did not really believe in the truth of what they stated, and so that they were guilty of fraud. But this would be the consequence, not of their having stated as true what they had not reasonable ground to believe to be true, but of their having stated as true what they did not believe to be true. It is hardly necessary to advert to the cross appeal ; but it is due to Mr. Addie to say, that if a relevant case had been stated on the record on both heads on which relief is asked, and it had been necessary to direct issues, I think he is right in his contention that 70L. I.] SCOTCH APPEALS. 169 those issues ought to have been so framed as to exhaust the whole case, so as to make it impossible that it should be necessary at a future time to frame further issues, and incur the delay and ex- pense of another trial. LOED COLONSAY : Not having heard the whole of the argument for the Appellants, T take no part in pronouncing the judgment now proposed in so far as regards the substance of that judgment. But having been appealed to by my noble and learned friend as to the form in which effect should be given to the expressed intentions of the House, I take leave to suggest that, as the interlocutor of the 2nd of February, 1864, which found that the Pursuer had stated on record matter relevant to go to trial, is to be reversed, and as there is to be a declaration of this House to the effect that the averments of the Pursuer are not relevant or sufficient in law to support the conclusions of the action, and that the Defenders should be assoilzied, all the proceedings in the Court below on and after the 2nd of February, 1864, necessarily fall to the ground. This interlocutor of the 2nd of February, 1864, sustaining the rele- vancy of the Pursuer's averments formed the law of the case in the Court below, and was the basis of all that followed ; and until that interlocutor was reversed (which could only be done by this House), the Judges in the Court below could not, either at the trial or in the subsequent proceedings, give any direction or decision not consistent with the interlocutor, sustaining the relevancy of the Pursuer's averments. But now that a judgment is to be pro- nounced against the relevancy of these averments, and assoilzieing the Defenders, that will have the effect of sweeping away not only the interlocutor of the 2nd of February, 1864, but likewise all that followed, however legitimately, upon that interlocutor. It may, however, be right in point of form, and will be safe, to embody in the judgment a declaration that " therefore" the interlocutors appealed from are reversed. Interlocutors reversed. Solicitors for the Appellants : Loch & McLaurin. Solicitors for the Eespondent : Grahames & Wardlaw. 1867 WESTERN BANK OF SCOTLAND v. ADDIE. ADDIB v. WESTERN BANK OP SCOTLAND. 170 SCOTCH APPEALS. [L. 1867 THE WESTEEN BANK OF SCOTLAND ) WITH ITS LIQUIDATOR r ..... } J JAMES BAIED AND THE TKUSTEES OF j _ WILLIAM BAIKD, DECEASED } ] Competency of an Appeal Interlocutory Order 48 Geo. 3, c. 151. When a judgment is interlocutory, when it is unanimous, when it relates to the practice of the Court below, and when leave to appeal is not granted, an appeal to the House is incompetent. Case of Account Jury Trial, Where the result depends on voluminous and complicated commercial accounts, it may often be convenient and expedient to have a preliminary report from a professional accountant before sending the case to trial before a jury. 1 HE Appellants' action against James Baird was for 863,618 9s. 2d., while their action (originally against William Baird, but now) against his trustees, was only for 299,736 7s. 6d., makiDg together upwards of a million sterling claimed for losses sustained by reason of alleged "gross neglect of duty" on the part of the Bairds, as directors of the Western Bank of Scotland. The Lord Ordinary held the case relevant, and directed issues for trial by jury. But the Second Division of the Court of Session were of opinion that, inasmuch as the case did not appear to be one of the " enumerated cases " specially appropriated for jury trial by the 6 Geo. 4, c. 120, s. 28, they were at liberty, in the exercise of a judicial discretion, to order a preliminary examination of the books and accounts of the company, which were of course extremely complex and voluminous, and little fitted for the investigation of a jury. The Court, therefore, on the 10th of July, 1866, recalled the order for issues, and authorized an accountant to examine and report upon the whole case. Hence the present appeal, which the Respondents met by an objection, that the interlocutor making the remit to an accountant was merely interlocutory ; that it was a unanimous judgment; and that leave to appeal was not given. The question came before the Appeal Committee, who reported YOL. I.] SCOTCH APPEALS. 171 that the matter of competency should be argued along with the merits at the Bar of the House. The case accordingly came on for argument in due course, when the Attorney-General (1), Sir Eoundell Palmer, Q.C., Mr. Brown, Q.O., and Mr. Shand, appeared as counsel for the Appellants ; Mr. Selwyn, Q.C., the Dean of Faculty (2), Mr. Anderson, Q.C., Mr. Hellish, Q.C., ^Li.JKeane, Q.C., and Mr. Young, for the Ke- spondents. The decision of the House went entirely on the question of com- petency, as will appear from the following opinions : THE LOKD CHANCELLOR (3) : Against this appeal a preliminary objection has been urged, which objection, it appears to me, ought to prevail. By the 15th section of the 48 Geo. 3, c. 151, it is enacted that Hereafter, no appeal to the House of Lords shall be allowed from interlocutory judgments, but such appeals shall be allowed only from judgments or decrees on the whole merits of the cause, except with the leave of the Division of the Judges pronouncing such interlocutory judgments, with a proviso, "that when a judgment or decree is appealed from, it shall be competent to either party to appeal to the House of Lords from all or any of the interlocutors that may have been pro- nounced in the cause, so that the whole, as far as it is necessary, may be brought under the review of the House of Lords." The Appellants admitting that the judgment appealed from is interlocutory, and that it does not go to the full merits of the cause, contend that the Act does not apply, because they say that the action is founded on delinquency, or quasi delinquency, with a conclusion for damages only, and expenses ; and that, therefore, being one of the enumerated cases in the 28th section of the 6 Geo. 4, c. 120, it ought to have been remitted at once for trial by jury. But it is enacted by the 13 & 14 Yict. c. 36, s. 36, that " In all causes appropriated for trial by jury, or in the course of preparation for trial by jury before the Court of Session, the procedure, both before and after tho 1867 BANK or SCOTLAND v. BAIRD. (1) Sir John Holt. (2) Mr. Moncreiff. (3) Lord CMmsf&rd. 372 SCOTCH APPEALS. [L. E. 1867 WESTERN BASK OF SCOTLAND v. BAIKD. closing of the record, shall be in all respects the same, as far as applicable, as in other Court of Session causes- for the time being, except in so far as it may be otherwise provided by this Act, or by any act of sederunt to be passed by the said Court under the powers of this Act conferred." Now, it is clear that in "other" causes, the Court might remit the matter to an accountant for necessary investigation ; and, un- doubtedly, this is procedure. As the 36th section applies to all causes, there can be no reason why it should not have been adopted on the present occasion. But then it is said that in a case founded on delinquency, the Court has no power to remit to an accountant. On the part of the Respondent, it has been denied that this case is one of delinquency ; but admitting it to be so, what is there to prevent that course being adopted ? The Court below remitted to an accountant to examine the books and relative documents. Nothing was deter- mined by this interlocutor ; but a preliminary inquiry was directed, to enable the Court to determine the question of relevancy, and to frame proper issues with a view to the thorough determination of the cause. Supposing, however, that the course taken by the Court was inadmissible, how can it be said to be an excess of jurisdiction ? At the utmost it would only be an irregularity in the proceeding, and it would be strange that this House should be called upon by an interlocutory appeal to correct the practice of the Court of Session in the progress of a cause before them. It is not at all like the cases that have been mentioned in the argument, where, the certiorari having been taken away by Act of Parliament, an inferior Court, or a magistrate, has committed an excess of juris- diction ; and it has been held that the proceedings might be removed into the Queen's Bench and there quashed. That is a final proceeding, and to shut out inquiry would be a denial of justice. I am of opinion that the appeal is incompetent, and that it ought to be dismissed, with costs. LORD CBANWORTH concurred. LORD COLONSAY: My Loids, this cannot be assimilated to the case of an inferior VOL. L] SCOTCH APPEALS. 173 Court, which, having exceeded its jurisdiction, calls for the correc- tion of a superior tribunal. There can be no doubt that the Court oi Session had jurisdiction, to deal with this cause. But the argument is, that in a step of the procedure they have not followed the statutory regulation ; or, in other words, the argument is, that in every case in which there can be found in a statute anything of a directory nature as to the course which is to be followed in the preparation of a cause, if the Court of Session commits an error in the application of that direction, then an appeal is competent, although the order of the Court may not deal with any part of the merits of the cause, or be the result of divided opinion ; and, although there be no leave to appeal given by the Court below. There is no principle or precedent for this construction, which is contrary to the interpretation that has been put upon the Act (1) for nearly sixty years. The provisions contained in the earlier statutes as to sending a case at once to the Jury Court were provisions to enable the Jury Court, not the Court of Session, to proceed with the preparation of the cause, as well as to try the cause. But those very statutes enacted that if questions arose, either of law or of relevancy, which the parties desired to be disposed of, the case was to be sent back to the Court of Session, in order that that Court might deal with those matters, and that when it had dealt with them it might send the case again for trial by a jury. But now there is no separate Jury Court. The preparation of a cause for trial remains throughout with the Court of Session ; and it is not imperative on that Court to send a cause before a jury until they see whether or not there is a relevant and proper case for the purpose. Now, when I look at this record, I see that there may be great difficulty in regard to that matter. There may be difficulty in regard to the relevancy, and as to the sufficiency and perspicuity of the statements of the parties ; so that there was good occasion, I think, for something to aid the Court in dealing with the case ; and the reference to an accountant selected by themselves was, I think, a very prudent step to take. But that is not necessary to the decision of the point now before us, which really turns upon the 1867 WESTERN BANK OF SCOTLAND v. BAIRD. (1) 48 Oeo. 3, c. 151. 174 SCOTCH APPEALS. [L. B. 1867 competency of this appeal ; and I have no doubt that it is incom- V y-/ WESTEBN patent. jto^^n Both appeals dismissed as incompetent, with costs, v. Solicitors for the Appellants : Loch & McLaurin. Solicitor for the Eespondents : John Graham. 1867 THE LOED ADVOCATE APPELLANT; ajMJ, 7. SINCLAIR OF FOESS EESPONDENT. Salmon Fishings Regalia Prescriptive Possession under the Act 1617, c. 12. Salmon fishings are inter regalia ; they belong to the class of regalia which the Crown may give away. A grant of " fishings," merely, is not a grant of salmon fishings ; but a grant of " fishings," merely, if followed by the requisite endurance of pos- session, will establish a right of salmon fishing, even against the Crown ; for by the positive prescription of forty years under the Act 1617, c. 12, the rights of private parties are protected against all challenge, whether regal or popular. A party claiming a right of salmon fishings must either shew a grant of salmon fishings, or a grant of fishings generally, followed, for the requisite period, by the exercise of the right of salmon fishing. Pertinents. Salmon fishings will not pass under the mere word "pertinents" Tenendas Clause. Although this clause -cannot transmit a right, it may aid in the construc- tion of a clause which does transmit a right. JLHIS action was commenced in 1846 by the then Lord Advo- cate (1) on behalf of the Crown and of the Commissioners of Woods, Forests, and Land Eevenues, in order to have it found and declared that the salmon fishings in the bay of Scrabster, in the county of Caithness, belonged to the Crown, and that the Defender, the above Eespondent, had no right to fish for salmon ex adverso of his estate, which formed part of the coast. The summons prayed an interdict. In support of the regal claim the Lord Advocate relied on the (1) The late Lord Butherford. VOL. L] SCOTCH APPEALS. 175 following "pleas in law": 1. That Her Majesty was proprietor of 1867 all the salmon fishings around the coast of Scotland, and in the LORD navigable bays and rivers thereof, so far as the same had not been expressly granted to any of her subjects by charter or otherwise. 2. That the salmon fishings in the bay of Scrdbster were the Queen's, and not the Respondent's. 3. That the Respondent had no right to salmon fishings ex adverse of his lands, even although he could shew that his title deeds contained a clause " with fishings," inas- much as neither he nor his predecessors possessed the salmon fishings under these title deeds for forty years, or even for any period prior to 1829. The Respondent, on the other hand, insisted that his title to the estate of Holburnhead, part of the barony of Scrdbster, with fishings, followed by a prescriptive enjoyment, constituted in him a legal and valid right to fish for salmon ex adverso of his lands. He further insisted that the fishings in question had been the subject of early regal grants, and had never been re-acquired by the Crown. The Lord Ordinary, on the 21st of May, 1861, found that the Respondent had no right to the salmon fishings in question, and granted the interdict prayed. But on the 14th of June, 1865, the First Division altered the Lord Ordinary's interlocutor, and assoil- zied the Respondent from the conclusions of the action with costs. Hence the present appeal. The following counsel appeared for the Crown, namely, the Attorney-General (1), the Lord Advocate (2), the Dean of Faculty (3), Mr. Anderson, Q.C., and Mr. T. Ivory. Sir Eoundell Palmer, Q.C., and Mr. Young, for the Respondent. The arguments, except in so far as they turned upon an exami- nation of title deeds and evidence relating to the fishings in question, are, for the purposes of a report, sufficiently adverted to in the following opinions (4). (1) Sir John Roll. (4) The case, moreover, is given at (2) Mr. Gordon. large in the 3rd Series of the Scotch (3) Mr. Moncrei'f: Cases, vol. iii. p. 981. 176 SCOTCH APPEALS. [L. R 1867 THE LOED CHANCELLOR (1) : LORD jyv Lords, in this contest with the Crown the onus of proof lies ADVOCATE v. entirely upon the Kespondent. FOKSS. Now, according to the familiar law in Scotland, salmon fishings are inter regalia, and primd facie Crown property ; and a subject can only establish his right to them against the Crown by clear proof of title in himself. The Eespondent has proved the exercise of the right of salmon fishing in the bay of Scrdbster, and ex adverso of his lands of Holburnhead, for a period beyond the memory of man. But this of itself is insufficient, unless he can, in the words of the statute respecting prescription of heritable rights (2), " shew and produce a charter granted to him or his predecessors, by their superiors and authors, preceding the entry of the forty years' possession, with the instrument of sasine follow- ing thereupon." The Lord Advocate contended that there is no authority for holding that the Crown can be divested of its right by a title from a subject followed by forty years' possession; but the statute is express, that after persons have possessed for forty years continu- ally following and ensuing their infeftments, they shall "never be troubled, pursued, nor inquieted in the heritable right and property of their lands and heritages by His Majesty, or others their superiors and authors. And it is laid down by Erslcine (3) that " a charter, though granted a non domino, is a good title of prescription, the length of time standing in the place of all other requisites." The words of the statute make this passage as applicable to the Crown as to a subject. It is not necessary for the Kespondent to shew a charter con- taining a grant of salmon fishing eo nomine. If the grant is of " fishings " generally, followed by forty years' possession of salmon fishings, the word will be construed to have that meaning. But he must shew a grant either of " salmon fishing" or of "fishings" generally, followed by the exercise of the right of salmon fishing; for, being inter regalia, and a separate tenement, it will not pass under the mere word "per- tinents." (1) Lord Chdmsfora. (2) 1617, c. 12. (3) Institute B. 3, tit. 7, 8. 4. VOL. I.] SCOTCH APPEALS. 177 I think that the prescriptive title of the Eespondent cannot be 1867 drawn from a higher source than the disposition, in the year 1700, j^, by John Sinclair of Duribeath, in favour of John Sinclair of Brims. ADVOCATE By that disposition, upon which sasine in 1703 proceeded, the SINCLAIR OF lands of Horibornehead, Outer quoy, and Sandequoy, with anchor- ' age of the road of Scrdbster, were conveyed ; and there is in the dispositive clause an express grant of fishings. It is not denied that the proprietors of these lands, the Respondent's predecessors, exercised the right of salmon fishing for forty years after this deed. Even if John Sinclair of Dunbeath had no title to salmon fishing ex adverso his lands at the time of this disposition, yet forty years' possession of salmon fishing afterwards by the disponee and his successors not only gave an interpretation to the word " fishings," but made the title unquestionable under the Prescription Statute of 1617. The Eespondent, therefore, is enabled to found his defence against the Crown upon this title, unless it was subsequently displaced. In 1702, John Sinclair of Brims granted a wadset (1) of these lands and fishings to James Sinclair. The wadset continued to exist until the year 1761, when it was redeemed by Sinclair of Forss, who had in the previous year purchased the reversion ; and all the conveyances, from 1700 to 1760, specified fishings in the dispositive clauses. But then it is asserted, on the part of the Crown, that supposing a base title to have been thus established to the fishings under the wadset in 1761, the owner of the fishings under this title returned the subjects which he held, including the fishings, into the hands of the Crown, and received back a grant from which the fishings were excluded. The resignation here referred to undoubtedly took place ; but we must bear in mind that the charter of 1761, which followed upon it, was a charter in favorem, the object of which was to convert the base title into a public title. The pre- sumption therefore is, that whatever was resigned to the Crown for this purpose would have been re-granted. It is certainly true that in the dispositive clause of the charter there is no mention of fish- ings; but I see no reason on that account to adopt the strong (1) A long lease by way of mortgage. VOL. I. 2 T SCOTCH APPEALS. [L. R. 1867 expressions of the Lord Advocate, that the Crown struck out the L^ word " fishings," and refused to re-grant them. The fishings were ADVOCATE e j^ er intended to be resigned into the hands of the Crown for the SINCLAIR OF p Ur p O se of being re-granted, or they were not. If they were, why should not the same words by which they were resigned be suffi- cient for their re-grant ? And if they were not included in the resignation, then the Eespondent may fall back on his base title. I quite agree that the tenendas clause will not have the efiect of conveying any right not conveyed by the dispositive clause ; but I do not see why, if a question arises as to what was re-granted upon the construction of the charter as a whole, any clause may not be resorted to in aid of construction, and the tenendas clause amongst the rest. That rule is, that ancient instruments of every description may, in the event of their containing ambiguous language, be inter- preted by what is called contemporaneous and continuous usage under them ; that is, by evidence of the mode by which property dealt with by them has been held and enjoyed. Now from the time of the charter of 1 761, when the vassal is supposed to have resigned the fishing and not to have obtained a re-grant of it, he continued to exercise his right of salmon fishing as before, and the same has been enjoyed by his successors down to the Eespondent himself. On the whole, I think that the Kespondent has success- fully established his defence to the claim of the Crown, and I am of opinion that the judgment appealed from ought to be affirmed. LORD CRANWORTH : It is clearly established in proof that the Eespondent and his predecessors have enjoyed salmon fishings for a period greatly exceeding forty years before the present action was brought ; in fact, as far back as living memory or tradition can go. This is sufficient to entitle him to salmon fishings if he has any habile title on which the enjoyment can rest, for the word " fishings " may be construed to mean salmon fishings, if, under a title to " fishings," salmon have always been taken. The evidence of enjoyment must be taken as proving an exer- cise of the right of fishing for salmon as far back as the year 1700. VOL.1.] SCOTCH APPEALS. 179 The grounds on which I have formed this opinion leave un- 1867 touched the doctrine that the word " pertinents " does not ex vi LORD termini include fishings, and also the rule of law, that subjects not AmP CATE included in the dispositive clause do not pass merely because they SINCLAIR OF are mentioned in the tenendas clause. But there cannot be any principle which prevents us from discovering the true meaning of every part of an instrument by a fair examination of the whole. My opinion is, that the Respondent has a good title under the Crown charters. But I also concur in the argument that even if that were not so, still he has a good title under the base holding . created in 1700. If the resignation for new infeoffment in 1761 included the fishings, then, as I have already explained, the Crown must be taken to have re-granted them. If the resignation did not extend to the fishings, then James Sinclair of Forss, and those deriving title under him, have all along been holding by the base tenure created in 1700. In any view of the case the claim of the Crown is unfounded. LOED COLONSAY : My Lords, when this case was before the Court below, I fully stated my opinion in regard to it (1), and as the parties are in possession of those views, I do not think it necessary to enter much into the case now, as I have not heard anything that leads me to alter the opinion I then expressed. But there are some elementary matters, which have been dwelt on in the argument, to which I will shortly advert. It is perfectly clear, as matter of law, that salmon fishings are inter regalia. It is also perfectly clear that they belong to that class of regalia which the Crown may give away. It is equally clear that a grant of " fishing " is not a grant of salmon fishing ; and it is further clear that a grant of " fishing," if followed by the requisite possession, may be explained to constitute a grant of salmon fishing. By positive prescription the rights of private parties are protected against the challenge of the Crown. Now, on the face of the documents and evidence here, I think (1) See 2nd Series of the Court of relating to the estate in question and Session Cases, vol. iii. p. 981, where its fishings are traced out minutely, the title deeds and other evidence SCOTCH APPEALS. [L. R. 1867 it is beyond the possibility of reasonable question that the Respon- V^-y" 1 ** 1 LORD dent and his predecessors have been in actual possession and ADVOCATE en j O y men t O f these salmon fishings beyond the memory of SINCLAIR OP ma n. FOES. At a very early period, in ] 606, the Crown had granted these salmon fishings to the family of Caithness, who granted a tack of them more than fifty years after the acquisition. At this distance of time, it is difficult to imagine a more clear evidence of posses- sion than that afforded by the exercise of property which is involved in the granting of tacks. But that very tack to which I have referred was one of a series of tacks which were granted by the successive owners of these fishings. When we find that the Crown parted with the right at an early period, and when we find no evidence whatever of its having been re-assumed (unless in 1761), the theory that it is to be held as never having been relinquished is excluded from the case, and the main argument of the Crown is most materially shaken. For a long period, from 1700 downwards, there has been a title on which a prescriptive right could have been sustained, and we have immemorial possession under that title. The argument for the Crown consisted very much of criticisms on the rights of the Respondent ; as if everything was to be pre- sumed against him, and everything in favour of the Crown. Thus, with reference to the wadset, it was said that the reversion did not expressly mention " fishings." But the right of wadset gave the fishings. That right of wadset is, in the first place, a clear proof of the exercise of the right of property in the party who granted the wadset ; and then, when the creditor who had obtained posses- sion (which in this case was of the nature of what is called a proper wadset) renounced the right in respect of having obtained satisfaction of his debt from his debtor, and when the debtor came afterwards to redeem his right; the natural and reasonable con- struction of the grant of the reversion is, that it replaced the debtor in possession of all that which he had previously given to Jlis creditor. As to the charter of 1761, it is but a charter by progress, in which the grantee is completing, or making up his own title. It is not a resignation by him, for the purpose of making over his VOL. I.] . SCOTCH APPEALS. 181 right to the Crown, but it is a resignation by him with the view of 1867 getting from the Crown a new right in his own favour. ^^ The question has been raised whether the word " pertinents " in ADVOCATE that title can be held or construed to comprehend the salmon SINCLAIR OF fishing. In ordinary cases it cannot. But the position of this 1 title was peculiar. The description had been, in various steps of it, by reference to former titles ; and when this party came to the Crown in order to get a renewal of his title, it was the duty of those who were acting for the Crown to look at the right that was in him at the time, and to see what was the character of it, and what it was that was to be renewed ; and the reasonable presump- tion is, that whatever was then surrendered to the Crown for the purpose of being re-granted to the vassal was re-granted to the vassal. It has been said that there is no mention of fishings in the dispositive or conveying clause of this charter ; that it occurs only in the tenendas ; and we had the remark made (clearly sound in law) that the tenendas is not a conveying clause, and that it is generally not enough by itself. That certainly is a doctrine which hardly required much authority to support it ; but we were referred to the late Professor Henzies, whose lectures on conveyancing are of the highest value ; and he lays down the doctrine as he found it in all the institutional writers. But it does not follow that the word " fishings " in the tenendas is immaterial where the fishings are not mentioned in various parts of the deed. On the contrary, in that very dissertation of Professor Menzies he affirms that, although the "tenendas cannot transmit a right, it may, in some cases, raise a presumption in favour of the grantee, so as to entitle him to establish a right by evidence of possession." Now that is the very position of the Respondent in the present case. The transaction of 1761 replaced the vassal in the right which he previously had in these fishings. But if it were other- wise, it cannot be set aside by attributing an inconsistent construc- tion to the surrender of the vassal, by holding that those expres- sions which cover his surrender are not equally competent to cover his replacement. If there was no replacement, it is clear that there was no surrender. At all events, the Respondent had the option, and he has now the right, of ascribing his possession to that title which he regards as most secure; and, therefore, VOL. I. 2 U !g2 SCOTCH APPEALS. [L. R. 1867 whether it is insisted that the right was then surrendered, or not, L^, in either view the vassal has defended them successfully against ADVOCATE $ B cna ll en g e of the Crown. '^FoHss. Interlocutors appealed from affirmed ; and appeal dismissed with costs. Solicitor for the Appellant : Horace Watson. Solicitors for the Kespondent : Graliames & Wardlaw. 1867 LIEUTENANT C. W. CAMPBELL. OF THE BENGAL } , ^v^ _ > APPELLANTS ; July 16. CAVALBY, et al. J JOHN A. G. CAMPBELL OF GLENFALLOCH . EESPONDENT. 1 THE BREADALBANE CASE. Marriage Habit and Repute Connection originally illicit Transmutation into Matrimony Evidence. Cohabitation, with the required repute, as husband and wife, is proof that the parties between themselves have mutually contracted the matrimonial relation. It demonstrates that interchange of consent which alone constitutes marriage in Scotland. The law of habit and repute, however, is not peculiar to Scotland; although in countries where the facilities of matrimony are less than in Scotland, the evidence to establish the marriage must be stronger. Marriage, technically, is not constituted, but evidenced, by habit and repute, which, for that purpose, must be uniform and positive. A connection commencing in adultery may, on ceasing to be adulterous, become matrimonial by consent, and may be evidenced by habit and repute, the parties being at liberty to intermarry. The alteration in the character of the connection, from adultery to matri- mony, need not be indicated by any public act, or by any observable change in the outward demonstration. It is not necessary to prove the specific period when the consent was inter- changed. Per LOBD WESTBUBY : You must infer the consent to have been given at the first moment when you find the parties able to contract. Comments by the Law Peers on Cunningliam v. Cunningham and Lapsley v. Grierson. Legitimacy and Marriage. Per THE LOBD CHANCELLOE : Proof of the legitimacy of the offspring is proof of the validity of the marriage. Claim unduly deferred. Per LOBD CBANWOBTH : It is in the last degree important that Courts of VOL. L] SCOTCH APPEALS. 183 justice should look with the utmost suspicion on the conduct of parties who 1867 intentionally keep secret matters at a time when they might be explained, in order to divulge them only when lapse of years may have made contradiction JJ READA ^ BANE or explanation impossible. CASE. 1 CAMPBELL N 1781, James Campbell, of the Glenfalloch family, an ensign in v. the 40th Foot, then stationed at Bristol, became acquainted with Eliza Maria Blanchard, the young wife of a middle-aged grocer, named Ludlow. With James Campbell she eloped from her husband, who did not long survive her departure, for he died in January, 1784. The guilty parties, however, proved constant and true to each other. In 1782, they went to America, with James Campbell's regiment, he representing her as his wife. In 1783, an elder brother of James Campbell, writing from Scotland to another brother in Jamaica, stated that " He had had a letter from James in America" and that " he and Mrs. Campbell were both well ;" the writer adding, " that he had not seen her, but that she was exceed- ing well spoke of." In February, 1784 (a month after Ludlow 's death), James Camp- bell and Eliza Maria Blanchard arrived in England, with his regi- ment, which returned from Canada. It was then open to them to join hands, but, judging from the evidence, they abstained from doing so. In 1788, they had a son, their eldest ; and the great question was as to his status whether he was legitimate or not that question depending on another question whether his parents had ever law- fully intermarried. After many wanderings in England, they settled ultimately in Scotland, the country of James Campbell's domicil. Eesiding there constantly from 1793 till his death, in 1806, they were universally reputed to stand towards each other in the sacred relation of husband and wife, although no regular marriage was ever shewn to have taken place between them. Dreading, apparently, the effects of a public matrimonial cele- bration (which they knew was unnecessary in Scotland, and which might have roused suspicions, and instigated inquiry into the nature of their original connection), they seem to have relied throughout on the familiar doctrine of habit and repute, and they did everything in their power to satisfy its requirements. They 2 U2 184 SCOTCH APPEALS. [L. R. 1867 passed themselves off uniformly, unequivocally, and constantly, as THE husband and wife ; and they were received, and treated, and re- BBEADALBANE g ar( j e( j 33 S uch by all their relations, associates, friends, and acquaintances ; no one expressing or entertaining a doubt that the tie which bound them together was that of matrimony. AMPBELL. Their son aforesaid (namely, William John Lamle Campbell), and other children born to them afterwards, were, of course, deemed legitimate ; the mother, on James Campbell's death, ad- ministering to his estate, and claiming and receiving from the Horse Guards a pension as his widow. She died in 1823. In 1812, William John Lamle Campbell, on the death of his uncle, succeeded, without opposition or question, as heir of entail, to the family estate of Glenfalloch, -which he enjoyed till his death, in 1850, when it devolved on his eldest son, the above Respondent, who, under the same title, and with perfect tranquillity, has possessed it ever since. But on the death of the late Marquis of Breadalbane without issue, in 1862, an inheritance greater than Glenfalloch opened for competition. In a word, the deceased nobleman's vast landed estates in Perthshire and Argyllshire, with a rental of 50,000 per annum must go to the Appellant if he could but shew that the Respondent's father, William John Lamle Campbell, was illegiti- mate. The Appellant, therefore, thought, and was advised, that the time had come to bring forward a question which had been per- mitted to slumber so long as the object to be gained by success was but the comparatively insignificant succession of Glenfalloch. If William John Lamle Campbell was the lawful son of James Campbell, it was admitted that the Respondent must prevail. On the other hand, it was not disputed that if William John Lamle Campbell was illegitimate, the Appellant must succeed. It happened that the Appellant discovered, or, at all events, produced, a letter written by Eliza Maria Blanchard in support of her application for a pension, in which letter she stated that her marriage with James Campbell had taken place in 1782, when she was, in fact, the wife of Ludlow. It happened, moreover, that two remarkable decisions of the House of Lords were supposed to have so qualified the doctrine of VOL. I] SCOTCH APPEALS. 185 habit and repute as to favour the claim of the Appellant. The 18G7 first of these cases, Cunningham v. Cunningham (1), was decided THE under the advice of Lord Chancellor Eldon and Lord Redesdale, in BREAUALBANE 1814, the marginal note being as follows: CAMPBELL A man and woman, after a known illicit connection, cohabit together in such a v- way as to create a repute, though a divided one, of their being married persons ; IPBELT '' and the man, in order to get lodgings in the houses of persons of respectability, and to save the woman from rude treatment by one of his companions when drunk, acknowledges that the woman is his wife : Held, by the House of Lords, reversing a decision of the Court of Session, that the facts and circumstances were not sufficient to infer a marriage. Per LOED ELDON : In cases of cohabitation, the presumption is in favour of its legality. Secus, if the connection is known to have been, in its origin, illicit. Per LORD EEDESDALE : Repute to raise presumption of marriage must be founded on general, not singular, opinion ; a divided repute is, on such a subject no evidence at all. The second case was that of Lapsley v. Grierson (2), decided under the advice of Lord Chancellor Cottenham and Lord Camp- bell, in 1848 ; the marginal note being as follows : A., a married Scotchman, went abroad, leaving his wife in Scotland. She co- habited with C., and had children by him. To make such children legitimate, it was held necessary to prove either a legal origin of the cohabitation, or a change in the nature of it after the death of A. had become known to all the parties. The mere fact that C T . and the woman continued to live together was not suffi- cient ; and the children were held illegitimate, though born after A.'s death. The Appellant insisted that -the connection between James Campbell and Eliza Maria Blanchard came within the ruling of these cases, and that William John Lamle Campbell was, conse- quently, illegitimate. The Court below ordered a proof of the facts to be taken by commission. A great body of evidence was collected, going over upwards of a century. The attempt to condense it, with any approach to satisfaction, has failed. Those who desire to master the leading particulars are referred to the Third Series of the Court of Session Cases, vol. iv. p. 867. On the 13th of July, 1865, the Lord Ordinary found that the above Respondent was nearest and lawful heir of tailzie and pro- vision in special of the deceased Marquis, in the lands in the pleadings specified ; and he awarded costs against the Appellant. (1) 2 Dow. 483. (2) 1 H. L. C. 498. 186 SCOTCH APPEALS. [L. B. 1867 The First Division of the Court below, before delivering their THE decision, called for the written opinions of the other Judges, con- BUE C D A A S E? AXE fonnably to statute. On the 26th of June, 1866, the First Division, upon hearing CAMPBELL v. counsel, and upon consideration of the opinions of the other Judges, CAMPBELL, adhered to the Lord Ordinary's interlocutor, and refused the Appellant's reclaiming note with costs. Hence the present appeal to the House. The Attorney-General (1), The Dean of Faculty (2), Mr. Anderson, Q.C., and Mr. Shiress WiU, appeared as counsel for the Appellant. Sir Boundell Palmer, Q.C., Mr. MeUish, Q.C., Mr. Young, Mr. Adam, and Mr. JR. Berry, for the Respondent. The arguments, which turned on facts and evidence, are, for the purposes of a report, sufficiently adverted to in the following opinions. THE LOKD CHANCELLOR (3) : The question to be determined upon this appeal is, whether the Eespondent is entitled to be served heir of tailzie and provision to- the late Earl of Breadalbane, under the designation of heir male of the body of William Campbell of Glenfalloch. And the deter- mination of this question depends upon proof of the legitimacy of William John Lambe Campbell, the father of the Respondent. The Respondent is descended from James, the second son, and the Appellant from John, the sixth son of William Campbell of Glenfalloch. Both parties are agreed that the descendants of the eldest son of William Campbell of Glenfalloch are extinct. The claim of the Respondent is sustained by evidence which in itself is amply sufficient to support it. James Campbell and Eliza Maria Blanchard, the father and mother of William John Lambe Campbell, lived together, and were reputed as husband and wife, for some years prior to his birth in the year 1788. But the Appellant asserts that James Campbell (1) Sir Join Bolt. (2) Mr. Moncrei/ (3) Lord Chelmsford. VOL. I.] SCOTCH APPEALS. 187 and Eliza Maria Blanehard were never lawfully husband and 1867 wife ; for that at the time of their supposed marriage Eliza Maria THE Blanehard was the wife of Christopher Ludlow, who was then living. BREADALBANE i_. . O ASE. The only proof of the marriage of the parties during the lifetime of Ludlow is contained in a letter written by Eliza Maria v . Blanehard, the grandmother of the Eespondent, after the death of ^ James Campbell, his grandfather, to which I shall hereafter refer. The following leading facts are sufficiently established by the evidence. James Campbell was an officer in the 40th Eegiment. In 1780, and in the beginning of 1781, he was on the recruiting service at Bristol. About ten miles from Bristol is Chipping Sodbury, where Christopher Ludlow resided and carried on business as a grocer and apothecary. From Chipping Sodbury, James Campbell eloped with the grandmother of the Kespondent, then the wife of Ludlow, and they afterwards cohabited together as husband and wife. James Campbell in August, 1781, was at Glasgow, and in September, 1781, at Edinburgh, still employed in the recruiting service ; and it may fairly be presumed that Mrs. Ludlow was with him in both these places. In 1782 he went to Nova Scotia with recruits for the 40th Eegiment. Mrs. Ludlow was with him there, and was passing as his wife, as appears by a letter from Colin Campbell, the brother of James, to Duncan Campbell, another brother, dated Glasgow, 7th September, 1783, in which he writes, " I had a long letter from James lately, from Halifax. He and Mrs. CampbeU were both well." James Campbell left Nova Scotia in 1784, in the . Prince of Orange transport, with a detachment of the 40th Eegi- ment, and Mrs. Ludlow embarked with him as his wife, her name being entered on a list of those on board as " Mrs. Eliza CampbeU" They arrived in England in February, 1784. In the month preceding, an event had happened which has a most important bearing upon the case. Christopher Ludlow, pro- bably in consequence of his wife's elopement from him, determined to leave the country. In July, 1781, he went out to New York as a hospital mate, and remained there till towards the end of 1783 ; and then sailed for England, but died on board the vessel just before she reached Portsmouth, in January, 1784. From this time, and for some time afterwards, the evidence as 188 SCOTCH APPEALS. [L. E. 1867 to the movements of James Campbell and his reputed wife is very THE scanty. They landed at Plymouth from Nova Scotia in February, BKE CASE BANE 1^84, and appear to have been either there or at Taunton for some months. In April. 1785. James Campbell retired from the army. CAMPBELL v. On the 30th of May, 1785, they had a daughter baptized at Devon* AMFEELL port, under the name of " Eliza Marlbrough, daughter of James and Eliza Maria Campbell." " Lieutenant in 40th Kegiment." I can hardly say that there is evidence of James Campbell having been at GlenfaHoch in the year 1785. The tradition given by Mrs. McNicoll, as to hearing her father and mother speak of William Campbell's sons having been at a flood (which is proved to have happened on the 26th of July, 1785), and that one of these was James, and he was very clever at it, was hardly admissible. But having been admitted it proves nothing, as it does not appear that James's reputed wife was with him, and^ was received by the father as his daughter-in-law. Little is known of the parties from the time of James Campbells leaving the army until the year 1793, when he joined the Breadalbane Fencibles. In the intervening period two children had been baptized at GatesJiead, William John Lambe, the father of the Eespondent, in January, 1788, as the "son of James Campbell," and, in October, 1789, Susannah Sophia, as the " daughter of James Campbell" James Campbell continued in the Breadalbane Fencibles till the regiment was dis- banded in April, 1799. On the llth of October, 1796, his youngest son, Breadalbane Gavin, was born, and baptized at InveresJc in the following month of November, as the son of Captain James Campbell of the Breadalbane Fencibles, and Mrs. Eliza Maria Blancliard. In or about the year 1799, James Campbell and Eliza Maria Blanchard, with their children, visited at Glenfalloch, where his elder brother Colin and his wife then resided. On the 23rd of August, 1799, James Campbell received a commission in the Cambrian Eangers, and at the latter end of the year embarked with the regiment for Gibraltar. He left Eliza Maria Blanchard and their children in Scotland, and after his arrival at Gibraltar he executed a general power of attorney to her, dated the 3rd of March, 1800, in which he describes her as "my wife, Eliza M. Campbell, residing at VOL. I] SCOTCH APPEALS. ' 189 Musselburgh, near the city of Edinburgh" The Cambrian Rangers 1867 returned to England, and on their being disbanded, in 1802, James THE Campbell appears to have resided with his wife in Scotland for the EE remainder of his existence, having, as it appears, been compelled upon two occasions to seek protection from arrest in Holyrood (1). . On the 12th of March, 1804, he obtained letters of inhibition in J the usual form against Mrs. Eliza Maria Blanchard, otherwise Campbell, as his wife. He died at Edinburgh on the 24th of October, 1806. There appears to be the most conclusive evidence that from the first period of their cohabitation Eliza Maria Blancliard passed as the wife of James Campbell, and that for many years they were generally reputed to be husband and wife. But the evidence of the reputation of a marriage having existed between the parties does not end with the death of James Campbell. If they were not married, William John Lambe Campbell was illegitimate, and there- fore every acknowledgment of his legitimacy by those who must have been acquainted with the way in which his parents were received and reputed in society is evidence in favour of their having been lawfully married. Such an acknowledgment of the legitimacy of William John Lambe Campbell was made by the grandfather of the Appellant in the year 1812, when the succession to the estate of Glenfalloch opened under the entail, and William John Lambe Campbell was entitled to succeed if he was the eldest and lawful son of James Campbell. If he was illegitimate, John Campbell of Boreland, the Appellant's grandfather, was, through the death without male issue of the brothers intermediate between James and himself, entitled to the succession of Glenfalloch. So far, however, from John Campbell making any claim, he accepted a commission and factory from William John Lambe Campbell, empowering him to do everything that was necessary towards his nephew's being served heir to John Breadalbane Campbell in the lands of Glenfalloch. A claim was accordingly given in for William John Lambe Campbell to be served nearest and lawful heir male of taillie and provision in special of his cousin, John Breadalbane Campbell, " late of (1) Holyrood Palace, with its precincts, a sanctuary for debtors, saving them from personal arrest. 190 SCOTCH APPEALS. [L. E. 1867 GlenfaUoch" On the 18th of March, 1812, he was served in ^^ terms of his claim. His service was afterwards retoured to BREADALBANE Chancery, and his title completed by precept from Chancery and instrument of sasine following thereupon on the 18th of June, v . 1812. By these proceedings it was established in the words of the CAMPBELL. re ^ our . a Q uo ft dictus Gulielmus Johannes Lamle Campbell est unions filius dicti demortui Jacdbi Campbell filii secundi dicti demortui Gulielmi Campbell, et legitimus et propinquior hseres tallife et provisiones dicti Joannis Breadalbane Campbell ejus consan- guinei" The Respondent's father continued in the undisturbed possession of the lands of GlenfaUoch under this title until his death in 1850, and the Respondent was then served nearest and lawful heir of taillie and provision to his father, and has ever since been in possession. The lands of GlenfaUoch are held under an entail, containing the same limitations to the heirs male of the body of James Campbell as that which is contained in the entail of the Breadal- lane estates. It is not contended that the part taken by the Appellant's father in the service of the Respondent's father as heir to the lands of GlenfaUoch precludes the Appellant from disputing the Respondent's claim founded upon the same title ; but it must be admitted to be a very strong recognition of the legitimacy of the father of the Respondent by a relation who had ample means of knowing how he was reputed in the family, and the strongest interest to dispute his title to the succession, if he thought it did not rightfully belong to him. The evidence for the Respondent establishes, beyond all doubt, that his father throughout his life was uniformly treated and recognised as the legitimate son of James Campbell by all the family of the Campbells, as well as by Lord Breadalbane and his relations. Under these circumstances, every presumption is in favour of the Respondent's title, and the Appellant must be required to overcome that presumption by the proof of facts which are utterly inconsistent and irreconcilable with it. This he proposes to do by proving that the original cohabitation of the Respondent's grand- father and grandmother commenced with an unlawful marriage VOL. I.] SCOTCH APPEALS. 191 after their elopement, and from that time the habit and repute 1867 began which constitutes the only evidence of a marriage between THE them ; that there never was any marked change in the nature of BRE ^^f ANE the cohabitation, and that without such a change a connection CAMPBELL which is illicit in its origin cannot become the foundation of such . habit and repute as will be sufficient proof of a subsequent ~ AMPBELL - marriage having taken place. The Appellant's case rests entirely upon the letter of Eliza Maria Blanchard to the War Office, dated the 23rd of June, 1807, containing her application for a pension as the widow of James Campbell. There may, perhaps, be some doubt whether this letter was admissible in evidence, but, at all events, being written for a particular purpose the statements in it are not as trustworthy as if they had been made without any motive of interest. The material parts of this letter are those in which the writer says : I applied to the half-pay agent respecting the widow's pension, and have made oath before a magistrate ; but as I unfortunately lost my marriage lines in America, I am informed it cannot be procured. My husband was ensign and lieutenant in the 40th regiment of foot during the war with that country. At the end of the year 1780 he came to England to recruit ; and in September, 1782, I was married to Mr. Campbell, in Edinburgh, by Mr. McGregor, the Gaelic minister, who is also dead, as is Ensign Wm. Willox, of the 40th, who was wit- ness to our marriage ; and the June following we went to America in the fleet that took out the preliminaries of peace twenty-five years ago. The present Gaelic minister has been wrote to, and he says that he got no register from any of his predecessors. The'Appellant proves the truth of some of the particulars men- tioned in this letter, but proposes to read the statement of the time of the marriage as September, 1781, instead of 1782, because it is shewn that James Campbell was at Edinburgh in the September of the former year. This is to assume that Eliza Maria Blanchard intended to be perfectly accurate in everything which she stated in her letter. But this is rendered doubtful by the certificate prepared by her agent, in which the time of the marriage is represented to be the 14th of September, 1783 ; she herself, in an affidavit made before a magistrate, merely swearing that she was lawfully married to James Campbell, without naming any time. I think that the assertion of a marriage with James Campbell, either in 1781 or 1782, must not be implicitly relied upon. In applying 192 SCOTCH APPEALS. [L. E. 1867 for her pension it was necessary for the alleged widow to state particularly her marriage, and the date of it, and also to produce B;;E.\DALBANE k er marriage certificate, or to account for its non-production. This CASE. t i might have suggested the plausible story of the loss of her mar- v. riage lines in America, without that statement necessarily leading CAMPBELL. ^ Q ^ e ^jjgf fa^ an y such proof of a marriage ever existed. It would not have done to represent to the War Office that the only evidence she had of a marriage was that of habit and repute ; and having to fix a certain time for the marriage, she could not well give a later date than the period when her cohabitation with James Campbell must have been first known to the family, as she would have run the danger of disclosing a fact which was probably un- known to them, the discreditable commencement of her intercourse with him. More especially must she have been anxious to preserve the good opinion of Lord Breadalbane, to whom she referred in the letter in question, and who afterwards gave a certificate that he believed her to be the wife of James Campbell. It is difficult to believe that the parties could have incurred the risk of having a ceremony of marriage performed, which they must have known would not have made them any more effectually husband and wife than their continuing to cohabit with the reputation of that relation subsisting between them. It was not at all necessary to have any written proof of a marriage to enable her to embark for America as the wife of James Campbell. And it is rather a significant circumstance that, although the date of 1782 is men- tioned in the letter, and that of 1783 in the certificate, no date is specified in her affidavit, wherein she swears merely that she was lawfully married to James Campbell, which was perfectly true if at any time during James CampbeWs life a marriage had taken place between them. But whether a marriage actually took place during the lifetime of Christopher Ludlow, or the cohabitation of the parties was merely an adulterous intercourse without any marriage ceremony, the Appellant contends that, beginning in an illicit connection, the presumption of subsequent marriage from the continuance of it altogether ceases, and that nothing short of proof of actual mar- riage, or of such a total change in the character of the cohabitation as will amount to habit and repute of a marriage, will be sufficient VOL. I.] SCOTCH APPEALS. 193 to establish the Eespondent's title ; and that upon the evidence it 1867 V^Y^/ appears that the connection between James Campbell and Eliza THE Maria Blancliard continued the same from the beginning to the BRE C^, BAXE end. CAMPBELL A great number of cases were cited in support of this propo- . sition of the Appellant, but those mainly relied upon were J ' Cunningham v. Cunningham (1), and Lapsley v. Grierson (2). In the case of Cunningham v. Cunningham an action of de- clarator of legitimacy was brought by the two daughters of Mr. John Cunningham and Agnes Hutcheson, his spouse ; and the sum- mons, after alleging that the Complainers were begot in lawful marriage, went on to state that, " at least, if the Complainers were procreated or brought forth before the said John Cunningham, their father, and the said Agnes Hutcheson, their mother, were actually married, they were afterwards legitimated by a marriage which took place betwixt their said father and mother, and they have been always held and reputed to be lawful children." The onus of proving the marriage of their parents either before or after their birth was upon the Pursuers; and the decision proceeded entirely upon failure of the proof on which their legitimacy de- pended. The leading facts were, that in 1758 Mr. Cunningham hired Agnes Hutcheson as a servant, and in the following year she bore him a child. They were both rebuked for fornication by order of the Kirk Session. That from 1760 to 1768 Cunningham lived with Agnes Hutcheson in various places ; and in the latter year the succession to Balbougie opened to him as heir male, and they went to live there, and continued till 1770, when Agnes Hutcheson, being in ill health, was sent to Edinburgh, where she died, and was buried in Canongate Church as an unmarried woman, Cunningham sending his cowfeeder, or bailiff, to see her buried. As Lord Eldon says : " She was buried with hardly the decencies of the most ordinary funeral, and laid in the grave, not in the character of a wife, but of a mistress." Upon the facts of the case Lord Eldon s remarks are pointed and pertinent, but were clearly not intended for general applica- tion. His Lordship said : " When the cohabitation of a man and woman was not known to have been in its origin illicit, the (1) 2 Dow. 483. (2) 1 H. L. C. 498. 194 SCOTCH APPEALS. [L. E. 1867 presumption was that it was lawful. But where it was first noto- THE riously illicit, and where a change in the character of the con- BBE ^^ BANE nection must be operated, and when they found the means employed for that purpose to be such as left half the world in CAMPBELL v. doubt, the servants, the relations, one half thinking one way, the ' other half the other, at what time, in what circle, could it be said that there was such a habit and repute as raised the presumption that the parties had mutually consented to be husband and wife." And Lord Eedesdale, after observing that repute must be founded, not on singular but on general opinion, stated it as his opinion that there was not there such evidence of repute as was necessary to establish the fact of a marriage by " presumption." From the language of the two noble and learned Lords which I have quoted, I gather that if, notwithstanding the nature of the original^ con- nection, there had afterwards grown up a general reputation that the parties had become man and wife, they would have been of opinion that the evidence would have established the presumption of a subsequent marriage. The case of Lapsley v. G-rierson, which in its circumstances approaches more nearly to the present case, depended, as the Lord Chancellor (1) said, on the evidence as to the facts : " That evi- dence " (he held) " establishes the fact that cohabitation had com- menced when William Paul was living. The nature of that cohabitation was not altered by any undoubted and open act of the parties; there was no change in their demeanour after the period at which it is now believed he died." And Lord Campbell said : " The Pursuers rely on the marriage of the parents to be established by habit and repute, which may establish^ a marriage, by affording evidence of consent. On the other hand the Defender relies on the rule of the law of Scotland, which is not disputed, that if the connection was in the beginning illicit it must continue to bear that character unless it is clearly changed by the parties. That rule was established by this House in the case of Cunningham v. Cunningham, and has ever since been the settled law of Scotland" And his Lordship added, " the connection was illicit in its origin, and there does not seem to be any reason for saying that its nature was afterwards changed." (1) Lord Cottenham. VOL. L] SCOTCH APPEALS. 195 The peculiar circumstances of this case, which it was agreed was 1867 one entirely of facts, must be regarded in considering the dicta of THE the noble and learned Lords who decided it. There was no proof BEE ^ >ALBA NK that William Paul, the husband of Janet MacMnlay, was not living during the whole of the lifetime of John Lapsley. Janet Mackinlay, v. within a few months of Lapsley's death, instituted proceedings to AMFBELL ' establish her rights as a widow, in which she was resisted by the family of the Lapsleys, and the case was decided against her on the ground that she had failed to prove that her former husband had died either before the connection with John Lapsley, or during its continuance. The two children of William Lapsley, a brother of John Lapsley, were in 1819 served heirs of the property, to which the children of John Lapsley, if legitimate, were entitled. The property was sold by them in 1826, and ten years afterwards, in 1836, the Appellants instituted a suit to reduce or annul the title of the purchasers of the property, and to have themselves de- clared the lawful children of John Lapsley. The Appellants, who had not been reputed legitimate, but the contrary, by their action of declarator of legitimacy sought to acquire a status which they did not possess, and were bound to satisfy the onus upon them by clear evidence of the lawfulness of the marriage of their parents, which they failed to produce. But taking the rule to be settled by the case of Cunningham v. Cunningham, that an illicit connection at the beginning can only be changed in character by some undoubted and open act of the parties, let us consider whether the circumstances of the present case, differing as they do from any which have been cited, are not sufficient to establish a marriage between James Campbell and Maria Blanchard. It must be remembered that we are dealing with facts which commenced more than eighty years ago, with an undoubted general repute of marriage for a great number of years, and with an uninterrupted recognition of legitimacy during the whole of the lifetime of the Respondent's father. Under such circumstances, we are bound to make every reasonable presumption to support the Respondent's case. The Appellant contends that the habit and repute of the parties being man and wife was the same during the period of the adul- 196 SCOTCH APPEALS. [L. E. 1867 terous connection as after the death of Christopher Ludlow, and that ^^ it continued unchanged down to the death of James Campbell, in BBEAPALBAXE ig06. But is this a correct view of the case ? CASE. It may be assumed, from the letter of Colin Campbell to his brother Duncan, that in September, 1783, it was believed by the V. CAMPBELL, j^jiy o f the Campbells that James Campbell was married, and there- fore, so far as the family was concerned, that he and Eliza Maria Blanchard were considered to be husband and wife. But this did not amount to habit and repute, which arises from parties cohabit- ing together openly and constantly as if they were husband and wife, and so conducting themselves towards each other for such a length of time in the society or neighbourhood of which they are members as to produce a general belief that they are really mar- ried persons. Now, during the whole time of the cohabitation, down to the death of Christopher Ludlow, James Campbell and Eliza Maria Blanchard were not living in the neighbourhood and society of his family, and therefore the reputation in the family of their being married was nothing more than the private opinion of the members of it. But if this is sufficient to constitute habit and repute, so far as the family of the Campbells was concerned, yet as, according to Lord Redesdale, in the case of Cunningham v. Cun- ningham, "repute must be founded, not in singular but in general opinion" of relations, and friends, and acquaintances, the whole family of the Ludlows must have known that the parties could not be lawfully married during the lifetime of Christopher Ludlow. The case, therefore, never began with habit and repute; nor could it have had any origin at all in the sense in which it induces a presumption of marriage, until after the death of Ludlow. That event happened in January, 1784, and opened the way to a change from an adulterous connection to a lawful marriage. A question was made, whether James Campbell and Eliza Maria Blanchard were ever aware of the death of Ludlow. But without entering into any nice examination of probabilities, as any conclusion upon the subject must be conjectural, and even if the parties possessed full knowledge of the event, the Respondent must be unable to prove it, I think we are bound to presume that they had received information of a fact so important to be known by them. From this time the nature of the relation which subsisted between them VOL. L] SCOTCH APPEALS. 197 was entirely changed ; and although from 1784 to 1793 there is 1867 very little evidence of their movements, and for some part of the THE time they appear to have been residing near Gateshead, where two children were baptized as legitimate children of James Campbell, _ ~ v-'AMPliEJLlj yet there is nothing to shew that during these many years they v. may not have visited Scotland, and that an actual marriage by J present consent may not have taken place between them. That this is not altogether improbable appears from the affidavit which Eliza Maria Blanchard made before the magistrate upon her appli- cation for a pension, to which I formerly referred. In her letter to the War Office it was necessary for her, in order to attain her object, to assign a date to her alleged marriage, which she must have known to be false. But in her affidavit she merely swears that she was lawfully married to James Campbell, which was true if she was married to him after the death of Christopher Ludlow, but false if she meant to refer to the date in her letter, or if no marriage took place between them after Ludlow 's death. From 1793 down to 1806, the evidence is clear and distinct of an universal recognition of the parties as husband and wife by every member of the family, and by all persons with whom they associated ; and there is nothing whatever to break in upon the uniformity of this recognition. In the letter of Eliza Maria Blanchard, upon which the Appellant founds his opposition to the Respondent's claim, she says, " Lord and Lady Breadalbane know me, and I have frequently had the honour of dining with them while my husband was in his lordship's regiment." It is not to bo supposed that she would have been thus received if she had not been known, or at least believed to be, the wife of James Campbell. If the case were confined to the period between the year 1793, and the death of James Campbell, in 1806, it would be amply sufficient to establish a conclusive presumption of marriage by habit and repute. And it appears to me that it is not competent for the Appellant to go back to an anterior period (no matter how dis- tant) when an illicit intercourse existed between the parties, in order to shew that the matrimonial relation must have been simu- lated. The argument on the part of the Appellant goes the length of contending that if cohabitation commences by illicit intercourse a marriage can never be afterwards established by VOL. I. 2 X 198 SCOTCH APPEALS. [L. E. 1867 habit and repute. But, as I read the case of Cunningham v. THE Cunningham, if the habit and repute had been uniform and general, although the connection, in its origin, was notoriously illicit, this House would have decided that case differently. CAMPBELL J v. After a close and careful examination of the facts of this case (for, like the cases which have been cited in the argument, it depends entirely upon the facts), I am clearly of opinion that the strong presumption in favour of the marriage of the Respondent's grandfather and grandmother, and of the legitimacy of his father, has not been shaken by any proof adduced by the Appellant, which is inconsistent with the Respondent's title, and that the interlocutor appealed from ought to be affirmed. LOED CRANWOKTH : My Lords, I have come to the conclusion, upon the evidence before us, that James Campbell, from March, 1793, till his death,, was treated by every one as the husband of Eliza Maria, formerly Blanchard. I think it right to advert to a fact which, in this inquiry, must be constantly kept in view, namely, that James CampbelTs domicile was invariably Scotch. His domicile of origin was certainly Scotch, and he retained that domicile till his death. There would be no change of domicile from the mere fact that he was serving in the 40th Regiment in England, and his poverty and destitution may well account for his having for many years led a wandering and unsettled life. In November, 1806, James died in Scotland, and Eliza Maria then came to London, and established herself there as her home. Daniel, the child of Christopher Ludlow, had been brought up by his grandfather, and had become a medical man in London. I do not think it necessary to go into the evidence in detail, which shews that he was there recognised by Eliza Maria as being her child. He was treated as her child by what she described as her first marriage, and, therefore, as being the half-brother of William John Lanibe Campbell, her only surviving son by James Campbell. The Appellant properly relies on this subsequent recognition of Daniel as clearing up all doubt which might have been felt on the VOL. I.] SCOTCH APPEALS. 199 evidence connecting her with the elopement. It seeins to me to 1867 put that part of the case beyond doubt. THE The facts of the case, therefore, as represented by the Appel- BBEA ^ A 8 1 jf AKE lant, are these : In 1780, or 1781, James Campbell eloped with Eliza Maria, the wife of Christopher Ludlow, and lived with her in v. adultery, passing her off as being, and leading his relatives and AMPBELL - friends to believe that she was, his wife. This system of deception continued up to his death ; and though, in January, 1784, Chris- topher Ludlow died, and the intercourse therefore ceased to be adulterous, yet the Appellant contends that there was no change of circumstances which justifies the belief that any marriage ever took place between them after marriage had become possible. That the connection was, as alleged by the Appellant, adulterous in its origin, seems to me to be satisfactorily made out ; and the only question is, whether there are circumstances which ought to lead your Lordships to concur with the decision of the great majority of the Judges below in the conclusion that a lawful mar- riage ought to be presumed to have taken place after it had become possible by the death of Christopher Ludlow in January, 1784. It was properly argued at your Lordships' bar, and not, as I understood the counsel for the Respondent, disputed, that mar- riage can only be contracted in Scotland by the mutual agreement of both parties to become husband and wife. There is, however, no particular form or ceremony by which such agreement must be manifested, except, indeed, that the parties must, in order to con- stitute a marriage de prsesenti, be in the presence of each other when the agreement is entered into, and it must be an agreement to become husband and wife immediately from the time when the mutual consent is given. I do not understand the law as even requiring the presence of a witness as being essential to the validity of a marriage, though, without a witness, it may be dif- ficult to establish it. The great facility which the law of Scotland affords for contract- ing marriage has given rise to rules and principles which have been sometimes considered peculiar to that law. By the law of England, and, I presume, of all other Christian countries, where a man and woman have long lived together as man and wife, and 2 X 2 200 SCOTCH APPEALS. [L. E. 1867 have been so treated by their friends and neighbours, there is a primd facie presumption that they really are and have been what ^ey profess to be. If after their deaths a succession should open to their children, any one claiming a share in such succession as a CAMPBELL v. child would establish a good jprimd facie case by shewing that his AMPBELL. p aren ^. g jj a( j a i wavs passed in society as man and wife, and that the claimant had always passed as their child. If the validity of the parents' marriage should be disputed, it might become necessary for the person claiming as their child to establish its validity, and, inasmuch as in England all marriages are solemnized in public, and publicly recorded, it is reasonable to require the claimant to give positive evidence of its celebration, or else to explain why he is unable to do so. The principle is the same in Scotland ; but as marriage there is not necessarily celebrated in public, or recorded, it is much more probable than it would be in England that there may have been a marriage, but that there may be no means of giving direct proof of- it. Those who have to decide, after the death of parents, on the legitimacy of children, must, much oftener than in England, have to rely solely on the primd facie evidence afforded by the conduct of the parties towards one another, and of their friends and neighbours towards them. This sort of evidence is spoken of in Scotland as Tidbite and repute. Persons are some- times said to be married persons by halite and repute. I agree, however, with the argument of the Appellant, speaking with deference to those who think otherwise, that this is an inaccurate mode of expression. Marriage can only exist as the result of mutual agreement. The conduct of the parties, and of their friends and neighbours, in other words, hdbite and repute, may afford strong, and, in Scotland, attending to the laws of marriage there existing, unanswerable evidence, that at some unascertained time a mutual agreement to marry was entered into by the parties passing as man and wife. I cannot, however, think it correct to say that halite and repute in any case make the marriage. Repute can obviously have no such effect. It is, perhaps, less inaccurate to speak of hdbite creating marriage, if by the word " hdbite " we are to understand the daily acts of persons living together, which imply that they consider each other as husband and wife, and it may be taken as implying an agreement TOL. I] SCOTCH APPEALS. 201 to be what they represent themselves as being. It seems tp me, 1^67 V-*-Y^* however, even here to be an improper use of the word to say that THE it makes marriage. The distinction is, perhaps, one rather words than of substance; but I prefer to say that habite and CAMPBELL repute afford by the law of Scotland, as, indeed, of all countries, v. evidence of marriage, always strong, and in Scotland, unless met ~ by counter evidence, generally conclusive. In the present case the evidence of habite and repute would have established conclusively, to my mind, the title of the Respon- dent, if there had been no evidence of anything prior to 1793. The [question is, as to the effect of the evidence establishing the adulterous origin of the connection between James Campbell and Eliza Maria Ludloiv. Now, considering this first, on principle, and independent of authority, I cannot treat the question as one of law. Where a man and woman have lived together as husband and wife, at a time when they could not be husband and wife, and where they continue to live together in the same manner after it has become possible for them to become husband and wife, the question whether they have become husband and wife is a question not of law, but of fact. The law permits them to create that relation between themselves, and whether they have done so must be decided like any other question of fact. The circumstance that they represented themselves to be man and wife, when they knew they were not so, may reasonably be taken into account in estimating their subsequent conduct. It may neutralize the effect which would otherwise have been properly given to their subse- quent cohabitation, i.e., it may do so as matter of fact ; I cannot think it must do so as matter of law ; and if that be so, then all which any tribunal can do which has to deal with such a question is, to look to all the circumstances of the case, and consider whether they do, or do not, lead to the conclusion that the parties did contract marriage at some time after it was possible for them to marry. Now here, as Christopher Ludlow died in January, 1784, there was nothing to prevent James Campbell from contracting marriage with his widow after that date. There is no direct evidence that they knew of his death, but the question of his being or not being alive was one of deep interest both to James Campbell and to Eliza 202 SCOTCH APPEALS. [L. E. 1867 Maria. Christopher Ludlow was well known at Chipping Sodbury. T HE His death was noticed both in the Bristol Journal and the Bath BBEADALBANE % r 0wtWe, and I cannot hesitate to come to the conclusion that it CASE. could not have long remained a secret to his widow, or to Captain James Campbell. If then, they could have contracted marriage at f^ L * any time after January, 1784, and in fact lived together as husband and wife from that time up to the time of the death of James, above twenty-two years afterwards, why are we to assume that their status was not that which they represented it to be ? If they had never lived together previously to the death of Christopher Ludlow, if they had only become acquainted when her status was that of a widow, I can hardly think it could have been doubted that there was such long and uninterrupted habite and repute as to afford conclusive evidence of their being husband and wife. How is this conclusion affected by the circumstance that they passed themselves off as man and wife when they were not so ? I cannot say that this circumstance leads me to think there was even an improbability that they would marry when it was possible they could contract that relation with each other. It must be borne in mind, that as he was always a domiciled Scotchman, and for the last thirteen years of his life living in Scotland, except during the short time when he was with his regiment at Gibraltar, marriage contracted at any time before his death would be sufficient to give the status of legitimacy to his children. It seems to me that he had the strongest motives for desiring to be married, and none operating in a contrary direction. He always represented Eliza Maria to be his wife, and introduced her as such into society. He must have known that he was the next heir in the Glenfalloch entail to succeed, in case his brother Colin should die without issue male. Colin, it is true, left a son, but still the chance was by no means remote that this son might die without issue male, the event which, in fact, happened six years after his own death. The evidence to which I have already referred shews very clearly that Eliza Maria was strongly attached to her children, and went through severe struggles in bringing them up. I see no reason to doubt that he had the same feelings towards them as she had. If he knew that he was not, and desired not to be, her husband, I cannot understand his conduct in issuing the VOL. I.] SCOTCH APPEALS. 203 inhibition warning tradesmen not to trust her. It would have 1867' been easy for him to give notice that she was not his wife. T^, The hypothesis is, that though he certainly desired that the BREADALBANE world should suppose him to be her husband, he might not desire really to be so ; that he might wish to be able at any time to get v . rid of the connexion. To such a suggestion, I can only say that AMPBELL * it is one which may always be made in the case of persons who have passed their lives as husband and wife, but as to whom there is no direct evidence when and where the marriage contract was entered into; persons, in short, who, in the language of Scotch law, are said to be married persons only by halite and repute. And it is a suggestion to which it is very dangerous to listen, after the deaths of those who, if it had been made in their life- time, or the lifetime of either of them, might have been able to clear up all doubts. Even if at an earlier stage of their connection James Campbell might have been desirous of getting released from it, it is very difficult to suppose he could have had such a wish when she had given birth to many children, all of whom were born when they might have been, what he certainly represented them to be, his legitimate children. How often do we find, that when a man has been living with a woman as his mistress, under the impression that he will be glad to get rid of the connection at some future time, and to be at liberty to contract marriage with another, if the conduct of the woman has been irreproachable, except in her connection with him, and he has lived long with her, and more especially if he has a family by her, his feelings become bound up with hers, and there is r hardly any sacrifice he would not make to be able to convert the illicit into a lawful connection, to cause the woman to have been his wife from the first, and to remove from his offspring the taint of bastardy. In England this cannot be done. In Scotland it may. I will not on this occasion make even a single observation on the policy of the Scotch marriage law. But that law being such as it is, the presumption seems to me very strong, almost irresistible, upon all the evidence before us, that during the twenty-two years after the death of Christopher Ludlow, during which Eliza Maria lived with James Campbell as his wife, and bore him six children, and was received and treated SCOTCH APPEALS. [L. E. 1867 as his wife by his family and friends, and, so far as appears, by all ^^ who knew them, he must have desired to make her his wife, and BREADALBAXE ^jg children legitimate, and this he might have done at any time \s ASE. during those twenty-two years. v . The circumstance of his having introduced her as his wife during- CAMPBELL. ^e jjf e Q f j jUa i OW} wne n she certainly was not his wife, does not lead me to any conclusion different from that at which I should have arrived if that had not been the case. I am not sure that it does not rather strengthen than weaken the presumption of actual marriage. It shews a strong desire that she should occupy a Respectable position in society ; and it is hard, therefore, to believe, that having had for above twenty-two years the daily opportunity of giving her the status which, even when she did not rightfully enjoy it, he was anxious to have it believed that she had acquired, he should not have profited by the law which put it in his power to confer it upon her. There is, however, a circumstance greatly relied on by the Appellant, and which is calculated, more or less, to cast a doubt on the presumption which the conduct of the parties would otherwise fairly have raised. I allude to the letter written by Eliza Maria after James CampbeWs death, when she applied for a pension as his widow. He died, as I have already stated, on the 24th of October, 1806, and she then came to London, being, as I collect from the evidence, in great pecuniary distress. Having obtained from the Prerogative Court letters of administration to Captain James Camp- bell, as his widow, she wrote to the War Office claiming a pension in the same character. In order to get the pension it was necessary that she should satisfy the authorities that she had been married to him ; and in that letter she stated that she was married to him in September, 1782, at Edinburgh, by Mr. McGregor, the Gaelic minister. There is evidence to shew that in September, 1781, James Campbell was at Edinburgh. He certainly was not there in September, 1782, for he was then with his regiment in Nova, Scotia; but there are fair grounds for supposing that the date, September, 1782, was a mistake, and that September, 1781, was intended. Her letter states that she had, unfortunately, lost her marriage lines in America, and the parol evidence shews that she had, on different occasions, made a similar statement. The VOL. L] SCOTCH APPEALS. 205 argument of the Appellant is, that on this evidence the inference 1867 is irresistible, that Mrs. Ludlow had accompanied or followed James THE Campbell to Edinburgh, in 1781, and had then gone through a BREA C A A S L E BANE ceremony of marriage at a time when no marriage could have . CAMPBELL been validly contracted ; for whether the date is to be taken as v. 1781 or 1782, Christopher Ludlow, the husband of Eliza Maria, ' was then alive. That she meant by this statement to induce the belief that she had been validly married before she was in Nova Scotia, passing as the wife of James Campbell, seems to me not to admit of doubt. But two questions then arise : first, did any such marriage, or, rather, ceremony of marriage, then take place ? secondly, if it did, is that circumstance sufficient to rebut the presumption of a valid mar- riage after the death of Christopher Ludlow, which, but for the invalid ceremony of marriage, the evidence would have warranted ? As to the first question, I think the evidence preponderates in favour of the conclusion that such a ceremony of marriage did take place in 1781, though the parties must have known it was invalid. The woman thereby would acquire what she called " mar- riage lines," and would thus possess, against all the world who did not know anything of her marriage with Christopher Ludlow, appa- rent proof of her status as the wife of James Campbell. It is, therefore, not, I think, improbable, that in order to acquire this advantage, the parties might even consent to run the risk of a prosecution for bigamy. But, assuming such a ceremony to have been gone through, the question still remains behind, whether its existence is sufficient to rebut what would, I think, have been, if it had not existed, the irresistible presumption of marriage afforded by the rest of the evidence. I think not. This bigamous marriage ceremony did not prevent the parties to it from afterwards becoming husband and wife, if they were minded so to do. The letter is but hearsay evidence, and can only be looked to as a declaration by a member of the family, made in a matter of pedigree, in connection with all the other evidence. Its effect is to shew that she was not a member of the family, and, consequently, not a person whose declarations could be received. I have some doubt whether this letter, if objected to, could have been received in evidence ; but I 206 SCOTCH APPEALS. [L. E 1867 mention the doubt only to prevent its reception being supposed to THE have received the sanction of the House. I shall deal with it as BBEADALBANE eY id erice in the cause. It was a declaration made for a special object, behind the backs of all parties interested in disputing or v . explaining it. Nothing could be more natural than that the CAMPBELL. woman wno na( j for a quarter of a century passed as the wife of James Campbell, should, after his death, for the sake of her own honour, and that of her children, wish it to be believed that her marriage preceded the time when she lived with him as his wife. And as nothing whatever was known about her marriage with Christopher Ludlow, or her elopement with James Campbell, it is natural that, when called on to shew that she was the widow of James Campbell, she should refer to a ceremony which, if valid, would have established, not only her status, but her honour, and the validity of which she must have known, by the experience of a quarter of a century, that there was no probability of any one calling in question. These considerations lead me to the conclusion that the inference of marriage afforded by the evidence is not removed by the fact that after the death of the husband, his widow, to effect a particular object, represented the marriage to have taken place at a different date, and in a different manner from that which really gave it effi- ciency. I cannot but infer from all which occurred with respect to the mode in which these persons lived together, not only that they desired to be husband and wife, but also that they believed them- selves to be so. In such circumstances we ought to infer, after their deaths, that at some time during the long period during which they lived together, and in some manner, however informal, they did that which they could do without any difficulty, viz., enter into an agreement to be or become married persons, and so to acquire for themselves and their children the status which the evidence satisfies me they wished to enjoy. I have considered this case hitherto, with reference to what I think ought to be the decision, on principle only, and independently of authority. But it was pressed upon us that we could not come to a conclusion which should affirm the judgment below without overruling two important decisions in your Lordships' House ; one, that of Cunningham v. Cunningham, generally cited as the VOL. I] SCOTCH APPEALS. 207 BaTbougie Case, determined in 1814, when Lord Eldon held the 1867 upy^ Great Seal (1) ; the other, that of Lapsley v. Grierson, decided in THE 1848, when Lord Cottenham was Chancellor (2). These cases, was contended, established the proposition, that where the connec- tion between a man and woman was illicit in its origin, there the . presumption of marriage from habit and repute is at an end, or, at J all events, is at an end until some change of circumstances takes place, such as did not exist in this case. I have examined these cases with great attention, but I cannot think that they warrant any such conclusion. In the Balbougie Case, the connection in its origin was between Mr. John Cunning- ham, Provost of InverJceithing, and his female domestic servant, Agnes Huteheson. She gave birth to a child ; both parties were censured for fornication, and Mr. Cunningham stated that he had doubts whether the child was his. The connection was, therefore, clearly illicit in its commencement. It continued for above twelve years, when the woman died at Edinburgh. Mr. Cunning- ham sent his bailiff, or cow-feeder, to see her buried. She was buried as an unmarried person, by the name of Agnes Hutcheson, and was laid in the grave in the character, not of Cunningham's wife, but of his mistress. Cunningham afterwards married. He had issue by Agnes Hutcheson two daughters, and twenty years after her death these daughters instituted proceedings which even- tually came up to this House, by which they sought to establish their legitimacy, on the ground that their parents were married persons. The Lord Ordinary, and afterwards the Inner House, found facts and circumstances sufficient to infer marriage, but that decision was reversed in the House of Lords. Lord Eldon, in moving the reversal of the interlocutors, examined very closely, and with minute accuracy, the whole of the evidence from which the Court of Session had inferred the marriage, and, finally, came to the conclusion that the facts were not such as to warrant the inference. In the course of the observations which he made, he more than once adverted to the fact that the connection was certainly illicit in its origin, and he said that mere cohabitation as man and woman was not cohabitation as husband and wife, and he came to the conclusion that there was nothing to warrant the (1) 2 Dow. 483. (2) 1 H. L. C. 498. 208 SCOTCH APPEALS. [L. E. 1867 inference that what was certainly in its commencement a mere rJ^T cohabitation as man and woman ever became anything else. BBEADALBANE rp^ c ] ec i s i on d oes no t appear to me to have been a decision that a connection which in its origin was only that of man and woman, could not become the connection of husband and wife ; nor is it a AMPBELL. ( j ec j g : on f]^ ^ o constitute marriage any particular forms or acts were necessary, which except for the illicit origin of the connection would not have been required. When the connection is in its origin illicit, more evidence, or different evidence, may or may not be necessary to satisfy a Court that marriage has been contracted. Still it is a matter which must always depend on the particular facts in proof, and I cannot understand Lord Eldon as deciding- more than that in the BaTbougie Case there were not such facts as would justify the inference. The other case is that of Lapsley v. Grierson, where it appeared that John Lapsley cohabited with a married woman, Janet, the wife of WiUiam Paul. The cohabitation commenced in or about 1801, and continued till 1810, when John Lapsley died. There were children, the fruit of that cohabitation, born between 1807 and 1810. The report states it as a fact in the case, that William Paul was lost at sea in 1804 or 1805, but on referring to the printed case, I do not find that to have been either proved or admitted. The children set up a claim in the Court of Session to certain heritable property, as being the lawful children of John Lapsley, and the Lord Ordinary found that the parents of the Pursuers, " were cohabiting, and generally held by habit and repute to be married persons for three years at least prior to the death of John Lapsley in 1810, and consequently that the Pursuers were entitled to and did possess the status and repute of his lawful children." That interlocutor was reversed by the Inner House, and your Lordships sustained the reversal. The Lord Chancellor, Lord Cottenham, said that the case depended on the evidence as to the facts. They began to live together when they certainly knew they were not, and could not be, husband and wife. Even if it was to be taken as proved that William Paul died before 1810, Lord Campbell says he was satisfied that neither of the parents believed that to be so. They lived together, believing the nature of the VOL. I.] SCOTCH APPEALS. 209 connection to have been unchanged during the whole period of its 1867 continuance ; and Lord Campbdl observed there was mala fides THE from the beginning to the end of the proceeding. BREADALBANE Both of these cases were decided on their special facts, and I do not feel that they at all precluded the Court of Session from v . coming to the decision at which they arrived in favour of the A>n>BELL ' llespondent. There is only one further observation which I desire to make. It relates to the evidence given for the Appellant by Mrs. Charlotte Olympia Cockburn Campbell, the Appellant's mother. She married his father in March, 1832, and she tells us that shortly afterwards her uncle, Sir Patrick Campbell, expressed his surprise that her husband, knowing there were suspicions as to William John Lambe Campbell's legitimacy, did not challenge his possession of Glen- falloch, adding that his (Sir Patrick's) brother could help him in proving his case. But her husband refused to do so, saying he would wait to see whether the Marquis of Breadalbane died without issue male, and if that should happen he would then shew to the world that he was the right heir, and he told the witness that she had all the papers, and knew the secret. Taking this evidence to be true, the conduct of this witness's husband, the Appellant's father, seems to me open to much observa- tion. We have no satisfactory evidence as to what was the value of the Glenfalloch estate. But in the Petition presented by the widow of William Erskine Campbell, praying to have a life-rent out of that estate, she states the rental to be nearly 1400 per annum. Even supposing this to be an exaggeration, yet I think we must inter from all the evidence that it was a property of no inconsiderable value. Now, the same evidence which would have shewn the Appellant's father to be entitled to the Breadalbane estates must also have shewn him to be entitled to Glenfalloch. His title, if any, to that property, accrued on the death of his father, in March, 1823. At that time, Eliza Maria was alive, and was universally received as the widow of his uncle James. William John Lanibe Campbell was alive, and no doubt then, and for many years afterwards, there were many persons living who might have thrown light on the question ; but yet the Appellant's father never asserted any title to Glenfalloch, though, if the case which the 210 SCOTCH APPEALS. [L. E. 1867 Appellant now makes, is well founded, his father knew that THE William John Lambe Campbell, who was in possession of it, was BREADALBANE W rongfully holding that which belonged to him. It could never enter into the mind of William John Lambe Campbell, or of the CAMPBELL . v. Eespondent, that there was any necessity lor preserving evidence AMPBELL. o their right to what they had been allowed to enjoy without molestation from the year 1812. The Appellant's father lived in great intimacy with William John Lambe Campbell, but he never gave him to understand that there was any doubt as to his legiti- macy. He kept his evidence on this subject, if he had any, a secret, which avowedly he never meant to bring forward till some distant day, when all means of meeting or contradicting it would probably be gone. I have thought it right to advert to this cir- cumstance, as adding to the other circumstance on which I rest my judgment. It is to the last degree important that Courts of justice should look with the utmost suspicion on the conduct of parties who intentionally keep secret matters at a time when they might be explained, in order to divulge them only when lapse of years may have made contradiction or explanation impossible. It is only necessary to add, that I concur with my noble and learned friend in thinking that the interlocutor of the Court of Session ought to be affirmed. LOED WESTBURY: My Lords, by far the greater part of the observations which I had intended to submit to your Lordships have been rendered wholly superfluous by the elaborate opinions which you have already heard. But as this case is one of great importance, I am unwilling to dismiss it with a silent vote. And I shall try to prove that I have attended to the Appellant's case by some re- marks on the principal questions of law, and the principal subjects of contention that were urged by his learned counsel at the bar. For, in truth, this is not quite a question] simply of fact ; it is a case rather where the facts are not disputed materially on either side, but certain principles have been advanced by the Appellant as legal grounds for escaping from those conclusions which the facts render almost irresistible. The Appellant's counsel began by complaining of the statement VOL. I.] SCOTCH APPEALS. 211 of the Scottish law of marriage contained in the opinions of the 1867 u^v-*^ learned Judges. I think that complaint was without foundation. THE It is not pretended by any of the learned Judges that marriage ^^s^^ is constituted by cohabitation with habit and repute ; but they * . . CAIIPBELL one and all, I think, treat the evidence upon that subject as evi- v- deuce to prove that which alone constitutes marriage, namely, the consent of the parties. Exception may possibly be taken to some few words occurring in one of the judgments which represents cohabitation with habit and repute as a mode of contracting mar- riage. Perhaps it may not be strictly correct to say that it is a mode of contracting marriage. It is rather a mode of making manifest to the world that tacit consent which the law will infer to have been already interchanged. If I were to express what I col- lect from the different opinions on the subject I should rather be inclined to express the rule in the following language : that co- habitation as husband and wife is a manifestation of the parties having consented to contract that relation infer se. It is a hold- ing forth to the world by the manner of daily life, by conduct, demeanour, and habit, that the man and woman who live together have agreed to take each other in marriage, and to stand in the mutual relation of husband and wife ; and when credit is given by those among whom they live, by their relatives, neighbours, friends, and acquaintances, to these representations and this con- tinued conduct, then habit and repute arise and attend upon the cohabitation. The parties are holden and reputed to be husband and wife ; and the law of Scotland accepts this combination of circumstances as evidence that consent to marry has been lawfully interchanged. Probably, therefore, in the correct expression of the law, it would be more proper to say that cohabitation with habit and repute is a mode of proving the fact of marriage rather a mode of contracting marriage. If, therefore, this is a mode in which the consent necessary to create marriage may be manifested and proved, the question is, whether these parties, James Campbell and Eliza Blancliard, were free to contract that relation, and to prove it in the manner ex- plained. Now, there can be no possible doubt that, after the death of Ludlow, in 1784, James Campbell and Eliza Blancliard were free by 212 SCOTCH APPEALS. [L. K. 1807 law to intermarry. The Act of 1600 (1) has always been taken to x^ a pply on ly t cases where the husband and wife have, by reason of BBEAIULBAXE a( j u ltery, been, by judicial sentence of a proper Court, divorced from each other. The parties therefore in the present case were CAMPBELL v. unquestionably free to intermarry. But the Appellant objects that cohabitation which began when the parties were incapable of contracting marriage, and which was continued without change, is ineffectual to form the basis of the conclusion that consent to marry was interchanged after the impediment to marriage had been removed. That would be a very important rule if it were proved to be well founded ; but I am unable to find any principle to justify the introduction of such a rule ; and, what is more material to the purpose, I am unable to find any case, or any book of authority, in which that principle has been either followed out into a decision or has been laid down as a rule of Scotch law. It appears to be almost entirely derived by the Appellant from what I conceive to be a misappre- hension of certain words found in the judgments delivered in Cunningham v. Cunningham and Lapsley v. Grierson; or, rather (if I may venture to say so), from a misapprehension of part of the marginal note to one of those cases (2). There is nothing to warrant the proposition that the subsequent conduct of the parties shall be rendered ineffectual to prove marriage by reason of the existence, at a previous period, of some bar to the interchange of consent. It would be very unfortunate if it were so. Marriage may be contracted between parties in a foreign land, where certain observances are required which, from ignorance or mistake, may not have been fulfilled. The parties having cohabited on the strength of an imperfect celebration, may afterwards come to Scotland and reside there for years, continuing the same course of life. It would, indeed, be a very sad thing if such a course of conduct, lasting, perhaps, for twenty or thirty years, were insufficient to warrant the conclusion of marriage. There is no foundation for the argument that the matrimonial consent must of necessity be referred to the commencement of the cohabitation, nor any warrant for the Appellant's ingenious argu- ment that, as the consent interchanged must be referred to some (1) Chap. 20. (2) See supra, p. 185. VOL. L] SCOTCH APPEALS. 213 particular period, which he insisted was at the commencement of 1867 the cohabitation, and therefore insufficient, the cohabitation, which ^-^ continued afterwards without interruption, would warrant no other conclusion than that which would be warranted by the consent interchanged at a time when it was insufficient. I should un- . doubtedly oppose to that another, and, I think, a sounder rule CAMFBELL - and principle of law, namely, that you must infer the consent to have been given at the. first moment when you find the parties able to enter into the contract. The conclusion, therefore, that I derive, and which, unquestionably, is consistent with the lan- guage of the cases which have been referred to, is, that the consent between these parties was given, and that the marriage, therefore, in theory of law, took place, at the time when, by the death of the first husband, they became competent to enter into the contract. Now, there is nothing in the language of Lord Eldon that interferes with that conclusion ; on the contrary, when the words used in this House by that noble and learned Lord are considered, they will be found to be necessarily pregnant with the inference that cohabitation, notoriously illicit, does not interfere with the proof of marriage derived from the continuance of the cohabitation if the subsequent cohabitation became as notoriously licit, that is, if the subsequent cohabitation as husband and wife was accepted, reputed, and credited, as being such, just as effectually and as extensively as the former cohabitation was regarded as illicit. The words of Lord Eldon, in which, I think, this conclusion is necessarilv involved, are these : He says : " Where it was first " J * (that is, where the cohabitation was first) " notoriously illicit, and where a change in the character of the connection must be operated " (that is, in order to bring out the result of marriage), " and when they found the means employed for that purpose to be such as left half the world in doubt the servants, the relations one half thinking one way, the other half the other at what time, in what circle, could it be said that there was such a habit and repute as raised the presumption that the parties had mutually consented to be husband and wife?" And Lord Redesdale, fol- lowing out the same train of observations, rests his judgment on the fact that there was not, in that case, sufficient habit and VOL. I. 2 Y 214 SCOTCH APPEALS. [L. E. 1867 repute; for if six people were called to affirm that they believed ^^ them to be husband and wife, there were other six who might also BKEAUALBANE ^ ca }j e j to affirm that they believed the former illicit connection CASE. to be still continuing. It is, therefore, palpable that Lord Redes- v . dale and Lord Eldon both considered that this connection, though CAMPBELL. or jgi n in^it, might have become a connection attended with a different reputation, and which, therefore, would have been ' sufficient evidence of the fact of marriage. And the same thing is involved in the other case of Lapsley v. Grierson, for in that case it is perfectly clear that the parties began their cohabitation by living in adultery ; but if it had been proved to the satisfaction of this House that that cohabitation was con- tinued after they knew that the first husband was dead, and if continuing after that event it had attracted to it the general esti- mation and belief of the parties having assumed the character of husband and wife when they were free and competent to do so, then it is clear that the noble and learned Lord would have arrived at a contrary conclusion to the judgment in that case. Therefore, in the absence of all authority to lead your Lordships to the opposite conclusion, I venture to think that you are fully justified in holding that there is no legal foundation (and certainly there is no moral foundation) to justify the argument that because two persons begin to cohabit when they are not at liberty to marry, and the cohabitation continues afterwards and is attended with a different repute, that cohabitation, with habit and repute, shall not avail in Scotland to make them married persons in the eye of the law. There are one or two other points which I will advert to very shortly. The Appellant relied upon the letter of 1807, and drew from it these conclusions : First : he said it is plain, from that letter, giving credit to the fact which it states, of a regular cere- mony of marriage, that the matrimonial consent between the parties was interchanged at that time. Further, the Appellant said it is impossible to believe, or to infer, that any other matri- monial consent had been interchanged between the parties, for it would have been unnecessary, seeing that they had resorted to that ceremony. But, my Lords, I think it plain, particularly after the observations of my noble and learned friend on my VOL. L] SCOTCH APPEALS. 215 right (1), to which I listened with much pleasure, that that mode 1867 of regarding the letter is not consistent either with law, or reason, THE or common sense. Giving full credit to the letter, which I hold BREAT>AI,BANE CASE. to be no evidence whatever of the fact, but taking the fact to be as stated in the letter, it is plain that the only thing which you can V. derive from the fact of that ceremony having been performed is, CAMFBELL - that the parties were very anxious to attract to themselves the estimation of standing in the relation of married parties, and for the sake of gaining that advantage they went through the cere- mony, although they must both of them have been perfectly well assured that that ceremony was insufficient to constitute a mar- riage. What moral conclusion, therefore, can you derive from that? This only, that they were most anxious to have the character of being husband and wife. How fur, therefore, does that operate upon the conclusion derived from their subsequent conduct? Why it aids the inference that the subsequent co- habitation, when they became free to marry, was a cohabitation that necessarily involved that consent to become husband and wife, which it is. plain that they desired to become, even at that time, when there was a bar to their contracting a marriage. These, my Lords, were the principal topics of the argument. The Appellant was bound to admit what has been demonstrated by the Lord Ordinary, and again to-day by my noble' and learned friend, that the conduct of the parties, from 1793 to 1806, was abundantly sufficient to prove the fact of marriage. To that must be superadded what undoubtedly produces in this case the great moral conviction that that judgment is the right one, namely, that this question might have been raised between the ancestors of the present parties in the year 1812. At that time the father of the Kespondent plainly asserted that he was the lawful son of James Campbell, an allegation which involved of necessity the fact that the father and mother of William James Lambe Campbell had lived in lawful marriage. William James Lambe Campbell accord- ingly was accepted and taken, in a solemn proceeding, as being the heir of Glenfalloch, by reason of his being the legitimate eldest son of his father, James Campbell. It is impossible to imagine any proceeding (especially when so near the time of the death of James (1) Lord Cranworth. 216 SCOTCH APPEALS. |X- K. 1867 Campbell, and whilst his widow was living), more conclusive of the THE f ac t that James Campbell and Eliza Blanchard were universally BBE ^jf ANE recognised, accepted, and taken, as husband and wife; and that there was no ground for disputing the legitimacy of their son. v. That title has been followed by possession and enjoyment for more AMFBELL * than fifty years. It might have been disputed again in 1850, but it was not ; and I trust, therefore, that your Lordships, and that all who attend to this case, will be satisfied that we have arrived at a conclusion consistent with the actual law of Scotland, and that all reason and sense dictate your coming to the conclusion that this marriage ought not, upon any ground, to be regarded as open to dispute, and consequently that the Respondent is entitled to retain the judgment which he has obtained. My Lords, I concur entirely in the motion of my noble and learned friend. LORD COLONSAY: My Lords, I am in the position of having been one of the Judges before whom this case was argued in the Court, below. It was my duty there to express my opinion on the result of the evidence and the arguments which were brought before us. The case underwent very full consideration in that Court ; and I then gave my judgment very fully, both upon the facts and upon the law, which judgment is printed in the papers now upon your Lord- ships' table (1). I have since had the benefit of hearing the very able argument which has been addressed to your Lordships by the learned counsel in this case, and reconsidering the whole case, both on the evidence and on the law ; and I see, and have heard, no reason for altering the judgment which I then delivered, and which led me to the same conclusion, in fact and in law, at which your Lordships have arrived in the judgments which you have now delivered. I therefore think it would be improper for me to detain your Lordships by repeating that which is already in the possession of the parties, and which lies in a printed form on your Lordships' table. Mr. Anderson : My Lord, before your Lordship puts the ques- (1) See also 3rd Ser. vol. iv. p. 943. VOL. I.] SCOTCH APPEALS. 217 tion to the House, may I be allowed to ask your Lordships to 1867 indulge me for a moment on the question of costs ? Considering T HB the importance of the stake here, and that there was a difference BBE AT> ALBAN E of opinion among the Judges below, we could scarcely avoid T .. , . , CAMPBELL coming to your Lordships House. v , CAMPBELL. LORD WESTBURY : My Lords, I trust your Lordships will not allow this practice of raising discussions on the question of costs to be introduced. Nothing can be mere mischievous than to have a separate argument on the subject of costs. Your Lordships, according to my experience, have always deprecated that practice, and I trust you will not think this case an exception to the general rule. THE LORD CHANCELLOR : Your Lordships have not expressed any opinion with regard to costs in this case. What I was going to propose to the House was, that the appeal should be dismissed with costs in the usual way. I see no reason for any deviation from the general rule in that respect. Interlocutors affirmed, and appeal dismissed with costs. Solicitors for the Appellant : Martin & Leslie. Solicitors for the Respondent : Loch & Madaurin. Voi,. I. 2 Z t 2 IS SCOTCH APPEALS, [L. R. 18G7 MARIA THERESA LONGWORTH, OR YEL- ] VFttTiW APPELLANT ; July 30. V-h-btiUIN j THE HON. MAJOR YELYERTON . RESPONDENT. Reference to Oath of Party. In Scotland there may be a reference to oath at any time between the closing of the record and the extracting of the decree, although every other mode of proof has been previously tried and has failed. Even after a judgment of the House of Lords on appeal a reference to oath is competent, and continues so till extract. Such reference, however, is matter of judicial discretion, and not to be permitted where the status, the rights, or the interests_ of third parties may be prejudiced or affected. The true principle is, to settle the immediate qiiestion between the parties litigant, and to go no further. A reference to oath ought not to be permitted where the response may involve an admission of criminality ; for no one is bound to swear in suam turpitudinem. As to whether a reference to oath is competent in a declarator of marriage, see the opinions of the Lord Chancellor, infra, p. 220 ; of Lord Cranworih, infra, p. 226 ; and of Lord Colonsay, infra, p. 227. Practice. At the close of the Respondent's argument the Appellant, who had opened her case in person, was told that the House would hear her Counsel in reply. But if she began she must finish. The House would not allow her to break off and then hear her Counsel. \_/N the 7th of August, 1858, Maria Tlieresa LongwortTi, or Yelverton (who, for the sake of brevity and distinctness, will be hereafter, in this report, called Maria Theresa only), commenced her suit in the Court of Session, praying a declaration that she was the lawful wife of Major Yelverton. On the 8th of June, 1859, Major Yelverton brought his cross action in the same tribunal against Maria Tfieresa, praying a de- VOL. I.] SCOTCH APPEALS. 219 claration that he was " free of any marriage with her, and that she 1867 should be put to silence." LON^RTH, The Court of Session (First Division) ultimately pronounced OH YELVEET N judgment in favour of Maria TJieresa with costs. In other words, YELVERTON. they declared that she " was the lawful wife of Major Yelverton ;" the Lord President, now Lord Colonsay, dissenting. Against this decision Major Yelverion appealed to the House of Lords. On the 28th of July, 1864, their Lordships reversed the deci- sion appealed from, and remitted the cause back to the Court below, to do therein as should be just and consistent with the judgment of the House (1). Before the question was put from the woolsack the counsel of Maria TJieresa asked and submitted that the judgment of the House should leave it open to her, if she should be so advised, to refer the points at issue to the oath of Major Yelverton. The House, however, did not accede to this application (2). On the 19th of November, 1864, Major Yelverton presented his petition to the Court below praying that the judgment of the House should be applied* On the 10th of December, 1864, the counsel of Maria Theresa tendered a reference of the whole cause to the oath of Major Yelverton. After due consideration of printed and oral argument as to the competency and the propriety of this application, the Court below ultimately, on the 10th of March, 1865, refused to allow the re- ference proposed ; and it was against this refusal that the present appeal was tendered. On the 27th of June, 1867, the case stood in the paper for hearing ; the Law Peers present being the Lord Chancellor, Lord Cranworth, Lord Wesibury, and Lord Colonsay. THE LORD CHANCELLOR, addressing Maria Theresa, said: I thought you were to appear by counsel. Maria Theresa : My counsel is not here- THE LORD CHANCELLOR : If he is likely to come, we should be (1) 4 Macq. 747. (2) 4- Macq. 746 and 911. 2 Z 2 220 SCOTCH APPEALS. [L. B. 1867 sorry to deprive you of the benefit of counsel. But you perhaps LONGWORTH, prefer addressing the House yourself. OB YELVEBTON YELVEUTON. Maria Theresa : Yes, my Lords. The address of Maria Theresa went over several days. The Attorney-General (1) and Mr. Anderson, Q.C., were heard on the other side. At the close of their argument it appeared that the counsel of Maria Theresa, Mr. Campbell Smith, had arrived from Scotland. It was, therefore, intimated to Maria Theresa that her counsel might reply, Major Yelvertons counsel not objecting ; and the Lord Chancellor (after a reference to the other Law Peers) observing : If you are unable to go through the reply yourself, we think, under the circumstances of this exceptional case, that we may hear your counsel. But if you begin you must finish. We cannot allow you to break off and then hear your counsel. Maria Theresa : He is not prepared to reply. THE LORD CHANCELLOR Then you must go on yourself. At the close of Maria Theresa's argument the Lord Chancellor said the House would take time to consider of its judgment. On the 30th of July the Law Peers delivered the following opinions, which more than exhaust the authorities and arguments adduced at the Bar. THE LORD CHANCELLOR (2): My Lords, on the 19th of November, 1864, Major Yelverton having presented the usual petition to the Court of Session to apply the judgment pronounced by your Lordships on the former appeal, the present Appellant, Maria Theresa, lodged a note praying the Court to supersede consideration of the Major's petition, and craving leave to put in a condescendence of res noviter veniens ad notitiam. The proposed condescendence alleged (1) Sir John Bolt. (2) Lord Chelmsford. VOL. L] SCOTCH APPEALS. 221 that since the judgment of this House (1) " she had been informed 18G7 that Major Yelverton, when on a visit to his deceased brother, the LONGWORTH, Honourable Frederick Yelverton, in the presence of Sarah Mallins, OB YELVEBTON who was at the time attending the brother as a sick nurse, acknow- YELVEBTON. ledged and admitted that he had married Maria Theresa in Scot- land, and renewed his marriage vows in Ireland; that Sarah Mallins died in the Heath Hospital ; and that when she was in a dying state, and attended by the Keverend Edward George Camp- bell, she told him what had passed between the two brothers, and he communicated it to Maria Theresa" The Court below, after argument, pronounced an interlocutor on the 10th of December, 1864, by which they refused the desire of Maria Theresa's note, and applied the judgment of this House. After this interlocutor a minute of reference to oath was tendered on behalf of Maria Theresa, which minute was in the following terms : " The Pursuer in the said declarator of marriage hereby refers the whole cause to the oath of the Defender, the said William Charles Yelverton ;" and a Petition was presented praying the Court to sustain the minute of reference to oath. The First Division, on the 10th of March, 1865, pronounced the interlocutor now appealed from, refusing to sustain the proposed reference to Major Yelverton s oath. Now, my Lords, it must be taken as a settled rule of law in Scotland, that there may be a reference to the oath of a party at any time between the closing of the record and the extracting of the decree, although every other mode of proof has been pre- viously tried and has failed. And however strange it may appear to those who are unaccustomed to the practice of the Scotch Courts, that a party having attempted to prove a case by testimony, and having failed, should be allowed, almost at the last moment, even after final judgment, to resort to a new method of proceeding of which he had his choice from the first, yet, such being the law, we are bound not to question but to administer it. The reason why this reference to oath is allowed at so late a stage of the proceeding seems to be, that until judgment is extracted the cause is still in Court. This being so, there can be no difference in principle between the case where a judgment is (1) On the 28th of July, 1864. 222 SCOTCH APPEALS. [L. E. 1867 final in the Scotch Courts because not appealed from, and the case LONGWORTH, f a fi na l judgment by this House, which equally requires extract OB YELVEBTON b e f ore execution can issue. V. YELVERTON. But it was contended on the part of Major Yelverton that a reference to oath is inadmissible in a case of declarator of marriage, and especially where, as in this case, the interests of third persons are concerned. With respect to the competency of a reference to oath in a de- clarator of marriage, I am strongly of opinion that, whatever may have been the practice formerly, since the statute 11 Geo. 4. & 1 Will. 4, c. 69, such a proceeding is incompetent. The 33rd section of this Act enacts, "that all actions of declarator of marriage," and other enumerated consistorial actions, " shall be competent to be brought and insisted upon only before the Court of Session." And, by the 36th section, "no decree or judgment in favour of the Pursuer shall be pronounced in any of the consistorial actions thereinbefore enumerated, until the grounds of action shall be sub- stantiated by sufficient evidence." In the case of Muirhead v. Muirhead (1), which was an action of separation a niensa et thoro, brought by a wife on the ground of ill-usage, the husband admitted on the record conduct which, in the opinion of the Lord Ordinary, was sufficient to justify the conclu- sions of the action. Upon the case coming before the Court upon a verbal report by the Lord Ordinary for instructions, Lord Mac- kenzie said, and the rest of the Court concurred, "I read the words 4 sufficient evidence ' as meaning sufficient evidence independent of the admissions of the party. I think the Act meant entirely to exclude admissions, and require extrinsic evidence." Now it is quite clear that an admission upon the record can never be re- garded as evidence ; but the Court could not have meant to say, that if proof had been led in the cage, admissions proved to have been made by the husband that he had ill-used his wife would not have been evidence, and might not have been "sufficient evidence." But an oath upon reference is not evidence at all. As my noble and learned friend, Lord Colonsay, said in this case in the Court of Session : " A reference to oath is not what we are accustomed to regard as testimony proper. It is neither parol nor (1) 8 Dunlop, 786, VOL. I.] SCOTCH APPEALS. 223 documentary evidence. An oath taken upon a reference is not the 1867 examination of a witness, it is what is technically called oath of LONGWORTH party." And again, " It is not to be taken in connection with OR YELVERTON documentary or parol evidence that has been adduced. It may be YELVEKTON. hostile to all other evidence. It is to be judged by itself, and the question for the Court to determine, upon an oath emitted under a reference, is not what upon the aspect of the whole cause appears to be the truth of the matter, but it is, what has the party sworn ?" As a party by referring to the oath of his adversary renounces all other species of proof, and as the " oath emitted under a "refer- ence" is not evidence, a decree pronounced in a declarator of marriage founded upon this mode of proceeding, would be a viola- tion of the express words of the statute, as the grounds of the action would not have been substantiated by " sufficient evidence." A reference to oath, therefore, cannot, in my opinion, be compe- tent in this description of action. But supposing a reference to oath to be admissible in an action of declarator of marriage, it ought not to be permitted in any case where the rights and interests of third persons would be prejudiced by a decree founded upon an oath affirmative of the reference. That would be the necessary consequence of such a decree in the present case. It appears upon the record that, after the time of his alleged marriage with Maria Theresa, Major Yelverton was married in June, 1858, in Edinburgh, to Mrs. Forbes, the widow of Professor Forbes. A decree, therefore, establishing the validity of the marriage of Maria Theresa and Major Yelverton, must necessarily deprive Mrs. Forbes of the status which she acquired by her marriage with Major Yelverton. And this consequence would be the result of what is called a "transaction" or "judicial contract" between persons engaged in a litigation to which she is no party. It was said, however, by Maria Theresa, that the reference to oath could not prejudice Mrs. Forbes, because the oath affects the parties to the transaction only ; and that no judgment on it could be res judicata against her, being res inter alios acta. It is quite true that the oath of reference would not affect third persons ; but there may be cases in which it must, of necessity, prejudice, if not conclude, the rights of strangers to the proceeding. In such cases 224 SCOTCH APPEALS. [L. R. 18G7 the reference to oath is not admissible, for, as was said by Lord LONGWORTH, Moncrei/, in Adam v. Madachlan (1), " the general case of refer- OE YELVEBTON ence ^ o fa e oa ^ o f party is, where the party referring and the YELVERTOH. party referred to stand with opposed interests on the matter referred, and where no other interest is involved." Upon this point I may borrow the language of Lord StoweU in Dalrymple v. Dalrymple (2), where he says : The lady of the second marriage is not here made a party to the suit. She might have been so in point of form if she had chosen to intervene. In substance she is ; for her marriage is distinctly pleaded and proved, and is as much, there- fore, under the eye, and under the attention, and under the protection of the Court as if she were formally a party to the question respecting the validity of this marriage, which is, in effect, to decide upon the validity of her own. For I take it to be a position beyond the reach of all argument and contradiction, that if the first marriage be legally good, the second marriage must be legally bad." If upon the oath of reference in this case a decree were made establishing the marriage of Maria Theresa and Major Yelverton, there can be no doubt that it would be binding upon Mrs. Forbes. It would be a judgment in rem, which has been defined to be " an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that pur- pose " (3) ; and the characteristic quality of a judgment in rem is, that it furnishes in general conclusive proof of the facts adjudi- cated, and is binding on all persons whomsoever. If, therefore, the reference to oath were to be admitted in this case, Mrs. Forbes might be deprived of jher status as a wife by a decree made behind her back, and which she would never afterwards be able to question. But there is a further objection to the reference to oath in this case, that the answer to it in the affirmative (an answer which Maria Theresa must be taken by her reference to expect to receive) necessarily involves an admission by Major Yelverton of criminality. If he were to admit the alleged marriage between himself and Maria Theresa, he must confess that he has been guilty of bigamy. And this necessary effect of an affirmative answer plainly appears upon the record, where his marriage with Mrs. Forbes, at a date subsequent to the time of his alleged mar- (1) 9 Duulop, 560. (2) 2 Con. 58. (3) 2 Smith's Leading Cases, 439. VOL. L] SCOTCH APPEALS. 225 riage with Maria Theresa, is pleaded, Maria Theresa says, in her printed case:- , OB YELVEKTON Ihere are cases in which a reference to oath was refused on the ground that a Vf party should not be compelled to swear in suam turpitudinem. But all these YELVERTON. cases were prior in date to the Act 1 Will. 4, c. 37, the 9th section of which abolished infamy as a ground of incompetency of a witness. The Act 15 & 16 Viet. c. 27, further removes all impediments to the admissibility of the evidence of persons convicted of crime. In the present state of the law of evidence it is obvious that in the cases of Rogers (1), McEacharn (2), and Thomson (3), the parties who were not obliged to swear in suam turpitudinem would now be com- petent and compellable witnesses in similar cases, with the option of declining to answer any question that might criminate themselves. Such is the argument of Maria Theresa upon this point, which leaves out of view one very important consideration, namely, that although the party in a case of reference to oath may refuse to answer if thereby he would criminate himself, yet the effect is, that he is taken to have confessed the facts which are referred to his oath, and exactly the same benefit results to the party making the reference as if he had obtained an affirmative answer. In the present case, therefore, Major Yeherton, if he answered affirma- tively, would have admitted himself to have been guilty of bigamy, or if he had refused to answer, Mrs. Forbes would have been con- clusively deprived of all the rights which she had acquired by her marriage with Major Yeherton. There can be no doubt that a reference to oath is not the abso- lute right of a party, but that it is in the equitable discretion of the Court to admit or to refuse. Lord Moncreiff, in the case of Pattinson v. Eobertson (4), said : " I could not perhaps go quite so far as Lord Cringletie did in the case of Ritchie (5), though in that approved by Lord Chancellor Lyndhurst, that the reference to oath is in our law a mere appeal to the equitable discretion of the Court. But I agree so far, that though regarding it as a legal . right to appeal by motion to the Court to that mode of proof as an ultimate remedium, it may still be in the discretion of the Court to allow it under the circumstances of any particular case." Now, assuming that there may be a reference to oath in an (1) 2 Shaw, 444. (3) 7 Shaw, 32. (2) 3 Ibid. 9. (4) 9 Dun. 226. (5) 3 Wils. & Sh. 484. 226 SCOTCH APPEALS. [L. E. 1867 action of declarator of marriage, yet where, as in this case, the LONGWORTH interests of a third person are affected, and may be irrevocably OB YELVERTON fou^ an d where the effect of the reference may be either to YELVEBTON. compel the confession of a crime, or to conclude the rights of another by a refusal to answer, I think that the Court of Session were perfectly justified, in the exercise of a sound judicial discre- tion, in refusing to sustain the reference to oath in this case, and that then: interlocutors ought to be affirmed. LORD CKANWOETH: My noble and learned friend on the woolsack having had the goodness to communicate to me an outline of the opinion which he was about to deliver in moviDg the judgment of your Lordships' House, and concurring, as I do, with my noble and learned friend in the whole of that opinion, I do not think that I am called on to trouble your Lordships with many I might, perhaps, say with any observations. I wish it, however, to be understood that, though my learned and noble friend has referred to the statute of 11 Geo. 4 & 1 Will. 4, transferring the consistorial jurisdiction in Scotland to the Court of Session, as being, in some respects, the foundation of his judgment, and although it may be very truly said that that statute confirms the view which may be otherwise taken on the subject, I must confess that, independently of that statute, I do not believe that it can be the law of Scotland that, in such a case as this, there should be a reference to oath. The prin- ciple on which that reference is allowed is so clearly stated by Lord Moncreiff, in the passage quoted by my noble and learned friend, that I should be willing to rest my opinion on that autho- rity, even if the statute had not existed. " The general case," he says, " of reference to the oath of party is where the party referring and the party referred to stand with opposed interests on the matter referred, and where no other interest is involved " (1). When that is the case, there is, perhaps, no absurdity (so to say), even at the very last moment of time, in allowing a reference to the oath of the party. But the moment you get a case in which the in- terests of third parties are involved, it appears to me to be a pro- (1) Adam v. MaclacMan, 9 Dun. 578. VOL. I] SCOTCH APPEALS. 227 position that cannot be sustained, even upon the authorities which 1867 have been referred to, that such can be the law of Scotland, or of LONGWORTH, any civilized country. There is no doubt that there have been OK YELVEKTON consistorial cases in which a reference to oath has been admitted ; YELVEBTON. but there has been no such case in which the doctrine has been affirmed by this House ; and I cannot admit that it could have been properly recognised and acted upon in those cases, if they in- volved (as I believe some of them did) the interests of third persons, as is certainly the case here. Even if there had been no marriage with Mrs. Forbes, I very much doubt whether, in any case of a question of status, there can be such a reference to oath, because the interests of third parties are necessarily involved. When the question is, whether a person is or is not a married woman, the interests of all the creditors who have trusted her must be involved. Therefore, I think, general principle goes far to exclude it in all cases. But even if that were not so, the last observation of my noble and learned friend seemed to me to be perfectly satisfactory namely, that it is clear on all the authorities that such a reference is not the absolute right of any party, but only a right which the Court, in its discretion, may or may not allow ; and it would have been a highly-improper exercise of its discretion to have allowed it in this case. LOED WESTBUEY: My Lords, it is not my intention to give any vote on this ques- tion, as I was compelled to be absent during part of the argument. But I had the advantage of hearing the whole of Maria Theresas address ; and I am obliged to say that the impression which I then received was that there was no ground on which this judgment of the Court below could be questioned. LOED COLONSAY: My Lords, after the expressions of opinion which have now been given, this case is practically decided. Whatever view I may have of it whatever view I may express, if I express any opinion at all the judgment must be the same. But, my Lords, in a case of this kind, which I view as one of vast importance to the law of 228 SCOTCH APPEALS. [L. E. 1867 Scotland, I think it incumbent on me to express the opinion that I ^ ^ LONGWORTH, entertain. OB YELVEBTON ^y^en the case was presented to the Court below, the novelty of YELVEBTON. the proposition of a reference to oath in such a case appeared to me so great that I thought it right, after having heard a full oral argument on the subject, to suggest that the parties should again lay before the Court the argument in a written form, in order that it might be deliberately considered ; and it was after having had the benefit of those two discussions (as I may call them) upon it that I arrived at the conclusion that the proposal of the Appellant, to refer this matter to the oath of the Defender, was one which, under the circumstances, could not be admitted. Since then the question has been fully argued at the bar of this House, and I deemed it my duty to revise and reconsider the opinion which I had formed, feeling that, perhaps, the Appellant had not had all the benefit she might have derived had she selected a different mode of conducting her case. Having again applied my mind to the case, I have failed to find any ground for altering the judgment that has been pronounced in the Court below. It appears to me to be a clear proposition in the law of Scotland that in most cases (I will not, after what has been expressed, say in all cases, but in most cases) a party may apply to have a re- ference to the oath of the adversary after the case has been decided. Whether that is, or ought to be, the rule in cases of declarator of marriage, may be a grave question. But in a case such as this, and, indeed, in all cases, where reference to the oath of a party is proposed, there is a discretionary power in the Court to allow the reference, or not to allow it. The very form of the proceeding implies that ; because when it is proposed to refer to the oaths of the adversary the proposal is submitted to the Court, and it requires the approval of the Court before the adversary can be put to oath. Therefore, the Court is forced to consider the matter on the proposition which is submitted to it before it can give its approval. And that approval is a matter not limited to the mere form in which the reference is presented it involves also a con- sideration of the circumstances of the case and the propriety of allowing the reference. That is clear from all the authorities, and YOL. I.] SCOTCH APPEALS. 229 from some of the cases which have been referred to by my noble 1867 and learned friend on the woolsack. LOKGWORTH, That being so, the question which we had to consider was, OK YELV ERTON whether this was a case in which such a reference to oath should YELVEBTON. be allowed. There, again, several questions were raised. First, as to the competency of reference under such circumstances; and, secondly, as to the propriety of the Court exercising its discretion in the way of allowing or refusing the reference, even supposing it to be competent. Upon the question of the competency of the reference I do not think it is necessary for me to express any decided opinion. There were certain objections taken to the competency of the reference which I thought at the time, and still think, to be unfounded. In the first place, it was objected that this reference could not be made, because there had been a final judgment of the House of Lords in the cause. I was unable to bring my mind to that con- clusion. I was unable to see any logical distinction between the power of the Court below, after a final judgment of this House, affirming the judgment of the Court below, and the power of the Court below, if its own judgment had been allowed to remain unappealed against ; for the rule is, that at any time before extract reference is good. When a party has lost his cause in the Court below and has appealed to this House, and this House has affirmed the judgment, I can conceive a very good reason, in policy, why, in such circumstances, a reference to oath should not be allowed ; but when a party has gained the cause in the Court below, and the adversary drags that party here and gets an alteration of the judgment, why should the party be precluded in that case from referring to oath. She could not have done it in the Court below in the circumstances in which she then was, for she had gained her case. Therefore, I think it would be a hazardous doctrine, and one which I could not acquiesce in, to hold that merely because there had been a judgment of the House of Lords in the case therefore a reference to oath was incompetent. Another point was raised, as to which I have more difficulty, as to whether a party can be allowed to refer to oath in a suit of this kind, looking at the terms of the statute of 11 Geo. 4 & 1 Will. 4, c. 29, I did not think it necessary in the Court below to pronounce any SCOTCH APPEALS. [L. E. 18G7 judgment on that point, because I saw sufficient grounds without LONGWORTH, it to arrive at a conclusion upon the case. And though I see great OB YELVERTON f orce j n the argument, I would rather now not commit myself to YELVEBTON. any opinion on the point.. There is much to be said in favour of the view that the statute has shut out such references in cases of declarator of marriage and other consistorial causes. But that depends on the meaning that is to be attached to the word " evidence " in that statute, and to the meaning that is to be attached to the word " admission " in Lord Mackenzie's judgment (1). There is great room for holding that in Lord Mackenzie s judgment, at least, the word " admission " meant an admission by the party upon the record ; that is to say, that the party merely putting on the record admissions, is not enough to entitle the Court to pro- ceed to pronounce judgment in a declarator of marriage. That is not evidence given under the sanction of an oath. According to the course of procedure in the Courts in Scotland, where a matter is admitted the opposite party does not require to adduce evidence to prove it. And we know that in consistorial cases of various kinds it would be perilous to the interests of society to proceed upon admissions made by the parties. There was a case under our consideration in this House which, I think, affords an illustration of what might happen if such matters were admitted. I mean the case of Cunning/ham v. Cunningham (2). In that case, where a party had, during the life of a woman, and at her death, shewn by his conduct, and where the whole circumstances of the case, as judged in this House, had shewn, that there had been no marriage whatever between the parties ; yet, after an interval of time, when it became his interest or inclination to change the state of affairs, he then chose falsely (as the judgment of the House found) to allege a marriage. Now we see what peril would attach to the interesta of third parties if a reference to oath were admitted in such cases. Another ground was contended for, namely, that by requiring the party to swear in this case he was required to swear in suain turpitudinem. That is, I think, a graver question. I think there is much in it, as I stated in the Court below. But when we come to the question, whether the Court is to (1) Muirhead v. Muirhead, 8 Dun. 786. (2) 2 Dow. 463. VOL. L] SCOTCH APPEALS. 231 exercise the discretion that belongs to it, I confess that I see every 1867 principle against sustaining the reference, and no principle in LONGWORTH favour of it. I think it is quite clear that such a rule as referring OB YELVE KTON to the oath of a party after a case has been fully investigated is YELVERTON. one which, if it exists in any system of jurisprudence at all, must be guarded with a discretionary power of the Court to prevent its being abused. That discretionary power exists with reference to the administration of this branch of the law in Scotland. And when we come to look to the principle on which reference to oath is admitted, I quite concur in the view that has been expressed by my noble and learned friend, that the true principle is to settle the immediate question between the two parties in contest, and to go no farther. Now, if the question in a suit between two parties be one which necessarily involves the interests of a third party, if it be of a kind that the settlement of the question between these two parties would, or might, greatly injure the interests of a third party, then I think it questionable, in the first place, whether such a reference to oath would be competent ; but I also think it quite clear that any exercise of judicial discretion ought to go in the direction of preventing such risk of injury to a third party. Upon these grounds, my Lords, I am quite clear that the judg- ment of the Court below ought to be affirmed. If, on hearing the argument, I had entertained any doubt on the question, or had come to a conclusion opposite to that to which I arrived in the Court below, I certainly should not have hesitated to concur, as I did in a former case in this House, in altering the judgment which I had pronounced in the Court below; but I see no reason to entertain any doubt whatever in this case. Interlocutors affirmed. Solicitors for the Appellant : Simson & Walceford. Solicitors for the Respondent : Tippetts & Son. SCOTCH APPEALS. [L. E. 1867 CARLTON AND HUDSON APPELLANTS; July so. THOMPSON et al RESPONDENTS. Vesting Life-rent and Fee. The general rule is, that the fee vests a morte testatoris ; whether given to individuals nominatim, or to a class. The leaning of the law is towards vesting. Thus the postponement of the period of payment till the expiration of a life-rent does not suspend the vesting. That some members of a favoured class were unborn at the testator's death is no obstacle to the right vesting in each of them as soon as they respectively come into existence ; although the amount of the benefit to each may not be then ascertainable. The jus crediti is in the beneficiaries as a vested right, although the jus dominii may be in trustees. Where a fee has vested, it passes to heirs and personal representatives, unless there be something in the language of the instrument, or in the nature of the subject, that requires a deviation. Jus Accrescendi. The doctrine of the Roman law as to jus accrescendi is subtle and obscure. It is but little used in Scotland. Where a fee is provided to a class, the question whether on the death of one of the class, his share shall go to the survivors or to his own representatives, is always a questio voluntatis. It would seem that the omission of an express accrescing clause will go far to exclude accretion. IN this case a testator directed that the residue of his property should be vested upon trust for his daughter in life-rent, and for her children in fee. She had seven children, of whom two were born before the testator's death, and five after. The Lord Ordinary (1) held, that the fee vested a morte testatoris in the children at their births respectively. This decision was adhered to by the Court of Session. The Appellants contended that the vesting did not take'place till the death of the life-rentrix, and then only in such of the children as survived her, namely, the Appellant, Mrs. Carlton, and her sister, Mrs. Hudson. (1) Lord Jerviswoode. VOL. I] SCOTCH APPEALS. 233 Sir Eoundell Palmer, and Mr. Anderson, Q.C., were of counsel 1867 for the Appellants. . The Attorney- General (1), the Lord Advocate (2), and Mr. Neish, THOMPSON - appeared for the Respondents. The case (3) was specially looked into by Lord Colonsay ; the question, though one of construction, involving points of nicety. There were two distinct topics of investigation the first as to vesting, the second as to accretion. All the relevant authorities were examined by his Lordship, who addressed the House as follows : LORD COLONSAY: My Lords, the late Andrew Hunter, a surgeon in the service of the East India Company, by a testamentary trust disposition and settlement, dated the 12th of January, 1808, conveyed, in the event of his death without lawful issue of his body, to trustees, all and sundry his whole means and estate, heritable and moveable. The deed, after securing 10,000 for the purposes of the provi- sions in favour of the truster's spouse, and making certain other testamentary provisions, proceeds as follows : " And the residue of my said estate and effects, heritable and moveable, including the fee of the 10,000 set apart for answering the provisions to my said spouse, I direct and appoint to be vested in my said trustees for behoof of my daughter, Mrs. Isabella Sarah Hunter, alias CfReily, in life-rent (exclusive of the jus mariti of her husband), and her children in fee ; to be kept in trust by them till they in their discretion shall see proper to settle it in the most safe and secure manner on her and her children : And in the event of her decease without issue of her body, 1 hereby direct and appoint my said trustees to convey and make over the said residue of my said estate and effects, including as aforesaid, and remaining after payment of my said debts and legacies, to and in favour of my nieces, Mrs. Anne Wood, Mrs. Grizel Charles, Mrs. Marion Mair, Margaret, Jane, and Agnes Hun- ters, Mrs. Janet Riddle, Mrs. Eleonora Sandilands, Isabella and Agnes Hunters, equally among them ; but in the event of their, or either or any of them, dying without lawful issue, the share of such niece dying without issue to go equally among my said other nieces and their issue ; but burdened always with the sum of 3000 sterling to the said John Tracy O'Reity, which 1 had settled as a portion (1) Sir John Bolt. (2) Mr. Gordon. (3) See Court of Session Cases, 3rd Series, vol. iii. p. 514. VOL. L 2 2 A 234 SCOTCH APPEALS. [L. R. 1867 on my said daughter in case of her marriage, or such part thereof as may be due *"" v ^ / at her death, and the lawful interest of the same from the first term of Whit- CABLTON g un a a y f or Martinmas, after her death, during the not payment ; and also with THOMPSON, the burden of an annuity of 200 sterling yearly to the said John Tracy O'Beity during his life, after the death of his said spouse ; and with the further burden of the payment of a legacy of 500 sterling to Lieut. John Hunter, in the service of the Honourable Eatt India Company, my nephew, in the event of the decease of my said daughter without issue, and to be payable at the first term of Whit- Sunday, or Martinmas, after her death, with the lawful interest thereof after the said term of payment during the not payment of the same." The truster died on the 29th of March, 1811, without lawful issue. He was survived by his spouse, and also by Mrs. O'Reily, and her husband. After the death of Mrs. O'Reily, the trustees raised the present process of multiplepoinding and exoneration for the purpose of obtaining a judicial determination of the rights of all parties claiming interest in the trust estate, and a judicial exoneration of their own actings as trustees. The several parties claiming an interest in the trust estate having lodged claims, a record was made up and closed, and the parties were heard upon the questions raised under that record. The leading question which, if decided one way, would prac- tically have disposed of the whole cause, was, whether, under the terms of the trust disposition and settlement those of the children of his daughter, Mrs. O'Reily, who pre-deceased her, had or had not a vested interest in the trust estate. On the part of Mrs. Carlton and Mrs. Hudson, who alone survived their mother, it was contended that no interest had vested in any of the children who pre-deceased their mother, the life-rentrix, and in that view they claimed the whole residue. On the part of the other claimants, as representing in various ways and to various effects the children who had pre-deceased their mother, it was contended that the vesting of the interest in those children was not suspended till their mother's death ; that they had a vested interest during her life ; and that such interest was transmissible and transmitted to their representatives by law or by will. If that question had been decided in favour of Mrs. Carlton and Mrs. Hudson, most, if not all, of the other claims and questions that have been raised would have been excluded ; but the Lord Ordinary and the Inner VOL. I.] SCOTCH APPEALS. 235 House decided it against them, and they have appealed. Other 1867 questions are involved in the appeal, but I shall first deal with the CABLTON question of vesting. THOMSON. When the question arises under a mortis causa settlement, whether the benefit given is, or has become, a vested right, the intentions of the testator, in so far as they can be discovered or reasonably inferred from the deed taken as a whole, and from the circumstances, legitimately collected, under which the deed was made, should have effect given to them. It is questio voluntatis. That is the cardinal rule and guide. The task of discovering the testator's intentions is sometimes perplexing, and in such cases aid may, to some extent, be derived from the application of presump- tions recognised in previous decisions. The general rule of law as to bequests is, that the right of fee given vests a morte testatoris. That rule holds, although a right of life-rent is at the same time given to another, and although that is done through the instrumentality of a trust, and whether the fee be given to an individual nominatim or to a class. The post- ponement of the period of payment till the death of a life-rentrix does not suspend the vesting; nor does the interposition of the machinery of a trust for carrying into effect the intentions of the testator. Indeed, the creation of a trust is a very usual mode of securing the interest of a life-renter, where the right to the fee is nevertheless intended to vest in the person or class of persons for whom it is destined. Although the jus dominii may be in trustees, the jus crediti is in the beneficiaries as a vested right. At one time doubts were entertained as to the case where the settlement was by a trust deed to hold for a life-renter and successive persons as fiars ; but the tendency of recent decisions in that class of cases, and, indeed, in almost all cases, has been in favour of the vesting of the fee a morte testatoris, unless the terms of the deed are such as to exclude that construction. The case of Forbes v. Luckie (1) supplies authority on most of these points. Lord Fullerton was the Lord Ordinary in that case ; and the Judges in the Inner House, while affirming his judgment, delivered their opinions fully. Lord Corehouse spoke very decidedly on the several points above referred to. Lord Gillies and Lord (1) Ifi Shaw, 374. 236 SCOTCH APPEALS. [L. B. 1867 Mackenzie added the weight of their great authority. In subse- CARLTON quent decisions the authority of that case has been fully recognised * and eiven effect to. The circumstance that some of the members THOMPSON. . of the favoured class were unborn at the testators death is no obstacle to the right vesting in each of them as soon as they respectively come into existence, although the amount of the benefit to accrue to each may not be then ascertainable. That is quite settled. There may, however, be cases in which vesting is suspended. Thus, where the right is made conditional on a contingency per- sonal to the legatee, such as marriage, or arrival at majority, events or dates uncertain, which may never have place, there is a pre- sumption, though not insuperable, that a vesting or right to take was intended to be suspended until the occurrence of the contin- gency should be ascertained. So also an inference to that effect may be deduced from an express clause of substitution or survivor- ship applicable to the members inter se of a class to whom the fee is destined. These are the most usual indications of intention to suspend vesting. But neither of them occurs in the deed now under consideration. An inference of intention to suspend vesting may, in a particular case, be collected from the whole purpose and tenor of a deed. I shall presently consider whether the purpose and tenor of the present deed are or are not such as fairly to support that inference. It has been contended that where, in addition to postponement of the period of payment during the life of a life-renter, there is a substitution, or, as it is sometimes called, a destination over, in favour of parties other than the fiars first named, there is a presumption that the vesting also was intended to be postponed till the death of the life-renter. There are cases in which that circumstance has, in connection with other circum- stances, been taken into account ; but it is by no means a conclu- sive circumstance. Whether the clause founded on in the present case is truly a substitution or destination over, in the sense and to the effect contended for, is a matter to which I shall afterwards advert. As regards the purpose and tenor of the whole deed now under consideration, I am very clearly of opinion that the leading purpose of the testator was to confer the benefit of the great bulk of his VOL. I.J SCOTCH APPEALS. 237 fortune on his daughter in life-rent, and- on her children in fee. 1867 That purpose could best be carried into effect through the instru- CAKLTOH mentality of a trust ; but, as already shewn, such an arrangement T * does not at all imply that the right of the children as fiars was not to vest during their mother's life ; that in the event of the marriage of any of the daughters during their mother's life their right could not be made available in their marriage settlements, or that any of the sons, in the event of his entering into a profes- sion or business, was to have no jus orediti that could be made available for his benefit. That is not presumable. I think it is rather to be presumed that the truster intended to give to the children all the benefits that a right of fee could give consistently with securing the life-rent interest of their mother. Then the deed contains a clause which I think shews that the truster contemplated and authorized a termination of the trust be- fore the death of the life-rentrix, if the trustees, in their discretion, should think fit to act upon it. The words are, that the residue now in question was " to be kept in trust by them till they, in their discretion, shall see proper to settle it in the most safe and secure manner on her and her children." I cannot read that clause as a mere instruction as to the investment of funds to be thereafter held by them in trust. The plain meaning of the words is, that the trust is to continue till, and only till, the trustees see proper to settle the trust fund in the most safe and secure manner, on the mother in life-rent and the children in fee. If the trustees had exercised that power the right to the fee must have vested in the children directly, instead of indirectly through the trust. That such a mode of dealing with the fund was a thing present to the mind of the testator appears to me to indicate very clearly that he intended by the deed to create a jus crediti in favour of the children. It was argued that if the trustees were denuded of the trust under that clause the right of fee must have gone to the mother, as the trustees could not have introduced the word "allenarly" to qualify her right, no such word being in the trust deed. That is a fallacy. The trust deed did not prescribe any formula, and the duty of the trustees would have been to introduce whatever words were necessary to give her the same measure of benefit as 238 SCOTCH APPEALS. [L. B. 1867 she had under the trust deed, and no more. Suppose the mother CARLTON had renounced her life-rent of the whole or a part in favour of her T * children, it does not appear that there was anything to prevent the children from demanding immediate possession and enjoyment. There is no clause of survivorship, nor is the right or the time of payment made contingent or conditional on an event which may never happen, such as marriage, or attaining majority ; elements some of which are to be found in almost all cases in which the vesting is intended to be suspended. These considerations are all hostile to the notion that in this case vesting was suspended till the death of the life-rentrix. On the other side of the question the feature most relied on, and most deserving of consideration, is the clause whereby the nieces are introduced. But, in the first place, that clause is not of the nature of a substitution. It is of the nature of a conditional institution or bequest depending on a condition or contingency which never did occur. In the second place, I think the contin- gency was excluded as soon as Mrs. O'Reily had issue of her body. The words " decease without issue of her body" may mean without leaving issue of her body surviving her, or it may mean without having had issue of her body ; and it may depend upon circum- stances which of these two meanings is to be attached to the words. The Appellants contend for the former of these meanings, and in that view they argue that the clause in favour of the nieces was tantamount to a substitution or destination over, and therefore gives aid to their contention that the vesting was intended to be suspended. Even if that were the character of the words, and that there was anything else in the deed to which they could give aid, I do not think that the aid would be material, or would go far towards displacing the other considerations I have alluded to. But I am not disposed to adopt the meaning which the Appellants attach to the words. I do not think that the testator intended to prevent Mrs. O'Beily, in conjunction with her children, being, as they might have been, all of full age, from making arrangements and dealing with their respective rights of life-rent and fee without regard to the contingent interests of the nieces. For the reasons I have stated, my opinion is, that the right vested a morte testaioris in the class, some of whom were in exis- VOL. I.] SCOTCH APPEALS. 239 tence at that time ; and that a jus crediti vested in each child at 1867 its birth, although the amount of the benefit was subject to the 'CARI/TON contingency of there being more children born. " J THOMPSON. I do not think it necessary to notice in detail the several cases under the head " Vesting " that have been referred to. Each case depended on the particular terms of the deed which gave rise to it. But on a review of all the cases, I think that the scope and tendency of them is to the effect I have indicated. The leaning of the law is towards vesting, unless there be something in the deed to exclude that construction. I find nothing in this deed to exclude it. The Appellants have another plea on the record, which, though it does not appear to have been much, if at all, relied on in the Court below, and is not noticed in the printed case for the Re- spondents, was pressed in argument at the bar with much ability, and deserves consideration. It is, that even assuming the residue to have vested as contended for by the Respondents, the share or interest of the children who pre-deceased the life-rentrix accrued to the survivors jure accrescendi. The Appellants were the only survivors, and consequently the importance to them of this contention, if well founded, is obviously very great. In support of it reference was made to the civil law, and to a passage in Lord Stair's Institutes, iii. 8, 27. The doctrine of the civil law as to the jus accrescendi is subtle and unclear. The civilians differ in their interpretation of it, and even Lord Stair had not succeeded in making it quite intelligible. He begins his section on the subject thus : " The right of accres- cence is that whereby the portion of an heir, legatar, or fidei commissar befalleth to another ; not by a new and several succes- sion, but by the first succession, and as part thereof. We have little use of this ; and therefore I shall be shorter in the many subtile debates agitated amongst the doctors thereupon." Never- theless he was led into writing a section of more than ordinary length with him, and not quite free from the subtlety he ascribes to the doctors, but which was perhaps inseparable from the subject. His remark, however, is true, that the doctrine is not much in use with us ; and from the whole tenor of the dissertation referred to, 240 SCOTCH APPEALS. [L. E. 1867 it appears that the doctrine he was there more particularly dealing CARLTOK w i tn na d reference to the case of parties named by the testator to T " take immediately on his death, and as to what should happen if any of those conjoined in such a nomination cannot or will not enter or accept ; that is, cannot, as by reason of having pre-deceased the testator, or being for some reason disqualified, or will not, as by choosing to decline. In such cases the interest which the testator intended to give to the party who cannot or will not take it was to go to the person or persons .conjoined with him, or to be otherwise dealt with according to the form of words used. Thus Stair there says : " In the institution or substitution of heirs, or in legacies, and fidie commisses, if there be more persons, and some of them joint as to both matter and words, the rights of those so conjunct do accresce (if any of the persons so conjunct do not or cannot accept) to the rest of the conjunct, and not to those that are disjunct in the matter though they be conjunct in the words." The whole doctrine there treated of had reference apparently not to the case of a postponed interest, or of a subsequent succession, but to the case of parties who were to take in the first instance, or, in the words of Lord Stair, " the first succession." But we are not now dealing with a case in which there was any inability, or unwillingness, or failure to accept. The bequest was to a class, and the class must be held to have accepted the beneficial right which vested in them. It would be a mistake to suppose that Lord Stair, in commenting on the jus accrescendi of the civil law, recog- nised it as implicitly adopted into the law of Scotland. He not only begins the section (27) with the remark that the right of accrescence referred to is not in much use with us, but he also begins the next section (28) thus : " The law and customs of Scotland have reduced the matter of testaments and succession in moveables much nearer to natural equity, and made it much shorter and plainer than the Roman law." I do not mean to suggest that the principle of accretion, or jus accrescendi, has no place in the law of Scotland in any conjunct rights. It is, to some extent, recognised, and although in most of the cases in which it is recognised authority for it may be found in the civil law, nevertheless it would be wrong to hold that every- thing on this subject that has authority in the civil law has been VOL. L] SCOTCH APPEALS. 241 adopted into the law of Scotland, and especially wrong to hold that 1867 the rules of the civil law applicable to the inability or unwilling- CARLTOH ness of parties to take at the testator's death are to be implicitly THOMPSON applied in our law to the subsequent succession to parties who -"= have taken. The passage cited from Bell's Principles, sect. 1882, also fails to support the contention of the Appellants. By the word " survivor " in that passage is meant the legatee who has survived the testator, and accordingly the authorities Mr. Sell refers to as collected in his illustrations of the passage cited, are cases in which one of the legatees had pre-deceased the testator, and the question was, whether the share of the legatee so pre-deceasing accresced to the survivor. It is a general rule in the law of Scotland that where the right to a fee has vested it transmits or passes to heirs, unless in the nature of the subject, or in the language of the deed which gives the right, there is something that requires a departure from that rule. In the case of a legacy or bequest which has vested the rule applies as strongly as in other cases. The question of the vesting or not vesting of the right of fee pending a life-rent is, as I have already observed, a question of intention, to be gathered from the deed. The same observation applies to the question whether, in a case where the fee is provided to a class, the share of one of the class is on his death to accrue to the survivors of the class, or to go to his own heirs, by law or by will. In every such question the governing rule is, that the intention of the testator must prevail, in so far as it can be reasonably inferred from the whole clauses of the deed. That such is the rule appears sufficiently from the two cases to which the Appel- lants have referred, as if they had been decided on some abstract rule of the civil law. In one of them, Barber v. Findlater (1), Lord Jeffrey, who was Lord Ordinary in the case, began his judg- ment in these words : " The Lord Ordinary considers this a questio voluntatis ;" and then he proceeded to examine minutely the clauses of the deed, and to inquire into the presumable intention of the testator. So also in Tulloch v. Welsh (2), Lord Moncreiff, who was Lord Ordinary in that case, said : " The whole question (1) 13 S. & D. 143. (2) 1 Dun. 94. VOL. I. 2 2 B 242 SCOTCH APPEALS. [L. E. 1867 is on the just and legal construction of the settlement in the CABLTON clauses constituting and regulating thfe right of life-rent given. * There certainly are rules derived from the civil law which have THOMPSON. . . . some application to that question, but the governing rule is, that the intention of the testator must prevail, in so far as that in- tention is expressed, or can be reasonably ascertained, from the whole clauses of the deed." These cases were not decided on the authority of the civil law, though some mention of it was made incidentally. Nor do they otherwise support the contention of the Appellants ; for they are distinguishable from the present case, not only in the clauses and language of the deeds, but in the nature of the thing that was the subject of contention. In neither of them was there was any com- petition for a right of fee directly involved. In both of them the question was, whether the annual proceeds of a fund were to be wholly paid to the life-renters so long as any of them survived, or whether upon the death of each life-renter a portion of the annual proceeds was to be set apart and accumulated till a future period^ for the benefit of those who might ultimately become entitled to the fee. The question turned rather on the terms in which the right of life-rent was given than on the terms in which the right of fee was given. In such a question, as to the enjoyment of a temporary interest in the annual proceeds, the intention of the testator may be inferred from elements which would not indicate an intention to depart from the ordinary rule of law, that a right of fee which has once vested transmits or passes to heirs. The only other case on which the Appellants founded in this branch of their argument was the case of Burnet v. Burnet (1). That case is in some respects peculiar, and the statement of it in the marginal note cited by the Appellants does not quite accurately express the ground of the decision. It was the case of a provision of a sum of money to children payable on majority or marriage. Several of them had attained majority before the death of their father ; one afterwards died in minority unmarried. It was held that as some had attained majority the right to the sum of money had vested in the class ; but as to the one who died, it was held (1) 16 Dunlop, 780. VOL. L] SCOTCH APPEALS. 243 that as his right to participate in the fund was contingent on his 1867 attaining majority, or being married, and as neither of these con- CARLTON tingencies had ever occurred, the whole sum was payable to those THOMPSON. who did attain majority. That case clearly has no applicability to the present case, which has no such elements in it. It is therefore necessary, in reference to the plea of accretion, to look for the intention of the testator. In doing so I assume, for the reasons I have already stated, that he intended the right of the children in the fee to vest, and did not intend that the vesting should be suspended till the death of the life-rentrix. That being so, and the general rule being that a fee once vested passes to heirs, unless there be in the deed conferring the fee something that excludes the application of that rule, I look to see if there is anything in this deed indicating an intention to exclude the application of the general rule. It is very easily excluded if such is the intention ; and in the case of a bequest to a class, that is generally done by a clause declaring that, in the event of the death of any of the members of the class before the period of distribution, or before some other event specified, his share should go to the survivors, as is done in this same deed in regard to the testator's nieces ; but there is no such clause in regard to his daughter's children. Upon the effect of the contrast between these two classes, I take leave to borrow the language of Lord Jeffrey, in the case of Colder v. Diekson (1). "The omission," he said, "from this part of the settlement of any such accrescing clause as will be found in the immediately-preceding part of it affords the strongest possible grounds for concluding that no similar arrangement was intended as to the provision now in question." Nor do I find in this deed anytliing else to lead me to the conclusion that, while the testator intended as I hold he did intend that the right of fee should vest in his daughter's children, he nevertheless intended that the ordinary incidents of a vested right should be excluded. I think that is not to be presumed. On the grounds I have stated, I am of opinion that the inter- locutors appealed against should be affirmed, and that the cause should be remitted back to the Court of Session. (1) 4 Dunlop, 1368. 244 SCOTCH APPEALS. [L. E. J8 THE LORD CHANCELLOR (1) : CABLTON My Lords, I have had an opportunity of seeing and considering THOMPSON, the opinion which has just been delivered by my noble and learned friend. It coincides exactly with the view which I had, indepen- dently of it, taken of the whole case ; and it expresses that view so fully and so completely, that I feel that I could add nothing useful. I shall therefore content myself with saying that I entirely agree in the opinion which has been expressed by my noble and learned friend, and in the conclusion at which he has arrived, that the interlocutors appealed from should be affirmed. LORD CRANWORTH: My Lords, I am exactly in the same position as my noble and learned friend on the woolsack. My view of this case has been stated so fully and so ably by my noble and learned friend oppo- site, that I will only add that I rejoice to think that the conclusion at which the Court of Session has arrived in this case with respect to the law of Scotland, as I understand it, on the subject of vesting, is precisely similar to what the decision would have been if it had been an English case. Interlocutors affirmed, and the appeal dismissed, with costs. j Solicitors for the Appellants : Loch & Maclaurin. Solicitors for the Kespondents : Adam Burn. (1) Lord Chelmsford. VOL. I] SCOTCH APPEALS. 215 MACFARLANE & Co APPELLANTS; TAYLOR & Co RESPONDENTS. March w. Breach of Contract Unmarketable Article Damages. A company of merchants ordered, and a company of distillers agreed to furnish, a cargo of whisky to be coloured like rum for the African market. It was stipulated that the colouring matter should be harmless. The stipula- tion was disregarded. The whisky produced effects alarming and startling, though not shewn to be actually deleterious. It consequently proved unmarketable : Held, that the distillers were liable in damages. Per THE LORD CHANCELLOR: The article has been sold for a specified purpose; and the seller must be considered to warrant that it is fit for that purpose. Issues for Trial. Where issues, though prolix and untechnical, have been the means of ascertaining the real justice of a case, they will not be displaced or dis- turbed on appeal. Amendments of Pleadings and Issues. Remarks by the Lord Chancellor shewing the facilities which exist in England for such amendments. Exception for Non'direction. Where the Judge's direction, if given, must necessarily have been against the Complainant : Held, that his exception for wow-direction was properly disallowed. MESSRS. TAYLOR & Co., general merchants in Leith, traded with the West Coast of Africa, in various articles, but especially in whisky, coloured with burnt sugar, and made to resemble rum, so as to satisfy the taste of the natives, who objected to " white spirit." In November, 1862, Messrs. Taylor & Co. dispatched for Old Calabar a large cargo of coloured whisky, which proved unsale- able ; the natives, not unreasonably, fancying it to bo poisoned, some of them who tried it having found that it dyed their saliva and other secretions into the colour of blood. The fact turned out to be that the whisky had been coloured, not with burnt sugar, but with logwood. The consequent action, out of which the present appeal aroso, VOL. I. 220 4G SCOTCH APPEALS. [L. B. 18G8 was brought by Messrs. Taylor & Co. against the distillers (the MACFARLANE above Appellants), by whom the whisky in question had been ? furnished, and to whom Messrs. Taylor had paid a large price with an express view to the African trade. The point for decision was whether the article supplied by the Defenders was or was not conformable to the order given by the Pursuers ; which order had reference to a sample of certain other whisky then shewn to the Defenders. The following issues were directed for trial : "Whether in or about September, 1862, the Defenders, on the order of the Pursuers, agreed to supply to them a quantity of whisky coloured with burnt sugar or other innocent material, similar to a sample of Mackenzie & Co.'s whisky then shown to the Defenders ? Whether the Defenders delivered to the Pursuers a quantity of coloured whisky, amounting to 20,554 proof gallons ; for which the Pursuers duly paid the stipulated price? And whether the coloured whisky so delivered by the Defenders to the Pursuers was disconform to the said order, inasmuch as it was coloured with some colouring matter, not being burnt sugar or other innocent material, similar to said sample, to the loss, injury, and damage of the Pursuers. At the trial, the Defender's counsel called upon the Judge to direct the jury, in the first place, that in order to entitle the Pursuers to a verdict it was not sufficient for them to prove that the material which coloured the whisky was injurious to its mar- ketable quality ; and secondly, that in order to entitle them to a verdict, they must prove that the colouring material was injurious to health. The Judge refused to give these directions. The jury returned a verdict for the Pursuers, assessing the damages at 3000. The exceptions were afterwards disallowed by the First Division of the Court of Session, and a rule for a new trial was discharged. Hence the present appeal. Mr. Anderson, Q.C., Mr. Hellish, Q.C., and Mr. Madaren, were of Counsel for the Appellants. Sir Eoundell Palmer, Q.C., Mr. George Young, and Mr. Sliircss Will, for the Respondents. At the conclusion of the Appellants' argument their Lordships, VOL. I.] SCOTCH APPEALS. 247 without calling on the Respondents, delivered judgment as fol- 1868 lows : MAOFARLAKE BL THE LORD CHANCELLOR (1) : TAYLOB - My Lords, the merits of this appeal were very fully and clearly laid before your Lordships yesterday by the learned counsel for the Appellants; and after the consideration which your Lordships have been able to give to the case, I venture to think that you will concur with me in the opinion that it is unnecessary for us to call upon the counsel for the Respondents. My Lords, the facts of the appeal which require to be adverted to lie in an extremely small compass. The Respondents here, who were the Pursuers in the Court of Session, are the firm of Taylor & Go. merchants at Leitli, who carry on trade with the West Coast of Africa. The Defenders in the Court of Session, who are the Appellants here, are the firm, of Macfarlane & Co. who are distillers or rectifiers at Port Dundas, Glasgow. The Pursuers stood in need of a certain quantity of spirits for the purposes of their trade with the West Coast of Africa, that is to say, for' the purpose of bartering there with the natives in ex- change for the productions of the country. They applied to the Appellants, Messrs. Macfarlane & Co., and entered into a contract with them (the terms of which I shall have afterwards to advert to) for the supply of those spirits. So far as regards quantity, the spirits which were ordered were supplied, and a bill of ex- change was drawn for the purchase-money, accepted by the Pursuers, and paid at maturity. And there, my Lords, the case would have ended but for this, that when the spirits reached the coast of Africa, and were used for the purposes of barter there, they were found, as the Pursuers allege, to be unmerchantable in their quality. And consequently an action was brought against the Appellants, Messrs. Macfarlane & Co., by Messrs. Taylor & Co., for damages in respect of the quality of the spirits. In that action the record was closed in the usual way, and the parties not being able to agree upon the form of an issue, an issue was settled by the Inner Division of the Court of Session and went to trial. That trial occupied several days, and in the result the (1) Lord Cairns. 202 248 SCOTCH APPEALS. [L. B. 1868 jury found a verdict for the Pursuers with damages to a large MACFABLASE amount, namely, 3000. TAYLOR The whole case is now brought up before your Lordships mainly upon two objections to those proceedings : The first objection chal- lenging the form of the issue which was settled by the Court ; and the second being an exception to the ruling of the learned Judge at the trial as regards the law which he laid down to the jury, and as regards an alleged omission on his part to state to the jury what (as the Appellants contend) he ought in addition to have stated. My Lords, in order to appreciate the argument upon the first of these questions, namely, the form of the issue, it is necessary to advert to the averments in the record with regard to the contract, and I cannot help noticing here (I hope with no undue prejudice in favour of the course which is pursued in this country) the incon- venience of the form adopted in Scotland as compared with the form which we now adopt in this country in an action of this description. In England the habit is, under the recent changes in procedure, for the Plaintiff to aver what he considers to be the legal result of the evidence which he will be able to adduce, as regards the form of the contract, and then if those averments arc challenged to go to trial upon them. If in the course of that trial the evidence which he adduces, while it maintains in substance his averments, should differ from them in minor details, the Judge at the trial has the power to permit amendments of those averments, and thus to prevent any unnecessary expense or any failure of justice (1). In Scotland, on the other hand, there is in the plea- dings a considerable amount of narrative, leading up to the averment of the~concluded contract, and upon those averments the issue is agreed upon by the parties, or settled by the Court in default of agreement, and becomes, as it were, the stereotyped issue upon which the trial must be conducted. And if, as must con- stantly happen in the course of the trial, minor details appear which in some degree produce a variance from the averments upon the record, or from the issue as thus settled, there is always a danger of criticism and cavil as regards the question, whether the issue, on the one hand, properly represents the point to be determined (1) Common Law Procedure Act of 76 ; sec Lush's Common Law Practice, 1852 namely, the 15 & 16 Viet. c. Stephen's edition. VOL. I.] SCOTCH APPEALS. 249 between the parties, and whether, upon the other hand, the evi- 1808 deuce sustains the issue as thus settled. I will not pursue this MACFARLANE matter further than to say that I feel persuaded that it would be T v ' your Lordships' view upon all occasions of this kind, that while on the one hand you would not be disposed to maintain an issue which, in consequence of its form, had failed to determine the real question between the parties, so, on the other hand, your Lordships would be unwilling at this stage of the proceedings to allow mere criticism as to the wording of the issue, mere observation as to want of felicity of expression in framing the issue, to become the means of overthrowing the proceedings if your Lordships were satisfied that the real justice of tfie case had been ascertained between the parties. My Lords, for the purpose of examining the form of the issue it will not be necessary to do more than to refer your Lordships to the fourth and fifth heads of the condescendence, in which we find a statement of the contract as alleged by the Pursuers. These have been so recently before your Lordships' eyes, that I do not propose to read them at length, but your Lordships will not fail to observe that, under the fourth head of the condescendence, there is a distinct averment by the Pursuers, and -a distinct admission on the part of the Defenders, that the Pursuers stated, and the Defenders were aware, that the Pursuers required the spirits in question for the purposes of the African trade, a trade in which spirits are bar- tered with the natives of the coast of Africa, for their consumption, and in return for the productions of the country. Passing, my Lords, from the fourth article of the condescendence and going on to the fifth, we find that upon the occasion of making the contract there were two samples before the parties, which, to a certain extent, were referred to. There was a sample called " the sample of the Macfarlanes" which was adopted for the pur- pose of indicating the strength and defining the flavour which the spirit was to have, and for the purpose of settling the price. For those three purposes, strength, flavour, and price, the sample pro- duced by the Macfarlanes was adopted, and was satisfactory to the Pursuers. My Lords, if that had been all, and if the question now had arisen as regards either strength or flavour, I should have been ot 250 SCOTCH APPEALS. [L. B. 1868 opinion, and I think your Lordships would have concurred with MACFARLANE me * nat a ^ * ua * W011 ld have been necessary would have been to v - determine the question of fact, what was the strength and what L AYLOR* was the flavour of the sample produced by the Maefarlanes. But the matter did not end there. The desire of the Pursuers was to have spirits coloured in such a manner to represent as nearly as possible the colour of rum. The sample produced by the Macfar- lanes was too light in colour for that purpose. It appears that there was in the room with the parties a sample of spirits produced by another house, the house of Mackenzie, darker in colour, and of a colour which represented the shade which the Messrs. Taylor desired to have upon this occasion. That sample of Mackenzies" was referred to for the purpose of defining the shade of colour ; and the agreement with the Messrs. Hacfarlane was, that they would colour up (if I may use the expression) the spirits which they would supply so as to bring them to the same colour as the sample of the MacJcenzies. These facts are averred in substance in the fifth article of the convescendence, which concludes with this statement : " The Defenders know, and were expressly informed, of the purpose for which the spirits were wanted, and that they were intended for human consumption, and that, while colouring was required, the colouring matter must be such as iu no degree to impair the quality of the whisky, or render it unfit for use." It was contended by Mr. Hellish that this was in substance a sale of spirits by sample. It was a sale by sample to a certain ex- tent, but only to a certain extent. It was a sale by sample so far as regards strength, and "so far as regards flavour, but as regards colouring it was not a sale by sample beyond this, that a shade of colour which might just as well have been represented upon paper, or upon wood, or upon any other material, was produced in a sample of coloured whisky, which was to be the shade of colour adopted as a pattern by the Messrs. Macfarlane. But the question how that colour was to be produced, whether it was to be pro- duced by one device or by another, so far as the averments are concerned, was not a matter of definition or statement between the parties. It is proper that I should, at this stage of the case, remind your Lordships of the Act of Parliament that was passed in the year VOL. I.] SCOTCH APPEALS. 1850, termed, "An Act to amend the Laws of Scotland affecting Trade and Commerce " (1). By the 5th section of that statute an MACFAKLANK enactment was made for the purpose of assimi latin so mu ch at variance with what was the real question to be tried, that your Lordships should now refuse to maintain it ? Looking at it in that point of view, I cannot think that there is anything in this issue which could have misled the jury, or could have failed to express to them the question which was to be tried. The word " innocent " is, no doubt, a word of many meanings ; but in this particular context it is used in connection with a com- modity which is referred' to, burnt sugar; and the meaning obviously is this: The whisky was to be coloured either with burnt sugar, a material which could produce no ill effect upon the spirit, or with some other innocent material, that is to say, some other material ejusdem generis, which would be equally free from any charge of injuring the material into which it was introduced. In other words, the term " innocent " would correctly represent a material which would not be injurious to the commodity by render- ing it unfit for the purpose for which it- was intended which, in other words, is exactly expressing what the Act of Parliament lays down as the implied warranty in the case of such a sale of goods. If that be so, my Lords, I do not think that any reasonable ob- jection can be made to the third head of the issue ; although I may say again that I should have been well content if it had simply proposed the question whether the coloured whisky deli- vered by the Defenders was not conformable to the order. I believe that would have expressed all that was necessary to be de- termined, but it has gone on to say, " inasmuch as it was coloured with some colouring matter not being burnt sugar, or other inno- cent material similar to said sample, to the loss, injury, and damage of the Pursuers." These words are somewhat involved in their form, but I read them as importing a want of conformity to order, inasmuch as the whisky was coloured similarly to the sample, but the colouring matter was not burnt sugar, or other innocent material ; referring the jury back therefore, in substance, to the first head of the issue, and asking them whether the contract was as averred in the first head of the issue, and whether the spirits which were delivered were or were not in accordance with, that contract? Upon that issue, therefore, I should humbly venture VOL. L] SCOTCH APPEALS. 253 to advise your Lordships that there is no ground at this stage 18C8 t^-y^w* for finding fault with the form of it, now that it is brought up MACFABLANE before US ' I pass on to the next part of the case, which deals with the charge of the learned Judge, the objections to which charge are expressed in the fifth and sixth exceptions. For reasons which will be obvious, I propose to ask your Lordships to consider tho sixth exception before the fifth. The sixth exception suggests what the learned Judge ought to have told to the jury, and it alleges that he ought to have directed the jury in point of law, first, " That in order to entitle the Pursuers to a verdict on their issue it is not sufficient for them to prove that the material with which the whisky was coloured was injurious to the marketable quality of the whisky. Secondly, that in order to entitle tho Pursuers to a verdict on their issue, it is necessary for them to prove that the material with which the whisky was coloured was injurious to the health of the consumer." Now, my Lords, there is no doubt that this expresses very clearly and distinctly what it is that the Appellants contend for, and what it was that they desired to submit to the jury ; and I am not at all surprised at this contention ; because in it there is the only possible chance of the Appellants succeeding upon this trial. The Appellants knew very well having regard to tho medical evidence adduced on both sides the state of facts that was brought before the jury was this: that the colouring matter intro- duced into this spirit being logwood, it would be correct with regard to it to say that it was not such a material as that its in- troduction into the spirit would endanger life, or perhaps seriously endanger health ; but that, on the other hand, it would, beyond all doubt, be productive of symptoms and effects upon the human frame which would be in the highest degree unpleasant and alarm- ing to the person who was taking the spirit, and would be such as to a certainty would prevent either him or any other person knowing of those effects from dealing any further with regard to that spirit. Therefore it was that the Appellants were natu- rally anxious that there should go to the jury the question touch- ing the effect of this coloured spirit upon health and upon life, and not a question touching its fitness for the purpose for which 254 SCOTCH APPEALS. [L. R. 18G8 it was intended, namely, as a merchantable spirit for the coast MACFARLANE of Africa. But, my Lords, that exception being taken, I ven- TAVJ B ^ ure * think that your Lordships will have no difficulty at all in agreeing with me in saying, that if the learned Judge had given this direction to the jury it would have been a distinct . and palpable miscarriage upon his part. An express warranty that the spirit should not endanger life is nowhere suggested to have been given.- An implied warranty that the spirit should not endanger life is not the implied warranty which is defined by the Act of Parliament. The Act of Parliament defines the implied warranty to be this, that the spirit should be fit for the purpose for which it was intended, and I apprehend it would have been an error on the part of the learned Judge if he had in any way departed from those expressions, and had told the jury that under the term " innocent " they were to consider, not whether the spirit had been coloured in a way rendering it unfit for the pur- pose for which it was intended, but whether it had been coloured in a way rendering it dangerous to life or to health. Therefore, taking the sixth exception, I own I cannot myself entertain any doubt, and I think your Lordships will not entertain any doubt, but that the issue tendered here by the Appellants is an erroneous one ; and that the Judge is not in any way to be found fault with because he did not give this direction to the jury. Then, that being so, I turn now to the fifth exception. The fifth exception complains that Lord Kinloch directed the jury " that the word * innocent ' as contained in the issue, was not a legal term, nor one on which it was necessary that he should put a legal construction ; and that it was for the jury to say, upon the evidence, whether the thing was innocent or not in the fair and reasonable sense of the word as employed in ordinary language." Now, my Lords, I say again here what I took leave to say with regard to the form of issue, I should have been well satisfied if the learned Judge had thought it right to go somewhat further, and had directed the jury that by the term " innocent ; ' their minds must be led to consider whether anything had been done to the spirit which had rendered it unfit for the purpose intended. But what I apprehend your Lordships have to consider here is, was VOL. I.] SCOTCH APPEALS. 255 this statement which is expressed in the fifth exception erroneous, iscs so far as it goes ? And in respect that the learned Judge did not MACFAUI.AM: go further, was there any failure of stating matter of law to the jury which has led to a miscarriage, or may fairly be supposed to be calculated to lead to a miscarriage, on the part of the jury ? So far as the charge of the learned Judge goes, I think no exception can fairly be taken to it. It appears to me to be not inaccurate so far as it is set out upon the bill of exception. Is it the case that the jury might have been misled by the learned Judge not going further ? What was said by one of the learned Judges in the Court below appears to have a material bearing upon this case. The learned Judge said that the jury knew that there really were two questions between the parties whether the Pur- suers were right in saying that it was enough to prove that the spirit was unfit for the purpose for which it was intended, and whether the Defenders were right in contending that the proof ought to shew that the spirit was dangerous to life or to health. The jury heard the learned Judge asked to give the direction which is indicated in the sixth exception they heard that direc- tion refused to be given and they could not but have been aware that that left one point, and only one point, for the jury to deter- mine, namely, whether the spirits had been coloured with colouring matter which was innocent, that is to say colouring matter which would not be injurious to the spirit, having regard to the purpose for which it was intended. And if that be so, then I apprehend that the jury could not in any way have been misled and if they were not misled then I apprehend that upon a question, not of misdirection but of nondirection, your Lordships will indeed be slow to hold that merely because the Judge might with propriety have stated more to the jury than he did state, although anything more which he could properly have stated would have been in favour not of the Appellants, but of the .Respondents, yet the Ap- pellants were, on the ground of that omission, entitled to object, and upset the whole proceeding. Upon these grounds, my Lords, I have no doubt at all that the satisfactory conclusion to arrive at is this, that these exceptions were properly disallowed by the Court below ; and that neither to the form of the issue, nor to the charge of the learned Judge, has 956 SCOTCH APPEALS. [L. E. 18C8 any objection been shewn which ought to lead your Lordships to MACFAELANE disturb the interlocutors of the Court below. I therefore venture * , to advise your Lordships to confirm those interlocutors, and to - dismiss this appeal with costs. LOKD WESTBURY : My Lords, if your Lordships are satisfied that substantially the real question is embodied in the issues, and that it has been tried in a satisfactory manner, you will, I feel certain, be most unwilling to interfere with them, although you may be of opinion that they have not been skilfully extracted, and are expressed in a prolix and perhaps awkward manner. Nothing could be simpler than the original transaction, or more plain than' the question which arose out of the circumstances that occurred. The Pursuers were desirous of buying a quantity of coloured whisky to be sent to West Africa as a commodity to be bartered to the natives. The Defenders tendered to supply the whisky, and produced to the Pursuers a sample which was approved as to price, flavour, and strength, but not as to colour, whicli was re- quired to be deeper ; and the Defenders then agreed to make the colour equal to that of another sample of coloured whisky which the Pursuers produced to them as a standard of colour, and they engaged to deliver the whisky accordingly. The contract was thus complete. Nothing passed as to the colouring matter which should be used, but underneath the contract, of course, lies the implied general engagement that the article sold shall be fit for use, that is, for human consumption, being the purpose for which it was sold. The whisky was taken to the coast of Africa, and part of it having been supplied to the natives, it was found to produce very unpleasant and alarming, if not injurious, effects on the bodies of those who drank it ; and the whisky thereby became unmarketable. It was ascertained that these effects on the body of the consumer, being such as ordinary whisky, or whisky coloured with burnt sugar, does not produce, were due to the colouring matter that had been used by the Defenders. It would seem that whisky had been commonly coloured by burnt sugar, but that the Defenders had VOL. I.] SCOTCH APPEALS. 257 used logwood, or a decoction or extract of logwood, for the purpose iscs of producing the colour required, and which material, according to MACFARLANE the evidence, does not appear to have been previously used for such v - purpose. Under these circumstances, the question that arose in fact was Avhether there had been a breach of the implied contract, or, in other words, whether the whisky which the Defenders had coloured with logwood was fit for use and human consumption. It was a fit question for a jury as the law now stands, although I venture humbly to think that if the question had been argued and the witnesses examined before Lord Kirilocli sitting alone, a satisfactory conclusion would have been arrived at without any chance of miscarriage in procedure, and with an infinitely less expenditure of time and of money. The parties could not agree as to the form of wording the issues, which w 7 ere accordingly settled by the Inner House ; and the issues so settled, though unneces- sarily long and cumbrous, in effect amounted to this : Was the whisky supplied by the Defenders coloured by means of an inno- cent material ? The trial lasted five days, and the evidence shewed that logwood colouring produced effects on the body of the consumer which, to say the least, were very disagreeable and alarming; it had an astringent effect ; it affected the saliva and the secretions from the kidneys, giving them the colour of blood; and it changed the colour of the skin down to the fingers and nails. I cannot conceive a more alarming picture to be presented to an Edinburgh or Glas- gow jury, Avhere toddy is supposed to be in great esteem. The jury found unanimously a verdict for the Pursuers, thereby in effect finding that the colouring material was not innocent, and that the whisky was not fit for use. The contention by the Appellants at the trial was, that the learned Judge ought to have given to the jury an explanation of the meaning of the word " innocent," and ought to have in effect told them that, although it appeared that the whisky was un- marketable, yet that it did not follow that the whisky was not innocent. I think the learned Judge was right in declining to do any such thing. The word " innocent " was used in the issues in its ordinary popular sense, and it was for the jury to find upon the 258 SCOTCH APPEALS. [L. E. 1868 evidence whether the colouring matter, or the whisky as coloured MAOFABLANE by it, was innocent, that is to say, harmless in use ; and the jury na( ^ n thing to do directly with the question, whether the whisky was or was not marketable, otherwise than as that might be the result of finding that the colouring matter was not harmless, that is, not an innocent thing ? I therefore entirely approve of the manner in which the case was left to the jury by the learned Judge, which is thus stated in the bill of exceptions: "Lord Kinloch directed the jury that the word ' innocent,' as contained in the issue, was not a legal term, nor one on which it was necessary that he should put a legal construc- tion, and that it was for the jury to say upon the evidence whether the thing was innocent or not in the fair and reasonable sense of the word as employed in ordinary language." I think, having regard to the issues and the evidence, that this was a proper mode of leaving the case to the jury, and it was certainly a mode more favourable to the Appellants than to the Eespondeuts. I therefore entirely agree with my noble and learned friend upon the woolsack that the appeal should be dismissed with costs, so far as it is an appeal from the interlocutor settling the terms of the issues, and that the exceptions should in like manner be over- ruled. LORD COLONSAY : My Lords, the views which I entertain upon this case, both as regards the true meaning and construction of these issues, and as regards the exceptions which have been taken to the charge of the learned Judge, have been so fully stated by my noble and learned friends who have preceded me that I do not think it necessary to make any addition to their statements. I think that, as regards the exceptions, the moment it is held that the sixth exception must be disallowed, it follows almost of necessity from that itself that the fifth exception cannot be maintained, because in that case the Appellants would require to shew what direction ought to have been given that would be consistent with their contentions in this case. Any direction that could have been given consistent with the views which have been expressed by my noble and learned friends, and in which I entirely concur, must have been a direc- VOL. I.] SCOTCH APPEALS. 259 tion not tending in favour of the Appellants, but an additional 18C8 V. TAYLOR. direction leading towards the verdict which the jury did find. I MACFARLANE therefore concur entirely in the affirmance of the interlocutors complained of. Interlocutors affirmed, and appeal dismissed with costs. Solicitors for the Appellants : Simson & Walieford. Solicitors for the Respondents : W. & H. P. Sharp. J. A. G. C. CAMPBELL (CLAIMING TO BE EARL) OF BREADALBANE, &c.) J APPELLANT > THE EARL OF DALHOUSIE, et al (TRUSTEES AND EXECUIOES OF THE LATE MARQUIS OF BREADALBANE) FIRST AND SECOND APPEALS. RESPONDENTS. Improvements ly Heir of Entail under the Montgomery and Rutherford Statutes. Finality of the Decree under the Montgomery Statute. The decree in the action of declarator calling as Defender the next collateral heir is final, and bars all subsequent resistance. Per THE LORD CHANCELLOR : Parliament conceived that the maker of the improvements would protect his own issue, and that the collateral heirs would be sufficiently guarded by calling the first of them, those coining after having liberty to intervene. Per LORD WESTBURY : The decree is final against the issue of the collateral heir called, in the same manner as it is final against the improver's own issue. Requirements of the Decree. The decree must shew with reasonable certainty that the improvements ar--v- March 30. 260 SCOTCH APPEALS. [L. E. jggg Sheriff's office an account, with vouchers, of the sums expended by him ; '**' and such account must be signed by him. CAMPBELL -g u j. w h ere the improving heir had died four days before the term of Martiu- EABL OF mas > an( i where, consequently, his signature was impossible : DALHOUSIE. Held, that the signature of his executor, or personal representative, was, under the circumstances, sufficient. Costs. Per LOUD WESTBUBY : When the counsel for a party considers that there is any question of costs to which he wishes to address himself, he must mako it part of his original argument. J.N 1834 the late Marquis of Breadalbane succeeded as heir of entail to the great estates of his family, and he possessed them until his death, without issue, on the 8th of November 1862, when the succession devolved on the above Appellant. Belying on the compensation provided by the Montgomery (1) and Rutherford statutes (2), the Marquis had from time to time expended considerable sums in improving the entailed estates. His trustees and executors brought two actions to recover the amount demandable under the statutes from the Appellant as the next heir in possession. The Court of Session decided in their favour (3) ; and hence these appeals to the House. Sir BoundeU Palmer, Q.C., Mr. Hellish, Q.C., and Mr. Young, were heard for the Appellant. The Lord Advocate (4), and Mr. Watson, for the Bespondents. The merits of the question, with the arguments of counsel, as well as the facts of the case, are all fully dealt with and examined in the following opinions. THE LORD CHANCELLOR (5) : My Lords, these two appeals raise some questions which are of importance to the parties, but which do not, as it appears to me, present any difficulty as to the conclusion at which your Lordships should arrive. (1) 10 Geo. 3, c. 51 : " An Act to for the Amendment of the Law of encourage the Improvement of Lands, Entail in Scotland," 14 August, 1848. Tenements, and Hereditaments in Scot" (3) See 3rd Series of the Court of land, held under -Settlements of Strict Session Cases, vol. iv. pp, 775 & 790. Entail." 1770. (4) Mr. Gordon. (2) 11 & 12 Viet. c. 36: "An Act (5) Lord Cairns, VOL. I] SCOTCH APPEALS. 261 The questions may be conveniently divided into four : three 1868 arising out of the first appeal, and one out of the second. CAMPBELL With regard to the first of these four questions, your Lordships v - IjARL OF have to consider what is the meaning and the effect of the Mont- DALHOUSIE. gomery Act, the 10 Geo. 3, c. 51. Under that statute the heir of entail who proposed to execute improvements was to give to the parties who might succeed him certain notices of his intention to execute the improvements; and then if, alter the improve- ments were executed, he desired in his lifetime, while the evidence was fresh in the minds of those who could speak to the expenditure* to have a judicial certificate for the same, provision was made for his obtaining a decree of Court, declaring the sum in respect of which he was to stand as having a charge on the estates. What he had to do was this : under the 26th section he was to com- mence an action of declarator before the Court of Session, or a process of a similar kind before the Sheriff. In that action he was to call, not his own lineal descendants (for the Act appears to have assumed that their interests would be sufficiently protected by him who was their immediate or remote parent), but the heir next entitled to succeed after the heirs of his own body. And in that suit he was to produce proper evidence of the amount laid out in such improvements. And then that next heir who was so called, and any other heir of entail, whether called or not, was to be entitled to produce evidence to set aside or diminish the claim. And then it was to be lawful for the Court of Session, or for the Sheriff, to pronounce a decree for such part of the sum proved to have been expended as, by the true intent and meaning of the Act, was intended to become a charge against the succeeding heirs in the entailed estate. And that decree, if pronounced by the Sheriff, was to become final, unless carried to the Court of Ses- sion by suspension within six months. And if pronounced by the Court of Session, either in such process of declarator, or suspension, it was to be final if an appeal was not brought within twelve months. The late Marquis of Breadalbane, under this Act, commenced five actions of declarator in the Court of Session, and in all of them he obtained decrees, amounting to a very considerable sum of money in the whole. In those actions the person called was the father of the present Appellant, who at that time, subject to the 2 D 2 262 SCOTCH APPEALS. [L. K. 1808 possibility of the late Marquis having issue of his own body, was CAMPBELL the heir presumptive next entitled to the estates. The present , v - Appellant was not called, but his father, he being the next colla- EARL OF DALHOCSIE. teral heir in tail at the time. And the present Appellant now contends that, inasmuch as he was no party to those proceedings of declarator, he is not bound by them ; he contends that those decrees of declarator have not conclusively awarded, as against him, that the sums of money in question were properly expended ; and he claims the right to open up the question as to the amount of expenditure, and to contest the propriety of the sums included in the decrees of declarator being charges on the estates. My Lords, if that contention were right very serious conse- quences would ensue ; because your Lordships will readily see that this Act of Parliament making provision for the calling in the action of one heir only in the entail, namely, the next collateral heir to the person making the improvements, if every person but the heir so called was to be free afterwards to dispute all that had been done, the chances would be very strong in favour of that col- lateral heir not happening to be the person on whom the succes- sion would ultimately fall ; and this provision of the statute, so carefully framed to all appearance for the purpose of preventing subsequent disputes, would probably in many, or in most instances fail of having that operation. It appears to me impossible to give a rational meaning to this section, where it provides that a particular heir shall be called, and gives permission to other heirs not called to intervene and dispute the claims should they think fit, if the statute meant to say that the proceeding of declarator thus commenced was to be binding upon one heir and no one else ; if that had been the object of the Legislature it might at- once have been accomplished by saying that the person who made the improvements might raise an action of declarator, and might call in that action whom he pleased, and that what was done in that action should be held to bind those whom he called, and no one else. But I apprehend your Lordships will be of opinion that the rational and common sense construction of the section is, that Parliament meant to provide for a means of setting at rest all dis- putes after the death of the person making the improvements, VOL. I.] SCOTCH APPEALS. 263 and for that purpose Parliament conceived that the direct and 1868 lineal issue of the heir of entail making the improvements would CAMPBELL be sufficiently protected by their ancestor, who would care for EA ^J OF their interest ; and that the persons next in succession, the col- DALHOUSIE. lateral heirs, would in their turn be sufficiently protected by the calling of the first of those collateral heirs next in succession, and giving him an opportunity of appearing as a party disputing the claim, with the further privilege to the other heirs of appearing if they thought fit and advancing any argument they could against the claim. For myself, my Lords, I have no doubt, and I think your Lordships will be of the same opinion, that the proceedings taken by the late Marquis of Breadalbane, so far as regards the persons bound by them, are proceedings which established con- clusively the propriety of the expenditure made by him, and that, there having been no appeal from these decrees, these decrees are final, and are binding upon the present Appellant. We have next, my Lords, to consider the second question arising under the first appeal, as to the objection which was made to the form of the decrees themselves. And I think your Lord- ships will not find it necessary to consider for that purpose more than one of the decrees of declarator ; the observations that occur upon that one being substantially the same as those that occur upon the other decrees of the same kind. It is said that under the Montgomery Act any decree of decla- rator ought to shew, on the face of it, the character of the im- provements which have been made, in order that any one reading the decree may see upon what kind of improvements the expendi- ture took place, and so may be able to judge whether the im- provements were of the kind contemplated by the Act ; for, as your Lordships know, the Act contemplated improvements of four specified kinds only. Now the decree purports to be " In a summons and action of declarator of entail improvements instituted before the Lords of Session," &c. The words " entail improvements " are themselves technical words, and are obviously used in this decree, as they appear to have been used in many other proceedings, for the pur- pose of describing those improvements made by an heir of entail in possession in respect of which he was to be entitled to charge 264 SCOTCH APPEALS. [L. E. 1868 under the Montgomery Act. But having so begun, the decree CAMPBELL proceeds to state that the action was brought by the Marquis of _ * Breadalbane against Campbell of Glenfallocli, and that the summons DALHOUSIE. fg dated and signeted the 10th May, 1844, and libels inter alia, upon the Act of Parliament passed in the 10th year of George III. (giving its title). That is to say, the libel is founded upon the Montgomery Act, giving to an heir of entail in possession a right to compensation in respect of improvements. The decree then states that the summons is founded " also upon the notices or inti- mations given in terms thereof," and that it concludes for decree as thereinafter expressed. Then the Lords of Council and Session find that a certain sum was expended by the Pursuer in improve- ments upon the lands and estate, and they declare three-fourths of the same to be a debt existing against the heirs of entail who may succeed the Pursuer in the said estate ; and they further decern and ordain that William John Lambe Campbell, or the next heir entitled to succeed to the estate immediately after the Pursuer, on his so succeeding should make payment of a certain sum in respect of that debt ; and the whole concludes with these words, " conform to the said intimations, accounts, and vouchers libelled on, the said Act of Parliament, and laws and practice of Scotland" Now, my Lords, the Act of Parliament itself prescribes no form whatever for the decree. The decree, as far as regards form, is left to the discretion of the Court in which the proceedings take place; and all, as it appears to me, that your Lordships have to determine is whether, with a reasonable certainty, you can find upon the face of the decree that the improvements there spoken of are improvements claimed for and recognised in pursuance of the Act of Parliament. And I think that no doubt can be enter- tained by any person reading this decree that what the Court of Session intended to affirm was, that the money alleged to have been laid out had been laid out in improvements under and ac- cording to the Act of Parliament, and that they were declaring that the Pursuer was entitled to charge for those improvements as improvements warranted by the Act of Parliament. Therefore I have no hesitation in expressing my opinion that upon the second objection the Appellant has failed to advance any argu- VOL. IJ SCOTCH APPEALS. 265 ment which should entitle him to succeed in objecting to the 1868 finality of these decrees of declarator. CAMPBELL And now, my Lords, we come to the third question arising upon EAJ OF the first appeal namely, as to the effect of the proceedings taken DALHOTJSIE. by the late Marquis of Breadalbane under the Rutherford Act. For the purpose of considering those proceedings, I must remind your Lordships that the scheme of the Rutherford Act appears to be this. In place of leaving the heir in tail to pursue the some- what cumbrous and tedious remedy of the Montgomery Act, it provides that if the heir in tail had obtained a declarator as to the amount of money expended on improvements, he might come in under the Rutherford Act; and with a view immediately to realize the sums which he had expended, or to raise money upon the security of the charge to which he was entitled, he might obtain the permission of the Court of Session to execute a bond either for an annual rent-charge with reference to the amount of the expenditure, or a bond for a gross sum of money, being two- thirds of the sum for which he had a charge. The late Marquis of Breadalbane availed himself of the advantages of the Rutherford Act. He instituted a proceeding in the Court of Session, founding himself upon the decrees of decla- rator which he had obtained, and asking to be allowed by the Court of Session to issue a bond or bonds of the kind which I have described. He obtained the authority of the Court of Session in the form of a decree, and he acted upon the decree to the extent of executing a bond, with the approbation of the Court, to the extent of 20,000 for an annual rent-charge. The whole sum for which he was entitled to claim was more than that namely, 25,000. For the difference between those two sums, namely, 5,200 no bond was executed; but the decree of the Court of Session under the Rutherford Act professed to authorize the issuing of a bond or bonds for the whole amount. My Lords, it was, in the first place, contended on the part of the Appellant that, under the 19th section of the Rutherford Act, the giving of one bond, even although it was for a smaller amount than the amount for which the late Marquis Tvas entitled to stand as a creditor, annihilated his claim for the whole of his expendi- ture, whatever it might be. And the (Appellant founded his 266 SCOTCH APPEALS. [L. B. 1868 argument upon the wording of the 19th section of the Entail CAMPBELL Amendment Act, which enacts : EARL OP That the granting under the authority of this Act of any bond of annual rent, DALHOUSIB. or bond and disposition in security, in respect of any improvements executed or to be executed on an entailed estate in Scotland, shall operate as a discharge of all claims for or on account of such improvements against such estate, and the rents and profits thereof, and the heirs of entail succeeding thereto, save and except the claims under such bond of annual rent, or bond and disposition in security them- selves. It would be one of the most unreasonable interpretations that could be conceived of that section to hold that if an heir in tail had a claim for 25,000 under the Montgomery Act, and came into the Court of Session for leave to execute a bond under the Ruther- ford Act, and obtained from the Court of Session that leave, and if he, not being able perhaps to obtain a customer for the whole sum, executed a bond in the first instance for 1000, part of the 25,000, that he should therefore be considered to have anni- hilated his claim for the remaining 24,000. I think there is no occasion so to interpret the section, and any such interpretation would be an unreasonable one. It would be unreasonable, even if we had not regard to the ordinary clause at the end of the Act of Parliament, that a singular term includes the plural, and that the word " bond " may include " bonds." Having regard to that interpretation, it appears to me that this section is to be read distributively ; and that it means that the giving of any bond under the Rutherford Act shall, as to the amount of that bond, be a valid discharge of any claim that might exist against the estate under the Montgomery Act. But the question still remains, whether the effect of the Marquis of Breadalbane constituting himself a creditor under the terms of the Rutherford Act, was not an election by him to stand upon that Act, and that alone, and to abandon the position which he pre- viously had under the Montgomery Act. When we look at the different provisions of these two statutes, it appears to me that it is impossible to arrive at any conclusion but this that the proceedings taken by the late Marquis of Breadalbane under the Rutherford Act were an abandonment by him of his position under the Montgomery Act. Under the Montgomery Act the charges which were defined by the decrees of declarator were all subject to this VOL. L] SCOTCH APPEALS. 267 contingency or condition, that it should turn out at the death of 1868 the Marquis that these charges did not exceed in amount a certain CAMPBELL number of years' value of the estates. The Rutherford Act appears to have dispensed altogether with that condition, and to have treated any person who obtained a decree of declarator as entitled to stand absolutely as a creditor for the amount of that decree, whether the sum might or might not exceed the supposed number of years' value of the estate. It would, therefore, be very strange if an owner in tail who had taken the benefit of this subsequent Act were afterwards to go back to the former Act, and to reopen the question as to the amount of charge which it might thus be neces- sary to consider. But the difficulty becomes much greater when we remember that a bond for 20,000, part of the 25,000, had actually been issued and is in force under the Rutherford Act. For the question immediately arises thereupon : If the 5200 is to be recovered, not under the Rutherford Act, but under the Montgomery Act, in what way can you apply the provisions of the Montgomery Act as regards the relation between the sum charged and the annual value of the land which is to be taken into account ? It appears to me that upon that ground alone it would be impracti- cable for the representatives of the late Marquis to work out any remedy in respect of this sum of 5200 under the earlier Act of Parliament. Further than that, we must remember that the con- sequence of holding both these Acts of Parliament to be operative as to one charge would be this, that the present heir in tail would have to pay in respect' of the bond issued under the Rutherford Act a certain annual sum, or a certain gross sum. If the Mont- gomery Act is also to be put in force against him, and if he were unable to pay the sum of money in respect of which it was put in force, his only alternative would be to surrender one-third of the annual income of the estate for the purpose of payment. He might thus be harassed in the most serious and inconvenient way by the double operation of the two Acts of Parliament. I think your Lordships would be slow to arrive at the conclusion that that could have been the intention of the Legislature. In my opinion, and I hope your Lordships will concur with me, the proper and fair construction of the provisions of the Rutherford Act is that the person who proposes to avail himself of them puts the rights 268 SCOTCH APPEALS. [L. E. 1868 which he previously had in a position to be governed and operated CAMPBELL u P n by the later Act of Parliament. It is not in this proceeding E * that your Lordships will express any opinion as to what ought to DALHOUSIE. fee done, or whether anything ought to be done, with respect to the 5200, which, in my view of the case, if recovered at all, must be recovered under the Rutherford Act. That will be for consideration in some other proceeding. For in the conclusions of the present summons no application is made to the Court by the Pursuers for relief under the Rutherford Act in respect of that sum. If your Lordships concur with me so far as I have gone, the result will be that the first appeal must fail in all respects, except as regards the sum of 5200. As to that your Lordships will assoilzie the Defenders from the conclusions of the summons, with- out prejudice to proceedings that must be taken, if so advised, in some other form in respect of that sum. I now come, my Lords, to the second appeal, as to which only one question arises. It appears that in addition to the sum covered by the five decrees of declarator to which I have referred, certain further sums are alleged to have been expended by the late Marquis of Breadalbane upon improvements which never became the subject of any decree of declarator, and his repre- sentatives claim against the present Earl for the amount. The Appellant contends that the conditions of the Montgomery Act, under which those sums are claimed, have not been complied with in this respect. The 12th section requires : That the proprietor of an entailed estate who lays out money in making im- provements npon his entailed estate, with an intent of being a creditor to the succeeding heirs of entail, shall annually, during the making such improvements, within the space of four months after the term of Martinmas, lodge with the Sheriff or Steward Clerk of the county within which the lands and heritages improved are situated, an account of the money expended by him in such im- provement during twelve months preceding that term of Martinmas, subscribed by him, with the vouchers by which the account is to be supported when payment shall be demanded or sued for. Now here no such account subscribed by the late Marquis was lodged in the manner prescribed by the Act. In point of fact no such account could have been -lodged, because the late Marquis died, I think, four days before the term of Martinmas, which I believe is the llth of November. VOL. I.] SCOTCH APPEALS. 269 The question, therefore, which the second appeal raises is in 1868 V^Y^S substance this: whether the clause I have read is an absolute CAMPBELL condition to the right of claim for improvements, or whether it is EA ^ OF a clause of direction only, with respect to which if an adequate DALHOTJSIK. reason for non-compliance, such as the act of God, is shewn, the non-compliance would not disentitle any person who otherwise has a proper title to compensation for improvements. Beyond all doubt the clause relates to an act to be done subsequently to the expenditure, and in addition to it. And it appears to me that there is nothing in the words of the clause which should lead your Lordships to hold that it is even a subsequent condition. The words are simply by way of enactment, although the section com- mences with the term "Provided," the enactment being for the purpose of securing, if it can be secured, the written testimony and statement of the person who has made the improvements, that they have been made in the manner in which they ought to be made in order to found a claim. If by the act of God it becomes impossible that the claim can be signed, it appears to me that it would be construing the Act of Parliament in a way in which no clause of the kind has ever been construed, if we held that where the act of God thus prevented a compliance with the words of the statute, the proprietor or his representatives should thereby be prevented from making a claim for improvements. No authority has been mentioned to your Lordships which has gone to such an extent. Certain cases were referred to where, the proprietor being in existence who might have subscribed the statement which the Act prescribes, an attempt was made to substitute the signature of the factor or agent for the signature of the principal. In such cases it may have been very well decided, and it may be that your Lordships would hold, that if the proprietor were capable of signing this statement of expenditure he ought not to be excused from doing it. But it becomes altogether different when, from no act or default on his part, his subscription became an actual impossibility. I, therefore, humbly advise your Lordships that, as regards the second appeal, the foundation for it altogether fails, and I would suggest that it ought to be dismissed with costs. As regards the first appeal, if your Lordships concur with me you will vary the 270 SCOTCfi APPEALS. [L. K 18G8 interlocutors to the extent which I have mentioned, namely, as to CAMPBELL * ae 5200. Probably your Lordships will think it right that EARL OF nothing should be said with regard to the costs of that appeal. DALHOUSIE. LORD WESTBTJRY : My noble and learned friend on the woolsack has expressed so fully and so clearly the grounds on which I think your Lordships' concurrent opinion will be founded, that it is unnecessary for me to follow him in detail. Upon the first point, that of finality, if we were to listen to the argument of the Appellant, the Act of 10 Geo. 3 would certainly be deprived of its utility, and would fail to attain the purpose for which it was passed. Its object unques- tionably was to ascertain and settle, once for all, the amount of the expenditure, and the manner in which that expenditure was made. Accordingly it proceeds upon two principles, first, that the act of the heir of entail shall be considered, without the neces- sity of judicial inquiry, as conclusive upon the heirs of his body ; and then, with regard to all those who are interested in the ulterior destination, it imposes upon the heir of entail the obligation of calling into Court the person first entitled, but it opens the door for all those who are entitled under the ulterior destination to come in and make themselves parties to the cause. But although that is my opinion with regard to the effect of the enactment, I am very desirous of pointing out that the full extent of your Lord- ships' judgment will only carry this proposition, namely, that the decree is final against the person claiming as heir of the body of the heir of entail who was called in that proceeding, because the father of the present Appellant was called in that proceeding. It is perfectly consistent with natural justice and with the words of the statute to hold that the proceeding was final against the per- son called and those who claim under him, namely, the heirs of the body, just in like manner as the statute does not impose upon the heir of entail making the improvements any obligation to call his own issue in the proceeding under the Act. With regard to the next point,- namely, the form of the decrees, it is perfectly clear that if a decree, which otherwise might have been final, is expressed in terms that shew conclusively upon the face of it that it is not in conformity with the statute making it VOL, L] SCOTCH APPEALS. 271 final, the Court may decline to enforce it. But that cannot be 1868 \_0~ -^j asserted of the decrees in the present case, because they all profess CAMPBELL to be (and credit must be given to their statements) in strict con- EA ^ QF formity with the provisions of the statute ; and no obligation being DALHOUSIE. thrown upon the Court of embodying in the decree a statement of the improvements that were actually effected, the decree is in con- formity with the ordinary style of the Court, and it is impossible, consistently with the provision that the decree shall be final, to permit a party to say that ex facie of the decree it is a decree that ought not to be held final. Credit must be given to the language of the Court, unless it is perfectly clear from the language itself that the Court is mistaken in the decree which it has made. The next point arises upon the concurrent remedies which are given by the two statutes to the heir of entail. By the old statute, the Montgomery Act, no proceeding could be taken by the pro- prietor making the improvements for the purpose of raising money during his own life ; but at the time of the passing of the Ruther- ford Act, in conformity with later usage, it was seen that it would be beneficial to give to the proprietor the power of raising money to a certain extent during his own life to repay part of the ex- penditure which he had made. And accordingly it gave him an option of adopting a different remedy from that provided by the Montgomery Act; the remedy under the Rutherford Act being this, that he might get authority either to make a mortgage for a certain amount, or to grant a rent charge issuing out of his estate for a certain limited amount. But it is clear that of the two alternatives one must be taken by the party. That is clear from the language of the statute, and by attending to the argu- ment db ineonvenienti, independently of the language of the statute, we shall be led to the same conclusion. For it is scarcely possible to make a remedy given by one statute applicable to a portion only of a sum of money, and to leave the remedy given by another statute fully competent to the party with respect to the remaining part of the sum. A particular reason in illustration of this point was given by the counsel for the Appellants, namely, that the aggregate sum stated in the application of the late Marquis under the Rutherford Act was a sum constituted of items with regard to which there were different rights and remedies 272 SCOTCH APPEALS. [L. E. 1868 CAMPBELL v. EARL OF DALHOUSIE. under the Montgomery Act, and that if you take out of that aggre- gate sum another sum, namely, 20,000, you render it impossible to ascertain with anything like certainty how much of the remain- ing 5000 was to be attributed to that outlay in respect of which there was a more restricted right, and how much was to be attri- buted to the outlay in respect of which there was the larger right under the Montgomery Act. I have no hesitation, therefore, in acceding to the conclusion of my noble and learned friend that it is a case of election necessarily so by reason of the inconvenience attending any other course and that the late Marquis here did make his election, for in his petition under the Rutherford Act he expressly desired that the whole of the outlay should be dealt with under the provisions of that statute, and the Court accord- ingly interposed its authority to the extent of that prayer. With regard to the remaining point, unquestionably its deter- mination admits of very little difficulty. The statute that gives the remedy gives the right, and constitutes the proprietor making the outlay a creditor of the estate. The Montgomery Act is most definite and precise. It is there enacted positively, and without reference to any subsequent provision, that a party doing so and so shall be a creditor to the succeeding heirs of entail for three fourth parts of the money laid out. That constitutes his right ; the collateral provision contained in the 12th section (for it is in reality collateral) is consistent with this view, that though he has got this right, yet the enforcing of it shall be subject to the obli- gation of first complying with the direction contained in the 12th section, provided he is not upon any legal ground discharged from that obligation. If the proprietor is alive, before he can sue for the money for which he is made a creditor he must shew that he has lodged the accounts required by the 12th section, and that those accounts were subscribed by him. But if it be impos- sible for him to fulfil that requisition, not by reason of his own default, or his own act, why then there are benignant maxims well known to the law, and constantly acted upon, such as Nemo tene- tur ad impossibile and Actus Dei nemini facit injuriam. And in such a case as this the subscription of the accounts by the per- sonal representatives of the party must be held to satisfy the obligation. The only question is, whether there is any impedi. VOL. I.] SCOTCH APPEALS. 273 ment to the recovery of the debt for which he is constituted a 1868 \^~^-^s creditor by reason of there being a non-compliance with this pro- CAMPBELL vision, and if that compliance is shewn to have been rendered EA ^ OF impossible, not by his neglect, or in consequence of his own act, DALHOUSIB. but by the act of God, it would be impossible, consistently with the established principles of law, to hold that he has lost his right through a provisionary or directory clause jvvhich it was impossible for him to comply with. My Lords, on all these grounds, therefore, I assent, without going further into the reasons already so fully given, to the con- clusion proposed by my noble and learned friend. The Appellant succeeds upon one point, merely limited to a declaration that the House is of opinion that the remedy in respect of the 5200 was sought by the party under the Eutherford Act, and that he made an election which renders any resort to the Montgomery Act, the Act of the 10 Geo. 3, no longer competent to him. Upon all other points, I think the Appellant must be considered to have failed ^ entirely as well upon the technicalities of the matter as upon the merits and justice of the case. Therefore, the second appeal will be dismissed, and in the first appeal the interlocutors will be varied by a declaration. LORD COLONSAY : My Lords, upon the question of finality I cannot say that I have at any time in the course of the discussion of this case had any serious difficulty. It appears to me that the argument, in the broad shape in which it was contended for by the Appellant, is not only a novel argument, but one that would go far to destroy the bene- ficial object and effect of the Act of 10 Geo. 3. It seemed to be contended that the finality could only extend to the person who had notice and was called in the course of the proceedings. The statute has been in operation,, for about a century, and I have not known any case in which the same contention was seriously main- tained. In the circumstances of this case it happens that the party who is the Appellant here is the heir of the body of the party who got the notice he is his heir of line. But although that circumstance occurs in this case, I do not wish that my opi- nion should be rested upon it. I am not at all prepared to say 274 SCOTCH APPEALS. [L. R. 1868 that there is any important distinction between the case of an CAMPBELL heir succeeding to the estate in virtue of the entail, being the ^ " immediate descendant of the person who got the notice, and the EARL OP * case of any other heir of entail claiming the estate through the instrument, through which alone either party can obtain the estate. And I think there are several clauses in the Act of 10 Geo. 3, which place all heirs succeeding to an estate by virtue of an entail, from whatever distance of propinquity they may come, precisely in the same position as to obligations. It is not necessary in this case to decide that point, but I wish to guard against my opinion being supposed to be rested upon the limited ground that this party is the immediate descendant of the person who got the notice. Then, my Lords, as to the form of the decrees, I see no diffi- culty. I think, on looking at the whole procedure that has taken place, the Court must be presumed to have had their minds suffi- ciently directed to the form ; and they have given decrees which state that the expenditure has been made, and that the party is entitled to a certain proportion of that expenditure all " con- form " to the Act of Parliament. The improvements made were those prescribed or contemplated by the Act of 10 Geo. 3. The basis of the application to the Court was, that they were improve- ments of that description ; and it must be presumed that when the Court pronounced that decree, they pronounced it conformably to the Act of Parliament. It appears also, with respect to the pro- ceedings under the Rutherford Act, in which the parties interested, the heirs of entail, were called, and a decree was pronounced, that in the very decree which these parties had every opportunity of opposing, the improvements are described as improvements of the nature contemplated by the 10 Geo. 3. Then comes the question, which has always appeared to me to be the only real question, and a somewhat difficult question, in this case, namely , r whether the Marquis of Breadallane, having availed himself of the provisions of the Eutherford Act in regard to the whole of that large sum, his representatives are entitled now to recur to the Act of the 10 Geo. 3 to render effectual the charge for a certain portion of that sum which was not covered by the bonds of annual rent or dispositions in security that were granted. I have had considerable difficulty upon that question; and when VOL. I.] SCOTCH APPEALS. 275 supposable cases are put, as they have been, the difficulty appears 1868 greater than it does at first sight. Dealing as we are now with CAMPBELL that question, I believe for the first time, in interpreting this EARL OF Act, and, looking at the whole of the provisions of the statute, and weighing the inconveniences which would attend the con- struction contended for by the Respondents (which have been pointed out now more forcibly than they were when the case was before the Court below), I think that the construction that is proposed by the noble and learned Lords who have spoken already is perhaps, on the whole, the most reasonable construction of the statute ; and, looking at it in that light, I am disposed to concur in the judgment upon that point also. As to the non-signing of the accounts, I really have never felt any difficulty at all. I think it would be a very extraordinary con- struction to hold that where literal compliancs with the direction of the statute has been prevented by the death of the party, that event should destroy the right of the creditor to the recovery of his expenditure. The statute directs that the accounts shall contain the whole of the expenditure up to a particular date ; and therefore contemplates that they shall not be lodged or signed till that date has come ; and if one or two days before the arrival of that date the party dies, being a creditor for that expenditure so far as it has been just and proper, it would be a singular construction of that direction to hold that those who come in and succeed him as creditors should not be entitled to supply what his death prevented from being done, and that they should consequently be deprived entirely of the right of recovering what is due to them. Therefore, upon all the points, I quite concur in the judgment proposed by your Lordships. Mr. Hellish : Will your Lordships allow me, before the question is put, to call your attention to the question of costs ? LORD WESTBURY : When the counsel for a party considers that there is any question of costs to which he wishes to address him- self, he must make it part of his original argument. If we were to hear you now there might be a long argument, for the other side would have a right to reply. VOL. I. 2 2 E 276 SCOTCH APPEALS. [L.B- 1868 CAMPBELL v. EAKL OF DALHOTJSIE. THE LORD CHANCELLOR: In the first appeal, the interlocutors complained of will be varied by a declaration that the late Marquis of Breadalbane, by presenting his Petition under the Act of 11 & 12 Viet. c. 36, and the proceedings thereon, elected to adopt the remedies given by that statute, and to abandon the remedies given by the Act of 10 Geo. 3 ; and, therefore, assoilzieing the Defender from the operation of the summons as to the sum of 5202, but without prejudice to any question in any other action ; and any costs paid by the Appellant under those interlocutors to be repaid. And on the second appeal, that the interlocutor complained of be affirmed., and the appeal dismissed with costs. Solicitors for the Appellant : Loch & Maclaurin. Solicitor for the Respondents : John Graham. 1868 A. W. F. ALEXANDER ...... ' . . APPELLANT ; THE OFFICERS OF STATE FOR SCOT-),, _ ._.._ > RESPONDENTS. LAND ............. J Claim to extensive Territories with Titles of Nobility and Royal Prerogatives Challenge by the Crown. On the strength of an ex parte service and retour (1) the Appellant claimed extensive territories in North America, with three peerages, and powers of government, &C., under grants from James I. and Charlesl. Suit on behalf of the Crown to reduce and set aside the service and retour. Judgment for the Crown, on the ground that the evidence was insufficient to sustain the alleged heirship. Eight of the Crown to reduce a Service. The Sovereign, though not ordinarily entitled to oppose or to compete in a service, may impeach its validity and demand its reduction where the rights of the Crown or the interests of the state are likely to be compromised. Per LORD WESTBURY : I consider it clear, beyond the possibility of doubt, that there is competency in the Crown to maintain this action. The (1) A service and retour in Scotch law correspond with the ancient in- quisitio post mortem of English law ; the object being to ascertain by the verdict of a jury the true heir of an ancestor deceased. See 2 Black. Comm. p. 69. VOL. L] SCOTCH APPEALS. question is not as to a right to compete in the service, but as to a right to reduce it. Per LORD COLONSAY : The Crown has a perfect title to pursue this action. Onus Probandi. The onus prdbandi in suing for the reduction of a service is on the Pursuer. Suspicious Evidence. Circumstances of suspicion under which additional evidence tendered by the Appellant was rejected, and an application to make out the case by further proof was refused. Oppressive Course taken by the Officers of State. Suspension of the civil suit : institution of criminal proceedings. Dis- approbation expressed by Lord Chelmsford. Appeal against an Interlocutor acquiesced in, and not reclaimed against. A preliminary defence which, if sustained, would have prevented examina- tion of the merits, was repelled by the Lord Ordinary, whose interlocutor, moreover, stated the Defender's acquiescence. The Court afterwards gave judgment on the merits against the Defender, who appealed to the House of Lords appealing also against the Lord Ordinary's interlocutor : Held, that the appeal against the Lord Ordinary's interlocutor was irregular and incompetent. Per LOKD CHELMSFORD : The Appellant relies on the proviso in the 15th section of the 48 Geo. 3, c, 151, "that when a judgment or decree is appealed from it shall be competent to either party to appeal to the House of Lords from all or any of the interlocutors that may have been pronounced in the cause, so that the whole, as far as is necessary, may be brought under the review of the House of Lords." The interlocutor of the Lord Ordinary, repelling the prelimi- nary defences, having, by the acquiescence of the Defender, and the absence of all notice of it afterwards, been virtually withdrawn from the cause, it could not be " necessary " upon the appeal from the final interlocutor upon the merits to bring it under the review of your Lordships' House. Per LORD COLONSAY : The proviso applies to judgments of the Lord Ordi- nary only so far as " necessary " to enable this House to deal with the merits of the case. The purpose of bringing up this interlocutor is to exclude us from doing so. Per LORD CHELMSFORD: The 19 & 20 Viet. c. 56, s. 24, allows costs to be given for or against the Crown, and applies as well to all causes presently depending as to those which shall come to depend. IN 1621 King James L, with a view to the "plantation of a colony," granted to Sir William Alexander, his heirs and assigns, vast territories in North America, comprising Nova Scotia and a great part of Canada, with the power of conferring honours offices, and titles at his pleasure. In 1625 this grant was con- firmed by King Charles I. ; who further, in 1630 and 1633, reciting 2 2 E 2 1868 ALEXANDER v. OFFICERS OF STATE FOR SCOTLAND, 278 SCOTCH APPEALS. [L. E. 1808 the success of Sir William Alexander in establishing " a colony in ALEXANDER those Atlantic regions," created him Viscount and Earl of Stirling, v - Viscount of Canada, and Lord of Tulliebodie, " to him and his heirs OFFICERS OF STATE FOR male for ever." I j \\D These grants, confirmed by statute (1), were, as remarked by Lord Wesfbury, " things truly surprising and unheard of ; being no less than a delegation of royal prerogatives to a subject, with powers of government extending over land equal in dimension to some kingdoms." The first Earl of Stirling died in 1640, the last in 1739 ; and it would appear that nothing, or little, was afterwards heard of the family till 1830 and 1831, when Alexander Alexander, the father of the above Appellant, got himself served ex parte as nearest lawful heir in general and in special to the first Earl of Stirling, whom he described as his great-great-great-grandfather, and whose titles and prerogatives, under the grants of the Stuart princes, he forthwith assumed. In 1833, however, the Officers of State for Scotland instituted, on behalf of the Crown, an action in the Court of Session to have the Services, both general and special, obtained by Alexander Alexander, and the retours, precept, and instrument of seisin, pro- curatory of resignation, and all other documents connected there- with, reduced and set aside on the ground that he was not, as he alleged, the nearest lawful heir of the Earl. Styling himself Earl of Stirling, Alexander Alexander put in the following preliminary defences : The summons does not set forth any interest on the part of the Officers of State which entitles them to prosecute the present action. Without entering at present into any discussion on the merits of the action, the Defender submits that the summons ought to be dismissed, on the following preliminary pleas : 1. Xo one can challenge a service as heir, unless he claim to be served in the same character with the party whose service is sought to be reduced ; and the Pursuers have not set forth in their summons, and they do not pretend, that they are in any way related to the first Earl of Stirling, or that they have any claim which, in a question of service, could come in competition with the Defender's. 2. It is not set forth in the summons that the Pursuers have any interest in the lands, entitling them to reduce the deeds challenged, and in truth they have no such right or interest, even supposing that the titles of the Defender were defective, and his services inept. (1) Scotch Act, 1633, c. 28. VOL. I] SCOTCH APPEALS. 270 3. So far as the summons relates to the honours and dignities of the Earldom, 1868 it is clearly incompetent, the Court of Session having no original jurisdiction to , ., ALEXANDER decide any peerage question. v On the 3rd of July, 1833, the following interlocutor was pro- STATE FOK nounced by Lord Moncreiff: "Bepels the preliminary defences and decerns ; and, Hie Defender acquiescing in this judgment, assigns the 1st of November to satisfy the production." In addition to the evidence had upon the services, the Court issued a commission ; and thereupon further evidence was adduced by both parties, the Defender endeavouring to establish his heirship by documents and inscriptions, as well as by oral testimony. While the Pursuers, on the other hand, impeached his case- through- out as one wholly undeserving of reliance. On the 20th of December, 1836, Lord Cocltburn, after considera- tion of the evidence adduced by both parties, pronounced judgment as follows : Finds that the Defender has not established that the character of lawful and nearest heir in general or in special to William first Earl of Stirling belongs to him, or that his services as such are warranted by the evidence produced, either before the jury or in this action. Therefore reduces the said two services, general' and special, and the retours proceeding thereon, and decerns. The Defender reclaimed to the Inner House ; and subsequently moved for permission to prosecute inquiries as to certain papers which he alleged had come to his knowledge. In November, 1837, he lodged a minute stating that he had recently obtained important additions to his evidence, especially two pacquets called the De Porquet Packet and the Le Normand Papers. The minute further stated that a map of Canada had been recovered, and a num- ber of ancient writings relating to the Alexander family ; with a memorandum in the handwriting of Louis XV. The Court allowed these documents to be produced, reserving all objections. At this stage the Pursuers submitted that it was essential to the ends of justice that the Defender should be personally examined in presence and under the authority of the Court with reference to his alleged discovery of the documents tendered by him. In pursuance, therefore, of an interlocutory order he appeared in Court, and was examined (1) with great strictness. (1) Sec 2nd Series Court of Session Cases, vol. i. p. 1196, where the decla- rations of the Defender are given. 280 SCOTCH APPEALS. [L. E. 1868 A remarkable proceeding afterwards took place : The De- ALEXAVDEB fender was cast into prison, and was indicted and tried in April ~^ v ' ,. : 1839, upon the charge of having forged the documents in question. STATE FOR " The jury, however, found it "not proven that he had forged any of . the documents, or uttered them knowing them to be forged." The cause was then put in the paper of the Inner House for judgment upon the Defendant's reclaiming note ; and on the 9th of July, 1839, the Second Division gave judgment as follows: "In respect that no appearance is made for the Defender, adhere to the interlocutor complained of, and refuse the desire of the note." Against this decision, and against the decision of Lord CocJcburn, the Defender, on the 27th of August, 1841, appealed to the House; but in consequence of proceedings below, which are explained in the Third Series of the Court of Session Cases (1), the final hearing and disposal of the cause was suspended, and, the Appellant himself in the meantime dying, his appeal became abated. On the 28th of June, 1864, his son, the above Appellant, Alex- ander William Francis Alexander, styling himself Earl of Stirling, was sisted in the place of his father, the original Defender ; and on the 19th of June, 1866, the Second Division pronounced as follows : " In respect of the interlocutor of Lord Cockburn of the 20th of December, 1836, and of the interlocutor of the Second Division of the 9th of July, 1839, reduce the precept from Chan- cery, the instrument of seisin, and procuratory of resignation, libelled, and decern." Against this judgment Alexander William Francis Alexander appealed to the House. He also obtained a revivor of his father's appeal, which had stood so long over. The son's appeal not only brought up the judgment of the Second Division of the 19th of June, 1866, but also the interlocu- tor of Lord Monereiff (pronounced thirty-five years previously) re- pelling the preliminary defences ; and one question that arose was, whether that early interlocutor, which stated acquiescence, and which had never been reclaimed against, was appealable. Sir EoundeU Palmer, Q.C., Mr. Anderson, Q.C., Mr. Wotlierspoon, and Mr. Bompas, appeared for the Appellant. (1) Vol. iv. p. 742 ; and see Scottish Jurist, vol. xxxviii. p. 390. TOL. I.] SCOTCH APPEALS. 281 The Lord Advocate (1), and Mr. Scott, appeared for the Kespon- 1818 dents. ALEXANDER v. The following opinions exhaust the arguments in the case. LOKD CHELMSFOED : My Lords, on the llth of December, 1838, the Second Division pronounced an interlocutor appointing the Defender to appear at the bar for the purpose of being judicially examined on the mat- ters set forth in his minute, and as to how the documents tendered in process came into his possession or knowledge. The judicial examination took place on the 18th of December, 1838, when he was interrogated closely and at considerable length by the Lord Advocate. After this the civil proceedings were suspended for a time, in consequence of a step taken by the Pursuers of which I cannot refrain from expressing my disapprobation. The Defender having been exposed to a very searching examination as to the manner in which he became possessed of the alleged newly dis- covered documents, distinguished as the De Porguet Packet and the Le Normand Papers, and the officers of the Crown having extracted from him all the requisite information, on the 14th of February, 1839, caused him to be arrested and thrown into prison, his letters and papers to be seized and searched, and many of them to be carried away. A prosecution for forgery was after- wards instituted, and after a trial which lasted five days the jury returned a verdict of " Not proven." But under the present appeal, my Lords, the first question which will have to be determined is whether the interlocutor of Lord Moncreiff repelling the preliminary defences can be brought under the review of your Lordships. The Appellant relies on the proviso in the 15th section of the 48 Greo. 3, c. 151, " that when a judgment or decree is appealed from it shall be competent to either party to appeal to the House of Lords from all or any of the interlocutors that may have been pro- nounced in the cause, so that the whole, as far as is necessary, may be brought under the review of the House of Lords." It is clear o my mind that this proviso does not mean that when a judgment (1) Mr. Gordon. SCOTLAND. 282 SCOTCH APPEALS. [L. E. 1868 or decree is appealed from, all the preceding interlocutors may, as \IEXAXDEK a matter of course, be brought under review. The words, " as far as is necessary," are qualifying words, and, whatever their exact rnean- STATE FOR ino- may be, they exclude the idea of there being no exception to SCOTLAND. . , the generality of the proviso. I do not think that the Appellant is entitled to bring the inter- locutor in question under review. It was pronounced upon pre- liminary defences which were intended to prevent the Court from entering into the merits of the case. It is stated in Lord Mon- creijfs interlocutor, that the Defender acquiesced in the judgment, which it was said in argument meant no more than that he pre- sented no reclaiming note against it. But the statement could never have found its way into the interlocutor of the Lord Ordi- nary unless he had been informed of the Defender's intended acquiescence in his judgment. These preliminary defences were thus finally disposed of. For although in the Defender's de- fences upon the merits the very same objection was made to the right of the Pursuers to challenge the deeds sought to be reduced, no notice was taken of this objection by Lord Cockburn in his note, and he seems to have considered either that it was not competent to the Defender to raise the objection in his defences on the merits, as it had not been reserved under the Act of Sederunt (1), or that the question had been finally determined. Mr. Anderson laboured hard to prove that an objection to the title of a Pursuer was good, both by way of preliminary defence and also upon the merits. If this were so, then the Act of Sederunt enabling the Lord Ordinary to reserve all objections to the title till the cause should be heard upon the merits was quite unnecessary. The Appellant seeks in this appeal to bring under review an interlocutor pronounced thirty-five years ago, on the ground that whatever may be the merits of the case, the Pursuers had no interest to question them, and consequently no title to institute the suit. The Appellant's counsel lay some stress upon an admission made in the Kespondent's case, when the former appeal was before the House, "that the judgment of the Lord Ordinary repelling the preliminary defences was completely brought by appeal before your (1) Act of Sederunt of 11 July, 1828. VOL. I.] SCOTCH APPEALS. 283 Lordships." But neither the present law officers for Scotland nor 1868 your Lordships can be bound by any such admission. ALEXANDER The interlocutor of the Lord Ordinary, repelling the preliminary OFFICER defences, having, by the acquiescence of the Defender, and the STATE FOU absence of all notice of it afterwards, been virtually withdrawn from the cause, it could not be " necessary " upon the appeal from the final interlocutor upon the merits to bring it under the review of your Lordships' House. The Appellant contends that the Crown, having had no title to oppose the service of the Appellant's father, cannot pursue a reduc- tion of it after it has been retoured. But it by no means follows, because a party may have no right to intervene in a service, that if his right is at all affected by it he may not afterwards have an action of reduction. The cases cited by the Appellant, of Forbes v. Hunter (1) and Coclirane v. Ramsay (2), relate to appearances upon general and special services, and it may be admitted that the Crown could not have appeared upon the general service, and perhaps not upon the special service, though with respect to the latter service there may be some question. But if the rights of the Crown are at all affected by the Appellant's father having been served heir to the first Earl of Stirling, it cannot be but that there must be some mode of protecting these rights, and none can be suggested but that of reducing the services, if improperly obtained. The effect of the special service of the Appellant's father as heir of the first Earl of Stirling was to clothe him with a primd facie title to the extensive territories granted by the Crown in 1621 and 1625, comprising Nova Scotia and a great part of Canada, together with the power of conferring honours, offices, and titles, at his will and pleasure. It appears that the Earl exercised this right of conferring honours and titles by creating Sir Claude St. Etienne and his son Baronets of Nova Scotia, by patents of the 30th of November, 1629, and 30th of April, 1630 ; and in like manner, by patent dated the 17th of June, 1636, he created Sir John Browne a Baronet of Nova Scotia, which title is still enjoyed by his descendants. The Appellant's father, also, claiming as heir of the first Earl of Stirling, assumed to confer upon Thomas Christopher Banks the degree and style of Baronet, and bound (1) Fac. Coll. 3 July, 1610. (2) Fac. Coll. 28 June, 1621. 284 SCOTCH APPEALS. [L. R. 18C8 himself to resign 16,000 acres of land in Nova Scotia in favour of ALEXANDER Banks, and to grant new infeftnients of the same to him and his v - heirs male and assignees whatsoever. OFFICERS OF STATE FOR Under these circumstances, it would indeed be strange if the Crown could not challenge the service which gives a colour of right to such large pretensions. However good the grants to the Earl of Stirling, confirmed as they were by an Act of the Scotch Parliament, may be, the Crown must be interested to prevent its prerogative of conferring titles and dignities from being claimed by a person who has no connection with the grants ; and conse- quently it must have the right to question his service as heir to the original grantee, which gives him the pretence of a title. But it seems to me that the Crown has the right to sue the conclusions of reduction in respect of the service giving the Defender a primd facie title to the extensive territories in North America which passed by the grant to the first Earl of Stirling. That grant pro- ceeded from the favour of the Crown towards the Earl and his descendants, and it must surely be the right of the Crown to prevent its bounty being diverted into a different channel. Sup- pose the descendants of the Earl had expressly waived their right to oppose the service of the Appellant's father, or to pursue its reduction, would the Crown have been bound to recognise the title thus acquired, and permit a stranger to introduce himself into the succession ? Possibly the Crown would have no right to intervene upon the ground of its eventual interest as ultimus Tiseres, although that interest might be seriously affected by the fee being taken up by any other person than the true heir. But, as pointed out by the Lord Advocate, the Crown has an immediate interest to protect the fee from the intrusion of a stranger, as it has a right of non-entry so long as the proper heir does not appear. For these reasons it appears to me that the Crown has a right to pursue the action for reduction of the services. Having disposed of these preliminary matters, the first subject of consideration upon the merits is, whether the proof given before the jury in the proceedings of the service of the Appellant's father, together with the additional evidence produced in the cause, is sufficient to sustain the service. A question was made as to the onus pro~bandi in this case, the VOL. I] SCOTCH APPEALS. 285 Lord Advocate contending that it did not lie upon the Crown ; 1868 but this appears to me to be incorrect. The action is brought for ALEXANDER -a reduction of services, and the Pursuers have to prove that the . * OFFICERS OP services ought to be reduced. The Defender is not put to his STATE FOR answer till a case is made out against him. The proper course of proceeding in a case of this kind would seem to be that the Pur- suers should begin by attacking the proof adduced by the De- fender before the jury upon the proceedings in the service, and establishing that there is no admissible evidence sufficient to sus- tain the verdict, and then bringing forward any counter proof he may have in opposition to the Defender's case ; the Defender being at liberty to support his case by additional evidence. But the question of the order and burden of proof is immaterial, as the whole evidence is before your Lordships, upon which you are enabled to decide whether the interlocutor of the 19th of June, 1866, finally determining the cause against the Appellant, ought to be maintained (1). It remains to notice, that the Second Division found " the party compearing liable to the Pursuers in the expenses incurred by them prior to the 2nd of June, 1840." The Appellant's counsel object to this interlocutor, on the ground that at the time when these expenses were incurred, the Crown neither paid nor received costs; but the 19 & 20 Viet. c. 56, s. 24, which allows costs to be given for or against the Crown, applies as well to all causes presently depending as to those which shall come to depend. The Court, therefore, was perfectly justified in finding the Defender liable to those expenses. But as the Lord Advocate agreed not to (1) His Lordship bestowed a search- ship entered into no examination of ing and penetrating criticism on the authorities, but expressed himself as evidence adduced by the Appellant, quite clear that the Court below were shewing its defects, and pointing out right, under the circumstances, in re- where it was fabricated, and agree- fusing to receive further proof, and in ing with Lord Cockburn, whose inter- finally determining the cause against locutor, minutely examining the details, the Appellant. Part of the evidence was adhered to by the Second Division, depended upon hearsay, as to which Lord and ultimately affirmed by the House. Chdmfford observed that "it was not Lord Chelmsford's remarks go over forty- every kind of hearsay that could be ad- one folio pages, deducing the conclusion mitted in such cases. It could only be " that the fabrication of one set of docu- hearsay proceeding from persons who ments must necessarily throw consider- had peculiar means of knowing the ;iblc suspicion on the others." His Lord- relationship of which they spoke." 286 SCOTCH APPEALS. [L. R. 18G8 press for them, the interlocutor may be amended by striking out \LEXANDER ^is part of it ; and, with this alteration, I submit to your Lord- v - ships that this and the other eight interlocutors ought to be OFFICERS or * ... STATE FOR affirmed, and the appeal dismissed with costs. SCOTLAND. LOED WESTBUKY : My Lords, we are much indebted to my noble and learned friend for the very able manner in which he has analysed the evidence given and proposed to be given in this case, and I entirely concur in the conclusion at which he has arrived. I trust there never will be an attempt again made to maintain that an interlocutor by which a preliminary defence of the com- plaining party was overruled in 1833 can be fitly reviewed in this House at the expiration of thirty-five years, when, in truth, it was originally agreed that the Defenders should "acquiesce" in the judgment, as the words of it express. But, without relying upon " acquiescence " at all, I am clear that this interlocutor cannot be brought up. My Lords, I consider it clear, beyond the possibility of doubt, that there is competency in the Crown to maintain this action. The question is not as to a right to compete in the service, but as to a right to reduce it. Now, is there not, having regard to the subject matter here, a plain right and duty, and therefore an interest in the Crown, to watch over the transmission of these great powers in order to prevent their coming into hands not entitled to exercise them ? The grant itself is something surprising and unheard of. There is delegated in terms (whether good or not in law is another question), but in terms there is delegated to a subject the right of exercising royal prerogatives, the right of dealing out grants of immense territory, and, I presume, the corresponding right of exercising all the powers and duties of Government over an extent of land equal in dimension to some kingdoms. My Lords, I en- tirely agree in the judgment which has been proposed by my noble and learned friend. LORD COLONSAT : My Lords, before we arrive at the consideration of the merits in this case, it is necessary to see whether there is any obstacle in the VOL. L] SCOTCH APPEALS. 287 way. The Appellant objects to tlie title of the Pursuers, and the 1868 i^~,-_; answer made is that the point is closed against him. The Lord ALEXANDER Ordinary decided it against him. He acquiesced in the judgment OFFICERS OP of the Lord Ordinary, and it is not competent to him to appeal STATE FOR (SCOTLAND. from that judgment. The proviso so often referred to applies, I think, to interlocutory judgments of the Court, and to judgments of the Lord Ordinary, but it applies to them only so far as " necessary " to enable this House to deal with the merits of the action. Now, the purpose of bringing up this interlocutor is not to enable the House to deal with the merits of the action, but to exclude us from doing so. In the Court below this interlocutor was a final one. It could not be questioned in the Inner House after the procedure which had taken place before the Lord Ordinary. By an Act of Sederunt, having the force of an Act of Parliament, being made in pursuance of a statute, it is declared that the interlocutor of a Lord Ordinary repelling preliminary defences shall be final unless the party an- nounces at the time that it is his intention to bring the judgment under the review of the Court. Now, this party announced that it was not his intention to bring the judgment under review of the Court, but that he acquiesced in it, and he did not appeal. There- fore that interlocutor was final in the Court below, and the ques- tion as to the title to pursue, I apprehend, could not again be revived. It was argued that it might be revived as a defence upon the merits, because it involved two elements one which went to exclude satisfying the production, and the other which went to exclude the following out the cause to a favourable judg- ment for the Pursuer. But it was only a defence against satisfy- ing the production inasmuch as it was a defence against the title to pursue. The question was as to the title to pursue, and that is the point that is concluded both by the Act of Parliament and the Act of Sederunt to which I have referred. One case was cited as being an authority for reviving such a dis- cussion in the Inner House after it had been disposed of by the Lord Ordinary, the case of Mackenzie v. Houston (1). But that case, so far from being in favour of the view contended for here by the Appellant, went on grounds antagonistic to it. (1) 29 Nov. 1829, Sh. & D. 288 SCOTCH APPEALS. [L. R. 1868 My Lords, I entirely concur in the opinion which has been ALEXANDER expressed by my noble and learned friends that the Crown had a OFFI * 'RS OF P er f ec * title to pursue this action. It was argued that no party STATE FOR can appear to oppose any general service who does not claim the - same title which the party pursuing the service claims. That is not quite a clear point with reference to the interest of the Crown. But, assuming it to be so, it has no relevancy here. It is necessary for the Appellant to go a step further. After saying that he has obtained such a service, he must establish his pretensions to use that service against the interests and rights of another party, and he must shew that that other party, be it Crown or subject, has no right to sue a reduction against him. Here I think it is clear the Crown had a right and interest to sue on the grounds which have been stated by my noble and learned friend who last addressed the House, and therefore I hold that the objection to the title to sue has no good foundation. "We then get into an examination of the merits as appearing on the evidence. Into that subject I do not mean at all to go, because it has been so fully analysed by my noble and learned friend who spoke first, and by Lord Cockburn in the Court below. As to allowing any further inquiry, I think there has been enough , of investigation already. Interlocutors affirmed. Solicitors for the Appellant : Bischof, Coxe, & Bompas. Solicitors for the Respondents : Connett & Hope. VOL. L] SCOTCH APPEALS. 289 UNIVERSITY OF ABERDEEN, et al . . . APPELLANTS ; iscs A. F. IRVINE OF DRUM RESPONDENT. Vindication of an ancient Charitable Trust, Case in which it was lield upon the construction of ancient documents, and the exposition afforded by the conduct of parties that an estate in fee simple absolute (now of the value of 500 a year) had been dedicated more than two centuries ago to charitable uses, and was still subject to the trusts of the original benefaction ; the bar of prescription, positive and negative, being excluded by the fiduciary relation established and acknowledged. The judgment of the Court below, to the effect that the estate was the Eespondent's, and that the charity was entitled only to a rent-charge of 63 6s. 8d. issuing out of it, reversed. New Scheme of Administration directed. The Court of Session having a jurisdiction as to charities similar to that of the Court of Chancery, the House directed that a new scheme of adminis- tration should be settled, suited to the alteration of circumstances occasioned by the reversal. An Account directed. The House directed that the Respondent should be decreed to account for all surplus rents and profits, including grassums, if any, that had come to his hands since the signetting of the summons, but not prior thereto. Costs. Order made that the Appellants' costs should be paid out of the funds to be received by virtue of the judgment of the House. i. HE Appellants brought their action in the Court of Session to have it found and declared that they had the sole and exclusive beneficial interest in the lands of KinmucJc, in Aberdeenshire ; and that the Respondent, his heirs and successors, had no beneficial right thereto or interest therein. On the 2nd of December, 1863, the Lord Ordinary (1) found and declared that the Pursuers " were entitled to the whole bene- ficial interest in the lands of KinmucJc, and that their right had not been cut off, either by the negative or the positive prescription." Against this decision Mr. Irvine reclaimed to the First Division of the Court of Session, who, on the 8th of February, 1866, recalled the interlocutor of the Lord Ordinary, and assoilzied the (1) Lord Kinlocli. 290 SCOTCH APPEALS. [L. K. isc-8 Defender from the conclusions of the summons (1). Hence the **~***/ UNIVERSITY present appeal to the House. OF ABERDEEN V. IUVINE. Mr. Hellish, Q.C., and Mr. Young, appeared for the Appellants. The Lord Advocate (2), Sir Eoundell Palmer, Q.C., and Mr. Anderson, Q.C., for the Respondent. In the following opinions the arguments and grounds of decision are fully stated. THE LORD CHANCELLOK (3) : My Lords, the action in this case was brought by the Appel- lants, against Mr. Forbes Irvine of Drum, to have it declared that the lands of Kinmuck were mortified, as to the whole profits thereof, for the support of certain bursaries and scholarships in the Uni- versity and Grammar School of Aberdeen, and that Mr. Irvine had had in those lands no beneficial interest, and no right other than that of a trustee, with the patronage of bursars and scholars. Mr. Irvine admits that he is bound to make good an annual rent or payment of 1000 Scots for these bursaries and scholarships ; but he contends that as to all the profits of the lands over and above 1000 Scots (4) a year he is absolute proprietor. The Lord Ordinary, by his interlocutor of the 2nd of December, 1863, adopted the view of the Appellants, and made a decree substan- tially in accordance with the conclusions of the summons. From this a reclaiming note to the First Division of the Court of Session was presented. A proof was allowed and led for both parties ; and, finally, on the 8th of February, 1866, the Lord Ordinary's inter- locutor was recalled and the Defender was assoilzied. Hence the present appeal to your Lordships. The question mainly turns upon the construction of three documents, all of them more than 200 years old: the will of Alexander Irvine of Drum, dated 1629 ; a decree of the Court of (1) The case is reported at great (2) Mr. Gordon. length in the 3rd Series of the Court (3) Lord Cairns. of Session Cases, vol. iv. p. 392 ; and in (4) 83 6s. 8d. sterling, the Scottish Jurist, vol. xxxviii. p. 259. VOL. I.] SCOTCH APPEALS. 291 Session of 1633 ; and a bond and deed of mortification made by Sir 1868 Alexander Irvine, his son, in 165G. UNIVERSITY By Sir Alexander Irvine s will of 1629, lie devised in these OF A^M>H words : IRVINE. For the maintenance of letters, I leave, mortifie, and destinate ten thousand pounds Scots money to the Provost, Baillies, and Council of Aberdeen, to be bestowed and employed by them upon land and annual rent in all time hereafter to the effect following, to witt : Three hundred and twenty pounds of the annual rent thereof to be yearly employed on four scholars at the grammar school of Aberdeen, for the space of four years, ilk ane of them four score pounds, and four hundred pounds to be paid yearly to other four scholars at the college of New Aberdeen, and students of philosophy thereat, ilk ane of them ane hundred pound during likeways the space of four years, and also I ordain to be given to other twa scholars who have passed their course of philosophy, being made masters, and are become students of divinity in the said New College, of 400 merks Scots money ; viz 1 ., to each one of them twa hundred merks of the said annual rent during the space of four years also, and the odd twenty merks, which, with the deductions above specified, compleatt the said haill annual rents'of ten thousand pound, I ordain it to be given to any man the town of Aberdeen shall appoint for ingather- ing and furthgiving of the said a'rent to the said is scholars as is above designed. The only question upon the construction of this will arose upon the meaning of the words, " to be bestowed and employed by them upon land and annual rent." A suggestion was made that the conjunction between "land" and "annual rent" ought not to have been " and " but " or," according to the more correct version of the will. The parties, however, by their proceedings, have admitted the copy in print to be a true copy ; and I own that it appears to me of but little consequence whether the will is taken as having the word " and " or the word " or." Accepting it as printed, it appears to me that the testator means nothing more than to give a double power of investing upon " land," whatever that may be, and upon " annual rent," whatever that may be, and does not mean to require the investment either to be upon both land and annual rent, or upon one subject-matter, which is to be described by the collective term of " land and annual rent." As to the meaning, then, of these words, unless some technical signification were proved to be applicable to them, I should have thought beyond all doubt that a power to bestow and employ the money in question upon " land " was equivalent to a power to buy with the money land which would produce an income for the purpose of the charity, and that by the power to "bestow and VOL. I. 2 F 292 SCOTCH APPEALS. [L. E. 1868 employ upon annual rent," what was intended was the purchase of UNIVERSITY what we may term an annual rent issuing out of land, or an annual OF ABERDEEN rent-charge, or an investment upon securities which would " pro- IRVIKB. duce an annual income," which in these documents, and in all documents of about the same date, appears to me to be a word used as synonymous with annual rent. According to this construction, in my opinion, it would have been no breach of trust upon the part of the trustees who were appointed to execute this will, if, with the money the testator left, they had bought land producing rent, or bought a rent-charge issuing out of land and yielding to them a fixed definite annual sum ; or if, in the third place, they had lent and employed the money upon securities of a personal character producing an annual income. The only difference between those several modes of investment and application would have been, that in the second and third cases the income would have been fixed and not capable of extension, whereas in the first case the charity would have become owner of the land bought, with the benefit of any increase, and with the risk of any diminution in the rental. Alexander Irvine died in 1630. It is sufficient to say that his widow and son tendered the 1000 to the Provost and Bailies of Aberdeen, who appear to have been afraid that by receiving it they would place themselves under some obligation to have forth- coming from the very first the annual rent or payment of 1000 for the purposes of the charity. They demurred to receiving the money. The result was, that Sir Alexander Irvine lent it at interest, which he applied for some years in payment of the scholarships and bursaries mentioned in the will. Finally, in 1632, he raised an action in the Court of Session against the Corporation of Aberdeen praying a declaration as to what should be done with this bequest, and who should have the patronage of the bursaries and scholarships ? In the summons, two alternative modes of application of the fund were proposed, the first of which was thus stated : That the said ten scollars to whose behoove and use the said sum is left mor- tifeit, and destinat, be not altogether defraudit of the benefit thereof, necessary it is that it be fund and decernit be the Lords of Counsall and Session, that it sail be leesum to the said complainer to wair and bestow the said sum of ten thousand YOL. I.] SCOTCH APPEALS. 29 3 pounds upon bying of land theinv' upon sic easy pryces and conditions as may be 1868 haid theirfor, and the said lands to be boc' thair wt , maills, farms, and duties of the """^ samen, to be mortifeit and destinat to the use of the said scollars proportionally OF ABERDEEN and pro ruta effeirand to the quantities of the a'rent of the said sum appoyntit v. to be paid to them be the said testament, and the yeirly rent, forfeits, and duties IRVINE. of the said lands to be bo4 and conquest with the said sum to be in place and satisfaction to the said ten scollars of the a'rents and profeitsof the said sum in all time coming, in respect of the said provost, bailies, and counsall of the said burgh their refusal to resave the said sum. That is the first alternative proposed by the summary. The second alternative was in these terms : Or otherways the said sum of ten thousand pounds in respect of the said Pro- vost, Bailies, and Counsall of Aberdeen, their refusal theirof, aught and suld be employit and bestowit to the best behoove and weil of the said ten scollars as the said Lords of Session sail appoynt, in respect the said complainant is content to consign the samen in presence of the Lords to be employit as said is. I do not think, my Lords, that any doubt can be entertained as to the meaning and purport of those two alternatives. I read the propositions made by Sir Alexander Irvine to the Court of Session, as being a proposal, first, to buy the land with the money, in the ordinary sense in which those terms are employed, at such prices as land could then be obtained for; and secondly, in the alternative, in case the first proposal was not accepted, that the Court of Session should say how and upon what security the money in question was to be employed, he being willing to consign or pay it over in the presence of the Court. In this action thus raised the corporation did not appear ; but from other papers in process it appears clear that they knew that the action was pending, and that they took an interest in its pro- gress, and in the conclusions of the summons ; and the ultimate decree bears evident traces of having been made by arrangement between the Pursuer and the Corporation of Aberdeen. That decree was in these words : The Lords of Council decrimis and ordainis the said Sir Alex. Irving of Drum to have retention and keeping of the said soume of ten thousand pund money without payment of annual rent or profet for the samen, until the feist and terme of Whitsounday, 1640, at the which term ordains him to provyde for the use of the said ten scollars and bursars sufficient well-halden lands for employing of the said sum of ten thousand pounds, worth in yeirlie rent to the soum of ane thousand pounds money, qlk lands salbe bocht and acquirit be him heritably, without 2 2 F 2 294 SCOTCH APPEALS. [L. IL 1868 reversion, to the use and behove foresaid, agains that term, w'out farther delay,. accordin^ to the destination and mortification of the said latter will. UNIVERSITY OF ABERDEEN _^ s U p On the construction of the will it appears to me that no IKVINE reasonable doubt can be entertained but that land might have been purchased without any breach of trust on the part of the trustees, so upon the construction of this decree it appears to me that, with- out doing violence to the words used, it is impossible not to arrive at the conclusion that the thing pointed out was the purchase of land in the ordinary sense of the term. That was what Sir Alex- ander Irvine had proposed to the Court ; and the only difference between the proposal and the order of the Court was that, in place of the land being bought immediately, Sir Alexander Irvine was ordered to keep the money for seven years, and then to pro- duce land, not so much as the money would purchase, but land actually of the value of 1000 a year, an arrangement which, of course, must have been made either altogether, or to some ex- tent, with his consent, and by agreement between him and the- corporation. I am unable to agree with the view taken by the Court of Session that there was anything in this at variance with the will of the testator. But even if any doubt could be entertained upon that point, it appears to me that this, being a decree made in the presence and with the consent of the Pursuer (himself entitled ta dispose of and to deal with the property as he thought fit), he would be bound by it, although the decree should turn out to be- (as I do not think it does) a departure from the words and the power of the will. Under that decree nothing, in point of fact, was done until the- year 1656, when Sir Alexander Irvine, being the owner and in the occupation of the lands of KinmucJc, a deed of mortification was- executed by him, which is the next document to which I will call your Lordships' attention. The operative and important part of that deed recites : And seeing that I ever have been most willing to fulfill my said deceast father his latter will and testament aneut the mortification and destination of the said sum of 10,000, and to obey the said decreet accordingly, whilk I have done hitherto since the term of Whitsunday, 1640, and have acquired the town and lands of Kinmuck, &c., whilk lands are worth in yearly free rent the sum of one VOL. I.] SCOTCH APPEALS. 1295 thousand pounds Scots money by and at tour the feu-duties, tciud duties, minister's stipend, and others, astrict furth thereof. Therefore and to the effect the said **"*" ten schollars and bursars may be paid yearly furth of the maills and duties of the U: ** VE said lands according to the division above written, I, the said Sir Alexander v . Irvine, my heirs and successors, have mortified, destinate, and appointed, and be IRVINE. thir presents for me and my foresaids, mortify, destinate, and appoint the above written lands, milns, and others foresaid with the pertinents, for the use and behoof of the said ten schollars yearly in all time hereafter, to the effect the maills, farms, and duties thereof, may be paid to them yearly for their maintenance, according to the divisions above written, with power to them, and their curators in their name, to uptake the maills, farms, and duties of the foresaid lands for that effect, suit, call, and pursue therefor, and all other things requisite to do and command, that I might have done myself before the making hereof; and that for implement and fulfilling of that part of my said deceast father's testament anent the mortification and destination of the said sum and Lords of Session their decree t above written. Now, my Lords, two tilings are to be kept in view. In the first place, both by the recital and by the last words I have read, there is a clear and distinct intimation that the author of the deed had ac- quired the lands in question in obedience to a decree of the Court of Session, and that he was desirous of settling those lands for the purpose of implementing that decree, and, at the same time, com- plying with the testament of his father. But, if I am right in my construction of the decree and of the will, the consequence would be that this must be regarded as an expression of an intention to settle the land out and out as land bought for the purposes of the charity. Passing from that which is stated as the motive and object of the deed to the words of mortification, they appear to me to point entirely in the same direction. I am unable in this, which I will term the operative part of the deed, commencing at the word " therefore," to find any word which limits the enjoyment to an annual sum of 1000. I find that the mails, farms, and duties are to be paid to the objects of the charity yearly for their mainte- nance, according to the divisions specified ; and I find that there is power to them and their curators to uptake the mails, farms, and duties, and to sue and take every proceeding for that purpose. And although the object in the beginning is stated to be to the -effect that the scholars of the University may be paid yearly the farms and the mails and duties of the land " according to the divi- sion above written," even there it is not stated that the object is 296 SCOTCH APPEALS. [L. B.. 1868 that they may be paid 1000 yearly, but that they may be paid UNIVERSITY according to the ratio of division prescribed by the will. OF ABERDEEN jf ^ e (j ee( j ^^ ended there, it would appear to me that no V IRVINE. reasonable question could be raised upon its meaning or effect. It is only in the clause as to the warrant that any words have been found which raise a doubt as to the construction of this deed. The clause as to the warrant is as follows : And to the effect the said ten schollars and bursars may be sufficiently secured in the said lands and others above written for payment to them, according to the division above written, of the mails, farms, and duties of the said lands yearly, extending to the said sum of one thousand pounds yearly, in all time thereafter, I bind and faithfully oblige me, my heirs and successors whatsomever, to make,, seal, subscribe, and deliver to the said ten schollars, and their successors, all contracts, dispositions, &c. Now the words relied upon here were, " extending to the said sum of one thousand pounds yearly." Those words may either be descriptive as a repetition of what had been stated in the earlier part of this deed, namely, that the lands were worth at that time 1000 a year, or they may possibly import a limitation of the warrant or the extent of the enjoyment of those lands. If the- words are susceptible of those two constructions, it appears to me that, upon all sound principles of construction, your Lordships will, adopt that interpretation of them which would be in harmony with* the operative and leading part of the deed, and with the decree of the Court of Session, which this deed was intended to implement. Adopting that principle, I apprehend, my Lords, that you cannot do otherwise than read these words as simply containing a descrip- tive reference to the value of the lands, which, in the earlier part of the deed, had been stated to extend to the sum of 1000 yearly. To read the clause as a limitation of the warrant would be to sub- vert the meaning of all the earlier part of the deed, and do violence to the decree, which the deed was intended to implement. I have further to remind your Lordships that there is no proof or suggestion that the lands in question at the time of the deed were worth more than, although they are said to have been worth as much as, 1000 a year. There is no suggestion or proof that at this time they were considered likely to rise in value ; in point of fact, they appear for a long time not to have increased in value.- VOL. I] SCOTCH APPEALS. 297 Therefore, looking at the probabilities of the case, it is highly 1868 improbable that the corporation would buy a rent-charge exactly UNIVERSITY equal to the whole rent of the land which was the security for it, OF AB E RDEE N the result of which would be, that the charity would lose if the IRVINE. value of the land fell, and would not gain if the value of the land increased. On the other hand, it is equally improbable that the landowner would grant over his land a perpetual rent-charge to this amount, without any power of redeeming that rent-charge, or of freeing his land from the burthen, if he looked forward to retaining the land himself as its owner. I should have been of opinion that the documents to which I have referred were sufficiently clear to require no aid from con- temporaneous exposition ; but it appears to me that every person concerned in these transactions thought at the time that land could be bought, and legitimately and properly bought, under the terms of the will of Alexander Irvine. I will take the liberty of referring your Lordships very briefly to a few passages which appear to me to put this matter beyond doubt. We find the town of Aberdeen, in a minute, saying that they refuse to receive the 1000 until they " agree with Sir Alexander Irvine upon some reasonable and equal conditions for settling and establishing the said sum on the heritable purchase of lands." Then we find in another minute that the corporation, " all in ane voce, resolved to refuis to receave the said soume on the con- ditionnes contenit in the said testament," namely, that they should be liable perpetually in all time coming to pay 1000 a year, but are willing to receive the same on condition " that the sainen be laid vponn bank quher best employment may be had, and the annuall rent thereof to accress with the stok till the same amount to that proportitionne as may mak purches of heritabill landis extending in yeirlie rent to one thousand poundis." The corpora- tion say, " moneyes can mack no suire nor constant rent unlesse the same be employit on heritable purches off lands ; and ten thousand pounds will scarcelie mack conquese above fine hundreth punds of constant yeirlie rent, and so they could not receave the said souine upon conditionn forsaid." In a letter from the provost and bailies to their legal adviser, they say : " We have offert to the Laird of Drum to accept of the moneyes, so being he will be 298 SCOTCH APPEALS. [L. I?. 1868 content that the same be sequestrat and employed on aimuelrent ' UNIVERSITY till the annuelles might accress with the stock to such proportion OF ABERDEEN ag j^]^ ma ] c heretable purches of landis that wald pay ane thou- sand pundis of constant yeirlie rent." There the contrast is drawn in the most marked way between annual rent and the heritable purchase of land yielding rent. An instance is given by the corporation of the mode in which they have dealt with another bequest, which they speak of as a fitting and proper analogy for the employment of the bequest in question. " Mr. Patrik Copland has giwin and mortifeit sex thou- sand merkis to a professor of divinitie in our college, quhilk aired ie with the annualis is accresced to sex thousand poundis redie to be employit on the by ing of laudis, and a professor of divinitie already satled in our college who gettis for his stipend the annual rent thairof." There is an instruction again to the legal adviser of the corpora- tion : " Ye sail altogidder ref nis to accept of the moneyis but upon expres condition that we gett the absolute right of presen- tation and admission of the equal half of the bursares, to wit, tua grammarians, tua studentis in philosophic, and ane student in divi- nitie, in regard of our perpetuall burden in managing of the moneyis and of sic landis as sal be bocht thairwith ;" speaking of the man- agement of the land to be purchased as that which would create a burthen and a trouble. Finally, your Lordships have the conclusions of the summons of Sir Alexander Irvine, in which he proposes the buying of land at such easy prices as it could be got for. We have now, in the last place, to look very briefly at the sub- sequent history of the case so far as it throws any legitimate light upon the earlier transactions. In 1676, in a proceeding for the augmentation of the minister's stipend, it was alleged, " for the Laird of Drum, that the lands of Kinmucks could not be burdened in respect the haill rent thereof was mortified to the College of Aberdeen for maintaining of bursars." The observation made upon that statement at your Lordships' bar, was that, in point of fact, the rent did not at that time exceed 1000, and therefore he might well say that the whole rent was mortified to the college. I should have thought that, to make VOL. I.] SCOTCH APPEALS. 299 the statement consistent with the case of the Kespondents, it should 1868 have been, not that the whole rent was mortified, but that the UNIVERSITY 1000 a year, which was more than the whole rent would produce, OF ABERDEEN- was mortified ; but, in truth, you have no information upon which IKVINE. you can safely rely to the effect that the rent of the land at that time, before RicJiarcJiarie was sold, did not exceed 1000 a year. In the year 1687 we find from an act by the Commissioners of the Treasury that the then Alexander Irvine had petitioned the Treasury, and had stated that the " deceased Sir Alexander Irvine had appointed the lands of Kinmucks, &c., and the whole rent of the said lands, for the maintenance of the bursars." A statement not that the whole rent was at that time being paid to the bursars, but that the testator, the said deceased Sir Alexander Irvine of Drum, the Petitioner's father, the author of the deed of mortifi- cation, had appointed the lands of KinmucJc, &c., and the whole rent of the said lands, for the maintenance of the bursars. A more clear and distinct declaration of mortification out and out could not be supposed. In the year 1713 Eicliarcliarie was sold, and the next document which your Lordships will probably deem of importance was in the year 1725. That is an act and factory in favour of Thomson. The only material portion of it is where there is excepted from the factory and Act the lands of KinmucJc destined for the payment of mortifications to schools and colleges. There the whole of the rent, and not any portion of the rent, is excepted from the factory. Then your Lordships find a series of tacks of the lands, in which they are always termed the " burselands of KinmucJc" pointing to a complete mortification for a charitable purpose. And lastly, you have, in the year 1761, an account in process, recovered from the Defender by the Pursuers, of the rental in 1761 ; where upon the one side of the account the whole, rental for the year is put down as 72 10s. Qd., a sum less than 1000 Scots. And upon the other side you have this very remarkable entry. After stating all the payments that were made to the bursars and to the scholars, and that those payments amounted to about 66, you have credit taken by Mary Irvine, the factrix for the owner for the time being : " To balance for trouble and charge, 6 7s. 11-^-d." a charge quite con- 300 SCOTCH APPEALS. [L. E, 1863 sistent with the position that the Irvine of that day was a trustee UNIVERSITY of the whole land for a charitable purpose, but entirely inconsis- x tent with the idea that he was the owner of the land, and only liable to make good the profits thereof to the extent of 1000 a year. My Lords, upon all these grounds I, speaking with great respect of the contrary opinion of the Lords of the Inner Division, can have no hesitation in advising your Lordships that the case of the Appellants has been made out, and that there is here demonstra- tion that the whole of this land is at this moment devoted to the charitable trust contained in the will of the testator. Something was said (though it was not much gone into in the argument) upon the question of prescription. All the learned Judges of the Court below, both the Lord Ordinary and the Judges of the Inner Division, were of opinion that that argument could not be maintained that in point of fact, in the circumstances of this case, we have here a clear admission by the feudal owner of the land that there is a trust impressed upon the land ; and the only question is whether the extent of that trust is greater or less. The doctrine of prescription has no real application. As to an Entail which appears to have been made in the year 1821, it contains a provision that the heirs should "pay, perform, and ful- fil all and whatever debts, sums of money, bonds, and all other deeds, due or contracted by the said Alexander Irvine, as effectually as if the said persons hereby called to the succession had been personally bound for the said debts and obligements." There- fore if even the mortification trust stood in the position of a personal contract, surely the heirs of entail taking the land would be bound, just as if they had personally engaged, to fulfil it. I do not desire to add upon the question of prescription any thing to the words used by the Lord Ordinary, in which, in my opinion, he has most satisfactorily disposed of the argument upon that point. In conclusion, my Lords, I should propose to reverse the decision of the Court of Session, with a declaration that the whole of the rents and proceeds of these lands are devoted to the charitable pur- poses expressed in the will. But inasmuch as it appears that a change has taken place in the value of the lands, of course it would V. IRVINE. VOL. I. SCOTCH APPEALS. 301 be proper to require what we should term in this country a scheme, 1868 to be framed by the Court of Session, having regard to the increased UNIVERSITY value of the lands. LORD CBANWOKTH : It was ingeniously argued that on the face of the deed of 1656 it appears that the payment to the charity was not contem- plated as a payment which would exhaust the whole rent, for in the prefatory words preceding those in which Sir Alexander morti- fies the lands he speaks of the payments as payments to be made " furth of the maills," &c. But this seems to me an unwarrantable refinement ; and even if the word " furth " might point to a sur- plus of rents after satisfying the objects of the charity, yet that is not its necessary meaning, and it is far too vague to override the language which follows, which does not include the word " furth," and which was clearly intended to exhaust the w r hole yearly pro- ceeds of the lands. An argument was also deduced by the Kespondents from the subsequent part of the deed, whereby Sir Alexander binds himself and his heirs to do all necessary acts for procuring proper charters and other securities for confirming the title of those claiming the benefit of the charity. This, it was said, shews that nothing was considered as included in the mortification beyond the 1000 per annum. But I do not so understand this passage. Sir Alexander was bound to mortify lands which should Jbe of the clear yearly value of 1000 Scots, which I agree must mean of not less than that sum. The mention of the value in this part of the deed was, I think, merely introduced, as it had been in the prior passage, " Whilk lands are worth in yearly free rent the sum of 1000 Scots money," for the purpose of making it appear on the face of the deed that the lands devoted to the charity were, in point of amount, such as were required by the decree such, therefore, as exonerated Sir Alexander and his heirs from all subsequent liability. What the exact yearly value of these lands was at the date of the deed we do not know. Sir Alexander was not bound to mortify lands of a greater yearly value than 1000 Scots. But if he really under- stood that the land mortified was not at any time to be liable to a greater sum than 1000 Scots, I cannot but think that such a SCOTCH APPEALS. [L. K. 1868 restriction on Lis liability would have been distinctly set forth, and UNIVERSITY llot ^ e ^ to ^ e discovered by subtle criticisms on words of doubtful OP ABERDEEN mean i n g. This was a point of great importance, and which I IRVINE. think would not have been left doubtful. The plain import of the deed appears to me to be that Sir Alexander devoted the lands in question to the purposes of the charity in consideration of the 10,000 Scots which he had received, and that by so mortifying the lands, they being (as he alleged, at least) of the clear yearly value of 1000 Scots, he and his heirs became, for all time after, absolved from further liability. LOUD WESTBURY : This is a simple case, and it is matter of regret that it has been made the subject of a protracted litigation during seven years in the Court below. The words which form the substance of Sir Alex- ander Irvine s summons are very material, for he thereby desires, first, power to employ the money given in the purchase of lands ; such lands to take the place of the money; secondly, he desires that the rents and profits of the lands so bought may be in place and satisfaction of the annual rents and profits of the sum be- queathed ; and thirdly, he desires that the rents may be divided in the proportions prescribed by the will. The decree of the Lords of Council and Session was that the executor and heir, Sir Alexander Irving, should retain and keep the 10,000, without payment of annual rent or profit for it, until Whit Sunday, 1640, when he was ordained to provide for the use of the scholars and bursars sufficient well-holden lands for employ- ing the said sum of 10,000, worth in yearly rent of 1000 money, which lands should be bought and acquired by him heritably with- out reversion, to the use and behoof aforesaid, against that term without further delay, according to the Avill. Thus an indulgence of several years was granted to the Pur- suer, who engaged by the end of seven years to buy and provide lands worth annually 1000 at the least, and which lands were to be acquired to the use and behoof aforesaid ; that is, to the use of the scholars and bursars. It is contended that these words did not impose upon the Pur- suer the obligation of doing more than granting an annual rent- VOL. I,] SCOTCH APPEALS. charge of 1000 per annum secured upon lands, or of conveying 1868 lands to the extent of that yearly sum and no more. But this UNIVERSITY construction cannot be maintained. The mention of the 1000 OFABEKDEEN V. per annum was for the purpose only of fixing the minimum value IHVINE. of the lands to be provided. This, then, was the obligation thrown on the Pursuer by the de- cree, which was in conformity with the submission made by himself in the summons. The question is, whether this duty has been fulfilled by the deed of mortification subsequently executed by the Pursuer. The deed of mortification was not executed by the executor, Sir Alexander Irving, until the 12th of April, 1656. And thereby after reciting the decree, and stating that he had ever been willing to obey it, which he had done since Whit Sunday, 1640, and that he had acquired the lands of KinmucJc and other lands, particularly described, and which are thereby stated to be worth in yearly rent the sum of 1000 Scots money, by and attour the feu duties, teind duties, minister's stipend, and others, therefore and to the effect the ten scholars and bursars might be paid yearly furth of the mails and duties of the said lands according to the divisions specified, he did mortify, destinate, and appoint the above written lands, &c. for the use and behoof of the said ten scholars yearly in all time thereafter. The plain intent and legal effect both of the decree and of the deed are, that Sir Alexander Irving having received considerable indulgence in point of time, was taken bound to convey, and does accordingly convey, lands being then of the value at least of 1000 per annum clear, to the use and behoof of the scholars and bursars, the rents being to be divided between them in the relative proportions of the sums directed to be paid to them under the will. All that followed is in conformitv with this construction. Durin^ * C5 several years the rents of the lands mortified were less than the sum of 1000, but the deficiency was not made good by the heirs and successors of the grantor, and when the rent of the lands after- wards increased and were likely to yield more than 1000 per annum, the device of taking grassums was resorted to for the purpose, apparently, of keeping the annual rents below the aforesaid sum. The right of patronage has been constantly exercised by the heirs and successors of the grantor, and the payments that have baen V* 304 SCOTCH APPEALS. [L. R. 1868 made are a distinct acknowledgment of the right of the scholars rr,r^m . and bursars to the full benefit of the deed of mortification. U Ni\ iiKfelTY OF ABERDEEN Since the decree of 1633 Sir Alexander Irving and his heirs must be considered as having become trustees of the charity in the room of the Corporation of Aberdeen, who declined to accept the trust ; and there is no ground, therefore, upon which any right by prescription, either negative or positive, can be founded. It is easy to see that Sir Alexander Irving, the executor, having been permitted to retain the principal sum for several years after the death of the testator without payment of rent or profit, might well have undertaken the duty of providing lands for the charity worth at the least 1000 per annum ; but it is only necessary to ascertain that this is the legal effect of the deed of mortification. If it be, the charity is entitled to the full benefit of all the rents of the mortified lands. The annual payment intended for a col- lector to be appointed by the corporation was lost by the refusal of the corporation to accept the trust. It will now belong to the Court of Session to make a new dis- tribution of the augmented rents among the original objects, according to the proportion of their respective rights; but the allowance to each scholar and bursar must be limited by the pur- pose of the trust ; which was to provide each bursar or scholar with a competent allowance for his education. If, after such an augmentation of the amount of the original stipends as the change of circumstances and of the expense of living would seem to re- quire, there be a surplus left sufficient to endow other scholarships or bursaries, the surplus may, in my judgment, be so applied by the direction of the Court. Any new disposition or scheme of this nature will be subject to be modified or altered by any further order of the Court at a future time if required by circumstances- It is very desirable that the Court of Session, which has the same power and jurisdiction over trusts of this nature as are possessed by the Court of Chancery in England, should develop and exercise its authority in a correspondent manner. I shall, therefore, humbly advise your Lordships to reverse the interlocutors appealed from ; and by your order to declare that, according to the legal effect and true meaning of the deed of mor- tification, the whole of the lands thereby mortified and appointed, VOL. I.] SCOTCH APPEALS. 305 .and the entirety of the rents and profits thereof, are destined and given to the use and behoof of scholars and bursars aforesaid, and UNIVERSITY ought to be applied accordingly. And with this declaration I . should propose to remit the cause to the Court below to settle a KYISE ' scheme for the proper management and collection of the rents of the lands now subject to the said deed of mortification, and the application of the net proceeds thereof, after deducting expenses, in augmenting the payments directed by the will in such manner as, having regard to the altered state of circumstances, shall be fit ; with a declaration that the Defender, his heirs and successors, is entitled to the patronage of the scholarships and bursaries ; and that he ought not to be decreed to account for or pay any of the surplus rents and profits of the lands over and above the sum of 1000 Scots, received by him prior to the date of the signetting of the summons, but to account for and pay in such manner as the Court shall direct all the rents and profits of the said lands (in- cluding grassums, if any) that have come to his hands since the signetting of the summons ; the costs of the Appellants to be paid out of the funds that shall be received by virtue of your Lord- ships' order. LOKD COLONSAY : My Lords, I agree in the opinion that has been expressed by all my noble and learned friends, that there is here no ground for the plea of prescription. I also am of opinion that the deed granted in 1656 is obligatory upon the Defender, and that he can take no benefit from the circumstance that the further deeds which were then contemplated have never been executed. But still the ques- tion remains, what was the nature of the obligation so undertaken, and of the deeds so contemplated ? Was it a disposal of the lands out and out ? Or was it a grant of lands to the effect of securing in all time coming implement of the deed of the first Sir Alexander Irvine, so as to make payment of ten bursars of the sum specified in that deed ? My noble and learned friends who have addressed the House entertain the former view, and in that view I think that the terms of the judgment which have been proposed are the proper terms. I may be permitted, however, with great deference to the opinions that have been expressed, to say that I doubt the 306 SCOTCH APPEALS. [L. K. 1868 soundness of that conclusion. My inclination is the other way. UNIVERSITY At the same time, I express that with the greatest deference, and OF ABEBDEEX j think it quite unnecessary to go into a statement of the circum- IRVINE. stances which raised these doubts in my mind. The following is the formal judgment of the House, as finally settled : It is ordered and adjudged, by the Lords Spiritual and Temporal, in Parliament assembled, that the interlocutor of the Lords of Session in Scotland of the First Division, of the 8th of February, 1866, complained of in the said appeal, be, and the same is hereby reversed : and it is hereby declared that, according to the legal effect and true meaning of the deed of mortification of the 12th of April, 1656, the whole of the lands thereby mortified and appointed, and the entirety of the rents and profits thereof, are destinate and given to the use and behoof of scholars in the college and school of Aberdeen, and ought to be applied accordingly; and, with this declaration, it is ordered that the cause be remitted back to the Lords of the First Division of the Court of Session in Scotland, with directions to settle a scheme for the proper management and collection of the rents of the lands now subject to the said deed of mortification, and the application of the net proceeds thereof, after deducting the expenses, in augmenting the stipends directed to be paid to the ten scholars by the will in the proceedings mentioned, in such manner as, having regard to the will and the altered state of circumstances, shall be fit; and it is further declared, that the Eespondent is entitled to the patronage of the bursaries and scholarships that shall be so augmented, and that the Respondent ought not to be decreed to account for or pay any of the surplus rents and profits of the said lands over and above the sum of 1000 Scots, received by him prior to the date of the signetting of the summons, but that he should account for and pay, in such manner as the Court of Session shall direct, all the rents and profits of the said lands (including grassums, if any) that have come to his hands since the signetting of the summons ; and it is further ordered that the costs of the Appel- lants be paid out of the funds that shall be received by virtue of these orders, declarations, and judgment; and that the said Court of Session should do further in the said cause as shall be just and consistent with the said orders, declarations, and judgment. Solicitor for the Appellants : James Dodds. Solicitors for the Respondent : Connell & Hope. VOL. L] SCOTCH APPEALS. 307 BELL APPELLANT; 1868 MRS. KENNEDY (THE APPELLANT'S DAUGHTER) Ma y 14 AND HER HUSBAND, CAPTAIN HEW KEN- EESPONDENTS(I). NEDY, et al ......... Domicile of Birth or Origin Its Adherence and Tenacity. Per THE LORD CHANCELLOR : The law is, beyond all doubt, clear with regard to the domicile] of birth, that the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicile is acquired. Per LORD WESTBURY : The domicile of origin adheres until a new domicile is acquired. Per LORD CHELMSFORD : The onus of proving a change of domicile is on the party who alleges it. . KENNEDY and her husband claimed from her father (Mr. Bett, the above Appellant) her share of the parental " goods in communion," on the allegation that Mr. Bell, when his wife (Mrs. Kennedy's mother) died on the 28th of September 1838, had acquired a Scotch domicile, and so had become subject to the Scotch law as to communio lonorum inter conjuges (2). Mr. BelFs defence was, that on the 28th of September 1838, when his wife died, he had not acquired a Scotch domicile ; for that he had then retained unchanged his domicile of origin in Jamaica, where he was born, where he married, and where communion of goods between husband and wife was unknown. The Second Division of the Court of Session, affirming the inter- locutor of Lord Kinloch, decided that Mr. Bell, when his wife died, had become domiciled in Scotland, and, consequently, was liable to his daughter for her proportion of the " goods in communion." The House of Lords disagreed with this ruling, and determined that on the day in question Mr. Bell's legal domicile was still in Jamaica, so that the question as to communio lonorum did not require examination. (1) Reported 22 Dunlop, 269, and 3rd Series, Vol. i. p. 1127. (2) That law is now repealed by the 18 & 19 Viet. c. 23, s. 6. VOL. I. 2 2 G 308 SCOTCH APPEALS. [L. R 1868 Sir Boundett Palmer, Q.C., and Mr. Cotton, Q.C., were of counsel for the Appellant. V. KENNEDY. MTEPY - Mr. Anderson, Q.C., and Mr. Hellish, Q.C., for the Kespondents. The learned Judges below having been unanimous in their decision, and the reversal by the House being unanimous also, the opinions of the Law Peers are given at length ; setting forth the facts minutely, and, by reference to the evidence and the argu- ments adduced, eliminating an important doctrinal correction. THE LOED CHANCELLOR (1) : My Lords, this appeal arises in an action commenced in the Court of Session, I regret to say so long ago as the year 1858 ; in the course of which action no less than sixteen interlocutors have been pronounced by the Court, all, or the greater part of which, become inoperative or immaterial if your Lordships should be unable to concur in the view taken by the Court below of the question of domicile. The action is raised by Captain Kennedy, and his wife, the daughter of the late Mrs. Bell ; and the Defender is Mrs. Ken- nedys father, the husband of Mrs. Bell. The claim is for the share, said to belong to Mrs. Kennedy, of the goods held in com- munion between Mr. and Mrs. Bell. This claim proceeds on the allegation that the domicile of Mrs. Bell, at the time of her death on the 28th of September, 1838, was in Scotland. And the ques- tion itself of her domicile at that time depends upon the further question, what was the domicile of her husband ? Her husband, the Appellant, is still living ; and your Lordships have therefore to consider a case which seldom arises, the question, namely, of the domicile at a particular time of a person who is still living. Mr. Bell was born in the island of Jamaica. His parents had come there from Scotland, and had settled in the island. There appears to be no reason to doubt but that they were domiciled in Jamaica. His father owned and cultivated there an estate called the Woodstock estate. His mother died when the Appellant was about the age of two years, and immediately after his mother's (1) Lord Cairns. VOL. IJ SCOTCH APPEALS. 309 death he was sent to Scotland for the purpose of nurture and 1868 education. By his father's relatives he was educated in Scotland BELL at school, and he afterwards proceeded to college. His father appears to have died when he was about the age of ten years, dying, in fact, as he* was coming over to Great Britain for his health, but with the intention of returning to Jamaica. The Appellant, after passing through college in Scotland, tra- velled upon the Continent ; and soon after he attained the age of twenty-one years he went out again to Jamaica, in the year 1823, with the intention of carrying on the cultivation of the Woodstock estate, which, in fact, was the only property he possessed. He cultivated this estate and made money to a considerable amount. He arrived at a position of some distinction in the island. He was the custos of the parish of St. George, and was a member of the Legislative Assembly. He married his late wife, then Miss Hosack, in Jamaica in the year 1828 ; and he had by her, in Jamaica, three children. It appears to me to be beyond the possibility of doubt that the domicile of birth of Mr. Bell was in Jamaica, and that the domicile of his birth continued during the events which I have thus described. In the year 1834 a change was made in the law with regard to slavery in the island of Jamaica, which introduced, in the first instance, a system of apprenticeship, maturing in the year 1838 into a complete emancipation. This change appears to have been looked upon by Mr. Bell with considerable disfavour, and, his health failing, in the year 1837 he determined to leave Jamaica, and to return to some part, at all events, of Great Britain. He entered into a contract for the sale of the Woodstock estate, the purchase-money being made payable by certain instalments ; and in 1837 he left the island, to use his own expression, "for good." He abandoned his residence there without any intention at that time, at all events, of returning to the island. He reached London in the month of June, 1837. He remained in London for a short time, apparently about ten days, and he then went on to Edin- burgh, and took up his abode under the roof of the mother of his wife, Mrs. Hosack, who at that time was living in Edinburgh. I ought to have stated that while the Appellant was in Jamaica 2 G 2 310 SCOTCH APPEALS. [L. K. 18G8 he appears to have kept up a correspondence with his relatives B^L and friends in Scotland. In the year 1833 he acquired (I prefer * to use the term "acquired" rather than the word " purchased ") KENNEDY. the estates of Glengabers and Craka. He appears to have taken to those estates mainly in settlement of a claim for some fortune or money of his wife secured upon them. It is apparent, however, that he had at no time any intention of residing upon Glengabers, and, in fact, the acquisition of those estates bears but little, in my opinion, upon the question of domicile, because in 1833, when he acquired them, his domicile, beyond all doubt, was, and for some years afterwards continued to be, in Jamaica. He 'wrote occasionally at that time from Jamaica, evincing a desire to buy an estate at some future period in Scotland, if he could obtain one to his liking, and even an intention, if he could obtain such an estate, of living in Scotland, but nothing definite appears to have been arranged or said upon the subject ; and, in fact, at this time other suggestions as to other localities appear to have been occasionally entertained and considered by him. In these letters he frequently uses an expression that was much insisted upon at the bar the expression of " coming home ;" but I think it will be your Lordships' opinion that the argument is not much advanced, one way or the other, by that expression. It appears to me to be obviously a form of language that would naturally be used by a colonist in Jamaica speaking of the mother country in contradistinction to the colony. Up to this point, my Lords, there is really no dispute with regard to the facts of the case. The birth-domicile of the Appel- lant in Jamaica continued, at all events till 1837, and the onus lies upon those who desire to shew that there was a change in this domicile, by which I mean the personal status indicated by that word, the onus, I say, lies upon those who assert that the personal status thus acquired, and continued from the time of his birth, was changed, to prove that that change took place. The law is, beyond all doubt, clear with regard to the domicile of birth, that the per- sonal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicile is acquired. VOL. I] SCOTCH APPEALS. 311 I do not think it will be necessary to examine the various 1868 definitions whicli have been given of the terra " domicile." The BELL question which I will ask your Lordships to consider in the present , v - KENNEDY. case is, in substance, this : Whether the Appellant, before the 28th of September, 1838, the day of the death of his wife, had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country ? The onus, as I have said, is upon the Respondents to establish this proposition. I will ask your Lordships, in the first place, to look at the facts subsequent to the return of the Appellant to Scotland, as to which there is no dispute, then at the character of the parol evidence whicli has been adduced, and, finally, at a few passages 7n the corre- spondence which is in evidence. As regards the facts which are admitted, they amount to this : - The Appellant lived under the roof of Mrs. HosacJc from the time of his arrival in Edinburgh, in the year 1837, until the 1st of June, 1838. He appears to have borne the whole, or the greater part of her house-keeping expenses during that time. He inquired for, and looked after, various estates, in the south of Scotland especially, and he indicated a preference for the estates of Blairs- ton or Auchindraine, of Mollance, and of Enterkine. With regard to Blairston or Auchindraine, it does not appear, so far as I can discover, to have been actually offered to him for sale. With regard to Mollance, before he came to any determination as to it, it was sold to another person. With regard to Enterkine, at the time we are speaking of, the 1st of June, 1838, a nego- tiation had been going on by letters written between the Appellant and those who were proposing to sell the estate, but the offer which he ultimately made for it had at that time been refused, and, on the 1st of June, 1838, there was no pending offer on his part for the property. Mrs. Bell, his wife, at this time was expecting her confinement. The house of his mother-in-law, in which they were sojourning, was not sufficiently commodious for their wants, and the Appellant took for one year a furnished house in Ayrshire, called Trocliraigue. He took it with no intention, apparently, of buying the estate, although it appears to have been for sale, but with the intention of living for a year in the house, and he hired 312 SCOTCH APPEALS. [L. E. 1868 servants for his accommodation. He removed to Troehraigue on ^^ the 1st of June, 1838, and, while so sojourning there, Mrs. Bell . v - died in her confinement on the 28th of September in that year. KENNEDY. J It appears to me, beyond all doubt, that prior to this time the Appellant had evinced a great and preponderating preference for Scotland as a place of residence. He felt and expressed a great desire to find an estate there with a residence upon it, with which he would be satisfied. His wife appears to have been even more anxious for this than he himself was ; and her mother and their friends appear to have been eager for the Appellant to settle in Scotland. There is no doubt that, since the death of his wife, he actually has bought the estate which I have mentioned, the estate of EnterJcine, and that his domicile is now in Scotland. All that, in my opinion, would not be enough to effect the acquisi- tion of a Scotch domicile. There was, indeed, a strong probability up to the time of the death of his wife that he would ultimately find in Scotland an estate to his liking, and that he would settle there. But it appears to me to be equally clear that if, in the course of his searches, a property more attractive or more eligible as an investment had been offered to him across the Border, he might, without any alteration or change in the intention which he expressed or entertained, have acquired and purchased such estate and settled upon it, and thus have acquired an English domicile. In point of fact, he made more or less of general inquiry after estates in England ; and a circumstance is told us by one of the witnesses, Mr. Telfer, which seems to me of great significance. Mr. Telfer says that his relations entertained great apprehension or dread that he would settle in England a state of feeling on their part totally inconsistent with the notion that he had, to their knowledge, at that time determined ultimately and finally to settle in Scotland. These being the admitted facts, let me next turn to the character of the parol evidence in the case. As to the evidence of the mem- bers of the HosacJc family, and of the servants, very little is to be extracted from it in the shape of information upon which we can rely. They speak of what they considered and believed was the intention of the Appellant ; but as to anything he said OF did, to which alone your Lordships could attend, they tell us nothing VOL. I.] SCOTCH APPEALS. 313 beyond what we have from the letters. As to the evidence of the 1868 Appellant himself, I am disposed to agree very much with what was said at the Bar, that it is to be accepted with very considerable KE v - reserve. An Appellant has naturally, on an issue like the present, a very strong bias calculated to influence his mind, and he is, more- over, speaking of what was his intention some twenty-five years ago. I am bound, however, to say, and therein I concur with what was said by the Court of Session, that the evidence of the Appellant appears to be fair and candid, and that certainly nothing is to be extracted from it which is favourable to the Respondents as regards the onus of proof which they have to discharge. I will now ask your Lordships to look at what to my mind appears the most satisfactory part of the case, namely, the corre- spondence contemporaneous with the events in the years 1837 and 1838. I do not propose to go through it at length, but I will ask you to consider simply certain principal epochs in the correspond- ence from which, as it appears to me, we derive considerable light as to the intentions of the Appellant. In the first place, T turn to a letter written by the Appellant on the 26th of September, 1837, three months after the Appellant and his "wife had come to .Scotland. He is writing from Minto Street, Edinburgh, to his brother-in-law, Mr. William Hosack, in Jamaica, and he says : " I have not got rid of my complaint as yet, and still find difficulty in walking much, and was obliged to forego the pleasures of shooting, on which I had so much set my heart. This country is far too cold for a person not having the right use of his limbs. In fact I have been little taken with any- thing, and would go to Canada, Jamaica, or Australia, without hesitation. I enjoy the fresh butter and gooseberries." Of the latter that is, of the gooseberries he proceeds to state some evil consequences which he had suffered, and then he says: "Every- thing else is as good, or has an equivalent fully as good, in Jamaica. My mind is not made up as to the purchase of an estate. Land bears too high a value in proportion to other things in this country, owing to the members of the House of Commons and of Lords being all landowners, and having thereby received greater legis- lative protection. The reform voters begin to see this, and as soon as the character of the House of Commons changes enough (and it 314 SCOTCH APPEALS. [L.B. 1868 is changing prodigiously) the value of land will come to its true BELT, value in the state. I have formed these views since I came home, K * T . T and have lost in proportion my land-buying mania." Thus, having, as I have stated, a domicile by birth in Jamaica, and having come to this country with an indeterminate view as to what property he should become the purchaser of, writing three months afterwards, he says : " I have been little taken with anything, and would go to Canada, Jamaica, or Australia, without hesitation." Nothing can be more significant as to the absence of any determination in his mind to make Scotland his fixed home, and to spend the remainder of his days there. I come to the 27th of December, 1837, when the Appellant, again writing to the same brother-in-law in Jamaica, says : " As to the country, I like none of it. I have not purchased an estate, and not likely to do so. I had my guns repaired, bought a pointer, purchased the shooting of an estate for 10, have never been there, nor fired a shot anywhere else. Have had a fishing rod in my hands only for two hours, and caught nothing. I bought a horse, and might as well have bought a bear. He bites so, it would have been as easy to handle the one as the other. I exchanged him for a mare, and, positively, I have sent her to enjoy herself in a farm straw yard, without ever having been once on her back, or even touched her in any way." Here, again, we find that so far from his expressing a liking for the country upon better acquaint- ance, he says he does not like it, and so far from a determination to purchase an estate in Scotland and end his days upon it, he says, "I have not purchased an estate, and am not likely to do so." Passing over three months more, I come to a letter dated the 20th of March, 1838, by Mrs. Bell, the wife's expressions being even more significant than those of her husband ; for it is obvious that she, of the two, was more inclined to settle in Scotland. She writes : " The extreme severity of the winter has put us a good deal out of conceit of Scotland, but independent of that, I don't find the satisfaction in it I anticipated. If circumstances per- mitted, I would not mind to return to Jamaica, though, I dare say, after being here a few years I might not like it. This country is so gloomy, it is sadly depressing to the spirits, so unlike what one VOL. L] SCOTCH APPEALS. 315 has been used to in dear, lovely Jamaica. The vile pride and 1868 reserve of the people is here too great a source of annoyance. A BELL man is not so much valued on the manners and education of a gentleman as on the rank of his great grandfather that is to say, among a certain class. You will perceive from this we are still at Number 9. Bell has several properties in view, but is as undeter- mined about where we may settle as when he left Jamaica. Next week he goes to Ayrshire to look at an estate, and from thence to Galloway and Dumfriesshire. If we don't fix very soon we purpose taking a furnished house in the country for twelve months." Now, the whole of this passage, I think, is of considerable importance, but the last sentence I have read affords a key which may be use- ful in letting us into the design of the spouses in taking the fur- nished house of Trochraigue. The interpretation given by this letter is, that it was equivalent to saying that they had not at that time fixed upon a residence. I pass on for two months more. The offer which in the interval he had made for EnterJcine had been refused. The furnished house at Trocliraigue had been taken. The Appellant and his wife were upon the eve of taking possession of it on the 1st of June, 1838 ; and on the 28th of May, 1838, the Appellant writes to his brother-in-law in Jamaica : " I have taken a country house at Trochriggr" "I leave this for it on the 1st of June. It is situated two miles from Girvan, which is twenty miles west of Ayr, on the sea coast. Therefore for the next twelve months you can address to me Trochrigg, near Girvan, Ayrshire, Scotland. The offer which I wrote you I have made for EnterJcine I received no answer to until sixteen days after, and then I got an answer stating they had a better offer. Of this I believe as much as I like, for I see it advertised again in the Saturday's paper. I do not know whether I shall make anything of this estate for the present, and I care not. It is still very cold, and if I do not make a purchase in the course of this year, I perhaps will take a trip next summer to the south of France, and see whether I don't find it warmer there." That is to say in the next summer, which would be the summer of 1839, he was in expectation that Mrs. Bell and his family would be able to accompany him to " take a trip to the south of France, and see whether he did not find it warmer there," 316 SCOTCH APPEALS. . [L. E. 1868 not, as it seems to me, for the purpose of enjoying a temporary JJ^L sojourn, but, if he found it a more agreeable climate, for the * purpose of making it his permanent residence. KENNEDY. r r There is only one other passage to which I would ask your Lordships' attention. It is in a letter written one month after- wards, while Mr. and Mrs. Bell were at Trochrigg, on the 16th of June. Writing to Mr. William Hosack, the Appellant says: " There are several gentlemen's seats in the neighbourhood, but none of them reside in them. We will probably have only three or four acquaintances, and shall be, in that respect, much the same as in Jamaica. We must, however, make the most of it for twelve months, in the hope that during that time I may be able to find some estate that will be suitable for me as a purchase." I find nothing after this material in the correspondence before the death of Mrs. Sell, and the last sentence I have read appears to me to sum up and to describe most accurately the position in which the Appellant was at Trochrigg ; he was there in the hope that, during the " twelve months," he might be able to find some estate which might be suitable to him for purchase; but upon that contingency, as it seems to me, depended the ultimate choice which he would make of Scotland, or some other country, as a place of residence. If his hope should be realized, we might from this letter easily infer that Scotland would become his home. If his hope should not be realized, I see nothing which would lead me to think, but everything which would lead me to doubt, that he would have elected to remain in Scotland as his place of residence. It appears to me, on the whole, upon consideration of the facts which are admitted in the case, and the parol evidence, and the correspondence to which I have referred, that so far from the Eespondents having discharged the onus which lies upon them to prove the adoption of a Scotch domicile, they have entirely failed in discharging that burden of proof, and that the evidence leads quite in the opposite direction. There is nothing in it to shew that the Appellant's personal status of domicile as a native and an inhabitant of Jamaica has been changed on coming here by that which alone could change it, his assumption of domicile in another VOL. L] SCOTCH APPEALS. country. I am, therefore, unfortunately unable to advise you to 1868 concur in the opinion of the Court of Session. The Lord Ordinary BELL entertained the opinion that the Appellant, from the first moment of his arrival in Scotland, and of his sojourn at Mrs. Hosack's house, had acquired a Scotch domicile. But nothing could be more tem- porary nothing more different from the state of things that would lead to the conclusion of the assumption of a Scotch domicile than the circumstances under which that sojourn took place. Lord Cowan, in delivering the opinion of the Court of Session, appears, on the other hand, to have thought that the Scotch domicile was not acquired at the time of arrival in Scotland, but was acquired at the time of taking possession of Trochrigg. But if we are to put upon the occupation of Trochrigg the interpretation which the Appellant himself put upon it at the time, so far from its being an assumption of a Scotch domicile, it appears to me to have borne an entirely different construction, and to have been a temporary place of sojourn, in order that a determination might be arrived at in the course of the sojourn as to whether a Scotch domicile should or should not ultimately be acquired. There is one passage in the judgment of the Court of Session, delivered by Lord Cowan, to which I must ask your Lordships more particularly to refer, for it appears to me to afford a key to what I think, with great respect, I must call the fallacious reason- ing of the judgment. After speaking of the parol evidence given by the Appellant, Lord Cowan uses these words: "For after all, what do the statements of the Defender truly amount to ? Simply this, that prior to September, 1838, he had not fixed on any place of permanent residence, and had not finally made up his mind or formed any fixed intention to settle in Scotland before he bought Enterkine. There is no statement that he had it in his mind to take up his residence elsewhere than in Scotland." If, my Lords, I read these words correctly, Lord Cowan appears to have inti- mated that in his opinion it would not be enough to find that the Appellant had not fixed on any place of permanent residence prior to September, 1838, and had not decidedly made up his mind or formed a fixed intention to settle in Scotland, unless proof were also adduced that he had it in his mind to take up his residence elsewhere than in Scotland. I venture to think that would be an 318 SCOTCH APPEALS. [L. K. 1868 entirely fallacious mode of reasoning, and would be entirely shift- B^ ing the position of the proof which has to be brought forward. K *: The question, as it seems to me, is not whether he had made up his mind to take up his residence elsewhere than in Scotland, but the question is, had he, prior to September, 1838, finally made up his mind or formed a fixed intention to settle in Scotland. Lord Cowan appears to admit that the parol evidence itself would shew that that had not been done, and that parol evidence is, in my mind, fortified and made very much more emphatic by the evi- dence of the correspondence to which I have referred. I have humbly, therefore, to advise your Lordships to assoilzie the Defender from the conclusions of the summons, and to reverse the sixteen interlocutors which have been pronounced by the Court below. LOKD CRANWORTH: The whole evidence has been so thoroughly examined by my noble and learned friend, that I feel that I should be rather wasting your Lordships' time if I were to attempt to go over again that which has been so completely exhausted by him. That the Appellant's domicile of origin was in Jamaica, and that it so continued till the month of April, 1837, is not and cannot be disputed. His residence there was interrupted for his education, partly in Scotland and partly on the Continent ; but to Jamaica he returned immediately afterwards ; there he married, and there he had his family ; there he set up his lares, and there he con- tinued till April, 1837, and would probably have continued much longer, but that his health had began to fail. Then he returned to England I say England and it was really to England, be- cause he landed at Dover : he passed a few days in London, and then went directly down to his mother-in-law's house in Edin- Tourgh ; but after residing, as he did temporarily, with her for about nine months, it is plain that he found that he was not quite so much pleased with the country to which he had returned as he expected to have been ; and I think, therefore, that his inclinations were shaken upon this subject. On the whole, my Lords, I entirely agree with the conclusion arrived at by my noble and learned friend. VOL. I] SCOTCH APPEALS. 319 LORD CHELMSFOED : l868 *^*%^^ My Lords, I agree with my two noble and learned friends, that Bs ^ L Mr. Bell had not acquired a domicile in Scotland at the time of his KENNEDY. wife's death in September, 1838. This case being one of an alleged change of domicile, it is ne- cessary to bear in mind that a domicile, although intended to be abandoned, will continue until a new domicile is acquired. And that a new domicile is not acquired until there is not only a fixed intention of establishing a permanent residence in some other country, but until also this intention has been carried out by actual residence there. It may be conceded that if the intention of permanently re- siding in a place exists, a residence in pursuance of that intention, however short, will establish a domicile. Mr. Bell's original domicile was Jamaica, and it is for the Re spondents, who rely upon a change of domicile, to prove that such change took place. The change of domicile (if any) must be dated subsequently to April, 1837, when Mr. BeU turned his back upon Jamaica, and apparently with the intention of never returning to the island. The learned counsel at one time seemed disposed to argue that Mr. BeU, having a fixed intention of making Scotland his future residence, the moment he quitted Jamaica with that view he acquired a Scotch domicile. But as intention alone is not sufficient to constitute domicile, this argument was not much insisted upon. It was contended, with more plausibility, that if Mr. Bell left Jamaica with the intention of never returning, but of purchasing land in Scotland, as soon as he arrived in Scotland and set about this intention he acquired a domicile. *I do not think, however, that there is sufficient proof of a fixed intention on the part of Mr. Bell to purchase an estate in Scotland, and not elsewhere, with a view to a permanent residence, until he became {he purchaser of Enterkine, which was after the period when the Respondent's case requires that the domicile should be established. He was certainly upon the look-out (if I may use the expression) for a place in Scotland, and would no doubt have closed with any advantageous offer. But it seems to me to be equally clear that he was not so wedded to the idea of a residence in Scotland as that if anything more eligible had presented itself in England he 320 SCOTCH APPEALS. [L. E. 1868 would not have embraced "it. To use his own expression upon his J^ L examination in the cause, he had " no fixed intention as to what he * was to do for the future." KENNEDY. I think the Kespondents have failed to prove Mr. Bell's intention to acquire a new domicile before the death of his wife on the 28th of September, 1838; and therefore that the interlocutor finding that he became domiciled in Scotland at this date ought to be reversed. LORD WESTBURY : My Lords, I have very few words to add to what has been already stated to your Lordships ; and, perhaps, even those are not quite necessary. What appears to me to be the erroneous conclusion at which the Court of Session arrived is in great part due to the circumstance, frequently lost sight of, that the domicile of origin adheres until a new domicile is acquired. In the argument, and in the judgments, we find constantly the phrase used that he had abandoned his native domicile. That domicile appears to have been regarded as if it had been lost by the abandonment of his residence in Jamaica. Now, residence and domicile are two perfectly distinct things. It is necessary in the administration of the law that the idea of domicile should exist, and that the fact of domicile should be ascertained, in order to determine which of two municipal laws may be invoked for the purpose of regulating the rights of parties. We know very well that succession and distribution depend upon the law of the domicile. Domicile, therefore, is an idea of law. It is the relation which the law creates between an individual and a particular locality or country. To every adult person the law ascribes a domicile, and that domicile remains his fixed attribute until a new and different attribute usurps its place. Now this case was argued at the Bar on the footing, that as soon as Mr. Bell left Jamaica he had a settled and fixed intention of taking up his residence in Scotland. And if, indeed, that had been ascertained as a fact, then you would have had the animus of the party clearly demonstrated, and the factum, which alone would remain to be proved, would in fact be proved, or, at least, would result imme- diately upon his arrival in Scotland. VOL. I.] SCOTCH APPEALS. 321 The true inquiry, therefore, is Had he this settled purpose, the 1868 moment he left Jamaica, or in course of the voyage, of taking up B ELL a fixed and settled abode in Scotland ? Undoubtedly, part of the KENNEDY evidence is the external act of the party ; but "the only external act we have here is the going down with his wife to Edinburgh, the most natural thing in the world, to visit his wife's relations. We find him residing in Scotland from that time; but with what animus or intention his residence continued there we have yet to ascertain. For although residence may be some small prima facie proof of domicile, it is by no means to be inferred from the fact of residence that domicile results, even although you do not find that the party had any other residence in existence or in contemplation. I take it that Mr. Bell may be more properly described by words which occur in the Digest; that when he left Jamaica he might be described as quterens, quo se conferat, atque ubi constituat domicilium(L). Where he was to fix his habitation was to him at that time a thing perfectly unresolved ; and, as appears from the letters which your Lordships have heard, that irresolution, that want of settled fixity of purpose, certainly continued down to the time when he actually became the purchaser of Enterkine. But the punctum temporis to which our inquiries are to be directed as to Mr. Bell's intention is of an earlier date than that. The question is, had he any settled fixed intention of being perma- nently resident in Scotland on the 28th of September, 1838 ? I quite agree with an observation which was made in the Court of Session, that the letters are the best evidence in the case. To those letters your Lordships' attention has been directed, and whether you refer to the language of the wife's letters, or look exclusively at the language of the husband's letters written to his familiar friends or his relatives whom he had left in Jamaica, it is impossible to predicate of him that he was a man who had a fixed and settled purpose to make Scotland his future place of residence, to set up his tabernacle there, to make it his future home. And unless you are able to shew that with perfect clearness and satis- faction to yourselves, it follows that the domicile of origin continues. And therefore I think we can have no hesitation in answering the question where he was settled on the 28th of September. It must (1) Dig. lib. 50, t. 1, 27. 322 SCOTCH APPEALS. [L. R. 1868 be answered in this way ; he was resident in Scotland, but without !^ the animus manendi, and therefore he still retained his domicile of v - origin. KENNEDY. My Lords, it is matter of deep regret, that although it might have been easily seen from the commencement of this cause that it turned entirely upon this particular question, yet we find that ten years of litigation have taken place, with enormous expense, and an enormous amount of attention to a variety of other matters, which would have been wholly unnecessary if judicial attention had been concentrated upon this question, which alone was suffi- cient for the decision of the case. LORD COLONSAY: My Lords, while I do not differ from the judgment proposed, I cannot say that the case has appeared to me to be so very clear and free from difficulty as it has appeared to my noble and learned friends. I think it is a case of nicety on the evidence. But having gone over that evidence more than once with much care, and having listened to the whole of the able argument for the Kespondents, I do not see any sufficient ground for rejecting the conclusion at which my noble and learned friends have arrived. The principle of domicile is one which occupies a very prominent place in our law, and in the law of all civilized countries. It exercises an influence almost paramount in regard to personal status and rights of succession, as well as to political international relations. It has therefore necessarily undergone much discussion in all countries, and both in ancient and modern times. Yet there is perhaps no chapter in law that has from such extensive discussion received less of satisfactory settlement. That is no doubt attri- butable, in no small degree, to the nature of the subject, involving, as it does, inquiry into the animus of persons who have either died without leaving any clear record of their intentions, but allowing them to be collected, by inference, from acts often equivocal ; or who, being alive and interested, have a natural, though, it may be, an unconscious, tendency to give to their bygone feelings a tone and colour suggested by their present inclinations. I am not disposed to take the evidence of Mr. Bell as the corner stone of my judgment. I agree with the Kespondents in VOL. I.] SCOTCH APPEALS. 323 thinking that what Mr. Bell wrote at the time, and what he did at the 1868 time, are better materials and safer grounds for judgment than what jj^ he says now. And I should have been of that opinion even if his ., v ; evidence had been less open to criticism, and less vulnerable than it is. The case presents itself to my mind in this light. Mr. Beffs domicile was in Jamaica not only his domicile by residence and property, and as being the seat of his mercantile pursuits and all his worldly interests, but also his domicile of origin. To this last I attach considerable importance, though I think that the measure of its importance on the question of evidence may be, and in this case is, modified by other considerations such as the previous history of his family, and of his wife's family, and his own early associations by residence in Scotland for twenty years from child- hood until manhood. Still I think the circumstance that Jamaica was the domicile of origin is not unimportant in this case, and especially on the question as to the extinction of that domicile. Then I think it is very clear that Mr. Bell left Jamaica with the intention of never returning, or, as it is expressed in some of the letters, he left it " for good." I further think that his leading de- sire at that time, and for some time previously, was to acquire a land estate in Scotland, which would give him a desirable residence, and be at the same time a good investment for his money. This last was, I think, a desideratum, for it appears that he intended to invest in that way the whole, or nearly the whole, of his fortune, and was even disposed to borrow 14,000 or 15,000 to enable him to make such a purchase as he desired. But I do not think that his having sailed from Jamaica with that intent extinguished his Jamaica domicile. I know of no authority for that proposition. There are dicta to the effect that if Scotland had been the domi- cile of origin, and he had bid a final adieu to Jamaica and sailed for Scotland, and had died in itinere, the domicile of origin would be held to have revived ; but there is no authority for saying that a person dying in transitu from the domicile of origin to a foreign land, had lost the domicile of origin. He could not so displace the effect which law gives to the domicile of origin, and which con- tinues to attach until a new domicile is acquired animo et facto. He cannot have acquired a domicile in a new country which ho 1m- never reached. VOL. I. 2 2 H 324 SCOTCH APPEALS. [L. K. 1868 But Mr. Bell did reach Scotland and there the difficulty of this B^ case begins. His leading desire was to find in Scotland an estate KENNEDY suc ^ as ^ e wou ^ ^ e disposed to invest his fortune in. He arrived in Scotland in June or July, 1837. He immediately set about prosecuting inquiries as to estates, chiefly in Ayrshire, Dumfries- shire, and Galloway. Among these was the estate of EnterMne. For that estate he made an offer in 1838, which was refused. He made a higher offer in 1839, which was accepted. I have no doubt that from the date of that purchase he was to be regarded as a domiciled Scotchman. The leading desire with which he left Jamaica and arrived in Scotland, and which during two years' residence in Scotland he still entertained, had now been realized. He had found a property such as he had desired, with a mansion that suited him. He invested his fortune in that purchase, and took up his abode in that mansion and he and his whole interest thus became, as it were, identified with that estate and rooted in the soil. The question here, however, is whether in September of the preceding year he had acquired a Scotch domicile. To that question an affirmative answer was given by all the five learned Judges who considered the case in the Court below. A negative answer has been given by all my noble and learned friends who have now addressed the House. In these circum- stances, and it being very much of a jury question, I may be excused for regarding it as a question of some difficulty. The argument of the Respondents that Mr. Bell, having quitted Jamaica for good, and gone to Scotland, where he had many attrac- tions, with the avowed intention of investing his fortune in land in Scotland, and having indicated no disposition to make any other in- vestment, his Scotch domicile must be held to have commenced from the time he arrived in Scotland and set about the prosecution and realization of that object, although in the meantime, while prosecuting his inquiries, he provided himself with a temporary habitation, was very forcibly put, and under certain supposable circumstances might be entitled to the greatest weight. I do not think that the acquisition of a permanent habitation by purchase or lease is neces- sary to domicile, neither do I attach importance to the circum- stance that his inquiries or views were not always directed to the same estate, or to estates in the same county. If it was clear that 70L. I.] SCOTCH APPEALS. 325 prior to September, 1838, there was a fixed determination to ISGS invest his fortune in land in Scotland, and to reside there, I BELL think that there was enough of actual residence to support the case of the Respondents. But I think that while he had a strong desire to invest in land in Scotland with a suitable mansion on it, the fulfilment of that desire was contingent on his finding an estate that would give him not only a suitable residence, but also an adequate return for his money. This was indispensable, because his whole fortune was to be invested. Such an invest- ment is not always, or easily, to be got, and it is to me by no means clear that if he had not been able within a short time to obtain such an investment he would have remained in Scotland. Looking to what appears to have been the state of his health, and the opinions expressed as to the climate, it seems not at all unlikely that in that event he would have lived chiefly in a warmer climate, and perhaps occasionally visited his friends in Scotland. He might, or might not, have invested in land else- where. But I do not see sufficient ground for holding that he had resolved to make Scotland the country of his residence, except in the event of his being able to make such an investment as he desired. In the meantime his mind was unsettled as to where he should finally cast anchor. His location in Scotland was ten- tative. If his final offer for Enterkine, in the spring of 1839, had been rejected, I see no reason to conclude that he would have remained in Scotland ; and if he had then gone to a preferable climate and taken up his residence there, I think it could not have been held that he had in the previous September become a domiciled Scotch- man. If he had gone to Scotland with intent to reside perma- nently there, without regard to any particular mode of investing his fortune, the contingency on which, I think, so much depends, would have been out of the case, and his location in Scotland would not have been attributable to that purpose of investigation previous to decision to which I think it may fairly be attributed. No doubt, the continuance of the residence of a person in any country, however long he has been there, may, in a sense, be said to be contingent on possible future occurrences. But that has no resemblance to the present case, for here the purpose to settle 2 II 2 326 SCOTCH APPEALS. [L. R. 1868 in a particular country, and so acquiring a domicile there, was B^I contingent, and, as I think, in suspense. j- * Upon these grounds I am disposed to concur in the judgment proposed. Other defences were pleaded in the action and were maintained in the Court below, and as the learned Judges in that Court were of opinion that the Scotch domicile had been established, it was proper, and, indeed, quite necessary, for them to deal with those other defences, and it would equally have been our duty to have done so if we had taken the same view as they did of the import of the evidence in regard to domicile ; but in consequence of our having taken a different view of the import of that evidence it has now become unnecessary to deal with those other defences. Interlocutors reversed. Solicitors for the Appellants : Grahames & Wardlaw. Solicitors for the Respondent : Uptons, Johnson, & Upton. 18GS MKS. WILSON APPELLANT ; ay 20. MEKEY & CUNNINGHAM RESPONDENTS.. Injury ~by a Fellow-workman, or Cdldborateur Difference of Grade Master's Immunity Principle of the Doctrine. Per THE LOBD CHANCELLOR : I do not think the liability, or non-liability, of the master to his workmen can depend upon the question whether the author of the accident is not, or is, in any technical sense, the fellow-work- man, or collator ateur, of the sufferer. Per LORD COLONSAY: " Fellow- workman " and "collaborateur'' are not expressions well suited to indicate the relation on which the liability or non- liability of a master depends, especially with reference to the great systems - of organization that now exist. And these expressions, if taken in a strict or limited sense, are calculated to mislead. The same may be said of such words as " foreman," or " manager." We must look to the functions the party discharges, and his position in the organism of the force employed, and of which he forms a constituent part. Nor is it of any consequence that the position he occupies in such organism implies some special authority, or duty, or charge. Per LORD CRANWORTH : Workmen do not cease to be fellow- workmen because they are not all equal in point of station or authority. Per LORD CHELMSFORD: It has certainly been held by Scotch Judges of. great eminence that the exoneration of a master from liability for injury TOL. I.] SCOTCH APPEALS. 327 1868 % *" v "*' Iso " arising to one fellow-servant from the negligence of another does not take place where the servant occasioning the injury is placed in superintendence, control, or authority over the others. But the subsequent English cases have clearly established that there is no such distinction. MERRY. Duties of the Master, Per THE LORD CHANCELLOR : The master has not con tracted or under- taken to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business, in place of being beneficial, might be disastrous to his servants, for the master might be incompetent personally to perform the work. At all events, a servant may choose for himself between serving a master who does, and a master who does not, attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and com- petent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negli- gence this is not the negligence of the master ; and if an accident occurs to a workman to-day in consequence of the negligence of another workman, skil- ful and competent, who was formerly, but is no longer in the employment of the master, the master is, in my opinion, not liable, although the two work- men cannot technically be described as fellow-workmen. Per LORD COLONSAY : Culpable negligence in supervision, if the master takes the supervision on himself; or, where he devolves it on others, the heedless selection of unskilful or incompetent persons for the duty, or the failure to provide or supply the means of providing proper machinery or materials ; may furnish grounds of liability ; and there may be other duties, varying according to the nature of the employment, wherein, if the master fails, he may be responsible. 23 & 24 Viet. c. 151 (1860), " An Act for the Regulation and Inspection of Mines." Commentary by Lord Chelmsford. a trial which lasted four days in January, 1867, Mrs. Wilson recovered a verdict against Messrs. Merry & Cunningham for the loss of her son, who was killed when engaged as a miner in their employment ; the jury assessing the damages at 100. The counsel of Messrs. Merry & Cunningham took exceptions to the Judge's charge. One of these was allowed by the Court of Session, whose judgment of allowance, setting aside the verdict, and granting a new trial, formed the subject of Mrs. Wilson's appeal to the House. The question, in a word, was whether her son's death had not been caused by the fault or negligence of a fellow-workman, so as .to free Messrs. Merry & Cunningham from responsibility. 328 SCOTCH APPEALS. [L. R. 1868 Mr. Quain, Q.C., Mr. Strachan, and Mr. Junner, appeared for the Appellant. MERRY. gir EoundeU p a i meT) Q.Q., Mr. Young, and Mr. A. B. Shand, for the Respondent. In the following opinions the facts and the arguments are fully stated. THE LORD CHANCELLOR (1) : My Lords, the Respondents in this case are coal and iron mas- ters, owning the Haugrhhead coal-pit, near Hamilton, in the county of Lanark. This pit had, prior to the 21st of November, 1863, been sunk to the depth of ninety-five fathoms and contained four seams of coal. The upper seam, called the Ell coal, had been worked out, and the Respondents determined to work the next underlying seam, called the PyotsJiaw coal. In order to open this seam from the side of the pit a scaffold was erected in the pit, from and by means of which to drive the level in the Pyoishaw seam. This scaffold was completed on Saturday, the 21st of November, 1863. On the following Monday, the 23rd of Novem- ber, 1863, Robert Wilson and Henry Wilson, sons of the Appellant, were engaged by the Respondents to assist in driving this level ; and on the 24th of November they went to work. The system of ventilation in the pit, before the scaffold was placed there, was of the usual kind, by downcast and upcast, and it is not suggested that before the platform was erected the system of ventilation was defective in any particular. The platform, however, interrupted the free current or circulation of air in the pit; and although it is stated that apertures were left in the platform on the upcast side for the return of the air from the shaft below, yet an accumulation of fire-damp appears to have taken place underneath the platform ; and on the 25th of November, 1863, while Henry Wilson was searching on the scaffold with a light for a wedge which was missing, the light came in contact with the fire-damp coming from beneath the scaffold, and an explosion took place, by which the scaffold was blown up and Henry Wilson killed on the spot. (1) Lord Cairns. VOL. L] SCOTCH APPEALS. The present action was raised by the Appellant, as the mother 1868 of Henry Wilson, for damages in consequence of his death, and an WILSON- issue was appointed by the Lord Ordinary for the trial of the cause M ,** in the following terms : " Whether, on or about the 25th day of November, 1863, the deceased Henry Wilson, miner, Haughhead, the son of the Pursuer, while engaged in the employment of the Defenders as a miner in said pit, was killed *by an explosion of fire- damp through the fault of the Defenders, to the loss, injury, and damage of the Pursuer ?" It was not suggested that the Respondents themselves took any part in the erection of the platform, nor was any personal fault or negligence of any kind imputed to them. The general manager of their works in Lanarkshire was Mr. Jack. The manager of the Haughhead coal pit underneath Jack was John Neish ; and subor- dinate to Neish was a man named Bryce, who attended to the underground operations. One Neil Robson, formerly a mining engineer, was a partner with the Respondents, and it was under the general direction of the Respondents and of Bolson and Jack that the working of the Pyotshaiv seam was commenced. The charge of sinking the pit, and making arrangements underground for working it, was given to Neish. It was proved at the trial, and, indeed, not controverted, that Jack and Neish were competent persons for the work on which they were engaged ; selected by the Respondents with due care ; and furnished by the Respondents with all necessary materials and resources for working in the best manner. The cause was tried on the 2nd of January, 1867, and the three following days, before Lord Ormidale, and a verdict found for the Appellant, assessing damages at 100. Two exceptions were taken to Lord Ormidales directions to the jury ; the second of which was allowed by the Court of Session, and a new trial granted. It is on this exception alone that your Lordships are now called to express an opinion, the Appellant having appealed against the interlocutor of the Court of Session allowing the exception, which runs thus : Lord Ormidale charged the jury ; and, after explaining that in law the Defen- ders were not answerable for the consequences of an accident which could not have been foreseen, and by reasonable care and caution prevented, or for the conse- 330 SCOTCH APPEALS. [L. K. 18G8 WILSON v. MERRY. quences of an accident caused by deceased's own fault, or the fault of a fellow- workman, as Brycc must be held to have been in the present instance, engaged with him in the same common employment ; and after also explaining the nature of the obligation under which employers lay of providing all apparatus and machinery necessary and proper for the safety of their workmen, proceeded to bring under their consideration the circumstances relating to the ventilation arrangement or system of the pit in question, distinguishing betwixt the keeping clear and in good working order the ventilation arrangement or system when completed, and after the deceased came to be engaged in the pit, and defect or fault in said arrange- ment or system itself. And in reference to the latter, Lord Ormidale, in the course of his charge directed the jury, that " if they were satisfied on the evidence that the arrangement or system of ventilation in the Haughhead pit at the time of the accident in qxiestion had been designed and completed by Neisli before the deceased Henry Wilson was engaged to work in the pit, and that the Defenders had delegated to Neish their whole power, authority, and duty in regard to that matter, and also in regard generally to all the underground operations, without con- trol or interference on their part, the deceased Henry Wilson and Neish did not stand in the relation of fellow- workmen engaged in the same common employment, and the Defenders were not on that ground relieved from liability to the Pursuer for the consequences of fault, if any there was, on the part of Neisli in designing and completing said arrangement or system of ventilation." The law applicable to cases of this kind has of late years come frequently under consideration, both in this House and in various Courts of law in England and Scotland. The cases up to the year 1858 are all reviewed in the case of the Bartonshill Coal Company v. Reid, decided by your Lordships (1). In that case my noble and learned friend, Lord Cranworth, explained with great clearness the difference between the liability of a master to one of the general public and his liability to a servant of his own for an injury occasioned not by the personal neglect of the master him- self, but by the negligence of some person employed by him. As to the liability of the master to the general public, my noble and learned friend expressed himself thus : Where an injury is occasioned to any one by the negligence of another, if the person injured seeks to charge with its consequences any person other than him who actually caused the damage, it lies on the person injured to shew that the circumstances were such as to make some other person responsible. In general, it is sufficient for this purpose to shew that the person whose neglect caused the injury was at the time when it was occasioned acting not on his own account, but in the course of his employment as a servant in the business of a master, and that the damage resulted from the servant so employed not having conducted his master's business with due care. In such a case the maxim " respondeat superior " (1) 3 Macq. 282. VOL. I] SCOTCH APPEALS. 331 prevails, and the master is responsible. Thus, if a servant driving his master's carriage along the highway carelessly runs over a bystander, or if a gamekeeper employed to kill game carelessly fires at a hare so as to shoot a person passing on the ground, or if a workman employed by a builder in building a house negli- gently throws a stone or brick from a scaffold, and so hurts a passer-by ; in all these cases (and instances might be multiplied indefinitely) the person injured has a right to treat the wrongful or careless act as the act of the master. Qui facit per alium facit per se. If the master himself had driven his carriage im- properly, or fired carelessly, or negligently thrown the stone or brick, he would liave been directly responsible, T and the law ' does not permit him to escape lia- bility because the act complained of was not done with his own hand. He is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself, or of those acting under his orders, in the course of his "business. Third persons cannot, or, at all events, may not, know whether the particular injury complained of was the act of the master or the act of his servant. A person sustaining injury in any of the modes I have suggested has a right to say : " I was no party to your carriage being driven along the road, to your shooting near the public highway, or to your being engaged in building a house. If you choose to do, or cause to be done, any of these acts, it is to you, and not to your servants, I must look for redress, if mischief happens to me as their consequence." A large portion of the ordinary acts of life are attended with some risk to third persons, and no one has a right to involve others in risks without their consent. This consideration is alone sufficient to justify the wisdom of the rule which makes the person by whom, or by whose orders, these risks are incurred responsible to third persons for any ill consequences resulting from want of due skill or caution. But as to the liability of the master to his workmen, my noble -and learned friend thus expressed himself: But do the same principles apply to the case of a workman injured by the want of care of a fellow- workman engaged together in the same work ? I think not. When the workman contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself: he knows, if such be the nature of the risk, that Avant of care on the partof a fellow- workman may be injurious or fatal to him, and that against such want of care his employer cannot by possibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame. He knows that the blame was wholly that of the servant. He cannot say the master need not have engaged in the work at all, for he was party to its being undertaken. Principle, therefore, seems to me opposed to the doctrine that the responsibility of a master for the ill consequences of his servant's care- lessness is applicable to the demand made by a fellow-workman in respect of evil resulting from the carelessness of a fellow-workmen when engaged in a common r work. My Lords, I would only add to this statement of the law, that I do not think the liability, or non-liability, of the master to his workmen can depend upon the question whether the author of the 1868 WILSON v. MERRY. 332 SCOTCH APPEALS. [L. R, 1868 accident is not, or is, in any technical sense, the fellow-workman,. W^j, or coUalorateur, of the sufferer. In the majority of cases in ., Vm which accidents have occurred the negligence has. no doubt, been MEBBT. the negligence of a fellow-workman ; but the case of the fellow- workman appears to me to be an example of the rule, and not the rule itself. The rule, as I think, must stand upon higher and broader grounds. As is said by a distinguished jurist : " Exempla non restringunt regulam, sed loquuntur de casibus crebrioribus (Donellus de Jure Civ. L. 9, c. 2, n). The master is not, and cannot be, liable to his servant unless there be negligence on the part of the master in that in which he, the master, has contracted or un- dertaken with his servant to do. The master has not contracted or undertaken; to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business, in place of being- beneficial, might be disastrous to his servants, for the master might be incompetent personally to perform the work. At all events, a servant may choose for himself between serving a master who does, and a master who does not, attend in person to his busi- ness. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and direct- ing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that lie is bound to do. And if the persons so selected are guilty of negligence this is not the negligence of the master; and if an accident occurs to a workman to-day in consequence of the negli- gence of another workman, skilful and competent, who was for- merly, but is no longer in the employment of the master, the master is, in my opinion, not liable, although the two workmen cannot technically be described as fellow-workmen. As was said in the case of Tarrant v. Webb (1), negligence cannot exist 'if the master does his best to employ competent persons ; he cannot warrant the competency of his servants. Applying these observations to the direction of the learned Judge to the jury in this case, I think the first error in that direc- tion is, that it is pregnant with the suggestion to the jury that (1) 25 L. J. (X.S.)C. P. 263. VOL. L] SCOTCH APPEALS. 333 if they found the scaffold to have been finished by Neisli before the 1868 deceased was engaged to work in the pit, a liability for the acci- WOSON dent was thrown upon the Respondents, which would not have existed if the deceased had been engaged before the scaffold was finished. This, my Lords, was calculated, as I think, to mislead, and appears to have misled the jury. But, my Lords, I think there is another objection to the charge of the learned Judge. He asks the jury to consider whether the Respondents had . delegated to Neish their whole power, authority, and duty in regard to the arrangement or system of ventilation, and also in regard generally to all the underground operations, without control or interference on their part. My Lords, I think there is nothing in the evidence which would warrant a question being left to the jury in these terms. The Respondents had delegated no power, authority, or duty to Neish, except in the sense in which a master who employs a skilled workman to superintend a portion of his business delegates power, authority, and duty to the workman for that purpose. It was admitted that the Respondents gave no specific directions to Neish as to the manner or form in which the scaffold was to be arranged. They told him that the Pyotsliaw seam was to be opened, and they left to him the arrangements underground for opening and working it. And the learned Judge ought not, as I think, to have suggested to the jury that this could be viewed in any other light than as the ordinary employment by the Re- spondents of a sub-manager or foreman. I think the learned Judge ought to have told the jury that if they were of opinion that the Respondents exercised due care in selecting proper and competent persons for the work and furnished them with suitable means and resources to accomplish the work, the Respondents were not liable to the Appellant for the consequences of the accident. An argument was addressed to your Lordships founded on the 23 & 24 Viet. c. 151, under which the Appellant contends that the Respondents were absolutely bound by statute to have an adequate amount of ventilation in the pit, and that they were liable as for a breach of this statutory duty. It is sufficient, nay Lords, to say that no such question is raised on this exception, nor, was the 334 SCOTCH APPEALS. [L. E. 1868 learned Judge asked to give any direction to the jury on this WILSON score. Your Lordships will probably not express any opinion as MERRY * wne ^her in some other stage of this action such an argument may, or may not, be maintained ; and I only notice it at present in order to shew that it has not been overlooked. On the whole, I must advise your Lordships to dismiss this appeal with costs. LORD CRANWORTH : My Lords, the direction of the learned Judge complained of has been so fully stated by my noble and learned friend that I need not repeat it at length. The substance of it was, that if the system of ventilation had been completed by Neish before Wilson was engaged to work in the pit, and if the owners had delegated to him all their power and authority as to the underground opera- tions, then he and Wilson were not fellow-workmen. This was clearly wrong. Workmen do not cease to be fellow-workmen because they are not all equal in point of station or authority. A gang of labourers employed in making an excavation and their captain, whose directions the labourers are bound to follow, are all fellow labourers under a common master, as has been more than once decided in England, and on this subject there is no difference between the laws of England and Scotland. Nor does it make any difference that the scaffolding, the imperfection of which is assumed to have caused the accident, had been all set up by Neish before Wilson began to be employed. In order effectually to carry on the work it- was necessary that a scaffolding should be fixed under the superintendence of an underground manager, and when so fixed it was necessary that workmen should be employed at it in excavating the mine under similar superintendence. That Neish was a person competent to perform 'the duties of such underground manager was not a matter in dispute. He caused the scaffold to be prepared and fixed, and when that had been done Wilson began to work under him as manager. They thus clearly became fellow- workmen, and the circumstance that a part of the duties of Neish had been completed before Wilson began to work cannot be ma- terial. If, indeed, the owners had failed to take reasonable care in causing the scaffold to be erected the case would have been dif- VOL. I.] SCOTCH APPEALS. 335- ferent, but of this there is no evidence. It certainly was not 1868 incumbent on them personally to fix the scaffold. They discharged WILSON their duty when they procured the services of a competent under- MER BT ground manager ; and whether Wilson began to work with, or under, Neish before or after he had prepared the scaffold was a matter of no importance. From the time when he began to work he was a fellow-workman with him. The direction given by the learned Judge at the trial was certainly wrong, and the inter- locutor granting a new trial was therefore right. It is not necessary that we should say what direction the learned Judge ought to have given, but I have no difficulty in saying that he ought to have charged the jury to the effect that Neish and the deceased were, according to the evidence, fellow- workmen, and that the Defenders were not liable if they, the jury, were of opinion that Neish was a properly skilled workman to act as underground manager, even if there were defects in the scaffolding which caused the accident. I have purposely abstained from any reference to the statute 23 & 24 Viet. c. 151, as the applicability of that statute to the facts of the present case does not arise on the present exception. I have considered the direction which ought to have been given as if no such statute existed. LOED CHELMSFORD : My Lords, the only question which your Lordships are called upon to determine in the present appeal is, whether the second of the exceptions made to the direction of the learned Judge at the trial of the cause is good or not ? The consideration of the direction which the counsel for the Defenders asked from the Judge is not absolutely necessary, be- cause the Court of Session did not deal with the exception to the Judge's refusal to give this direction ; but the case cannot, in my opinion, be satisfactorily disposed of without some reference to the mode in which the questions ought to have been submitted to the jury. The direction to which the second exception applies made the whole case turn upon the question, whether Neish and the deceased were fellow-workmen engaged in the same common employment, 336 SCOTCH APPEALS. [L. B. 1868 which the Judge told the jury they could not be, " if they were WILSON satisfied on the evidence that the arrangement or system of venti- MERRY lotion in the Haughhead pit at the time of the accident had been designed and completed by Neish before the deceased was engaged to work in the pit, and that the Defenders had delegated to Neish their whole power, authority, and duty in regard to that matter, and also in regard generally to all the underground operations, without control or interference on their part." That the ventilation was faulty at the time of the accident there can be no doubt, nor that Neish had the superintendence and direction of all the operations in the pit, and therefore for the Judge to make the completion of the system of ventilation before the deceased was engaged to work in the mine, and the uncon- trolled power and authority of Neish, the tests to determine whether he and the deceased were fellow-workmen, upon which the Pursuer's right to recover was made to depend,- amounted to a direction to the jury to find a verdict for him. Although the learned Judge, in the course of his summing up, distinguished " between keeping clear and in good working order the ventilation arrangement or system when completed, and a defect or fault in the arrangement or system itself," yet he does not appear r to have left it to the jury to decide whether the accident occurred through faulty ventilation, or through casual obstruction in the ventilation, the latter of which appears from the evidence to be more likely to have been the case. But, supposing it to have been quite clear that the. ventilation itself was defective, yet, if it occurred in the course of the operations in the pit, it ought to have been distinguished from that " system of ventilation and putting the mine into a safe and proper condition for working," which, according to the opinion of the Lord Justice ClerJc, in Dixon v. Eanken (1), " it was the duty of the master for whose benefit the work is being carried on to provide." In the course of working the Haughhead pit it became necessary to arrange a system of what, for distinction's sake, I may call local ventilation. This must be considered as part of the mining operations, and therefore, even if the accident happened in consequence of the scaffold in the Pyot- shaw seam having, under Neislis orders, been constructed so as to (1) 14 Dunlop, 420. VOL. I.] SCOTCH APPEALS. 337 obstruct the necessary ventilation, it would have been the result of 1868 negligence in the course of working the mine ; and if Neish and WILSON the deceased were fellow-workmen, it would have been one of the the risks incident to the employment in which the deceased was engaged. Lord Ormidale directed the jury that Neish and the deceased could not be fellow- workmen if the system of ventilation in the pit had been completed by Neish before the deceased was engaged to work in the mine. There is a little want of accuracy here in the learned Judge's language. If the negligence imputed to Neish is to be taken to have occurred at the time of the completion of the system of ventilation, the deceased could not have then stood in the relation of fellow- workman, for he was not a workman at all. I suppose the learned Judge meant to tell the jury that if the negligence which occasioned the accident was finished and com- pleted before the deceased entered the service, the question of fellow-workmen did not arise. But, assuming this to have been the direction, it was open to exception. If the platform in the Pyot- sliaw seam was originally of improper construction for the purpose of ventilation, there was undoubedly a complete act of negligence on the part of Neish at the moment of its erection. But as he was bound to take care that sufficient ventilation was maintained during the whole time of the workings, as long as he omitted to do so he was guilty of negligence, which continued down to the time of the occurrence of the accident. It was therefore incorrect on the part of the learned Judge to confine the act of negligence to the one period of the completion of the system of ventilation, and thereby to conclude the question as to Neish and the deceased being fellow-workmen when the accident happened. But the learned Judge put another question to the jury (whether in combination with the previous one, or independently of it, does not clearly appear), which, if found by the jury, would, in his opinion, have prevented Neish and the deceased from being fellow- workmen. That question was, whether the Defenders had delegated to Neish their whole power, authority, and duty in regard to the arrangement or system of ventilation, and also generally in regard to all the under-ground operations, without control or interference on their part. The words " delegated," and " without interference 338 SCOTCH APPEALS. [L. E. 1868 or control," are ambiguous, or, at all events, misleading expressions. Every master may be said to delegate to his servant the power, authority, and duty of his particular department in the service, without his interference and control, and yet he would be responsible to third persons for the consequences arising from the negligence, of that servant in the performance of the duties so intrusted to him. What the learned Judge meant to tell the jury was, that if Neish " had the complete power of engaging and dismissing workmen as he pleased, and the ventilation process was entirely left to him without the direction or control of the Defenders, he was a superintendent, and not a fellow-workman with the de- ceased." But if the learned Judge had so directed the jury, it would, in my opinion, have been a misdirection. It has certainly been held by Scotch Judges of great eminence that the exoneration of a master from liability for injury arising to one fellow-servant from the negligence of another does not take place where the servant occasioning the injury is placed in superintendence, control, or authority over the others. In the case of M'Auley v. Brownlie (1) ? Lord Deas said : " I think that the foreman was the master's represen- tative, delegated to act for him in his absence, with power to give all the orders which he could have given ; and that when the master so delegates his powers and duties in matters affecting life and limb, he must be responsible for the acts and omissions of representatives equally with his own." And in Somerville v. Gray, & Co. (2), the Lord President said : " I think there is room for a distinction among different classes of servants acting under the same master, and I do not think that the House of Lords, or the Courts of England) have ever held expressly that there is not. The difficulty is where to draw the line of distinction." But subsequent cases in England have clearly established that there is no distinction as to the exemption of a common employer from liability to answer for an injury to one of his workmen from the negligence of another in the same employment, in consequence of their being workmen of different classes. It is only necessary to refer for this point to Wigmore v. Jay (3), Gallagher v. Piper (4).. (1) 22 Dtralop, 975. (3) 5 Ex. 354. (2) 1 M'Pherson, 7C8. (4) 16 C. P.. (N.S.) 60 3. VOL. I.] SCOTCH APPEALS. 339 and especially to Fettham v. England (I), where the Court said : 1868 " Vfe think that the foreman was not, in the sense contended for, WILSON the representative of the master. The master still retained the control of the establishment, and there was nothing to shew that the foreman or manager was other than a fellow-servant of the Plaintiff, although he was a servant having greater authority." As was said by Mr. Justice Willes, in Gallagher v. Piper (2), " a foreman is a servant as much as the other servants whose work he superintends." And he added : " We think this case ranges itself with a great number of cases, by which it must be considered as conclusively settled that one fellow-servant cannot recover for injuries sustained in their common employment by the negligence of a fellow-servant, unless such fellow-servant is shewn to be either an unfit or improper person for the purpose." The learned counsel for the Appellants, upon the argument at your Lordships' bar, laid an entirely new ground in support of the verdict founded upon the provisions of the Act of Parliament of the 23 & 24 Viet. c. 151, for the regulation and inspection of mines. Although the point was not made at the trial, and is not involved in the exception to which the interlocutor appealed from applies, yet as it is within the terms of the issue upon which a new trial may take place, it seems to me, notwithstanding the suggestion of my noble and learned friend on the woolsack, to deserve some notice. By the 10th section of the statute in question, certain general rules are to be observed in every coal mine or colliery by the owner or agent thereof, and amongst- them " an adequate amount of ventilation is to be constantly produced in all coal mines or collieries, to dilute and render harmless noxious gases to such an extent that the working places of the pits, levels, and workings, &c., shall, under ordinary circumstances, be in a fit state for work- ing therein." And by the 22nd section, if any of the rules are neglected or wilfully violated by the owner or agent of the mine, such'person shall be liable to a penalty of 20. It was argued that as the statute has imposed upon the owner the duty of providing proper ventilation, a failure in this respect (no matter to whom attributable) renders the owner responsible for the consequences. (1) Law Hep. 2 Q. B. 33. (2) 16 C. B. (N.S.) 069. VOL. I. 2 1 340 SCOTCH APPEALS. [L. E. 1868 In support of this proposition the learned counsel cited the case WILSON f Couch v. Steel (1), which was an action by a seaman against a M v - shipowner for neglecting to keep a proper supply of medicines on board the vessel, whereby the Plaintiff's health suffered. Upon demurrer it was held that although the statute 7 & 8 Viet. c. 112, s. 18, makes it the duty of the shipowner to have medicines on board, and imposes a penalty for a breach of that duty, recover- able by a common informer, a seaman sustaining a private injury for the breach of that statutable duty was entitled to maintain an action to recover damages. In this case there was no question as to the liability of the shipowner, the decision being merely that a person suffering damage from an omission of a duty was not deprived of his remedy because the Legislature had attached a penalty to such omission. But the case of Grey and Wife v. Pullen and Hubble (2), which was also cited upon the point, has a more direct application. By the 110th section of the Metropolis Local Management Act (18 & 19 Viet. c. 120), whenever it is necessary for any person to break up or open the pavement, &c., of any street, he is with all con- venient speed to complete the work and make good the pavement, and in the meantime to fence and guard the place, and light it during the night; and by sect. Ill, if he fail in any of these respects he is to forfeit 5, and a further sum of 40s. for every day during which the offence continues. The Defendant Pullen employed the other Defendant Hubble as a contractor to make a drain from his premises across a public footpath. The female Plaintiff, passing along the footpath at night, fell into a hole or trench over the drain, and sustained injury. Mr. Justice Black- burn, who tried the cause, held that there was no evidence to go to the jury that Hubble had acted as the servant of Pullen, but as a contractor for the work, and that Pullen was not within the scope of the above-mentioned sections of the Metropolis Local Manage- ment Act, so as to be responsible for the performance of the work- A verdict was found against Hubble, with 65 damages; the Judge directing a verdict to be entered for the Defendant Pullen, reserving leave to move to enter the verdict against him also. Upon this motion being made, the Court of Queen's Bench uuani- (1) 3 E. & B. 402. (2) 5 B. & S. 970. VOL. I] SCOTCH APPEALS. 341 mously refused the rule, holding that the statute did not take the isrs case out of the common doctrine, that if a person in the exercise WILSON of a right employs a contractor to do work, and the contractor is JJ E V R ' RY guilty of negligence in doing it, from which damage results, he, and not the employer, is liable. The Court of Exchequer Chamber, however, overruled the Court of Queen's Bench, and held that Pullen was liable to the Plaintiff for the injury, upon the ground that " a duty was implied in the grant of a power to open the drain in the highway in sect. 79 of the Act, and was expressed in sect. 110, and that the statutable duty was created absolutely, and not by sect. Ill, imposing a penalty, to be enforced solely by enforcing the penalty. And that the penalty imposed by section 111 was a cumulative remedy." I must confess that this reasoning is not at all satisfactory to my mind. The statutable duty is, no doubt, created absolutely for the purposes of the Act ; but it is a duty which, if unperformed, can only be enforced by the penalty ; and this for the protection of the public is to be recovered against the owner or occupier who causes the work to be done. If an individual sustains an injury in consequence of the work being imperfectly or improperly per- formed, a civil liability is not imposed upon the owner, if without the statutable obligation he would not have been liable. The remedy is, in one, sense cumulative, because the imposition of the penalty by statute does not take away the civil remedy ; but the two proceedings have totally different objects the one to punish an offence, the other to redress an injury. For the sake of the public it may be right to make a person liajble for acts which another has done on his account ; but it would be a violation qf principle to make him civilly responsible for such acts where he is in no legal sense a principal or master of the person doing them. I think, therefore, that the statute of the 23 & 24 Viet. c. 15], cannot have the effect of giving to the Pursuer a right of action which she would not have had without it, and that the defence of the deceased being a fellow-workman with Neish is open to the Defenders notwithstanding the statute. The interlocutor appealed from ought, in my opinion, to be affirmed. 342 SCOTCH APPEALS. [L. R. 1868 LORD COLONSAY : WILSON My Lords, I am of opinion that the Kespondents had good MERRY. ground for exception to the charge of the learned Judge who tried the case ; and that the exception taken by them was rightly sus- tained by the Court. The charge must be read with reference to the case in which it was delivered. The part of it excepted to was not a mere abstract proposition in law. It contained, as the charge in such a case generally ought to contain, an explanation to the jury of what, in the estimation of the Judge, were the car- dinal points in the case to which their attention ought to be mainly directed, and his view of the law applicable thereto. But in doing so the points should be stated without the admixture of elements either not properly within the case disclosed, or so little within it that they ought not to be considered and without ignoring ele- ments properly within the case, and to which the minds of the jury ought to be directed. Ambiguous or equivocal expressions, whereby the jury may unconsciously be misled, ought, of course, to be avoided as far as possible. The cause of death was an explosion of fire-damp, which blew up a scaffold or platform whereon the deceased was working at the time. That occurrence is said to have been occasioned by faulty construction of the scaffold, inasmuch as sufficient provision was not made for the passage of air upwards. The scaffold had been erected in the shaft a few days previously for a temporary purpose. It was no part of the general arrangement or system of ventilation of the pit ; but it was calculated to obstruct temporarily, to a cer- tain extent, the free action of that system of ventilation, which is not alleged to have been previously imperfect. The purpose of the scaffold was to enable workmen to stand upon it till by lateral works in the Pyotshaw seam they could obtain a lodgment in that seam. The person who ordered the erection of the scaffold for that purpose was John Neish, the manager of the Defenders at that pit. The persons who actually constructed the scaffold were James Bryce, the under-ground manager, and James Wilson, a miner. They finished the operation on Saturday. On Monday the de- ceased and his brother were engaged to work at the Pyotshaw seam, and were taken down the pit, and shewn where they were to work. On Tuesday morning the deceased began working. On VOL. L] SCOTCH APPEALS. 343 Wednesday morning he resumed working, and his brother Robert isos joined him. On that day, after breakfast, the explosion took WILSON place. ,, v - MERRY. The case for the Pursuer was this : She maintained that it was the duty of the Defenders to have a proper system of ventilation in their pit ; that they devolved that duty and the whole charge of the pit on their manager, Neish ; that Neisli was in fault in not seeing that the ventilation was . effectually provided for; and that the Defenders, having delegated their own powers and duties to Neish, are responsible for his fault. The position of Neish in the establishment was made a point of importance. He appears to have been the manager of the pit in question. He had under him Bryce, who is described as the under-ground manager or foreman ; and he had over him another servant of the company, Jack, who is described as the general manager, taking a general superintendence and management of that mine and other mines belonging to the Defenders. Jack gave from time to time general instructions to Neish in regard to the pit in question, leaving to Neish to carry out the details of the working, and to employ workmen for that purpose, and dismiss them at pleasure. Assuming that the injury was attributable to imperfection in the construction of the scaffold, and that such imperfection was owing to fault or negligence on the part of Neish, the question came to be, whether the Defenders were responsible for his fault. Cases of this class have of late years been frequent, and the law applicable to them has been much discussed in both ends of the island, and has been considerably matured by those discussions. The constantly-increasing scale on which mining and manufac- turing establishments are conducted, by reason of new combina- tions and applications of capital and industry, has necessarily called into existence extended organizations for management more gradations of servants, more separation or distribution of duties, more delegation of authority, and less of personal presence or interference of the master. The same personal superintendence and supervision by owners or masters, common and beneficial in some minor establishments, is in many cases unattainable, and, even if attainable, would not be beneficial. The principles of the 314 SCOTCH APPEALS. [L. K. law, however, have sufficient elasticity to enable them to be applied, notwithstanding such progressive changes in the manner AI * of conducting business. I hold it to be quite clear that the liability of a master for injury done by the fault or negligence of his servant falls to be dealt with on different principles where the sufferer is a stranger, and where the sufferer is a fellow-servant engaged in the same common employment. The distinction was fully recognised by Lord Cranworth, and effect was given to it by this House, in the case of the BartonshiU Company. Whether the present case does or does not belong to the latter class, it certainly does not belong to the former class. The deceased was not a stranger ; he was, at the time he received the injury, a workman in the employment of the Defenders, in their coal mine. Neish was also in their employ- ment there. If it is not alleged that there was any personal fault or neglect on the part of the master, on what principle does liability attach to him ? Does such liability flow from the nature of the contract of service under which the deceased was working ? I think that there are duties incumbent on masters with reference to the safety of labourer's in mines and factories, on the fulfilment of which the labourers are entitled to rely, and for the failure in which the master may be responsible. A total neglect to provide any system of ventilation for the mine may be of that character. Culpable negligence in supervision, if the master takes the super- vision on himself; or, where he devolves it on others, the heedless selection of unskilful or incompetent persons for the duty, or the failure to provide or supply the means of providing proper machinery or materials ; may furnish grounds of liability ; and there may be other duties, varying according to the nature of the employment, wherein, if the master fails, he may be responsible. But, on the other hand, there are risks incident to occupations more or less hazardous, and of which the labourer who engages in any such occupation takes his chance. It is eminently so in regard to mining operations. There are perils of the pit as well as of the other deep, and one of those perils is the risk of the conse- quences that may, even in the best regulated pits, result from the carelessness or recklessness, or other fault, of one or more of those persons composing the organized body engaged in working the VOL. I.] SCOTCH APPEALS. mine. The master does not impliedly insure the workman against 18C8 such perils. Is the fault attributed to Neish one of this last character ? I think MERRY it must be so regarded, unless there -was something in the relation of. Neish to the Defenders, or to the deceased, which deprives it of that character. It is not alleged that the general system of venti- lation of the pit, as it had existed anterior to the erection of the scaffold, was not good, or^that Neish was not a fit man to be placed in the position he occupied. In neither of these respects was there any fault or negligence on the part of the Defenders ; nor is it alleged that in any other respect there was personal fault on their part. But it is said that Neish was not a fellow-workman of the deceased that he was in some sense and to some effect a repre- sentative of the Defenders, holding delegated powers from them, and that they are therefore liable. Now I agree with what has been said as to the terms " fellow- workman" and " cottdborateur" They are not expressions well suited to indicate the relation on which the liability or non-liability of a master depends, especially with reference to the great systems of organization that now exist. And these expressions, if taken in a strict or limited sense, are calculated to mislead. The same may be said of such words as " foreman," or " manager." We must look to the functions the party discharges, and his position in the or- ganism of the force employed, and of which he forms a constituent part. Nor is it of any consequence that the position he occupies in such organism implies some special authority, or duty, or charge, for that is of the essence of such organizations, as, for instance, in this case, Bryce is admitted to have been within the principle of a fellow-workman, although he was foreman and underground manager, and had the immediate charge of constructing the scaffold, and was primarily to blame for its defects, if any ; Neish was one step higher, and may have been in fault for not detecting Bryce's error; but yet Neish was subordinate to a still higher servant, Jack. They were all links in the same chain. If the master was responsible for injury done to Wilson through the fault of Neish, on the ground that, strictly speaking, they were not fellow- labourers, he would, on the same ground, have been liable to Neish for injury done to him through the fault of Wilson. 346 SCOTCH APPEALS. [L. B. 1868 Now the direction of the learned Judge with reference to the WILSON circumstances of this case appears to me to have been objectionable MERR ^ or * nese reasons: First: It deals, apparently, with the alleged defect in the scaffold as if it was a defect in the general arrange- ment or system of ventilation of the pit, for which in certain views the Defenders might be regarded as liable, whereas it was a defect in the construction of a temporary structure erected by order of Neish for certain working operations, whereby the free action of a good system of ventilation was temporarily interfered with, which raised a totally different question for the consideration of the jury in reference to the liability of the Defenders for the fault of Neish. But the distinction does not appear to have been adverted to. Secondly : It suggests to the jury that if the faulty scaffold was com- pleted before Wilson entered into the employ of the Defenders, a liability was imposed on the Defenders which would not otherwise have existed, inasmuch as in that case Wilson and Neish could in no view have been fellow-workmen at the time when the fault was committed by Neish. But if it was the duty of Neish to provide for the passage of air upwards in the shaft, that duty did not cease with the erection of the scaffold, but continued while the scaffold remained, and he was in fault so long as that duty was not per- formed. It was not merely the erection of the scaffold on Saturday, but the maintenance of it in a defective state until Tuesday morn- ing, that caused the injury, if it was really caused by the defective construction of the scaffold ; and consequently there was no room for the suggested disconnection of Wilson and Neish as fellow-work- men. Thirdly : The direction points the attention of the jury to the question, whether Wilson and Neish stood in the relation of fellow-workmen engaged in the same common employment, as the test of non-liability, without sufficient explanation of what consti- tuted that relation; and, in particular, without explaining that diversity of duties and gradation of authority are not inconsistent with that relation, and without referring to the effect which might be produced on the liability of the master by a careful selection of proper persons to take charge of different departments in the working of the mine. On the whole, I am disposed to adopt the words of one of the learned Judges in the Court below, who has said that the case had VOL. I.] SCOTCH APPEALS. 347 been " imperfectly and inadequately stated by the Judge, and so 1868 stated as tending to mislead the jury." At the same time I am WILSON- not surprised that the learned Judge who tried the case should have been embarrassed by the rather unsatisfactory and somewhat conflicting state of th,e authorities and decisions on a branch of law which has only lately approached maturity. A point was made on the statute of the 23 & 24 Viet. c. 151, I am not disposed to pronounce any opinion in reference to the effect of that statute. There may possibly be questions of considerable nicety arising upon it. It is a public statute passed for the avowed purpose of giving greater safety to workmen in mines ; it imposed duties upon the owners of mines, and a question may perhaps be raised as to whether workmen engaging in the service of a mine-owner may not be entitled to rely upon the due per- formance of such duties as being implied in the contract of service. That is a point upon which I do not wish to express any opinion, because the exception we are now dealing with is apart altogether from any such question. Interlocutor affirmed, and appeal dismissed with costs. Solicitors for the Appellant : Shaen & Boscoe. Solicitor for the Respondents : James Dodds. VOL. I. 2 2 K 348 SCOTCH APPEALS. [L. E. 1868 GREIGr APPELLANT; v ^v~ > Junes. THE UNIVERSITY OF EDINBURGH . . RESPONDENTS. Batedbility for Relief of the Poor where the Property, though Public, is unconnected with the Crown. The property of the Edinburgh University is neither held by the Crown nor for the Crown. It is therefore rateable to the relief of the poor. Per LORD CRANWORTH: The ownership of this property is not in the Crown neither is the occupancy. The University are not only the sole owners but the sole occupiers. Per THE LORD CHANCELLOR : That the property of the Edinburgh Uni- versity is dedicated to public purposes, must now be taken to be a wholly insufficient ground of exemption. Rateable Value of the Property. Per LORD CRANWORTH : With regard to the question of value, the receipt of the matriculation fees and of the class fees is sufficient. ' How to be calculated. The 8 & 9 Viet. c. 83, s. 37, directs that " the value shall be taken to be the rent which may be reasonably expected, one year with another." In making this estimate it is not clear that the tenant is to be regarded as pre- cluded from using the property otherwise than as the University uses it. 1HE Respondents sought from the Court of Session a judicial declaration that they were not liable to be rated for the relief of the poor, either as owners or as occupants of the premises and pro- perty held by them for the purposes of the Edinburgh University. In support of their contention they averred that " the buildings of the Edinburgh University, being national or public property or dedicated to national or public purposes and from the occupa- tion of which no revenue was derived were not subject to assess- ment for poor-rates." The Respondents, on the other hand, insisted that inasmuch as the premises in question constituted " lands and heritages " within the meaning of the Poor Law Act they were subject to be assessed for the relief of the poor. The Lord Ordinary (1) gave judgment in favour of the Appellants, (1) Lord Barcaple. TOL. I] SCOTCH APPEALS. 349 holding it to be clear, on the authorities, that the buildings of the 1868 Edinburgh University were liable to this assessment. But on a G^IG reclaiming note the Second Division, by recalling the Lord Ordi- UNIV BSITT nary's decision, gave rise to the present appeal. F EDINBURGH. Sir Roundell Palmer, Q.C., Mr. James TJiom Anderson, and Mr. Junner, were of Counsel for the Appellant. The Lord Advocate (1), and Mr. Hellish, Q.C., for the Ke- spondents. The House, agreeing with the Lord Ordinary, reversed the judg- ment of the Second Division without calling on the Appellant's Oounsel for a reply to the argument of the Respondents. The following opinions were delivered by the Law Peers. THE LORD CHANCELLOR (2) : My Lords, in this .case an action of declarator was raised by the University of Edinburgh against the Parochial Board of the parish of Edinburgh, through their public officer, to have it declared that the University are not liable as owners or occupiers of the University buildings to any assessment for the poor-rate. The record was closed, but no proof was led ; and upon the averments on the record and consideration of the pleas in law, the Lord Ordinary (3) assoilzied the Defender from the conclusions of the summons. The Second Division of the Court of Session recalled that interlocutor, and declared in terms of the conclusions of the libel. From that decision of the Second Division this appeal comes 'before your Lordships. Two questions, which are very different, have been argued at your Lordships' bar. One of the arguments has been that the buildings of the University of Edinburgh were exempt from rate- ability on the score of what I may term Crown privilege, irrespec- tively of any question as to value. The second ground of argument was that they were exempt, or rather that they ought not to be rated, on the score of being of no annual value. These two ques- tions must be kept distinct. (1) Mr. Gordon (2) Lord Cairnt. (3) Jjord Barcaplc. 2 2 K 2 350 SCOTCH APPEALS. 1868 Now,"as to the first of these questions, namely, the claim for GBEIG exemption on the score of Crown privilege, the manner in which UNIVERSITY * ne case ^ s P u ^ by the pleas in law for the Respondents is this : E OF they say that the buildings of the University, being national ov public property, or property dedicated to national or public pur- poses, are not subject to assessment. The Lord Justice Clerk, in his opinion on the subject, states that the University of Edinburgh is, in its corporate capacity, a servant of the Crown, owning and occupying the University buildings under the control and super- vision of the Crown and government of the country for important national objects (1). The general principle which regulates the decision of questions- of this kind has been well settled in your Lordships' House. I refer to the cases of Tlie Mersey Docks (2) and Adamson v. TJie Clyde Trustees (3), and The Commissioners of Leith Harbour (4). The general principle, as I understand it, approved of by your Lordships in these cases is this, that the Crown, not being named in the English or Scotch statutes on the subject of assessment, and not being bound by statute when not expressly named, any pro- perty which is in the occupation of the Crown, or of persons using it exclusively in and for the service of the Crown, is not rateable- to the relief of the poor. If that is the true principle (and such it must now be taken to- be), I think your Lordships will find that it is very easy of appli- cation to the present case. The University of Edinburgh is, no doubt, a great public and national institution ; but the corporation of the University of Edinburgh is a corporation independent of the Crown no doubt originally created by, but still independent of the Crown. Its property is not Crown property, but it is property vested in the Senatus Academicus for the University purposes. I agree with the statement of the Lord Ordinary (5), who said that the property could not be considered in any sense Crown property, nor would the assessment of the property directly or indirectly affect the Crown. With regard to the allegation in the pleas in law, that it is pro- (1) Scottish Jurist, vol. xxxvii. p. (3) 4 Macq. 91. 601. (4) Law Rep. 1 H. L., Sc. 7. (2) 11 H. L. C. 443. (5) Scottish Jurist, vol. xxxvii. p. 599,. VOL. L] SCOTCH APPEALS. 351 perty dedicated to public purposes, that dedication, after tlie deci- 1868 by anything that I say on this occasion to prejudice at all the GREIG proper consideration of that question. For it may possibly be UNIVERSITY held that if property is occupied by persons for a purpose yielding OF no value at all, and they are absolutely prohibited from using it in any manner that would be productive of value, it may, I say, pos- sibly be held that there is no rateable value in that property ; and that, in that sense, therefore, it ought not to be assessed to the poor-rate. But the University of Edinburgh is the occupant of the property in a character and for a purpose that entitles it to receive, and in respect of which it does actually receive, a certain amount of pecuniary value which must be regarded as incidental to its occupation. LOUD COLONSAY: My Lords, I concur in the judgment which has been suggested, and upon the grounds stated. I also concur in the reservation which has been made by my noble and learned friend who last spoke. Possibly a question may be raised as to the rateable value of this property. The summons of declarator that is before us concludes for absolute non-liability. Now to that I cannot give an assent. Therefore it is necessary that from that there should be an absolvitor. But other questions may be raised ; other questions have been raised of a more limited kind. I do not think they are properly before us here, nor have we all the materials for dis- posing of them. And, therefore, while I would be for assoilzie- ing the Defender from the conclusions of this action, I would not be for precluding the Pursuers in the action from raising any question as to the measure of liability which attaches to them, when that question comes fairly to be raised. The cases that were decided anterior to the Mersey Dock Case and other recent cases, and the practice that prevailed anterior to those decisions, did, I think, give great countenance to the judgment pronounced in the Court below ; and had it not been for these recent cases I do not know that I should not have concurred in that judgment, taking those former cases to be correct exponents of the law. But the principles laid down in the Mersey Dock Case, and some other cases almost concomitant with it, are, I think, sufficient to shew 356 SCOTCH APPEALS. [L. E. 1868 GKEIG v. UNIVERSITY OF EDINBURGH. that the buildings of the University of Edinburgh are not build- ings of the kind which entitle the owners and occupants of them to exemption from liability for poor rate. Interlocutors appealed from reversed; and Defender assoilzied from conclusion of summons, with expenses before the Lord Ordinary and the Court of Session. Solicitors for the Appellant : Murdoch, Rodger, & Gloag. Solicitors for the Respondents : Loch & Maclaurin. 1868 CAEEICK APPELLANT; June 15. MILLER RESPONDENT. Lease under the Montgomery Act Statutory Nullity. The Montgomery Act (1), in order to encourage the formation of villages and the erection of houses on entailed estates in Scotland, authorized the owners of such estates to grant leases for ninety-nine years, of not more than five acres to each individual, such leases to be void if one dwelling-house of the value of 10 should not be built for each half-acre within ten years from the dates of such leases : Held by the House (affirming the judgment of the Lord Ordinary and of the Inner House), that where a lessee under the Montgomery Act had failed to erect within the prescribed period the dwelling-houses required by the Act, the case was not one of mere irritancy, which might be cured, but of statu- tory nullity, annihilating the lease. A lease under the Montgomery Act was granted for the erection of a pow- der magazine. Whether this lease, on the policy of the statute, was void ab initio, the Law Peers did not determine ; but they were clear in their opinion that inas- much as the lessee, the erector of the powder magazine, had failed, within the proper period, to build the required dwelling-houses, his lease had become absolutely void, and his offer to build, after the proper period, gave him, tinder the circumstances, no claim to equitable relief or consideration. A letter from the lessor to the lessee, dispensing with the condition as to building the required dwelling-houses : Held to impose no obligation on the subsequent heir of entail. JL HE Respondent's father, in January, 1851, being then the heir of entail in possession of the estate of Frankfield, in Lanarkshire, (1) 10 Geo. 3, c. 51, " An Act to encourage the Improvement of Lands held under strict Entail in Scotland" VOL. L] SCOTCH APPEALS. 357 granted a lease for ninety-nine years under the Montgomery Ad 1868 to the Appellant, in order that he might erect "a gunpowder CARRICK. magazine " on the premises ; stipulating also, in conformity with MILLER the statute, that if the dwelling-houses required by it were not completed within ten years the lease should be void. On the same occasion the Kespondent's father gave the Appellant a letter saying, " I hereby, in so far as I can legally do so, dispense with your building the dwelling-houses." The gunpowder magazine was erected by the Appellant forth- with, but no "dwelling-houses" were built; so that the Re- spondent, on succeeding his father, brought this action to have the lease reduced and set aside (1). The Lord Ordinary decided that under the Montgomery Act the lease was " null and void ;" while the Second Division, on a re- claiming note, held that, by reason of the Appellant's failure to build the dwelling-houses within the time required by the statute, " the lease was ineffectual, and not binding on the Respondent." Hence the present appeal. The Dean of Faculty (2) and Mr. Cotton, Q.C., were heard for the Appellant. Sir Roundett Palmer, Q.C., and Mr. /. M. Duncan, for the Eespondent. At the close of the argument the following opinions were delivered : LORD CRANWORTH : My Lords, the question in this case arises upon a lease under what is called the Montgomery Act, which was passed in 1770, reciting and enacting as follows : Whereas the building of villages and houses upon entailed estates may in many cases be beneficial to the public, and might often be undertaken and executed if heirs of entail were empowered to encourage the same by granting long leases of lands for the purpose of building, be it therefore enacted that it shall be in the power of every proprietor of an entailed estate to grant leases of land for the pur- (1) 3rd Series, vol. v. p. 715 ; Scottish Jurist, vol. xxxix. p. 3G8. (2) Mr. Moncrei/. -358 SCOTCH APPEALS. [L. E. 1868 pose of building for any number of years not exceeding ninety-nine years, but *~~^ that not more than five acres shall be granted to any one person, and that every OABRICK such lease shall contain a condition that the lease shall be void, and the same is MILLER. thereby declared void, if one dwelling-house at least, not under the value of 10 sterling, shall not be built within ten years from the date of the lease for each one half-acre of ground comprehended in the same. Now, my Lords, the gentleman who granted the lease in the present case, Mr. Miller, was tenant in tail of an estate under a deed of entail which contained the following clause : That it shall not be lawful to any of the heirs of tailzie and heirs whatsoever who shall succeed to the said lands and estate, to set tacks or rentals thereof for any longer space than twenty-five years. Therefore, when Mr. Miller came into possession of the estate he might under the entail have granted a lease for twenty-five years only, but he availed himself of the Montgomery Act to grant a lease for ninety-nine years. The lease was granted for the purpose of erecting a powder maga- zine. The powder magazine was erected ; but the conditions of the Montgomery Act were not performed. For it was a condition of the Montgomery Act that not less than one house of a certain small value, for every half-acre, should be erected within the term of ten years ; and that if such houses were not erected the lease should be absolutely void. Now, that this lease was granted under the Montgomery Act is plain, because it purports to be so granted ; and it is obvious that except for the length of term allowed by the Montgomery Act no person would have taken a lease to erect an ex- pensive building like a powder magazine upon the land. Then the condition not having been performed, there can be no doubt the lease under the Montgomery Act becomes absolutely void. A question was raised whether it was not void on the ground that the Montgomery Act never contemplated such a thing as a lease for erecting a powder magazine, that the object of the Act was to induce the erection of other buildings in the neighbourhood, and that the building of a powder magazine, so far from contributing to that end, would put a stop to it, for nobody in his senses would take a house in the neighbourhood of a powder magazine if he could get one anywhere else. I think there is considerable force in that objection, looking at the context of the Act of Parliament. YOL. I.] SCOTCH APPEALS. 359 The Lord Ordinary, taking that view, declared the lease upon that iscs ground void ab initio. The Inner House did not think that the CARBICK Montgomery Act prohibited such a building as a powder magazine ; or rather, I should say, they did not take the view that it did not authorize such a building ; but I shall proceed upon the validity of what has been done by the Inner House on other grounds. That the lease became void in consequence of the requisite buildings not being erected in the course of ten years is plain. It was, however, argued very strongly on the part of the Appel- lant that there is here merely what is called in the Scotch law a legal irritancy, and that that irritancy may be purged, and that the Court in the exercise of its equitable jurisdiction can grant, and ought to grant, to the present Appellant leave to put himself right, as it were, by now building that which he ought to have built within ten years of the grant of his lease. I am clearly of opinion, that even if it were competent, it would be a most unwise exercise of equitable jurisdiction to take such a step in the present case, because, whether or not a lease of a piece of ground for the purpose of building a powder magazine is, or is not, absolutely void under the provisions of the Montgomery Act, it appears to me that to give any facility or help to a person who has put up such a nuisance in a neighbourhood, would be a most unwise exercise of discretion. It was urged by the Appellant that the lease was good for the term of twenty-five years. But it appears to me quite chimerical to attempt to treat those twenty-five years allowed by the entail as a part of the ninety-nine years which were granted by this lease under the statute. On these grounds I think the Court below has come to a correct conclusion in this case, and that the only result must be that this appeal should be dismissed, and the interlocutors appealed against affirmed with costs. LORD COLONSAY : Mr. Miller held this estate under an entail which prohibited the granting of leases for more than twenty-five years. The lease in question is for ninety-nine years. It is professedly granted in the terms and by virtue of the Act of 10 Geo. 3. No such lease could have been granted by Mr. Miller except for the purposes, and sub- 360 SCOTCH APPEALS. [L. K. 1868 ject to the provisions and conditions, of that statute ; and accord- CABRICK ingly the lease in question professes to have been granted for those MILLER objects and subject to those conditions. The ten years have elapsed, the houses have not been built, and Mr. Miller, the grantor of the lease, having died, the present heir of entail, says, that under the express terms of the statute, and also under the express terms of the lease itself, it is now void ; for the lease contains a clause declaring the lease to be void if the houses are not built within ten years. He further maintains that it was incompetent to grant a lease at all for the purpose of erecting a powder magazine, that not being within the scope of the statute. The tenant, on the other hand, maintains that he is now at liberty to do what he has hitherto failed to do, on the principle of purging the irritancy ; and he further contends that he is at least entitled to sustain his posses- sion until the lapse of twenty-five years from the date of the lease, because Mr. Miller, under his powers as proprietor, irrespectively of the statute, had authority to grant a lease which would endure for that period. I do not desire to express any opinion as to whether it was com- petent to authorize the erecting of a powder magazine under a lease granted in conformity with the statute of 10 Geo. 3, under and for the purposes of that statute ; but I am of opinion that the lease professes to have been granted as a lease under that statute, under which alone a lease for ninety-nine years could be granted. I am further of opinion, that while there is in it an obligation to erect the buildings which the statute requires, the back-letter which was granted by Mr. Miller, dispensing with that condition so far as he was concerned, is not one which can affect the subse- quent heirs of entail. In fact, if it were allowed to do so, it would be an attempt to compel the subsequent heir of entail to concur in the contravention of his entail. I do not say that the lease is void db initio, but, with reference to purging the irritancy, it is to be observed that the words of the statute are very peculiar. Not only do they declare that the non- fulfilment of this condition shall be a ground for setting aside the lease, but the statute itself declares that the lease shall be void at the expiry of the ten years if the houses have not been built. The VOL. I.] SCOTCH APPEALS. 361 lease says the same. It is therefore a conventional irritancy. ' It 1868 v -"V*' is a condition of the lease a contract between the parties that if CAEBICK the buildings are not erected within the ten years the lease shall be void. The expression extends to the whole lease; it makes no distinction between one subject and another. It says, if these things be not done within ten years the lease shall be void. It is said the Appellant ought to have time yet to do these things, that, I think, is quite out of the question. If a landlord stipulates that a certain course of operations shall be carried on and shall be completed within ten years, otherwise the lease shall be null and void ; and if at the end of the ten years the party has not even commenced the operations which he had undertaken to com- plete, it seems to me that it would be contrary to all equity as well as law to hold that he is now at liberty to begin to perform these things which he ought to have completed. It would be making a different contract between the parties. Then, as to the lease continuing for twenty-five years, I think it is clear, on the face of this lease, that it is not a lease granted in reference to the powers of the proprietor under the conditions of the entail, but that it is granted plainly and avowedly as a lease authorized by the statute of 10 Geo. 3, and of no other character, and that, having come into the predicament in which that statute declares, and the lease itself declares, it shall be void, we have no other alternative than to declare that it is so. I therefore entirely concur in the judgment proposed by my noble and learned friend. Interlocutors affirmed, and appeal dismissed with costs. Solicitors for the Appellant : Grahames & Wardlaw. Solicitors for the Respondent : Connett & Hope. 362 SCOTCH APPEALS. [L. E. t APPELLANTS ; 1868 THE CAEKON COMPANY AND MRS. LO-i THIAN, WIDOW HUNTEE, et al. EESPONDENTS. Residuary Legatees and Specific Legatee Construction. Contest as to ten shares in the Carrort. Company, between residuary lega- tees under a testamentary disposition and the executrix of a specific legatee under a codicil. Decision by the House that the shares went to the specific legatee, although, in consequence of a fraudulent concealment, the testatrix was ignorant of the real magnitude of the gift she was bestowing. Per THE LORD CHANCELLOR : The codicil passed the shares with every right that was incident to them. Per LORD CRANWORTH : The shares bequeathed by the codicil included everything appertaining to them. Per LORD COLOXSAY : The real question is, whether the fund went to the specific legatee or to the residuary legatees. The testatrix died in igno- rance of the facts. The words which she has used are not necessarily conclu- sive. But, upon the whole, I think that no violence is done to the will by the construction which is proposed to be put upon it : Held (reversing the decree below), that the residuary legatees had no title to demand satisfaction in respect of the fraudulent concealment aforesaid, or in respect of the compensation which the executrix of the specific legatee had received for it. JL HE deceased Mrs. Lothian had ten shares in the Carron Iron- works Company bequeathed to her by her husband, Mr. Caldwell, who died on the 24th of October, 1824. In April, 1828, she married Mr. John Lothian, settling the shares upon trust for herself to her separate use, and to her husband for life should he survive her one-half of the fee, failing children, to belong to Mr. Lothian, the other to go as Mrs. Lothian should direct. By testamentary disposition, dated the 3rd of November, 1837, she directed her trustees, after satisfying certain specified bequests, to invest the residue of her means and estate for the benefit of her sister, Mrs. Philp, in life-rent, and for the benefit of the chil- dren of Mrs. Pliilp in fee. Under this testamentary disposition Mr. Hunter, the above Eespondent, was the sole surviving trustee. On the 16th of June, 1843, Mrs. Lothian, by a codicil, made an VOL. I.] SCOTCH APPEALS. 363 absolute gift of the ten shares to her husband (1). She died 1868 without issue on the 17th of January, 1847, survived by Mr. THE CAERCN Lothian, who sold the shares to the company (under a clause of COMPANY pre-emption) for 6800. Having done this, he again entered into HUNTER. wedlock by marrying Miss Marion Macfie, his now widow, the above Appellant, whom, by his last will and testament, he ap- pointed his sole executrix, and to whom he bequeathed all his property, real and personal, of every denomination. He died on the 19th of December, 1851. In 1861 the second Mrs. Lothian (Miss Macfie) brought an action against the Carron Company and against certain share- holders who had been concerned in its management, alleging that the ten shares had been sold by her deceased husband at a price greatly under their true value, and that the sale had been induced by fraudulent concealment and misrepresentation on the part of the individual Defenders (2). This action was compromised for 11,000, in consideration of which she confirmed the sale, and dis- charged and released the company from all her claims against them. The action out of which the present appeal arose was com- menced in 1863 by Mr. Hunter (the above Respondent) as trustee for the residuary legatees of the deceased Mrs. Lothian, against the Carron Company, against its individual managers, and against the present Mrs. Lothian (the recipient of the 11,000), praying an account and payment of 30,000, or such other sum as should be ascertained to be the balance due in respect of the fraudu- lent concealment aforesaid ; the question raised being, who was entitled to challenge the fraudulent concealment which had taken place with reference to the property of the company from 1824 to 1847, inasmuch as during that period the first Mrs. Lothian, had she known the facts, could have insisted on a distribution, from the benefits of which she had been fraudulently excluded. In one of the pleas in law for the company, and for the present Mrs. Lothian, they averred that she, as executrix of her deceased husband, " having become vested with the whole rights which he (1) See the Lord Chancellor's opinion, agers was alleged to extend to 700,000, infra, p. 365. the whole of which was afterwards (2) The concealment by the man- made good to the company. VOL. I. 2 2 L 364 SCOTCH APPEALS. [L. E. 1868 had in connexion with the said shares, and having confirmed the ARRON ss ^ e f the same and discharged the company, the present action COMPANY con ^ not b e maintained." HUNTER. The Lord Ordinary, on the 15th of May, 1865, found that " the residuary legatees had set forth a sufficient title to insist in the action ;" and to this interlocutor the First Division of the Court of Session adhered. Hence the present appeal to the House. The Dean of Faculty (1), and Mr. Cotton, Q.C., having been heard for the Appellants, and Sir Roundell Palmer, Q.C., and Mr. Horn, for the Respondents, the following opinions were delivered by the Law Peers : THE LOKD CHANCELLOR (2) : My Lords, the question which lies at the threshold of this case is the right and title of the Respondents to maintain the action which was instituted by them in the Court of Session. The facts which require to be stated are very few in number. The Carron Company was established in the year 1760, and it received a grant of a royal charter in 1773. At that time, and from that time and onward, it was regulated by a contract of co- partnery which was dated in the year 1771. It was of the nature of an incorporated joint stock company. The shares were trans- ferable ; but before any transfer or sale they had to be offered to the company, which might, on certain terms as to price, become the purchasers of the shares. Provisions were made as to the capital and stock of the company, and as to the mode of ascertain- ing and declaring the dividend, and other provisions such as are usual in similar institutions. In the year 1828 Mrs. Caldwett, a widow, held ten shares in this company. She was about to be married to Mr. Lothian, and by her marriage contract these ten shares were settled in substance upon her for life, then upon her husband for life, and then upon the children of the marriage if there should be any. Failing children, one-half of the corpus, or fee, was to belong to the hus- band, and the other half was to go as Mrs. Lothian should direct by instruments of the kind described in the marriage contract. (1) Mr. Moncreiff. (1) Lord Cairns.. VOL. I.] SCOTCH APPEALS. 365 COMPANY v. HUNTER. In pursuance of this contract, and of the power contained in it, 1868 she made a testamentary disposition in the year 1837, by which, THE CARROX after giving various specific benefits to different persons named in it, which were to be satisfied out of her property, as to the residue of her property she expressed herself thus : I direct and appoint my trustees to invest the whole residue of my means and estate remaining after satisfying each and all of the foregoing provisions and appointments, in heritable bonds, or such other securities as they may approve of, for behoof of my sister, Mrs. Mary Hunter, or Philp, spouse of Charles Philp, merchant, Bonnington, in life-rent, for her life-rent use alleuarly, exclusive of the jus mariti of her present or any future husband, and to Charles, Mary, and Jane, the children procreated of my said sister, equally amongst them in fee. Under this residuary gift the Eespondents claim. To this testamentary disposition Mrs. Lothian added a codicil in the year 1843, upon the construction of which I think your Lord- ships will find that the question in the present case, in a great measure, turns. In that codicil she made this provision for the benefit of her husband, Mr. Lothian : In the third place, as my said husband thinks highly of the stock of the Car- ron Company, whereof I hold ten shares, I do hereby direct and appoint my said trustees, or survivor, to allow my husband the option of taking, if he pleases, said ten shares as part of his provisions under said marriage contract, such ten shares to be estimated to him as not exceeding in value the sum of 6000 ster- ling, and my said trustees being at the whole expense of completing his title to the same; and in order that the title of the said trustees nominated in said marriage contract, survivors, or survivor, may be complete, I do hereby assign and convey said ten shares over to them in trust for the ends, uses, and purposes specified in said marriage contract and in these presents, declaring that in the event of the said Carron Company insisting on their right to have the first offer of these shares, any increased price which may be got by said trustees therefor beyond said sum of 6000 shall belong as a gift to my said husband, and that whether he takes said shares or not, and to carry out my intention said shares shall, if necessary, be offered to said company at the market price of the day, or at such price as my said husband shall consider them to be worth. And I do hereby declare that the provisions herein contained in favour of my said husband are in addition to and over and above those previously conceived by me in his favour, and that the same shall be considered preferable to all other provisions made or to be made by me in favour of other parties. Mrs. Lothian died in the year 1847. The shares were proposed to be taken by her husband under the codicil, but the company electing to become the purchasers, they were sold to them for 6800, and a tripartite contract was executed between Mr. Lothian, 366 SCOTCH APPEALS. [L. R. 1868 in his own right, the trustees of his wife, and the company, THE CARRON dated in the year 1847, by which the shares and all interest in COMPANY tn em were conveyed, so far as the parties could convey them, to HUNTER, the company. The wording of this tripartite contract may, I think, be put aside. It does not advance the case in any respect beyond the position in which it would stand if the case had rested on the codicil alone. The question now arises between the residuary legatees and the representative of Mr. Lothian, his widow and executrix. It appears that in the progress of this company very large profits were made from time to time beyond those which were acknowledged and brought into the balance sheet and divided among the shareholders. Those profits are alleged, as to part, to have been concealed among the assets of the company, and not brought to light or laid before the shareholders ; and as to the other part, to have been misappropriated, and fraudulently abstracted from the funds of the company. This is alleged to have been done by persons who were agents of the company, and done by them for their own objects. Beyond all doubt a very gross fraud was committed a fraud, however, which was clearly a fraud of the agents upon the company, and not in any sense a fraud of the company as such. The funds to which I have referred have since been brought back, and may now be taken to be in the possession and under the control of the com- pany. For the purpose of what I have to submit to your Lord- ships, I think it better to assume, as indeed was contended on behalf of the Eespondents at your Lordships' bar, that these funds, either in whole or in part, if they had been known at the time at which they came into existence, ought to have been brought into the balance sheets of the company, and ought to have been, and beyond all doubt would have been, divided in the shape of divi- dends among the shareholders. In point of fact, whatever was the position formerly taken up by the company in this respect, the company itself now agrees to this view of the case. They agree further, that in consequence of these funds having been concealed they became the purchasers from Mr. Lothian of the ten shares in question at what was an under-value. They agree further, that they must make good the difference in value between what was VOL. L] SCOTCH APPEALS. 367 paid for the shares and what ought to have been paid for them. 1868 Wv*^ And they allege (and this, indeed, is not disputed) that this they THE CARRON have already done that they have paid by way of compromise COMPANY to the representative of Mr. Lothian the additional value which HUNTER. ought to have been placed on the shares. On the other hand, the residuary legatees allege that they are the persons to whom this payment and satisfaction ought to have been made; they allege that these profits were obtained during the lifetime of Mrs. Lothian, while she was life-rentrix of the shares, and that her residuary legatees are now entitled to the dividends that would represent her share in those profits. I assume that the declaration of the dividend and its payment was prevented by the fraud of the agents of the company I assume, further, that in consequence of the dividend not having been declared, the company remained the possessor of those funds, or of a great portion of them I assume, further, that the company must make good those funds to the persons who are entitled to them but the question remains, to whom are they to be made good? The answer to that question appears to me to depend upon another extremely simple and short question : Did the right to compel a division of those newly-discovered funds pass as an inci- dent to the shares, or did it remain with the previous owner of the shares ? I think that, beyond all doubt, those funds which I have described as the newly-discovered funds remained part of the estate or credit of the company de facto at the time of the execution of the codicil. If there were debts due from the company, these funds must have gone and been applied to the payment of those debts, and the shareholders for the time being could, in my opinion, have taken nothing but the surplus assets of the company after paying all debts. Any right, therefore, of the deceased Mrs. Lothian was a right by virtue of, and attached to, the ten shares of which she was the owner, and if her codicil passed those ten shares, it appears to me beyond all doubt that it passed along with the shares every incident that properly attached to the shares. Now that the codicil passed the shares appears to me to be beyond all possibility of argument ; it passed them in terms the most general that could be used, and it passed, in my opinion, along with them every right 308 SCOTCH APPEALS. [L. K. 1868 that was incident to the shares. In order to make the disposition THE'CAKRON more emphatic this declaration was added, that the provisions COMPANY contained in the codicil in favour of the husband should be taken V, HUNTER, to be in addition to and over and above those previously conceived by her in his favour, and that they should be considered preferable to all other provisions made, or to be made, by her in favour of other parties preferable, therefore (if it were necessary to resort to this clause), to the disposition made in favour of the residuary legatees. Upon these short and simple grounds, if they meet with your Lordships' approval, I think that the course which your Lordships should adopt (speaking with great respect for the majority of the Court of Session) is, to hold that the Pursuers have not made out any title to insist on their claim in this action ; and that from the time that the record was closed, the interlocutors pronounced by the Lord Ordinary and by the Court of Session cannot be sus- tained. I would therefore humbly advise your Lordships to reverse the interlocutors, commencing with that of the Lord Ordinary of the 15th of May, 1865 (the previous interlocutors were merely introductory), and to assoilzie the Defenders in the action, with expenses. LORD CRANWORTH : I concur with my noble and learned friend in the conclusion at which he has arrived, and in the grounds upon which he has pro- ceeded. Mrs. Caldivett, by her codicil, assigns the ten shares to her trustees in order that her husband might, if he thought fit, take them as part of his claim under the marriage contract, at the value of 6000 ; and she expressly declares that any sum which may be got for the shares beyond 6000 shall belong to her hus- band as a gift from her. If, therefore, her claim on the dividends withheld were included in the word " shares," that claim passed to her husband. I cannot doubt that the share includes everything effeiring or appertaining to the share everything which, if the affairs of the company were wound up, would belong to the shareholder at the time of the winding-up. If at the date of the tripartite contract in September, 1847, Mr. Lothian, instead of selling and transfer- VOL. I.] SCOTCH APPEALS. 369 ring his shares to the company, had induced them to bring its 1868 affairs to a close, all its assets must have been realized, and its TUE'CARRON debts paid, and then the surplus would have been divisible into COMPANY 600 parts, ten of which would have belonged to Mr. Lothian as the HUNTER. holder of ten of the 600 shares. This surplus must have in- cluded the whole of the profits which had up to that time been kept back from the knowledge of the shareholders. And it can make no difference that the ^affairs of the company were not brought to a close, but were continued to be carried on. That which would have belonged to the shareholder as his share of the assets of the company if its affairs had been wound up, continued to be his, though its affairs were not wound up. I am unable to imagine a case in which a person not a shareholder can set up a claim in competition with the shareholders to funds which are admitted to be funds of the company. I do not doubt that if Mrs. Lothian had in her lifetime taken proper steps, she might have compelled the company, or those who managed its concerns, to pay over to her the fair proportion of the accumulated profits appertaining to her ten shares. But that would have been a right which she would have possessed as being then a share- holder. So if, by her will, she had said, that she gave the ten shares to her husband, but with a provision that he was only to take the shares to the extent in value of 6000, and that any pro- fits belonging to the shares beyond that sum should go as part of her residue, there is no doubt that by apt words this might have been done. But she has not done it. She has given the shares to her husband, and this gift must, I think, include all which the owner of the shares could claim. I have attentively considered the opinions of the learned Judges below, but I own they do not convince me. I must also observe that they were not unanimous, and the Lord President (1) who was one of the majority, evidently felt great difficulty, and came to the conclusion in favour of the Kespondents with much hesitation. With these few observations, I have only to express my concur- rence in the course recommended to your Lordships by my noble and learned friend. (1) Now Lord Coloitstnj. 370 SCOTCH APPEALS. [L. K. 1868 LORD COLONSAY: THE CARBON I concur in what has been said by ray noble and learned friend v. who last addressed your Lordships, as to the rights which would R ' have belonged to Mrs. Lothian had she in her lifetime insisted on them. I think that upon statements such as we find upon this record she would have had a right to insist on the separa- tion and distribution of the funds which had been so fraudulently withheld from distribution. I think that she would have been entitled to do that, as being the party entitled to the dividends. If these funds attached inseparably to the. shares, i.e., to the stock, by reason of not having been distributed when they ought to have been distributed, it would follow that she could not have compelled the company to distribute them. But these funds had lain in a state of suspense and concealment, and she might therefore, as I conceive, have insisted on the company doing that which they con- tend now they would not have been bound to do, namely, to state a new account, and to pay over to her, as the party who had been from year to year entitled to the dividends, that proportion of the funds so concealed which ought to have been paid to her. But the ques- tion is not quite the same when we are dealing with the matter after her death, she having made a settlement of her affairs ; and I concur with both my noble and learned friends who have addressed your Lordships, in thinking that the real question to be determined here is, whether, by her settlement, the fund in ques- tion went to Mrs. Lothian, or went to her residuary legatees. Now, it is pretty clear that Mrs. Lothian herself had no opinion on this subject, because she made her will and died in ignorance of the facts. But still the question requires to be solved, and there may be principles found for solving it. In the stage of the case in which the question is now raised, I cannot adopt the plea main- tained by the Defenders that, the averments of the Pursuers being substantially groundless and unfounded, the Defenders are entitled to absolvitor ; because we have not gone into that inquiry. Neither can I adopt the plea that the sale of the shares which is sought to be reduced was a sale for a fair and adequate price, and that, therefore, the Pursuers are not entitled to succeed. If Mr." . Lothian had made a claim in her lifetime upon these profits, the Defenders might have set up these pleas ; but they would not VOL. I.] SCOTCH APPEALS. 371 have been sufficient to exclude her from inquiry. An investigation 1868 must have taken place ; and if Mrs. Lothian had established the THE facts stated on this record I think she would have prevailed. But, r M AN on the other hand, I think that if she had discovered the fraud it would have been in her option to have insisted upon having the funds distributed, or if she thought it more for her advantage to do so she might have allowed the funds which had been concealed to be added to the stock, and so enhanced the value of the shares. Now, as she did not know of this fraud we cannot say how she would have exercised her option if she had known it. Therefore we are placed in a difficulty ; non eonstat that she would have in- sisted upon the distribution of the funds, instead of taking the benefit of them in the increased value of the stock of the com- pany. I think that the words which she has used in conveying the shares to her husband are not necessarily exclusive of his right, although I think there is room to doubt whether she meant that he should take the shares with all the benefits that could still fee got from them, whether they were benefits that might have been reaped during her lifetime, or not. But, upon the whole, 1 think that no violence is done to her will by the construction which is proposed to be put upon it ; and, although I entertain some doubts, I am not disposed to dissent from the result which has been come to by my two noble and learned friends. Interlocutors reversed. [ Solicitors for the Appellants : Grahames & Wardlaw. Solicitors for the Respondents : Loch & Maclaurin. VOL. I. 372 SCOTCH APPEALS. [L. R. 1868 THE HON. C. FLEEMING APPELLANT ; July 16. HOWDEN RESPONDENT. Devolution or Shifting Clause in an unrecorded Entail. ... j A shifting clause binds the heir, though the entail be not recorded, and it binds his creditors if they have had notice of it. Such notice will be sufficient if the shifting clause is set out in the record of seisins. Consequent Trust cast on the Heir in Possession. The heir of entail in possession in such a case will be deemed a trustee for those entitled under the shifting clause ; more especially where the clause requires the heir in possession instantly to denude, and he fails to do so. An obligation to do an act with respect to property creates a trust ; and if the party who is subject to the obligation acquires or retains, by means of his neglect of duty, a greater interest than he would otherwise have had, he becomes a trustee of such excess for the benefit of those who would have been entitled to it if the obligation had been duly fulfilled. Per LOBD WESTBURY : The doctrine of trusts has the same origin, and rests on the same principles in Scotch and in English law ; and it should be developed to the same extent in both systems of jurisprudence. Bankruptcy of a Deceased Debtor. Per LOBD WESTBUBT : Under the 19 & 20 Yict. c. 89, where a seques- tration issues against a deceased debtor, nothing passes to the trustee for the creditors except such propertj 7 as the debtor was beneficially entitled to at the time of his decease. The trustee under a sequestration is in the same position as a gratuitous alienee. He takes subject to all the rights and equities that affected the pro- perty at the time of the bankruptcy. Sales of Superiorities under the 20 Geo. 2, c. 50. Per LORD WESTBUBY : There is an obligation and trust created by the 20 Geo. 2, c. 50, requiring that property bought with the proceeds of the sales of superiorities, shall be settled to the original uses ; and this trust affects the heirs respectively succeeding to the purchased lands. 1 HE late John, fourteenth Baron Elphinstone, having died on the 13th of February 1861, in pecuniary embarrassment, a petition under the bankruptcy statutes was presented to the Lord Ordinary of the Court of Session, praying that the estate of Duntiblae, in which Lord Elpliinstone had stood enfeft as tenant in tail at his death, should be transferred to and vested in the trustee under the bankruptcy. VOL. I.] SCOTCH APPEALS. 373 The Lord Ordinary refused the application, holding that the 1868 Duntiblae estate had passed away from Lord Elphinstone under a shifting clause on his succession to the peerage in 1860, when his right to Duntiblae ceased, and when he became bound forthwith to denude in favour of the next heir, his sister, Viscountess Hawarden. The Duntiblae entail, though followed by a recorded enfeftment, had not itself been entered on the register of entails. The Lord Ordinary, nevertheless, was of opinion that Lord ElpJiinstones creditors had had sufficient notice of the shifting clause from the public record of seisins. His judgment, however, was recalled by the Second Division, who, on the 1st of February, 1867, ruled that inasmuch as the entail of Duntiblae had never been recorded, Lord Elphinstone should be regarded as absolute owner thereof, and not as tenant in tail subject to the shifting clause. They, therefore, ordered that the estate should be transferred to and \ested in the trustee to meet the demands of the creditors. Hence the present appeal on behalf of Mr. Fleeming, the son of Lady Hawarden, who on her decease had become next heir under the Duntiblae entail. Sir Boundell Palmer, Q.C., Mr. Pattison, and Mr. Morgan Lloyd, appeared for the Appellant. Mr. Pearson, Q.C., and the Dean of Faculty (1), for the JRe- spondent. The following opinions were delivered by the Law Peers. LORD CEANWOHTH : My Lords, on the 24th of June, 1741, John Earl of Wigton settled very extensive real estates in Scotland in tail on a certain succession of heirs ; and there was a clause in the deed providing that if any of the heirs should succeed to the dignity of the peer- age, they should respectively [be bound and obliged forthwith to denude themselves of the entailed estates, and the same should from thenceforth ipso facto accrue and devolve upon the next heir of tailzie. The deed was duly fenced with all proper irritanfand resolutive clauses, and was duly recorded. (1) Mr. Moncreijf. 2 2 M 2 374 SCOTCH APPEALS. [L. E. I8(i8 Soon after the rebellion of 1745 an Act of Parliament (1) was FLKEMIXG passed, the object of which was to put on a better footing the HOWDEN feudal relations of the great lords in Scotland with their vassals. It provided, among other things, That it should be lawful for any person possessed of a tailzied estate in Scotland, comprehending lands or superiorities of vassals under a holding of him, to sell to such vassals, or any of them, the superiorities over their respective lands, at such prices as the parties should agree for ; and thereupon to resign such lands for new infeftment to be granted to such buyer : Provided always, that the moneys paid as the price of such superiorities, being part of a tailzied estate, should be laid out and settled to the same uses, and with the same limitations and restrictions, as such superiorities were settled before the sale thereof. Several sales were made by the Wigton family under the pro- visions of that Act, and the money produced was invested upon trust ; when eventually, in the year 1847, it came into the hands of a gentleman named Turnbutt, who laid out the amount, accord- ing to the provisions of the Act, in the purchase of lands which we will designate by the general name of DuntiUae. These were settled upon precisely the same destination as that of the original deed of entail of 1741. The deed of 1847, however, was not recorded. At this time John Fleeming was in possession, not only of the original lands, but also of the lands of Duntiblae, and so continued until the 19th of July, 1860, when he succeeded to a peerage ; and then the question arose as to the effect of what we in England call a shifting clause, but what, I believe, in Scotland is called a con- ditional destination, viz. the clause which in that event carried over the entailed lands to the next heir of tailzie. John Fleeming, having become Lord Elphinstone, lived to enjoy the peerage but a very short time, for he died in the following month of January, leaving his sister, Lady Hawarden, to succeed him as the next heir of entail ; and she was served as heir of tailzie and provision both to the originally settled lands and to the Dun- tibiae lands. Lord Elphinstone died in very embarrassed circumstances, and on the 19th of June, 1862, a creditor presented a petition under the Scotch Sequestration Act to have his lands sequestrated. The Lord Ordinary, in the Court below, was of opinion that the (1) 20 Geo. 2, c. 50. VOL. I] SCOTCH APPEALS. 375 case did not come within the statute, and he refused to make any 1868 order. From that decision, however, the trustee under the seques- FLEEMING tration presented a reclaiming note to the Inner House. A record was made up, and eventually the Inner House differed from the Lord Ordinary ; their opinion being that the case was within the statute ; and they directed the Lord Ordinary to make a declara- tion according to the terms of the statute, vesting the lands in the trustee. The Lord Ordinary complied, and reported his decision to the Inner House, who affirmed it. Against those interlocutors, directing the estate to be vested in the trustee, this appeal has been presented to your Lordships ; and whether they are right is the question which we have now to determine. When, in July, 1860, John Fleeming became a peer, the next heir of entail, his sister, Lady Hawarden, contended that from th:it moment she was entitled to the Wigton estates. The ques- tion was whether the effect of that shifting clause was instanter to transfer the property from Lord Elphinstone to his sister, Lady Hawarden. That question was very much discussed in the Court below ; all the Judges were consulted ; and they came to a clear opinion unanimously that, in point of fact, the moment John Fleeming became Lord Elphinstone he ipso facto became, as it were, trustee for the next heir of entail, and that the next heir of entail had nothing to do with proving an irritancy of the entail, but that ipso facto his title and interest as tenant in tail had ceased ; and that he was bound immediately to denude in favour of his sister. As a consequence she was held entitled to the whole rents and profits which accrued in respect of the lands subse- quently to the time when John Fleeming became a peer. In that case no question arose about the validity of the entail, because the proceeding related solely and exclusively to the originally settled estates of the Earl of Wigton, and as to those there was no question that the entail had been validly recorded. The question now for decision is, whether the Appellant, Corn- wallis Fleeming, being tenant in tail of Duntiblae according to the unrecorded deed of entail of the 4th of October, 1847, the Court had, or had not, power to order those lands to be transferred to, and vested in, the Respondent as trustee under the sequestration. If John Fleeming had died without a peerage, the right of the 376 SCOTCH APPEALS. [L. E. 1868 trustee to call for a transfer woull Lave been clear (subject to the FLEEMIXG argument of the Appellant, that it was unnecessary to record the v - entail of Duntiblae, an argument to which I will subsequently advert; for when Lady Hawarden, on the death of her brother, made up her title to those lands of Duntiblae as his heir of tailzie and provision, it would in such case have been clear that she had made up a title to what was his heritable estate at his death ; and it would have been heritable estate which his creditors might attach. The Inner House of the Court below, however, by a majority of three to one, came to the conclusion, that as the entail of Duntiblae was not recorded, the creditors of Lord Elphinstone, who had become such after his accession to the peerage, were entitled to regard him as fee simple proprietor, and so to rely on the fee of the lands as a fund of credit. The Inner House held that, though the clause of devolution imposed on Lord Elphinstone a personal obligation on acquiring the peerage, to denude of Duntiblae in favour of the next heir of tailzie, yet that, till this had been done, the rights of creditors were not affected. The three learned Judges all expressed their opinion that this was the true legal effect of what had been done ; holding that the lands in question were liable to all the debts of Lord Elphinstone, as well those in- curred after, as those incurred before he became a peer. They did not, however, think it necessary to decide this question as to debts incurred after the accession to the peerage, inasmuch as there were certainly debts incurred prior to that event, the existence of which would, they thought, warrant the trustee in the prayer of his Petition. The interlocutor now under appeal leaves this question open as to debts incurred after the accession to the peerage, for it merely directs the lands to be transferred and vested in the Re- spondent as trustee on the sequestered estate of Lor 1 Elphinstone, leaving him to deal with it as the law may require. Although, however, the interlocutor is properly silent as to what creditors will be entitled to resort to these lands for payment of their debts, yet, unless the Court was right in the opinion that the lands remained liable to all Lord Mptiinstones creditors who became such after his accession to the peerage, I do not see how the interlocutors can be supported. What the Court is called on VOL. I] SCOTCH APPEALS. 377 to do is to exercise a power given by statute ; and unless the case 1868 is brought within the terms of the statute the power does not exist. The statute enacts that when sequestration is awarded against the estate of a person after his death, and his successor lias made up a title to his heritable estate, the trustee may apply to the Lord Ordinary, praying that such estate shall be transferred to and vested in him ; and power is given to the Lord Ordinary to make such order accordingly. This power is confined to the case where a successor has made up his title to the heritable estate of the deceased. If, therefore, in this case, John Fleeming, on succeeding to the peerage, had, according to the provisions of the entail, conveyed the Duntiblae lands to his sister, they would not at his death have been part of his heritable estate, and so would not have been within the provision of the 106th clause. It may be conceded (subject to the argument of the Appellant, that no recording of the entail of Duntiblae was necessary), that no creditors of Lord Elphinstone who were creditors before he had conveyed to his sister, would have had rights against them in the hands of Lady Hawarden; but the lands themselves certainly would not have formed part of his heritable estate at his death, and so could not have been transferred to the trustee under the seques- tration by virtue of an order of the Lord Ordinary. Here, how- ever, Lord Elphinstone did not convey the lands to his sister, but continued to hold them till his death ; and she then caused herself to be served in special, as heir of tailzie and provision to her late brother, and made up her title accordingly. She thus brought these lands within the purview of the 106th section, if they were within the true intent and meaning of that section the heritable estate of Lord Elphinstone at his decease. It certainly was his heritable estate within the meaning of the 106th section, if the Lord Justice Clerk is right in his position that the legal character of his infeftment, as it stood before his accession to the peerage, -did not by the happening of that event become, as between him and persons trusting him on the faith of his original title, a mere fiduciary fee. The two other learned Judges who concurred with the Lord Justice Clerk took substantially the same view with him. But Lord Benholme, who, as Lord Ordinary, had refused the appli- cation of the trustee, took a different view of the case, adhering to 378 SCOTCH APPEALS. [L. R. 1868 the opinion which he had formed as Lord Ordinary. His opinion FI.EEMO.-G was > that though Lord Elpldnstone remained feudally vested in the l an ds of Duntiblae till his death, yet that from the time of hi& accession to the peerage he was so vested as a mere trustee. The question in this case turns entirely on the point which of these two views of the law is correct ? If at the death of Lord Elpliin- stone the lands of Duntiblae were liable to be attached by his cre- ditors for debts incurred after his accession to the peerage, then they constituted part of his estate at his death, within the 106th section of the Act. If, on the other hand, he, at his death, though feudally vested in these lands, was only so vested as a trustee for his sister, then they would not be, according to the 106th section, part of " his heritable estate," and so could be transferred by an order of the Lord Ordinary made under that section. The Judges all treat this as a new question ; there is little or no authority to guide us, and we must look only to the general principle. I am of opinion that the Lord Ordinary was right. In the case on the original entail of the Wigton lands (1) it was decided, that from the time when John Fleeming succeeded to the peerage he ceased, ipso facto, to be entitled to the rents and profits of the lands comprised in that entail ; that an obligation attached on him forthwith to convey to his sister as the next heir of entail ; that he thus became a mere trustee ; and that she was entitled to all the rents accruing after the happening of that event. The language- of the entail of the Duntiblae lands is the same as that of the Earl- dom of Wigton, though it never was recorded. Now concurring,, as I do, in the propriety of the decision which all the Judges came to in the Wigton case, I must of necessity hold that it governs that now before us, unless the circumstance that the entail was not recorded makes a difference. I am unable to come to the con- clusion that this circumstance does make a difference in the question now to be decided. The want of its being recorded, if recording was necessary, left it open to any heir of tailzie in pos- session to aliene, to burthen with debts, or to alter the order of succession. But it did not in any other manner affect the entail. It made the irritancies ineffectual ; but the clause carrying over the estate in the event of the tenant in tail succeeding to a peerage (1) 3rd Series, vol. iv. p. 353. VOL. i.] SCOTCH APPEALS; 379 was no irritancy, it was a condition making it the duty of the 1868 tenant in tail, on the happening of the specified event, to denude FLEEMING forthwith, and without further proceedings, in favour of the next v ' heir named in the entail. That next heir took the estate with incidents very different from those affecting the Wig/ton lands. The lands of Duntiblae passed to her burthened with the debts of her predecessor. Still they passed to her, and when she made up a title to them as heir of tailzie and provision to her brother, she must be considered as clothing herself with the same estate as she would have had if he, on succeeding to the peerage, had at once conveyed the estate to her, and she had made up her title to the same accordingly. The majority of the Court below seem to me to have fallen into an error in supposing that this case is governed by those of Smol- lett v. Smollett (1), and Ross v. Drummond (2). It follows, certainly, from those cases that, disregarding the argument that the tailzie of Duntiblae must be treated as if it had been recorded, so long as John Fleeming stood infeft as heir of tailzie in possession his estate was liable to his creditors. But from the moment of his succeeding to the peerage he ceased ipso facto to be tenant in tail. This was apparent on the face of the title as recorded in the register of sasines, and any person becoming his creditor after that event must have known, if he had looked into that register, that he was trusting a person who was no longer tenant in tail, for an event had occurred which made it his duty to denude in favour of another person. On these short grounds I have come to the conclusion that the interlocutor of the Lord Ordinary was right, and so that those of the Inner House ought to be reversed. I have hitherto, my Lords, proceeded on the supposition that the entail of Duntiblae was not duly recorded, and so that John Fleeming was able, before he became Lord Elphinstone, to burthen Duntiblae with his debts. But I must now call your attention to an argument on behalf of the Appellant which, if sound, disposes of the whole case in his favour, independently of the grounds on which I have proceeded. The Appellant contended that the 17th section of the 20 Geo. 2, (1) Morr. App. voce Taillic, No. 12. (2) 6 Sha. & Dun. 945 ; 14 Sha. & 14 May, 1807. ' Dun. 454. 380 SCOTCH APPEALS. [L. K. 1868 c. 50, made it unnecessary to record the deed by which the lands FLEEMIXG of Duntiblae were entailed, for that every person looking at the H WEE.- register of sasines would have express notice that the lands - included in this tailzie were to be treated as if they were to all intents and purposes part of the lands comprised in the original Wigtton entail, and, therefore, as if they were duly recorded ; and so that no creditor or singular successor could acquire any right against the lands of Duntiblae, any more than he could against the lands included in the Wigton entail. If this argument is well founded the creditors of Lord Elphinstone who became creditors before his accession, have no more right against these lands than those who became so after that event. This question, however, is not open to us for decision on the present appeal. Whether the argument be or be not well founded, I have come to the conclusion, on the grounds I have already stated, that the lands of Duntiblae were not at the death of Lord Elphinstone lands which under an order of the 1 Lord Ordinary would pass to the trustee under the bankruptcy by virtue of the 106th section of the Sequestration Act. That is all which can be decided in this action. If this latter argument of the Appellant be sound, they passed to the Appellant free from any claim of credi- tors ; if it be not sound, then they are liable in the hands of the Appellant to all debts of Lord Elphinstone incurred before his accession to the peerage. Which of these views of the law is cor- rect cannot be decided in this action. At all events, the interlocu- tors below were wrong, and must be reversed. LORD CHELMSFORD : When the succession to the peerage opened to Lord Elphinstone he ceased to have any estate except as a trustee for the conditional substitute. The general principle of every Bankrupt Act is, that the person in whom the estate vests for distribution under the bankruptcy takes the property of the bankrupt exactly as he him- self held it. Lord Elphinstone at the time of his death was a mere trustee under a condition to denude in favour of Lady Ha warden, consequently the estate could only vest in the trustee under the sequestration subject to this condition. But it is contended that by the express words of the Scotch Bankruptcy Act, the lands in YOL. I.] SCOTCH APPEALS. 381 question vested in the trustee for the benefit of the creditors, as 1868 they were at the time of Lord Mphinstones death " capable of F LE EMING being affected by diligence or attached for debt." But it appears to me that these words iu the interpretation clause of the Act are nothing more than a general description of the species of property which the sequestration is to embrace, and that they apply to the point of time when the sequestration is awarded. Now, the lands in question, after the occurrence of the conditional event on which the continuance of Lord Elpliinstones estate depended, could not have been rendered liable to be affected by diligence, or to be attached for debts subsequently incurred by him. Consequently, at the time of his death the property did not belong to him in this sense, although before his accession to the peerage it was charge- able, and actually charged by him, with his debts. The question must be determined, not upon the interpretation clause, but upon the 102nd section of the Act, which vests the property of the bankrupt in the trustee, and defines the extent of his right. It appears to me, therefore, that the lands in question were not part of the heritable estate of the bankrupt which, within the meaning of the Bankrupt Act, would vest in the trustee for the benefit of the creditors. I am therefore of opinion that the interlocutors appealed from ought to be reversed. LOUD WESTBURY : As the deed of October, 1847, was not recorded in the register of tailzies, the late Lord ElpMnstone was, on the face of his titles, unlimited fiar of the estate of Duntiblae, subject only to the clause of devolution; but he was personally bound by the obligation arising from the enactments contained in the public Act of the 20 Geo. 2, to the effect that the estates bought with the proceeds of the sale of the superiorities by such Act authorized to be sold should be settled to the same uses, and with the same limitations and restrictions, as those of the original Wigton deed of entail ; and the question is, what effect upon Lord Elphinstones ownership resulted from this obligation ? The doctrine of trusts has the same origin, and rests on the same 382 SCOTCH APPEALS. [L. R. 1868 principles, both in Scotch and English law ; and it is desirable that it should be developed to the same extent in both systems of juris- Prudence. When the Act of the 20 Geo. 2, c. 50, enacted that the moneys to arise from the sale of the superiorities thereby authorized to be sold should be laid out by the trustees in the purchase of other estates to be settled to the same uses, and with the same limita- tions and restrictions as before the sale thereof, there was created a valid trust which bound all persons taking any estate or interest in the newly-purchased lands. No person could rightfully claim or assert an estate or right in or over the purchased estates incon- sistent with this obligation. It was the duty of all persons interested to have the purchased lands strictly and validly entailed in like manner as the heritages sold were entailed. This trust affected not only the trustee Turnbull, but also the heirs of tailzie, who became vested and seised in the newly-purchased lands by virtue of the statute and of the deed of tailzie of the 4th of October, 1847. If that deed had been duly recorded in the register of tailzies, as it ought to have been, in pursuance of the statute, the trust and obligation created and imposed by the Act would have been ful- filled and exhausted. But as this was not done, the trust or obli- gation to comply with the statute remained in full force; and although John Fleeming, after he had made up his titles to the newly-purchased lands, under the deed of the 4th of October, 1847, was, on the face of his titles, unlimited fiar, yet, except in the case of a singular successor without notice, he could not rightfully con- vey any larger estate in the purchased lands than he would have been enabled to do if the deed of October, 1847, had been duly entered in the register of tailzies. The right of a trustee under a sequestration is very different from the right of a singular successor ; for it is a rule common both to English and Scotch bankrupt law that the trustee or assignee takes the property of the bankrupt subject to all the rights and equities that affected it at the time of the bankruptcy. But the singular successor is not bound by a trust or duty of which he had no notice. The trustee under a sequestration is in the same position as a gratuitous alienee. He takes such estate or interest only as the bankrupt can lawfully convey. So in England VOL. I.] SCOTCH APPEALS. 38 ! the assignee takes such interest only as the bankrupt can lawfully 1868 depart withal. The force of the two expressions is the same, and the implied conveyance to the trustee or assignee ranks no higher than a gratuitous alienation. It is said that the duty imposed by the statute of Geo. 2 was a personal obligation, and not a trust ; but an obligation to do an act with respect to property creates a trust ; and if a fiar, bound to fulfil an obligation, acquires or retains, by means of his neglect of that duty, a greater estate than he would otherwise have had, he is a trustee of such excess of interest for the benefit of the persons who would have been entitled to it if the obligation had been duly fulfilled. This is a very plain and righteous principle, which is of the greatest use in the administration of justice. It does not interfere with any system of feudal or legal ownership. It is said, and said correctly, that the trustee under a sequestration may claim not only what the bankrupt may lawfully convey, but also what the creditors might attach. But the same principles apply. The creditors cannot attach or take in execution any estate of which the bankrupt is a trustee. They can attach such interest only as the bankrupt is beneficially entitled to. If these propositions are well-founded, it follows that no interest whatever in the estate of Duntiblae could pass to the trustee under the sequestration. The same conclusion is arrived at on another view of the case. According to the true construction of the Scotch Bankruptcy Con- solidation Act (19 & 20 Viet. c. 89), nothing passes to the trustee under a sequestration against a deceased debtor, except such property as the debtor was beneficially entitled to at the time of his decease. This construction seems to be admitted. Had, then, the debtor (the late Lord Elphinstone) any beneficial estate or interest in the lands of Duntiblae at the time of his decease ? By the clause of devolution already referred to (which is found in the Wigton entail, and was repeated in the deed of October, 1847, and is set forth in all the titles made up by the late Lord Elphinstone as they are recorded in the register of sasines, the late Lord Elphinstone became bound on his accession to the peerage (on the 19th of July, 1860) to denude himself of all right, title, and interest which 384: SCOTCH APPEALS. [L. R, 1868 might be competent to hirn of the lands of Duntiblae, that is, in FLEEMING simple language, he became bound to convey the lands of Dun- H WDEX tibiae to the next heir of tailzie. Whilst this obligation remained unfulfilled, Lord Elphinstone was a trustee of the lands included in the obligation. The observations already made are directly ap- plicable. An obligation to convey land to another is, beyond doubt, a trust, and whilst the party bound by the obligation retains possession of the lands, he holds them in a fiduciary character. There would be a great failure of justice if this were not the con- clusion of law. But this is not the only effect of the clause of devolution, for it goes on to declare that the same (i.e., the lands) shall thenceforth (from the accession to the peerage) ipso facto accresce and devolve upon the next heir of tailzie in existence for the time being, &c. which is, in effect, a transfer of the beneficial ownership. It seems clear, therefore, that the lands of Duntiblae, although the late Lord Elphinstone did not formally and legally denude himself of them during the short time that he lived after his acces- sion to the peerage, formed no part of his heritable estate or pro- perty at the time of his decease ; and that no right to them passed under the sequestration. I am, therefore, of opinion that the interlocutor complained of should be reversed, and the Petition of the trustee dismissed with expenses. LORD COLONSAY : The views which have been now stated with reference to this case are those to which the consideration I have given to'it have also led my mind. It appears to me that the only question we have to determine is, whether, under the provisions of the Scotch Bankruptcy Act, and having regard to the position in which the Duntiblae estate stood at the date of John Fleeming's accession to the peerage, the trustee in bankruptcy is entitled to have that estate conveyed to him. It appears to me that that is a demand which he is not entitled to make. I do not viish to say a word that would in any degree interfere with the judgments that were pronounced in Smollett v. Smollett, Boss v. Drummond, and some other VOL. L] SCOTCH APPEALS. 385 oases. I hold them to involve a principle which is perfectly sound, 1868 namely, that where a party holds an estate under a deed of entail FLEEMIN had succeeded under a disposition made by his brother, William Dunn. That the deed of Alexander Dunn was a death-bed deed was not denied by the Defenders. But they contended that by the law of Scotland the heir cannot reduce a deed, ex capiie ledi, unless he can shew himself to be damnified by it; that is* to say, unless he can shew that if the death-bed deed were reduced he, the heir, would take the property ; whereas, in this case, they affirmed, that if Alexander Dunns deed had not been executed, or were to be set aside, the heir of Alexander Dunn would not take the property, but it would go over, under the deed of William Dunn, to other parties. The curator lonis, on the other hand, insisted that the limitation over in the deed of William Dunn was inoperative, and 'that its first or ruling disposition to "Alexander Dunn, his heirs and assignees whomsoever," remained undisturbed, and gave the luna- tic heir a right to reduce the death-bed deed. The Lord Ordinary, by his interlocutor of the 10th of January*, 1 865, decided in favour of the lunatic heir's right to reduce. This interlocutor was recalled by the Second Division on the 27th of March, 1865, their Lordships sustaining the objections to the title of the lunatic heir, whose curator now appeals to your Lordships. We have therefore to determine the construction and operation of the deed of William Dunn. It is dated the 17th of April, 1830, and is a disposition and deed of settlement, not by way of trust, but operating as a de presenti feudal conveyance, opening as follows : I, William Dunn, do give, grant, dispone, alienate, convey, and make over from me, after my death, to and in favour of Alexander Dunn, and his heirs and assigns whomsoever, all and sundry lands, &c., with and tinder the burdens and conditions following : Then follow provisions as to various legacies and annuities, and (1) Lord Cairn$ t VOL. I.] SCOTCH APPEALS. 395 an appointment of Alexander Dunn as executor. The deed next 18C8 proceeds thus : BARSTOW V Declaring, as it is hereby specially provided and declared, but without prejudice BLACK. in any respect to, or limitation of the rights and powers of, the said Alexander Dunn (under and by virtue of the conveyance in his favour before written, to "ATTISON exercise the most full and absolute control in the disposal of the said estates and HENDERSON. effects, either during his lifetime, or by settlements or other writings to take effect at his death), that in the event of his dying intestate, and without leaving heirs of his body, and of his not otherwise disposing of the subjects and estates hereby conveyed to him, the same shall fall and devolve, and accordingly I do hereby in these events, but under the burdens and provisions before written, dispone, alienate, and convey my said subjects and estates, heritable and moveable, to the persons and in the terms after mentioned. A specification follows of the persons to whom and among whom the property was to go over and be divided in the events thus described, among whom are the Respondents, or some of them. In the argument at your Lordships' Bar it was strenuously urged on behalf of the Eespondents that the disposition to " Alexander Dunn, his heirs and assigns whomsoever," must be read as a dis- position to Alexander Dunn and the heirs of his body. The deed, it was argued, would thus run aptly and consistently as a disposi- tion to Alexander Dunn and the heirs of his body, with a regular and proper substitution on the termination of Alexander Dunns estate tail by failure of heirs of his body at his death. After a careful consideration of the arguments in support of it I find myself wholly unable to adopt this construction. In the first place, the words " heirs and assigns whomsoever " appear to me to be words which would naturally be used not as the equivalent of, but in contradistinction to, the words " heirs of the body ;" and in this sense, as the Lord Justice Clerk says, they have in Scotch con- veyancing a technical meaning which never varies (1). In the next place, after doing violence to the words " heirs and assigns whom- soever " by reducing their import to the meaning of " heirs of the body," we should not even then have reconciled the first disposi- tion with the limitation over, inasmuch as the limitation over is to take effect, not on failure of heirs of the body generally, but only in the event of Alexander Dunn not " leaving " heirs of his body ; that is, as was admitted, leaving heirs of his body at his death. Assuming, however, that a general disposition to A. and his heirs, (1) 3rd Scries, vol. iii. p. 79(J. 396 SCOTCH APPEALS. [L. E. 1868 followed by a limitation over if A. die without heirs of his body, BABSTOW might be moulded into a disposition to A. and the heirs of his BLACK body, I am not aware of any authority for doing this where the limitation over is to take effect not merely on A."s dying without PATTISON . - v. heirs of his body, but on the further concurrence of another event, ' namely, the non-disposition, either mortis causa or inter vivos, of the property by A. Rejecting, therefore, as I am compelled to advise your Lordships to do, this construction, I have next to inquire whether there is anything to prevent the disposition taking effect according to the natural meaning of the words used in the deed. No person read- ing over this deed could, in my opinion, entertain any doubt that what William Dunn meant was that his brother Alexander should be, to all intents and purposes, absolute fiar and owner of the estates, with absolute powers of disposition ; but that if he should not dispose of the estates, and should die childless, they should go over. This limitation over is one which, in my opinion, would, in an English deed or will, be invalid, because by English law you cannot, generally speaking, make a man absolute owner of an estate, and at the same time make a gift or limitation over of it dependent on the absolute owner not exercising his rights of owner- ship by disposition. The position of an unlimited fiar with a con- ditional gift over is unknown to the English law ; but the position of an unlimited fiar that is, a fiar with unlimited power of owner- ship and disposition followed by substitutions or limitations over, is well known to the Scotch law. It would, in my opinion, have been a perfectly good disposition to settle these estates on Alexan- der Dunn, his heirs and assigns, with a limitation over to other persons in the event of Alexander Dunn dying childless. Under such a settlement Alexander Dunn would have had an absolute power of disposition over the estates. And, in my opinion, the words of apparent contingency, " in the event of his not disposing of the estates," are no more than a recognition of that power of disposition which was, by Scotch law, inherent in the estate given to Alexander Dunn. I therefore propose to move your Lordships that the inter- locutor of the 27th of March, 1865, pronounced in the first action, should,' with one variation which I shall afterwards mention, be VOL. I.] SCOTCH APPEALS. 397 affirmed, and the appeal of Barstow in that action dismissed, with costs. In the second of these appeals another question has arisen. The disposition over in William Dunn's settlement professed to carry to Mr. Dunn Pattison, as the eldest son of Janet Pattison, the supe- riority of Boquhanran. William Dunn, after the date of this settlement (I), acquired the dominium utile of Boquhanran, and this dominium, utile passing to Alexander Dunn, he (Alexander Dunn) completed his title to it in 1852, and by proper instru- ments effected a consolidation of the dominium utile with the dominium directum, which at that time belonged to him under the leading disposition in William Dunn's deed. Mr. Dunn Patti- son contends that this consolidation has enured to his benefit, and that he is now entitled not to the superiority of Boquhanran merely, but to the plenum dominium of Boquhanran, or, in other words, to the superiority plus the dominium utile. That the desti- nation of the dominium utile to the residuary legatees in the settle- ment of William Dunn was evacuated by the acts of Alexander Dunn I have no doubt ; but the argument that Mr. Dunn Pattison can benefit by this evacuation I feel compelled, after much hesita- tion, to reject. I think the conclusion of the majority of the learned Judges in the Court of Session was, on this question, also correct, and that Mr, Dunn Pattison was never intended by Alexander Dunn to have more, and that he cannot claim more, than what the deed of the 17th of April, 1830, gives him, namely, the superiority of Boquhanran without the dominium utile, Avhich dominium utile must be severed from the dominium directum for the benefit of Alexander Dunn's heir-at-law. The reasons which lead me to this conclusion are those given by Lord Cowan and the Lord Justice Clerk, which I do not think it necessary to repeat (2). This limited right of Alexander Dunns heir-at-law as to the dominium utile of Boquhanran was, as it seems to me, either over- looked by, or not sufficiently pressed upon the Court when the interlocutor of the 27th of March, 1865, in the first action, was made, and a variation must now be made in that interlocutor in order to sustain the right of the heir of Alexander Dunn to reduce the death-bed deed quoad the dominium utile of Boquhanran. (1) 17th of April, 1830. (2) 3rd Scries, vol. iv., pp. 1108 & 1118. 1868 BABSTOW v, BLACK. PATTISON v. UF.NDERSOX. 398 SCOTCH APPEALS. [L. B. 18G8 BAKSTOW BLACK Had the appeal in the first action by the heir been directed merely or mainly to obtain this variation, I should have thought that no costs could be given against the heir; but as he raised in that appeal the much broader and larger question, on which he has failed, I think the first appeal should be dismissed with costs. j n ^ e gecon( j caugej inasmuch as both the appeal and the three cross appeals have failed, I propose, my Lords, if you concur in the opinion I have expressed, that they should all be dismissed with costs. The variation in the interlocutor, which I should humbly offer as the proper one to be made, would run thus : Declare that the Pursuer, as curator for the heir-at-law of Alexander Dunn, has good title to sue for reduction of the trust disposition of the said Alexander Dunn, in so far as it conveys the plenum dominium of the lands of Bogulianran, "but only to the effect of enabling the said curator to vindicate the claim of the said heir-at-law as such to the dominium utile of the said lands, subject to such feu duty or other rights as would have been exigible by, or have belonged to, the owner of the dominium directum if there had been no consolidation by Alexander Dunn ; and remit to the Court of Session with this declaration, to proceed in accordance therewith. Subject to this declaration and remit, I shall move your Lordships to affirm the interlocutor appealed from, and to dismiss, as I have said, the appeal with costs. My Lords, I have reason to know that those of your Lordships who have heard this appeal, and are present, concur in a great measure with the conclusions at which I have arrived. But I have had a communication from my noble and learned friend Lord Cranworth, who is prevented by indisposition from attending the House to-day, in which he states that in the first appeal he concurs in the opinion which I have expressed, though he has had doubts upon it ; but in the second he is unable to concur. He thinks that when Alexander Dunn had become absolute owner, both of the superiority and of the dominium utile, he caused them afterwards to go together, and that the ownership of the property must go with the superiority (1). LORD WESTBURY: The first question relates to the Validity of the conditional sub- stitution contained in the deed of William Dunn. There has been (1) Lord Cranworth died on the following day, the 24th of July, 1868. VOL. I] SCOTCH APPEALS. 399 much argument at the Bar on matters which I have always thought ]868 were well settled in Scotch jurisprudence. If a destination be made BABSTOW to A., his heirs and assignees whatsoever, there is no room for further B v - disposition, because the whole property and right of ownership are PATTISON comprised in and exhausted by the first disposition which, in the v . hypothesis of law, will never come to an end. In such a case HE nothing remains to form the subject of ulterior ownership. But a complete disposition of this nature may be followed by a condi- tional substitution, that is, by a new disposition or gift, depending on a contingent event, the declared effect of which, should it occur, is to reduce, or put an end to, the anterior disposition, and give birth to a new or substitutionary gift. The condition, when puri- fied, puts an end to the first disposition, and introduces the second. This is the proper province of a conditional substitution. In the English law of real property it is called a conditional limita- tion. But there is this important difference between the two systems. By the English law the grantee in fee subject to a shift- ing use or conditional limitation, cannot defeat the limitation, or prevent its taking effect, but in Scotland the first disponee is absolute fiar, and, unless fettered, may, by alienation inter vivos, or settlement mortis causa, make an absolute conveyance of the estate. Various examples may be given of conditional substitutions. If lands at X. are disponed to A., his heirs and assignees whatsoever, subject to a proviso that if the lauds of Y. shall descend to A., then the lands at X. shall go and be disponed to B. and his heirs, the descent of the lands of Y. is a contingency which, when it occurs, operates by way of condition to defeat the disposition to A. and his heirs, and gives rise to the ulterior disposition to B. and his heirs, which is therefore properly called a conditional substitu- tion. So if the condition be that if A., to whom lands are disponed in fee, shall die without leaving issue living at his death, the lands shall go and be disponed to B. and his heirs, the gift to B. is a conditional substitution, and whether it takes effect or not will be ascertained at the death of A. But if the disposition be to A., his heirs and assignees whomsoever, and on his dying without issue then to B. and his heirs (an event which may not happen for several generations), the better construction would seem to be that the 400 SCOTCH APPEALS. [L. K. 1868 disposition to A., his heirs and assignees whatsoever, shall be read BABSTOW as if it had been to A. and the heirs of his body, whom failing, to BLACK ^ m an( ^ ^is heirs ; and thus the gift to B. becomes a simple and not a conditional substitution. In the nomenclature of English PATTISON . ... . law the gift to B. and his heirs in the case supposed would be a EJ

but) of Miss Janet Finlay. The Board of Eevenue, however, insisted that Mr. Stevenson took the house as STEVENSON. TTTW 11 10 11 in-- - the successor of Miss Wilharmna, who herself had succeeded Miss Janet, thus making out that (not one, but) two successions were to be accounted for. The Court of Session, confirming the interlocutor of the Lord Ordinary (1), gave judgment against the Lord Advocate and in favour of the Respondent the presiding Judge (2), however, re- marking, that " the question was new and difficult." The Lord Advocate, on behalf of the Crown, appealed to the House. The Lord Advocate (3), and Mr. Stair Agnew, appeared as Counsel for the Appellant. Mr. Anderson, Q.C., and Mr. Shiress Will, for the Respondent. At the close of the argument for the Appellant, the following opinions were delivered by the Law Peers : THE LOED CHANCELLOE (4) : My Lords, the Respondent in this case, Mr. Stevenson, made up his title as heir to Janet Finley ; and as such he became liable, undoubtedly, to succession duty in respect of his succession to her ; but the question is, whether he also became subject to duty as successor to Williamina, under either the 2nd, or 21st, or, I may add, the 20th section of the 16 & 17 Viet. c. 51. The Act distinctly provides in the 2nd section : That every devolution by law of any beneficial interest in property, or the income thereof upon the death, of any person, to any other person in possession or expectancy, shall be deemed to have conferred a succession. But, my Lords, in the 21st section the Act more clearly ex- pounds what is meant by a beneficial interest actually devolving on a successor, by declaring that (1) Lord Ormidale. (3) Mr. Moncreiff. (2) The Lord Justice Clerk Inglis. (4) Lord Hatherley. VOL. L] SCOTCH APPEALS. 413 The interest of every successor (except as herein provided) in real property 186 shall be considered to be of the value of an annuity equal to the annual value of such property, after making such allowances as are hereinafter directed, and pay- LORD able from the date of his becoming entitled thereto in possession, or to the receipt ADVOCATE of the income or profits thereof during the residue of his life. v ' STEVENSON. The statute further directs that the instalments shall be payable at the end of the year after the successor becomes entitled in possession (1). Having regard, therefore, to these two sections, it appears to me that we must construe the Act as enacting that the " beneficial interest" mentioned in the 2nd section must be regarded as a beneficial interest to which the successor has become entitled in possession. And we have to ask ourselves whether or not Wil- liamina was a successor of that description ? It appears to me, my Lords, that it cannot be predicated of her that she was a successor having a beneficial interest in possession in this property. There are certain acts which an heir who has not made up his title may perform ; and which, in a certain sense, may be considered (as the Lord Advocate has strongly argued) as entitling us to consider Williamina in this case as having had a beneficial interest. But such acts as have been referred to do not seem to me to render it such a beneficial interest in possession as we have to look to under the Succession Duty Act. In what way can we say that Williamina had any such interest under the circumstances that have occurred ? She had a year (2) in which to deliberate whether she should or should not make up her title in other words, to deliberate whether or not she would desire to become the owner of the property and so become entitled to its possession. During that year she died ; and nothing having been done by her, the property of Janet was a hsereditas jacens. That being so, and she having died without any intimation of intention one way or another, the Respondent, Mr. Stevenson, became, upon making up his title, the successor of Janet, and therefore the successor to the hsereditas jacens, and was entitled to it as claiming under Janet. If we were to hold otherwise, the difficulty and also the hardship would be very great in a case of this description, because in assessing the (1) The 20th section, before referred shall become entitled in possession." to by the Lord Chancellor, says, " The (2) See note, infra, p. 415. duty shall be paid when the successor 2 2 P 2 SCOTCH APPEALS. [L. K. 1869 duty on Williamina she would become personally liable in respect ^Tiui to the duty due to the Crown, yet at the same time she would LORD jjave ^ ne r ight, within a year, of renouncing the succession. And A.D\ OCATE ^ on one of your Lordships asking the counsel who have argued this L ' case in what manner she could free herself, if made liable to the duty, from having personally to pay that duty, or from having it made a charge on her estate in the hands of her executors, no answer was given to the question. It was admitted that there was no mode in which she could be freed from the consequences of becoming a successor in the sense of being liable to duty under the Act. Surely that would be a very unfit construction to put upon the Act unless the words of the statute are so peremptory as to impose upon us the duty of so construing it. It appears to me, I confess, that there is nothing in the Act which leads to such a conclusion, but that there is everything in it to lead us to the contrary construction. The Lord -Advocate contended that if we were to hold that the duty is not payable under the circumstances of this case, we should be obliged to extend that construction to the case of an heir remaining for several years without making up his title. The answer is, that the heir must during that period have done some act which would manifestly confer upon him a beneficial interest in possession. The case, therefore, which was suggested in argu- ment, of a person beneficially entitled in possession remaining for several years without making up his title, has no application to the singular case which the House has now before it, of a person dying within the time during which the heir has the choice of accepting or rejecting the succession without having done any act to express the determination to which she intended finally to come. Under these circumstances, it appears to me that your Lordships ought to affirm the interlocutors complained of, and dismiss the appeal with costs. LORD CHELMSFORD: My Lords, I entirely agree with my noble and learned friend on the woolsack. It appears to me that Williamina never did become entitled to the beneficial enjoyment of this property. It is a very peculiar VOL. I] SCOTCH APPEALS. 415 case ; it is one not at all likely to occur again. But, under its pecu- liar circumstances, I entirely agree with the decision of the Court of Session that Williamina was not liable to the payment of any duty, and that, consequently, the Respondent is not liable to the payment of succession duty in respect of her succession. Mr. Anderson : Will your Lordships allow me to mention that the annus deliberandi is now abolished (1), and that it is now only six montns instead of a year that is allowed. I think it is only right that that fact should be noticed before your Lordships pro- ceed further. The Lord Advocate : It does not make any difference. LORD WESTBURY : It is a mere substitution of six months for twelve months. The principle of the law remains the same. The Lord Advocate : Exactly, my Lord. 186D THE LORD ADVOCATE v. STEVENSON. LORD WESTBURY: The Succession Duty Act attaches upon interests in possession and interests in expectancy ; but the duty payable on the value of an interest in expectancy is not payable until that interest becomes an interest in possession, with this exception, that if the interest in expectancy be in the successor a continuing interest, and capable of being transmitted by will (which definition is used for the purpose of denoting interests of which the successor in expectancy has the absolute ownership), then such continuing interest becomes in reality a new succession, and makes the duty attaching upon the interest in expectancy a debt of the successor who has that con- tinuing interest. The question here is, whether Williamina had a continuing interest capable of being transmitted by her as her absolute pro- perty ? The facts are that she held upon an apparency ; that the beneficial interest would not arise until the expiration of six months after the death of her sister Janet ; that she died before (1) Under the 21 & 22 Viet. (1858) c 76, proceedings may now be insti- tuted against apparent heirs in Scot- land at any time after the lapse of six months from the commencement of the appixrcncy. 416 SCOTCH APPEALS. [L. E. 1869 those six months had expired ; and that she did nothing either THE to incur representation or to make up a title to the estate. I ADVOCATE think it is clear, therefore, that she had no continuing interest, either in the sense of those words in the Scotch law, or within the STEVENSON. . i -i i iirv T\ t meaning to be attached to those words under the Succession Duty Act. Well, now, had she a beneficial interest in possession ? If you look at the 21st section, and take the words about the time when the duty shall arise and become payable, for the purpose of apply- ing them by way of test or criterion as to what is the meaning of the words " beneficial interest " in the section, you must come to the conclusion that what is meant is a beneficial interest in actual enjoyment and possession. If that be so, it is clear that the appa- rency of Williamina never came within that category, and never was an interest of a nature to. which the words " beneficial interest in possession " can be properly applied. Upon those grounds, my Lords, which I believe are the grounds which were taken by the Court below (1), I entirely concur with my noble and. learned friend on the woolsack in advising your Lordships to affirm these interlocutors. Undoubtedly we felt some anxiety at first, because the learned Lord Advocate stated that this case would probably be an authority for many others. I can hardly imagine that that will be so, because the present case depends upon the combination of a set of circumstances which are very singular and very peculiar, namely, an apparency which determined within the six months during which the right to the enjoyment of the deceased sister's property extended, without anything having been done to constitute an act of ownership on the part of the apparent heir. This is a case which cannot often occur. It is governed by its own peculiar circumstances, and it will add nothing to the law as it has been already ascertained. LORD COLONSAY and LORD CAIRNS concurred. Interlocutors complained of affirmed, and appeal dismissed with costs. Solicitor for the Appellant : W. H. Melvill. Solicitors for the Kespondent : Holmes & Co. (1) 3rd Series, vol. i. p. 322 ; and 38 Scottish Jurist, 165. VOL. L] SCOTCH APPEALS. 417 CLEPHANE et al APPELLANTS ; isc9 a former stage of tin's litigation (1) the House directed that a sum, not exceeding 7000, should be expended in purchasing a site and building a church in lieu of the original fabric ; which, along -with the hospital itself, had been taken and destroyed by the North British Railway Company ; who, however, compensated the charity by paying the trustees, in May, 1848, a large sum of money, represented as "amounting altogether to 17,671 9s. 6d" (2) The judgment of the House ordering a new church, did not order that a new hospital should be built. The question as to building a new hospital was left open to be determined by an exercise of discretion having regard to all the circumstances of the case when a scheme should be prepared and settled for the future administration of the charity. With a declaration to this effect, the cause was remitted back to the Court below to do therein as should be just and consistent with the judgment of the House. On the case returning to the Court of Session it appeared that (1) 4 Macq. 603. (2) Ibid. p. G12. THE LOKD PKOYOST, &c., OF EDIN- 1 _, Feb. 26. BUKGH ............. {RESPONDENTS. Cliariiy Trust Distinction between the Object and the Mode. In Scotland, as in England, there is an enlarged administration of charit- able trusts distinguishing between the charity itself and the mode prescribed for its accomplishment. One charity will not be substituted for another charity ; nor will a charity intended for one purpose be applied to a purpose altogether different ; but in the progress of society a change of mode may become desirable, and the Courts have sanctioned such change of mode to secure more effectually the benefits intended. Appeal from an Exercise of Discretion. Where the House has directed that a scheme shall be framed for the administration of a charity, leaving it open to the exercise of discretion whether a certain specified operation shall, or shall not, be performed ; and where in the exercise of the discretion so devolved it is determined that the specified operation is unnecessary and inexpedient the decision is final, and the House itself is precluded from reviewing it. 418 SCOTCH APPEALS. [L. It. 1869 the system of out-door relief had proved satisfactory. Their Lord- CLEPHANE ships of the First Division, therefore, decided that "it was not THE 'LORD necessary or expedient to rebuild the hospital." Hence this appeal PROVOST, &o., to the House bv certain bedesfolk, or pensioners, on the foundation, OF EDINBURGH, suing as paupers. Mr. Anderson, Q.C., and Mr. Wotherspoon, were heard for the Appellants. I Sir Eoundell Palmer, Q.C., and Mr. Hellish, Q.C., were not called upon. The following opinions were delivered by the Law Peers : THE LORD CHANCELLOR (1) : This unfortunate charity (for so I must denominate it) received 17,100 nearly twenty-one years ago, in consequence of the pur- chase of part of its property by a railway company ; and now in this fifth year since the judgment of your Lordships was pronounced, we are again called upon to decide in a conflict which a little good humour, joined to the great intelligence Avhich I have no doubt is possessed by the parties, might easily have prevented. The judgment of the House, after directing that a sum not ex- ceeding 7000 should be appropriated to the erection of a church for the benefit of those who were receiving the advantages of the charity, and also of those who, for many years previous to this litigation, had had the use of the church as residents in Edin- burgh, proceeded to declare : That all the residue of the money received from the said -railway company, and all interest thereon, and all the rest of the property of the said hospital, was applicable to the enlargement and maintenance of the charity, according to a scheme to be settled for that purpose, including therein the rebuilding of the hospital if the same should be deemed necessary. It was remitted to those who had to consider the case, when brought before them by the submission of a scheme, to decide whether or not they deemed the erection of a hospital necessary. If so, the whole of the learned argument to which we have this day listened is addressed to us for the purpose of asking us to do that (1) Lord Hathcrley. VOL. I.] SCOTCH APPEALS. 419 which is impossible, namely, to reverse the previous decision of this 18G9 House. CLEPHANE Authorities have been cited to prove that the Court Jhas no THE'LOUD power to alter the provisions alleged to have been made by the PROVOST, &c., original charter until the hospital itself is first erected as a sub- EDINBURGH. stantive building. The whole case seems to turn upon that single point. But what, after all, is the true object, purport, and intent of this charter ? It contains the following recital : Know ye, Us, and our dearest Cousin James, Earl of Murray, Piegent of our Kingdom, moved by fervent and zealous purpose to support and assist the poverty, penury, and want of many and diverse aged and impotent persons, who, in their old age, have lost their means and estates by and through the events of adverse fortune, so that they may not perish and die through extreme hunger, penury, and want of necessary sustenance; and therefore moved by piety and good conscience to afford them such help and assistance as their want and need require ; as also understanding that this purpose cannot be properly carried into effect without our supplement and authority. These words indicate the motive on the part of the Crown, which is simply to relieve the poverty, penury, and want of the sufferers described. The real object of the charter was not what is ordinarily found in foundations of hospitals as such. It was not a scheme by which anything in the shape of a permanent building, and staff thereto attached, for the purposes here described, is suggested. Nothing of that kind appears in the grant. There is no provision for a governor, or a master, or matron, or nurses, or chaplain. This was not a charity for which it was essential that a building should be provided which should be always attached to the charity, or one with regard to which any provision was made for continuing it in the shape of a hospital to be governed by rules, ordinances, and regulations, such as you find in the constitution of ordinary hospitals founded for the special purposes of their being continued in perpetuity under the terms of the grant. Since the year 1846 or 1847, when the hospital was taken down, the sick, the aged, and the poor have been administered to exclusively by out-door relief. But say the Appellants, if it be not necessary to erect the hos- pital why erect the church? There, again, we are undoubtedly precluded by the order of the House pronounced on the former 420 SCOTCH APPEALS. [L. K. 1869 occasion. But even if we were not so precluded, I do not at all CLEPHANE admit the justice of the Appellants' argument. Many of those v - persons who are relieved by means of this charity may be residing PKOVOST, &c., in the neighbourhood ; and the probability is that many of them EDINBURGH, would have their residence near this church. Many of them, there- fore, would be partakers of the benefit which the Order of this House was intended to secure to them. The Appellants sue as paupers, and of course they will pay no costs. But it appears to me that, with your Lordships' sanction, no costs ought to be allowed. Therefore, what I should propose to your Lordships would be to affirm the decree appealed from, to grant no costs to the Appellants, and to direct that the costs of the Eespondents should be paid out of the charity estate. LOBD CHELHSFORD : The judgment of the House upon the former occasion was per- fectly correct. It was justified by the conditions of the charters, and it is in itself conclusive of this question. I therefore entirely agree with my noble and learned friend upon the woolsack that this interlocutor must be affirmed. I also agree with him upon the subject of costs. LORD WESTBURY: I should hardly feel it necessary to add a word to what has been addressed to your Lordships, but for some observations which fell from the Appellants' counsel, and which seemed to shew that this subject of the administration of charitable trusts is not yet per- fectly apprehended. The jurisdiction of the Court of Session in Scotland, and the jurisdiction of a Court of Equity in England, upon the subject of the administration of charitable trusts, are one and the same. Undoubtedly in England we have had a greater number of cases, and therefore the principles have been more fully developed. The rules which have been laid down, and the authorities in England, are of course not binding upon the Court of Session. Yet, as they are illustrations of the same principles of law, I dare say that wherever an opportunity arises the Court of Session will deem them entitled to great respect and attention. VOL. I.] SCOTCH APPEALS. 421 Now in both countries this principle has prevailed, namely, that i860 there shall be a very enlarged administration of charitable trusts. CLEPHANE You look to the charity which is intended to be created ; and you THE L OBD distinguish between it and the means which are directed for its PROVOST, & c ., OF accomplishment. Now the means necessarily vary from age to age. EDINBURGH. Take a charity such as the present, for the relief of the poor. The condition of the country or of the locality may have dictated what were at the time very convenient means for its proper application. In the progress of society, however, with the greater diffusion of wealth, and the growth of population, the means originally de- vised may become inadequate to the end, and Courts of Equity have always exercised the power of varying the means of carrying out the charity from time to time, so as to secure more effectually the benefits intended. It is true you cannot substitute one charity for another. You may substitute for a particular charity which has been defined and which has failed, another charity ejusdem generis, or which ap- proaches it in its nature and character ; but you cannot take a charity which was intended for one purpose and apply it to a pur- pose altogether different. Some instances occur in our English reports upon the subject, but on examination it will be found that what was done in those cases was not done under the ordinary authority of the Court of Equity, but was done in cases where the charity had failed by reason of illegality, and where it conse- quently devolved upon the Crown to declare what should be the form of administration to be adopted. I mention this, because our attention has been directed to the language which was used by Lord Eldon in The Attorney-General v. Mansfield (1). That language was never intended to disturb the settled doctrine that the means for the attainment of the end may be altered from time to time. Neither was that language intended to interfere with the settled doctrine called cy-pres, as understood in Courts of Equity. It was meant to apply only to cases where, for example, an attempt was made to lay out money given for the relief of the poor towards the building of a bridge, the making of a road, or the draining a townobjects quite diver si generis from those intended by the donor. (1) 2 Ptuss. 501. 422 SCOTCH APPEALS. [L. E. 1869 In the direction here given for the establishment of a hospital CLEPHANE there is nothing more, so far as the charters go, than, as it were, THE LORD *ke erec ti n f aQ ordinary poorhouse where the poor and the sick PKOYOST, &c., ma y ^ e received, and lodged, and maintained so long as may be EDINBURGH, necessary ; and the whole seems to be left entirely to the discretion of the superintending authority by the founder of the charity. Now these buildings, such as they were, have been swept away, under the authority of the law, by a railway company and there is substituted for them a large sum of money. Where is the necessity that that money, constituting the property of the charity, should not be dedicated to the use and service of the poor in the same manner as that in which, at the time of the foundation of the charity, it was considered that the end of relieving the poor might be best accomplished ? If the end of relieving the poor can be better accomplished now by hiring dwellings for them, or by enabling them to get lodgings or cottages of their own, the substantial object will be accomplished, and if we allow the laying out of 10,000 in the erection of a building for the reception of the poor, the interest of that money will be so much money taken away from the number of pensions which might otherwise have been given in out-door relief. But it does not follow that because we approve of out-door relief to-day, it should have perpetual duration. Another set of cirqumstances may arise ten, twenty, or fifty years hence, which will suggest a different and a more beneficial form of administra- tion. Whether there should be another building or not was left to the wise discretion of those who were armed with the power of administering this charity, and it was accordingly settled de- liberately by this House, that if they deemed a hospital necessary a new hospital should be built ; but that if they deemed a new hospital unnecessary for the benefit of the poor, then there was no obligation to erect such a building. We have here an administration which has been exclusively directed to out-door relief for the last twenty-one years, and an administration which has consisted, as to the greater portion of the funds, in out-door relief since 1785. What is there to justify our departing from all that has been done, altering the course which we find to have existed, and directing so much of the funds of this VOL. I.] SCOTCH APPEALS. 423 charity to be laid out in what would probably be found to be a 1869 wasteful and useless expenditure ? CLEPHANE If these things had been considered, as I think they ought to THE ^ OKD have been considered, below, I think we should not have observed POVOST,&C., OF t^ie strange spectacle of an appeal brought here in the hopeless EDINBURGH. attempt to alter the Order of the House, and I think that we might have been spared observations which were directed to shew that the Order of the House was inconsistent with law and with justice. I have dwelt so much upon this point, not because I felt that the judgments of your Lordships' House required to be vindicated, but only to repeat the considerations which Avere present to the minds of my noble and learned friends, who, with me, heard the former appeal, and to my own mind, when this Order was drawn up. I entirely concur with my noble and learned friend on the wool- sack as to the costs ; but, my Lords, I do hope and trust that this is the last that we shall hear of this case, and I rejoice the more because we can with perfect justice refuse to the Appellants their costs, as such refusal will be one of the most effective and salutary modes of preventing further litigation. Let the lesson be remem- bered; because, without it, I feel certain that if hereafter there were a peg upon which an appeal could be hung we should have that appeal brought here. LORD COLONSAY : My Lords, as to the question whether or not another building should be erected as a hospital, the matters for consideration in the Court below appear to have been, first, whether they rightly understood the judgment of your Lordships as having dealt with that question ; and, secondly, whether if they rightly understood it as having dealt with that question, and having left it to the dis- cretion of those who had the management of the charity, there has been anything advanced to shew that that discretion has been ill used. Now, upon both these points, I think that the case is clear. I think it very clear from reading the judgments of this House in 186-1 that the House did deal, and did intend to deal, with the question whether or not a hospital building should be erected, and that the House dealt with it by leaving it to the discretion of those who had the management of the charity to 424 SCOTCH APPEALS. [L. K. 1860 determine whether it was expedient or necessary that such a CLEPHANE building should be erected. Those parties having come to the THE^LOKD conclusion that it was not necessary, and that it was not ex- PBOVOST, &c., pedient to erect a hospital, but that it was more expedient and EDINBURGH, more fitting that the relief should be given to the objects of it out of doors, and nothing having been urged here as matter of discretion against that decision, I think that we have no course now but to affirm the judgment of the Court below in that matter. If it had been open to us now to go into the question whether the charters which have been read made it absolutely necessary that a hospital should be erected, and precluded all discretion under all circumstances, we might have had a different course of proceeding to follow out. But, as far as I have been able to judge from the argument which has been submitted to us, I see no reason to doubt that the judgment of this House in 1864 was perfectly in accord- ance with the principle and the tenor of these charters. But there is another point in this case as to the sum which was intended to be applied to the building of a church. I have no doubt now, after hearing what your Lordships who took part in the proceeding in 1864 have said, that the Court below have mis- read or misunderstood the judgment of the House upon that matter; and, therefore, the alteration which has been suggested in the judgment of the Court below must be made, and the amount of money to be applied to the erection of a church must be limited to the sum of 7000. I hope, however, that with regard to that matter there will be no further delay in carrying out the direc- tions of the House and of the Court below. As long as that matter is delayed, that sum, whatever it may be, which ought long ago to have been applied to the erection of a church, is lying accumulating for the benefit, as it is said, of the charity, but to the detri- ment of those who are to have the benefit of the church. I hope, therefore, that no further impediment will be interposed to the application of that fund to the purpose to which it has been directed to be applied. As to the notion that if there is to be no building of a hospital there is to be no church, I think that I must regard that as more ingenious than sound. I cannot go along with the notion that no parties are to have benefit from the church accommodation except VOL. I.] SCOTCH APPEALS. 425 the parties who reside within the building of the hospital, and i860 those parties residing in the neighbourhood of the church. I CLEPHANE think that under the interpretation which has been put upon the T HE I I X)ED charters the recipients of this charity are the parties who are PHOVOST, &c., primarily entitled to the benefit of accommodation in that church, EDINBURGH. and that when the judgment of the Court below used the expres- sion "beneficiaries" it used it properly, seeing that in the view which that Court took, and in the view which this House has taken, there were to be no inmates. It did not follow from that, that the beneficiaries of the charity are to be deprived of church accommodation. They are entitled to have it, and then further accommodation is to be given to the parties residing in the neighbourhood. As to the matter of costs I entirely concur in what has been suggested by my noble and learned friends. THE LOED CHANCELLOR put the questions as follows : That the interlocutor complained of be affirmed ; that the Ap- pellants neither receive nor pay costs ; and that the costs of the Respondents be retained by them out of the charity estate. Resolved in the affirmative (1). Solicitors for the Appellants : Simson & Walceford. Solicitor for the Respondents : John Graham. (1) The judgment further directed, added the words "if so much be ve- \vith reference to the 7000 for build- quired." ing the church, that there should be 426 SCOTCH APPEALS. . [L. E. 18G9 THE EEV. DR. LEE, ei al, DEANS OF THE \ teTis. CHAPEL EOYAL, AND THE LOED AD- [ APPELLANTS ; VOCATE ) JOHNSTONE OF ALVA, et al. EESPONDENTS. Ancient Decree Presumption in Us Favour. A decree, to all appearance just in itself when pronounced, and strength- ened, moreover, by constant possession and unvarying recognition for more than two centuries : Held, to require the strongest grounds to warrant its impeachment, the great principle applicable to such a case being Omnia pnesumuntur a judice rite et solennitur acta. This principle was deemed peculiarly imperative in a case where the decree in question, with its warrant and register, was shewn to have perished in a great fire so far back as 1700 nothing remaining but an extract. Presumption in favour of long Possession. Per LORD WESTBUEY : We ought to presume everything that can be reasonably supposed in favour of long possession. I do not find that doctrine quite so prominent as I could have desired in the judgments below. Titular and Tacksman of Teinds. By the law of Scotland a person may be, at once, both tacksman and titular of the same teinds. J.HE action out of which this appeal arose was brought by the Appellants to reduce a decree of valuation dated the 28th of July, 1647, whereby the teinds or tithes of certain lands in the parish of St. Marykirk, in the county of Selkirk, were fixed at 210 Scots per annum. The main ground of reduction was, that the decree sought to be set aside had been pronounced in the absence of the titular, and without citing or giving him notice ; the only intervening parties having been, as the Appellant averred, the heritor and the tacks- man. This was the allegation on which the Appellants mainly relied. One answer made by the Eespondents was, that the tacksman of these teinds in 1647 was the then Earl of Buccleuch, who was not only the tacksman of them, but the titular also. They further insisted that such a decree would be binding on the titular " if the VOL. I] SCOTCH APPEALS. 427 tacksuian or other person in actual possession of the teinds " was a 1869 party to the valuation. LEE The Eespondents further maintained that the decree was now fortified by prescription, by homologation, and by an acquiescence of more than two centuries. It appeared that in 1700 the records of the Teind Court were destroyed by a great fire; and among other documents which perished were the pleadings, the register, and the decree in this case of the MaryJcirJc teinds the only original judicial document remaining being an extract from the decree, which, though authen- tic, was imperfect. The Court below (acting as Commissioners of Teinds), on the 20th of February, 1867 (1), assoilzied the Defenders (the above Eespondents) from the conclusions of the action with expenses ; and hence this appeal. The Lord Advocate (2), and Mr. Henry J. Moncreiff, appeared for the Appellants. Sir Eoundell Palmer, Q.C., and Mr. Nevay, for the Eespondents. The following opinions were delivered by the Law Peers : THE LORD CHANCELLOR (3) : The main questions (which have been most ably discussed before us (4) ) are as to the true construction of this decree, and whether or not the titular must be taken to have been summoned and to have appeared. I will, in the first place, consider the effect of the decree itself ex facie, and how, under ordinary circumstances, it ought to be construed; regard being had to the terms of the extract, which, though not complete, contains, as it appears to me, all that is material for arriving at a just conclusion as to the scope and object of the decree. The decree appears to have been pronounced by certain Com- (1) 3rd Scries, vol. v., p. 414; and (4) The argument of Mr. Henry J. Scottish Jurist, vol. xxxix. p. 220. Moncreiff was especially lauded both (2) Mr. Moncreiff. by the Peers and by Sir Rounddl (3) Lord Ilatherley. Palmer. VOL. I. 2 2 Q 428 SCOTCH APPEALS. [L. K. 1869 inissioners appointed in the time of diaries I., for the purpose of LEE effectuating a valuation of teinds throughout Scotland, in order JOHNSTONE that proceedings might be taken subsequently for the purchase of those teinds, and for settlements to be made with the heritors in respect of them. There were Sub-Commissioners also appointed for the various districts. But every proceeding of the Sub-Com- missioners had to be laid before the Commissioners themselves, was subject to review by them, and required, or might receive, their approbation. In the present case we find that the decree itself purports to be in the matter of a " Summons raised at the instance of William Elliot of Stobs, heritor of the lands underwritten, against Francis Earl of Buccleuch, and Mr. William Elliot, minister of St. Mary- Idrk, for his interest." It was necessary that there should have been summoned, or actually attending, three parties, namely, the heritor, in respect of his interest in the lands ; the minister, in respect of his interest in the teinds, stipendiary or otherwise ; and the titular, in whom was vested the ownership of the teinds. Now we have the summons mentioned in the first part of the decree, as bringing before the Commissioners the Earl of Buccleuch, Mr. William Elliot, the minister, and Mr. William Elliot of Stdbs, the heritor. In what character the Earl of Buccleucli intervened appears more mani- festly as we read the terms of the decree itself, which recites that The teinds, parsonage, and vicarage within the parish of St. MaryJcirk are not yet valued, nor the true worth and avail thereof dignosied [which, I suppose, means ascertained], wherefore the Pursuer [that is, Mr. Elliot of Stdbs, the heritor] is content that ane lawfull and formall valuation be made thereof be the said Com- missioners ; and for that effect is willing and ready to adduce ane lawfull proba- tion of the worth of the said lands in stock and teinds, parsonage, and vicarage ; and in the mean time necessary it is that the said Pursuer have warrand granted to him to lead the teinds of his said lands this instant crop and year of God 1647 years, finding caution for payment. The decree then proceeds to state that the procurator of the Pursuer produced an agreement between the Earl of Buccleuch and the Pursuer, and subscribed by them ; whereby They agreed upon the constant worth of the teinds of the lands underwritten, and desired the said Commissioners to ratify and approve the same. And the VOL. L] SCOTCH APPEALS. 429 same Earl of Buccleuch, appearing by his procurator, and consenting thereto, and 1869 the said Mr. William Elliot, minister, being oftentimes called and not appearing, the Commissioners having heard, and seen, and considered the agreement produced, and therewith being well advised, they have ratified, allowed, and approved of JOHNSTONE. the same. Then the agreement itself is set out, dated the 26th of July, 1647 ; whereby It is agreed between the Earl of Buccleuch on the one part, and William Elliot of Stobs, on the other part, that the teinds in question shall be in all time coming twp hundred and ten pounds Scots, with a certain deduction of His Majesty's ease, whereunto the said Earl of Buccleuch, as tacksman and titular, and the said William Elliot of Stobs, as heritor of the said lands, have agreed by thir presents. Now, having carefully perused the several and somewhat varying opinions of the learned Judges in Scotland, it appears to me im- possible to construe this instrument as bearing ex facie any other meaning than this : That it is an arrangement come to between the heritor and the Earl of Buccleuch for what is called a constant or fixed valuation of the teinds for all time coming ; that is to say, a fixed valuation to have perpetual effect, and not to be limited in any way in its extent as far as the words go, unless we find something else on the face of the document which would induce the Court to say that a limitation ought to be placed upon these otherwise clear and unqualified words. The learned Judges below (Lord Deas particularly) (!) have pointed out that there is a marked distinction in the frame of this decree as compared with other decrees which did affect to limit the period for which the valuation should be made, where a limited interest occurred, as in the case of a " tack," which would endure only during the tacksinan's interest. Where such a limitation has been intended, the intention has been expressed, and certain regu- lations have been made with reference to payment of interest on the valuation for a limited period. The primd facie view of any decree of this description would appear to be this : That the object of the valuation was to obtain an entire and complete valuation upon which sales could be made ; though in certain cases such valuation, for some reason or other, could not bo effected. And in such cases exception was made, and, exception being made, it was (1) 3rd Series, voL v. p. 462. 430 SCOTCH APPEALS. [L. R. 18C9 expressed on the face of the instrument namely, that only a L EE limited and not a complete interest for all time coming was that * which was within the purview of the Commissioners in making the JOHNSTONS. L decree. I think in only one instance has anything apparently to the contrary been pointed out. I mean in the case of Easter Glens, upon which I must say a word or two presently. The next point is, upon the face of the decree, who appear to have been the parties to it ? There can be no doubt about this. We have not the summons, and are not able, therefore, to say pre- cisely who were summoned beyond those who appear on the face of the instrument but we do find undoubtedly upon the face of the instrument an agreement set out as between the parties who were brought before the Commissioners, those parties being Mr. Elliot of Stobs and the Earl of Buccleuch ; and we have to look to the agreement, which the Commissioners affirm, to see in what cha- racter the parties who asked them to affirm the agreement appeared before them. Those who appeared before them produced an agree- ment ; and they must be taken to have come before the Com- missioners in the character in which they describe themselves in that agreement. Mr. Elliot describes himself as heritor, and the Earl of Buccleuch is described as being " tacksman and titular," and as having right to the teinds of the parish. There is no con- troversy, therefore, whatsoever that, rightly or wrongly, on the face of the instrument he describes himself as being both tacksman and titular, and as having a right to the teinds of the parish. And we are asked to do one of two things either to say that it was an erroneous assumption on the part of the Earl to claim the right of titular, when he was only tacksman ; or, what is said to be a much more reasonable proposition, to assume that this descrip- tion of the Earl in the agreement means no more than that he was tacksman, and qua tacksman was also titular. This observation, however, arises at once upon such an argu- ment, namely, that a double description seems utterly superfluous, if the single description was effectual. The description of the Earl as tacksman would be perfectly sufficient if the Appellants were well warranted in their construction that this was intended to be a valuation only during the duration of the tack. In that case the introduction of the two terms, "tacksman" and "titular," VOL. I.] SCOTCH APPEALS. 431 could have no effect but to introduce confusion into the agree- 1869 ment. LEE But there is another reason for holding that the Earl of Buccleuch j OHN g' TONE intended to describe himself as titular. It was absolutely neces- sary that the titular should be present. This proposition has scarcely been controverted by the Appellants. A suggestion was indeed made, which prevailed to a certain extent in the minds of some of the Judges in the Court below, especially Lord Curriehill, that although it might be necessary, or, at all events, proper and expedient, to have the titular present at the time of settling the valuation which was to affect his rights, yet that the Commis- sioners did not act necessarily with all the formalities of a Court until their constitution was changed by the statute of 1707 ; and therefore, although it might be right and proper to have the titular present, it was not so essential as that his non-presence would vitiate the decree. But, my Lords, it is a fundamental principle in the administra- tion of justice that all parties to be affected by a decree should have an opportunity of appearing ; or, being summoned, should actually appear before the tribunal pronouncing it. The ne- cessity of the titular's presence suggests a strong argument for holding that the Earl of Buccleuch was that which he described himself, namely, a person entitled to appear before the Com- missioners, and whose appearance justified them in coming to the conclusion that they might make a full and complete and perma- nent valuation. Because, in the first place, the words of the instrument import a perpetual valuation for all time coming. Secondly, the Lords Commissioners must be held to have been aware of the duties imposed upon them, and the mode in which those duties ought to be carried into effect ; and I must suppose them to have been fully and perfectly conscious that they could not bind the rights of an absent party, and make a perpetual valuation as between persons who did not represent a continuing interest. We must therefore come to the conclusion that they satisfied themselves that they had before them the proper parties, unless it appear manifestly and clearly upon the face of the instru~ ment that those parties were not present. I agree with the suggestion of the Lord Advocate, that where 432 SCOTCH APPEALS. [L. E. 1869 you have before you a solemn instrument, you are not, on account I^E of its antiquity, to assume the existence of formalities which appear JOHNS-TONE * ^ ave l* een omitted. But here we have only the decree as it stands upon the extract. Under these circumstances it appears to me impossible to hold that the description of " tacksman and titular " can be read as " tacksman " alone, but it must be taken to describe the Earl as having been titular as well as tacksman. The authority principally relied upon by the Appellants was the case of Easter Glens (1), in which certain points appear which afford a ground for argument that a man may be described as a titular who is only a tacksman, and that a decree may purport to be made in perpetuity with regard to the interest of a person so described as " tacksman and titular," when it appears from other parts of the decree that he was not titular in any other respect than as tacks- man ; and that the decree, though so worded, was a decree which ought only to affect substantially the interests as between the heritor and tacksman. But on carefully examining that particular case, which was of a peculiar and singular character, I think, look- ing to the difference between it and this the one reserving the rights of the titular intact, the other being without any reservation ; the one shewing a dispute between the parties as to who was and who was not titular, the other giving no indication whatever of any such controversy the precedent of Easter Glens, I apprehend, tends rather to confirm than otherwise the conclusion which I am inclined to draw in the present case. That by the law of Scotland, a person could be both tacksman and titular at the same time there seems to be no doubt. Lord Deas mentions the case in which Lord Fife claimed, and was held to be entitled to claim, in the double character of tacksman and titular. But we are told that, having regard to the extraneous historical circumstances of the time, it was impossible for the Earl of Buc- cleuch to have been the titular of these teinds. The Pursuers' con- descendence asserts a variety of facts, which are certainly of very remarkable character, during the disturbed period in question. It begins by stating the foundation of the collegiate body of the (1) Register of Commission of Teinds, vol. i, pp. 303, 328. YOL. I] SCOTCH APPEALS. 433 Chapel Eoyal of Stirling, which seems to have been founded by 1869 v-*-v^-' James TV. of Scotland. The condescendence then proceeds to LEE state the confirmation of the foundation of that chapel by an Act J OHI ^ TOXE of Parliament in 1606, which declares the title of the Crown to the whole of the possessions which were annexed to the Chapel Koyal, but which also refers to the donation which had been made to the collegiate body by the Crown of the tithes of this parish and numerous other parishes ; but afterwards conies this singular state- ment, that "at the Revolution in 1688, the teinds and the old patrimony of the Chapel Eoyal reverted to the Crown as lona vacantia." Although I have read the articles of the condescend- ence through several times, I confess they convey no clear, or definite, or precise idea to my mind, but only seem to me to re- present that everything was in a state of confusion during that period. But what then is there that ought to prevent us with reference to a decree now upwards of 200 years old, and with reference to circumstances so confused according to the statement of the Pursuers themselves, that they cannot clearly enunciate the exact title upon which the teinds were held what is there, I say, to pre- vent us from applying that presumption which is invariably applied to instruments of ancient date, more especially where the enjoy- ment appears to have been in no way inconsistent with the instru- ment, namely, the presumption that all was rightly done ? I do not pause to notice the question, whether or not the va- luation was properly made in respect of its being by agreement. Both authority and reason sanction such an arrangement, and render it binding when the parties choose to settle their dispute otherwise than by formal proof. Nor is it any objection that one of the parties, the minister, was not present at the time. He was summoned. It is not now asserted by the Appellants (though there are certain pleadings to that effect, which are not supported by any evidence whatever) that at the time when this valuation was made, it was imperfect, or improper, or insufficient. The only other question to which I shall advert is as to how far the Appellants, claiming under a title which is not the title of the Earl of Buedeuch, in respect of whom the decree was made, are to be bound by the negative prescription in respect of this decree. 434 SCOTCH APPEALS. [L. K. 18C9 I apprehend that taking them to have in any way knowledge of LEE the decree, it is not necessary with respect to negative prescrip- JOHNSTOXE ^ on > as ^ wou ld be with reference to homologation or confirmation, that they should have done any act with intent to confirm, or any act from which that intent must be presumed; but it is quite sufficient that they must be taken to have had notice of the exist- ence of the decree ; and if they had notice of the existence of the decree, then from that time, at all events, whatever other question might arise in the case, the forty years would commence running and the negative prescription would arise. Then had they or not notice of this decree ? It appears to me that the reasons upon which Lord Deas rests his conclusion of their having had notice of the decree are unanswerable. Several proceedings took place, in what is called the process of augmen- tation and locality, with reference to the teinds. Now I appre- hend it is not necessary to be shewn that those under whom the Appellants claimed had any special interest in the matter, provided they had so much interest as to be summoned to, and to be present at, those various processes. In the subsequent process of augmentation and locality which depended in the year 1733, and previously, the deans of the Chapel Koyal, as donatories of the Crown, took an active part in the proceedings. But what I rely upon is, that they were summoned and appeared as parties on all occasions when the decree (which had been registered) was pro- duced and was acted upon. But I think the reasoning of Lord Deas, founded upon the sub- sequent renewals of the tacks, is worthy of very great considera- tion. When a tack of this kind is renewed, with an increasing rent or charge in respect of the renewal, are we to suppose, is anybody justified in calling upon the Court to suppose, that these renewals of interest are made without any inquiry into the circumstances of the property with which the titular is about to deal ? It seems to me that we have clear proof here of the knowledge of the existence of this valuation. If, then, there be a clear proof of notice, the negative prescription would run ; and it would be impossible to contend against the terms of this decree, which ap- pear to me conclusive of the controversy between the parties. I have not given my mind to the question of homologation, VOL. L] SCOTCH APPEALS. 435 because the law of Scotland appears to be in that respect the same 1869 as the law of England. Not only must homologation be with full "EE knowledge of the right, but the act done must either be with the v - JOHNSTONE. intent and view to confirm the right, or an act necessarily in its tendency evincing an intention to confirm. On the whole, my Lords, it appears to me that the decree was effective ; and that at this distance of time it has now completely bound the rights of the parties, and prevents their questioning or disputing it. Therefore I shall move your Lordships to affirm the interlocutors complained of. LORD WESTBURY : This is a proceeding of great interest and great importance to the owners of land in Scotland. Your Lordships are called upon to rescind, or to refuse to give effect to, a quasi-judicial proceeding that took place 220 years ago. You are called upon to refuse it that interpretation and validity which it has hitherto received ; and under which, in fact, lands have been held, disposed of, transmitted, and enjoyed, without interruption, for more than two centuries. Now I know no greater obligation that lies upon a Court of Justice than that of supporting long continued enjoyment by every legal means, and by every reasonable presumption. And I dwell more particularly upon this obligation to presume everything that can be reasonably supposed to have existed in favour of long possession, because I do not find that principle quite so prominent as I could have desired in the judgments of the Court below, which, when they refer to this head of judicial decision, rather run off into the conclusion that the action is barred by negative prescription. The difference is very great. Negative prescription proceeds upon the foundation of the illegality and the imperfect obligation created by the thing that is challenged ; but the doctrine of presumption goes on the footing of validity, and upholds validity by supposing that everything was present which that validity required. The great principle, Omnia pnesumuntur ritefuisse ada, is the principle that ought to be observed, and not the ground that the thing itself was challengeable, but that the challenge is cut off by prescription. The proceeding in question was a g'wasz-judicial decree in the year 1647. The original registers of these proceedings were VOL. I. 2 2 R 436 SCOTCH APPEALS. [L. K. 1869 destroyed by fire in the year 1700 ; but a remedial statute was L EE passed in 1707, which created a special register for the extracts of JOHN!TONE ^ e Decrees that had perished, and gave to those extracts when registered the same validity as the original warrants would have had. First, therefore, with regard to this decree, the extract only of which is before us, we are not to impute to it the absence of any necessary formality. We may well assume that that formality would be found to have existed if the original decree had been preserved ; and the absence of formality may well be accounted for by the fact that we have nothing more than an imperfect extract of that original decree. The first objection which is made to this decree is, that the owner of the teinds, the "titular," as he is called in Scotland, does not appear to have been called in the proceeding. I can- not admit that this decree is to be judged of by the same rules which are applied to the records of judicial proceedings ; neither can I admit that it must be inferred that the true titular was not called in this proceeding. I mention that particularly, because although the observation is not necessary for the determination of this cause, yet I desire to have it understood that I am by no means willing to accept as a conclusive objection to the validity of a decree, the fact that the calling of the titular does not appear clearly on the records of the proceedings. It by no means follows that it. may not be assumed to have been done, although the fact that it was done is not entered upon the record of the pro- ceedings. But in the present case the objections on this head are two. First, upon the construction of the decree ; and secondly, upon the objections to the agreement extrinsic to the decree itself. First, with regard to the construction of the decree, it is said to be manifest that the Earl of Bucdeueh, who was the acknow- ledged tacksman of the teinds, was not there present in the cha- racter of titular. I can by no means accept such interpretation. The words must have their simple meaning ascribed to them. Tacksman is one character and titular is another character ; and the superaddition of " titular " to " tacksman " must, in conformity with every rule of construction, be held to denote that the Earl was VOL. L] SCOTCH APPEALS. there present and acting in the agreement not merely in the cha- 1869 racter of tacksman, but also in the additional character of titular. L EE And that might well be ; for it by no means follows as a proposi- JoHN g TONE tion of Scotch law that if a man be tacksman he cannot also be titular. The objection is founded, probably, upon the notion of English lawyers, that the tack or lease would merge in the rever- sion ; but that is by no means the rule of the Scotch law. The two legal characters and positions of ownership as tacksman and titular may well co-exist in one and the same person, and the identity of the legal effect of each be preserved, without their being injured by being brought into contact with one another. It is then said that it is quite plain that the agreement ought to be construed as an agreement of a temporary character. It is im- possible so to construe it consistently with the language of the agreement. The agreement purports be an agreement to last for all time coming. That is the character which it ascribes to itself that is the character in which it was received by the Commis- sioners that is the character and effect of the agreement to Which the authority of the Commissioners and their decree are inter- posed. We have therefore a proceeding in which this agreement was taken as an agreement to last for ever ; and in that capacity it was received by the persons exercising the duty of examining it, and the duty of giving it a quasi-judicial character, and with that view, and as having that force and effect, they do decree that it shall have that effect in all time to come. Then we are told that it was impossible that the Earl of Buc- cleuch could have been titular. And it is upon the supposed proof of that impossibility that we are called upon to reduce the agree- ment and, if we do not utterly rescind it, to give it the limited con- struction of being an agreement of a temporary kind. My Lords, that proof is an undertaking on the part of the Appellants, which it is impossible for any man to discharge. It is impossible for the Appellants, or for any man to prove that the Earl of Buccleuch had not obtained, even if it was only pro hac vice, a grant of the titu- larity, or a delegation from the titular, to represent the titular in this proceeding. And in conformity with the principles to which I have already referred, I should have no hesitation in declaring myself under an obligation to assume that there had been a grant 438 SCOTCH APPEALS. [L. E. 1869 of the titularity validly made to the Earl of Bucdeuch, even if I i^ were also obliged to assume that the Earl afterwards made a sur- * render of that grant, in order to lay a foundation for the subse- JOHNSTONE. _ b J quent grant which appears to have been made by the Crown. A presumption of that kind would be much less violent than other presumptions which have been made both in the law of England and in the law of Scotland and it is a presumption which is re- quired by the reason of the thing, and by the circumstances of the case because if you find a proceeding which has been accepted and fully recognized as having had entire legal validity for a period of two centuries, you are compelled by that fact to arrive at the conclusion that the proceeding was unchallengeable ; and then if you are asked to shew how it became unchallengeable, there is no difficulty in pointing out a legal mode of proceeding that would have given it that character, and which ought to be presumed as a thing that was possible. It is said, in addition to this, that the decree is not only bad on the grounds I have mentioned, but that it is bad also upon another ground, namely, that it did not proceed in the legal and required mode of taking evidence of the value of the teinds ; in other words, that an agreement between the parties ought not to have been substituted for evidence of the value. Now this is an objection which (independently of everything else) is incapable of being made by those who do not even aver or attempt to prove that the valuation given to the teinds by the agreement in the year 164:7 was less than the actual value. The 210 per annum Scots, which is the valuation given by the agreement, is not at- tempted by the Pursuers to be challenged on the ground that it was less than the actual value of the teinds. It is impossible, how- ever, to hold that there is any validity in this objection, because the industry of the parties has collected together a great number of instances of valuations of this description, proceeding not upon testimony, but upon that which supersedes testimony, namely, the agreement and confession of the parties. And it would be impos- sible therefore to hold that a valuation founded upon agreement was not a valuation upon testimony, or upon confession, which is superior to testimony. It is unnecessary, therefore, if we take this view of the subject, VOL. L] SCOTCH APPEALS. 439 namely, that the thing had validity, and must be deemed to be 1869 complete in all legal requirements, to advert to the minor ground, LEE which would exclude it from being challenged, even if it were sup- JOHX g' T SE posed to be objectionable ; but that minor ground would be quite sufficient for our determination. And undoubtedly it stands forth in a manner most intelligible. This decree was recorded under the remedial statute of 1707, in the year 1733. That appears to have been done at the time, with reference to a proceeding of locality and augmentation of stipend which took place in the year 1733. It is clear that either the Crown itself, or, at all events, the donatories of the Crown, were parties to that proceeding. The valuation itself must have been used or adverted to in that proceeding. The donatories, therefore, that is, the grantees of the titularity, had, in 1733, proof that this decree of 1647 was relied upon as a living and valid thing, not as a thing that was defunct or expired, but a thing which fixed the existing valuation of the teinds, and was treated by the heritors as their title deed, by which the teinds had .been conveyed to the heritors in consideration of the estate being charged with a commuted money charge instead of the teinds themselves. There are several other proceedings of subsequent dates all pregnant with the same conclusion. They are all occasions on which the decree of 1647 was appealed to as a thing of force, and upon which the heritors could rely. It was therefore on those oc- casions brought home to the knowledge of the donatories that there was this instrument set up against their title. And if they did not acquiesce in the meaning attributed to it, it was their bounden duty at once to challenge it and attempt to set it aside. That they have not done. -I advert to this not so much for the sake of setting up the negative prescription, as for the purpose of using this conduct, and these acts, and this acquiescence, as a con- firmation of the justice and reasonableness of the great presump- tion which I draw that the proceeding of 1647 had everything that was required to give it legal validity, and that therefore it ought not at this period to be challenged. My Lords, I hope that your Lordships will, and it is most mate- rial for the interests of Scotch landowners that you should, affirm these interlocutors, and dismiss this appeal with costs. VOL. I. 2 2 S 440 SCOTCH APPEALS. [L. R. 18C9 LORD COLONS AY: LEE My Lords, I had occasion to consider this case carefully in the JOHNSTONE. Court below, and I have listened with great interest to the argu-> ments at the Bar of this House. The judgment which I gave in the Court below I endeavoured to condense as much as I could, and to embrace in it, more as propositions than as matter of argu- ment, the views which I entertained. I have great satisfaction in finding that those views have now been confirmed by my noble and learned friends who have addressed the House ; and, looking at the position of matters, and at the business which we have to go through, I think it unnecessary to say more than that I now hold my former judgment as repeated here (1). Interlocutors complained of affirmed, and appeal dismissed with costs. Solicitors for the Appellants : Connell & Hope. Solicitors for the Eespondents : Loch & MeLaurin. (1) See 3rd Series, vol. v. p. 449. VOL. I.] SCOTCH APPEALS. 441 GEOEGE UDNY APPELLANT; 1869 *^Y**> JOHN HENEY UDNY EESPONDENT. Jane 3 - Political and Civil Status-^ Allegiance distinguished from Domicil. Every individual at his birth becomes the subject of some particular country by the tie of natural allegiance, which fixes his political status; and becomes subject to the law of the domicil, which determines his civil status. Per LORD WESTBURY : To suppose that for a change of domicil there must be a change of natural allegiance is to confound the political and the civil status, and to destroy the distinction between patria and domicilium. Per THE LORD CHANCELLOR (1) : A man may change his domicil as often as he pleases, but not his allegiance. JSxuere patriam is beyond his power. Dictum of Lord Kingsdown in Moorhouse v. Lord (2) qualified. Domicil of Origin. Per LORD WESTEURY : It is a settled principle that no man shall be without a domicil ; and to secure this end the law attributes to eveiy indi- vidual as soon as he is born the domicil of his father if the child be legitimate, and the domicil of his mother if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law not of the party. It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal ; but it cannot be destroyed by the will and act of the party. Domicils of Origin and of Choice distinguished. Domicil of choice is the creation of the party. When a domicil of choice is acquired the domicil of origin is in abeyance ; but is not absolutely ex- tinguished or obliterated. When a domicil of choice is abandoned, the domicil of origin revives, a special intention to revert to it being unnecessary. Per LORD CHELMSFORD : Story says that the moment a foreign domicil is abandoned, the native domicil is re-acquired. The word " re-acquired " is an inaccurate expression. The meaning is, that the abandonment of an acquired domicil ipso facto restores the domicil of origin. If after having acquired a domicil of choice a man abandons it and travels in search of another domicil of choice, the domicil of origin comes instantly into action and continues until a second domicil of choice has been acquired. Per LORD WESTBURY : A natural-born Englishman may domicile himself in Holland ; but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicil clings to him until he has set up his tabernacle elsewhere. (1) Lord IJatherley. (2) 10 H. L. C. 272. VOL. I. 2 2 T 442 SCOTCH APPEALS. [L. R. 1809 Legitimation per subsequens Matrimonium. UDNY ^^ ^ HE L 0110 CHANCELLOR : The status of the child, with respect to its v. capacity to be legitimated by the subsequent marriage of its parents, depends UDNY. wholly on the status of the putative father, not on that of the mother. According to English law where at the time of a bastard's birth the father has his domicil in England no subsequent change of domicil can render practicable the bastard's legitimation. JL HE late Colonel John Robert Fullerton Udny, of Udny, in the county of Aberdeen, though born at Leghorn, where his father was consul, had by paternity his domicil in Scotland. At the age of fifteen, in the year 1794, he was sent to Edinburgh, where he remained for three years. In 1797 he became an officer in the Guards. In 1802 he succeeded to the family estate. In 1812 he married Miss Emily FitzhugTi, retired from the army, and took upon lease a house in London, where he resided for thirty- two years, paying occasional visits to Aberdeenshire. In 1844, having got into pecuniary difficulties, he broke up his establishment in London and repaired to Boulogne, where he re- mained for nine years, occasionally, as before, visiting Scotland. In 1846 his wife died, leaving the only child of her marriage, a son, who, in 1859, died a bachelor. Some time after the death of his wife Colonel Udny formed at Boulogne a connection with Miss Ann Allot, which resulted in the birth at Camberwell, in Surrey, on the 9th of May, 1853, of a son, the above Respondent, whose parents were undoubtedly unmarried when he came into the world. They were, however, united after- wards in holy matrimony at Ormiston, in Scotland, on the 2nd of January, 1854, and the question was whether the Respondent, under the circumstances of the case, had become legitimate per subsequens matrimonium. The Court of Session (First Division) on the 14th of December, 1866 (1), decided that Colonel Udnys domicil of origin was Scotch, and that he had never altered or lost it, notwithstanding his long absences from Scotland. They 7 therefore found that his son, the Respondent, " though illegitimate at his birth, was legitimated by the subsequent marriage of his parents." Hence this appeal, which the House regarded as involving questions of greatly more than ordinary importance. (1) 3rd Series, vol. v. p. 164. VOL. L] SCOTCH APPEALS. 443 The Appellant argued his own case. 1869 UDNY Sir Roundell Palmer, Q.C., Mr. Mellish, Q.C., Mr. Fraser, and v Mr. Bristow, appeared for the Respondent. The following opinions of the Law Peers fully state the facts, the authorities, and the legal reasoning. THE LOED CHANCELLOK : My Lords, In this case the Appellant prays a judicial declara- tion that the Respondent is a bastard, -and is not entitled to suc- ceed to the entailed estates of Udny, in Aberdeenshire. The question depends upon what shall be determined to have been the domicil of the Respondent's father, the late Colonel Udny, at the time of his birth, at the time of the Respondent's birth, and at the time of the Colonel's marriage with the Respondent's mother. The Appellant, who argued his case in person with very consider- able ability, contended : First: That the domicil of origin of Colonel Udny was English. Secondly : That even if that were not so, yet that at the time of his first marriage, in 1812, he had abandoned Scotland for England, sold his commission in the army, took a house on lease for a long term in London, and resided there till he left England for France in 1844, for the purpose of avoiding his cre- ditors; and that having thus acquired an English domicil he re- tained it, and never re-acquired his Scotch domicil. Thirdly : That, at all events, if he did recover his Scotch domicil, yet it was not recovered at the date of the Respondent's birth in May, 1853, nor even at the date of the intermarriage of the Respondent's parents in January 1854. As regards the first question, your Lordships did not hear the Respondents. You were satisfied that Colonel Udny's father, the consul, had never abandoned his Scottish domicil. Consequently you held that Colonel Udny's own domicil of origin was clearly Scotch, that having been the domicil of his father at the Colonel's birth. A more difficult inquiry arose as to the domicil of Colonel Udny at the date of the Respondent's birth in May, 1853. 2 T 2 444 SCOTCH APPEALS. [L. R 1869 Colonel TJdny appears to have left the army about the same time UDNY that he married his first wife, viz. in 1812, when he executed a con- IT r ' tract and other instruments connected with his marriage, containing provisions referable to Scottish law, and describing himself as of Udny, in the county of Aberdeen. He, on his marriage, however, took a long lease of a house in London, in which he resided till 1844. He made frequent visits to Scotland, but had no residence there. He at one time contemplated restoring Udny Castle and even three years after he had commenced his residence in London appears to have still thought it possible that he might complete the restoration and plans were about that time submitted to him for that purpose. For many years, however, he seems to have abandoned all hope of so doing, owing to his means being insuffi- cient. He was appointed a magistrate in Scotland, but appears not to have acted as such. When in Scotland he usually resided with friends, but occasionally at hotels in the neighbourhood of his pro- perty, and he continually received detailed accounts of the estates, and took much interest in their management. His choice of Eng- land as a residence appears to have been considerably influenced by his taste for the sports of the turf. By his first marriage he had a son, John Augustus Udny. The Judge Ordinary and the Court of Session concurred in opinion that the long and habitual residence in England was not sufficient to amount to an abandonment of the Colonel's Scottish domicil of origin. This point, I confess, appears to me to be one of great nicety. I am not prepared to say that I am satisfied with that conclusion ; but neither should I be prepared, without further consideration, to recommend to your Lordships a reversal of the judgment appealed from on the ground that the opinions of the Court below upon this point were erroneous. Owing to this action having been raised in the Colonel's lifetime, the Court below had the advantage of the testimony of Colonel Udny himself, a circumstance which does not often occur in ques- tions of domicil. It appears to have been very candidly given, and (as was observed by the Lord Ordinary) by no means over- states the case in favour of the continuance of his Scottish domicil. Several other witnesses were examined, who do not carry the case further. But, be this as it may, the events in the Colonel's VOL. I.] SCOTCH APPEALS. 445 life, subsequent to 1844, appear to me to be those upon which the 1869 question of his domicil at the birth of the Respondent really UDNY depend. In 1844, the Colonel, after having been involved for some time in pecuniary difficulties (owing chiefly to his connection with the turf), was compelled to leave England, in order to avoid his cre- ditors. He at first thought of taking some house " in the country," by which I think he meant in the rural parts of England; but afterwards the pressure of creditors became too great to admit of his so doing, and he appears, in the autumn, to have visited Scot- land, where correspondence took place between himself and his agent as to arranging a trust deed by which Colonel Udny and his son, John Augustus, were to make provision, as far as possible, for the payment of their debts. On the 2nd of October, he writes to his agent, mentioning that a creditor is pressing for immediate pay- ment of 1200 " So let there be no time lost." And by a letter of his son of the 4th of November, 1844, it appears that his father had left England for Calais on the previous day. He about this time sold the lease of the London house in which he had so long resided. He sold also (as he himself states in his evidence) all his furniture and " everything that was in the house, including what had belonged to his mother, his sister, and his first wife." He went from Calais to Boulogne, and there resided in a hired house till 1853. He says in his evidence : When I went to Boulogne I had no further connection with London. I had a married sister living there, and various other relations. During the nine years when my head-quarters were at Boulogne I never resided in London. The time that I came over for my wife's confinement in 1853 was the first time that I had visited London after leaving it for Boulogne. I remained there at that time only about a couple of days and returned to Boulogne. While I was at Boulogne, I came over more than once to Scotland to visit my property. These were not long visits, but I did make them. The wife alluded to in the above statement is the mother of the Respondent. The Colonel's first wife did not go with him to Boulogne, but she joined him for a short time in 1845, leaving him afterwards on account of ill-health, and residing with his brother in London. She died in 1846. The Colonel at Boulogne formed an illicit connection with the mother of the Respondent, and in May, 1853, came to England 446 SCOTCH APPEALS. [L. K. 1869 in consequence of a wish that she should be attended in her Ij^yr confinement by an English accoucheur ; and on the 9th of May, ,, v - 1853, the Respondent was born at Camberwett. The Colonel ap- pears to have returned almost immediately to Boulogne. He had been living on a very scanty allowance his eldest son, too, was embarrassed and at a very early period after the birth of the Respondent the father and son appear to have thought that the birth of this child might facilitate the barring of the entail of the Scotch estates ; for in a letter of the 29th of May, 1853, the Colonel writes to his son : " I shall be glad to hear of your interview with Mr. Skinner" (their legal adviser). "I think the great difficulty will be the uncertainty of the child's life ; however, you will talk over all these matters with him." The Colonel was advised that by marrying the Respondent's mother he might, according to the law of Scotland, render the Respondent legitimate, and that then the concurrence of the Appellant in barring the entail would not be requisite. The advice on this latter point was erroneous ; but it is enough to say that the Colonel came over to Scotland in November, 1853, clearly with the intent to celebrate a marriage with the Respondent's mother, and with the hope of raising money for the benefit of his elder son and him- self by getting rid of the entail. He was under an impression that his English creditors could not molest him whilst in Scotland. He was much mortified afterwards to find that this was not the case, and wrote several letters to his son and others expressive of his disgust at having been hurried away from Boulogne, and his dislike to residing in Scotland. But I cannot bring my mind to doubt that his intention in returning to Scotland was to do that which he accomplished, namely, to marry, in regular form, the Respondent's mother, and for that purpose to be domiciled there. In his letter of the 9th of July, 1859, he expressly asserts it to have been his intention in 1853 to be permanently domiciled in Scotland ; but that letter may be open to the objection that it was written very shortly ante litem motam. I do not think that we can safely rely on the deed of disposition by his elder son of the 2nd of December, 1853, which recites " that the Colonel had made arrangements to return again to and to remain in Scotland" because the father was not a party to that instrument. But, on the other hand, though the VOL. I] SCOTCH APPEALS. 447 recital itself may not be evidence, yet the Colonel took advantage 1869 of that instrument. And the whole course of the arrangements UDNY made shews that the Colonel's intent, for which alone he came to TJJJXY Scotland, was by his marriage to make the Eespondent legitimate, and by means of that legitimation to deal with the estates. These objects required a Scottish domicil ; and it would be singular to hold that he having, in fact, married on the 2nd of January, 1854, and resided in Scotland thenceforth to his death in 1861 (after the raising of the present action), the domicil must not be taken to have been Scottish, as it ought to be, for the purposes he had in view from the time of his return in 1853. It is true that the death of his elder son in the interval between the marriage and death of the Colonel, and the consequent falling in of the policies of insurance on his life, placed the Colonel to a certain degree in an easier posi- tion, and removed his apprehension of difficulty from his creditors : but I think his possible intention to leave Scotland (if molested by creditors) in no way disproves the existence of a resolution to re- main, as he did, in that country (if allowed so to do) as his chosen and settled abode. It seems therefore clear to me that the Colonel was, at the time of his marriage, domiciled in Scotland ; but the question remains as to what was his domicil in^ May, 1853, at the time of the Respondent's birth. If he were domiciled in England up to 1844, and retained an English domicil up to and after May, 1853, then the question would arise, which has not been determined in any case by the Scottish Courts, whether the child, being illegitimate at its birth, and its putative father not having at that time a power of legiti- mating him by means of a subsequent marriage with his mother, could be legitimated by his putative father subsequently acquiring a Scottish domicii before marriage with the mother. I have myself held, and so have other Judges in the English Courts, that according to the law of England a bastard child whose putative father was English at its birth could not be legitimated by the father afterwards acquiring a foreign domicil and marrying the mother in a country by the law of which a subsequent marriage would have legitimated the child. I see no reason to retract that opinion. The status of the child, with respect to its capacity to 148 SCOTCH APPEALS. [L. E. 1869 be legitimated by the subsequent marriage of its parents, depends UDNY wholly on the status of the putative father, not on that of the mother. If the putative father have an English domicil the Eng- lish law does not, at the birth of the child, take notice of the putative father's existence. But if his domicil be Scottish, or of any other country allowing legitimation, though the mother be English at the birth, the putative father (as in Munro v. Munro (1) ) is capable of legitimating the child. The foreign law, though deeming the child to bejilius nullius at birth, yet recognises the father as such at the moment of his acknowledging the child, either by marriage and formal recognition, as in France, or by marriage only, as in Scotland. I do not think that the English law can recognise a capacity in any Englishman, by a change of domicil, to cause his paternity and consequent power of legitimation to be recognised. But however this may be, the question does not, in my judgment, here arise. I am of opinion that the English domicil of Colonel Udny, if it were ever acquired, was formally and completely abandoned in 1844 when he sold his house and broke up his English establishment with the intention not to return. And, indeed, his return to that country was barred against him by the continued threat of process by his creditors. I think that on such abandonment his domicil of origin revived. It is clear that by our law a man must have some domicil, and must have a single domicil. It is clear, on the evidence, that the Colonel did not contemplate residing in France and, indeed, that has scarcely been contended for by the Appellant. But the Appellant contends that when once a new domicil is acquired, the domicil of origin is obliterated, and cannot be re-acquired more readily or by any other means than those by which the first change of the original domicil is brought about, namely, animo et facto. He relied for this proposition on the decision in Munroe v. Douglas (2), where Sir John Leach cer- tainly held that a Scotsman, having acquired an Anglo-Indian domicil, and having finally quitted India, but not yet having settled elsewhere, did not re-acquire his original domicil ; saying expressly, " I can find no difference in principle between an original domicil and an acquired domicil." That he acquired no new (1) 7 01. & F. 842. (2) 5 Madd. 379. VOL. I] SCOTCH APPEALS. 449 domicil may be conceded, but it appears to me that sufficient i860 weight was not given to the effect of the domicil of origin, and U DNY that there is a very substantial difference in principle between an original and an acquired domicil. I shall not add to the many ineffectual attempts to define domicil. But the domicil of origin is a matter wholly irrespective of any animus on the part of its subject. He acquires a certain status civilis, as one of your Lord- ships has designated it, which subjects him and his property to the municipal jurisdiction of a country which he may never even have seen, and in which he may never reside during the whole course of his life, his domicil being simply determined by that of his father. A change of that domicil can only be effected animo et facto that is to say, by the choice of another domicil, evidenced by residence within the territorial limits to which the jurisdiction of the new domicil extends. He, in making this change, does an act which is more nearly designated by the word " settling " than by any one word in our language. Thus we speak of a colonist settling in Canada or Australia, or of a Scotsman settling in England, and the word is frequently used as expressive of the act of change of domicil in the various judgments pronounced by our Courts. .But this settlement animo et facto by which the new domicil is acquired is, of course, susceptible of abandonment if the intention be evi- denced by facts as decisive as those which evidenced its acquire- ment. It is said by Sir John Leach, that the change of the newly. acquired domicil can only be evidenced by an actual settling else- where, or (which is, however, a remarkable qualification) by the subject of the change dying in itinere when about to settle himself elsewhere. But the dying in itinere to a wholly new domicil would not, I apprehend, change a domicil of origin if the intended new domicil were never reached. So that at once a distinction is admitted between what is necessary to re-acquire the original domi- cil and the acquiring of a third domicil. Indeed, the admission of Sir John Leach seems to have been founded on the actual deci- sion of the case of Colville v. Saunders, cited in full in Munroe v. Douglas, from the Dictionary of Decisions. In that case, a person of Scottish origin became domiciled at St. Vincent, but left that island, writing to his father and saying that his health was injured, 450 SCOTCH APPEALS. [L. E. 1869 and he was going to America; and that if he did not succeed l^y in America he would return to his native country. He was drowned , T * in Canada, and some memoranda were found indicating an inten- UDNT. tion to return to Scotland, and it was held that his Scottish domi- cil had revived. It seems reasonable to say that if the choice of a new abode and actual settlement there constitute a change of the original domi- cil, then the exact converse of such a procedure, viz., the intention to abandon the new domicil, and an actual abandonment of it, ought to be equally effective to destroy the new domicil. That which may be acquired may surely be abandoned, and though a man cannot, for civil reasons, be left without a domicil, no such difficulty arises if it be simply held that the original domicil revives. That original domicil depended not on choice but attached itself to its subject on his birth, and it seems to me con- sonant both to convenience and to the currency of the whole law of domicil to hold that the man born with a domicil may shift and vary it as often as he pleases, indicating each change by in- tention and act, whether in its acquisition or abandonment; and further, to hold that every acquired domicil is capable of simple abandonment animo et facto the process by which it was acquired, without its being necessary that a new one should be at the same time chosen, otherwise one is driven to the absurdity of assert- ing a person to be domiciled in a country which he has reso- lutely forsaken and cast off, simply because he may (perhaps for years) be deliberating before he settles himself elsewhere. Why should not the domicil of origin cast on him by no choice of his own, and changed for a time, be the state to which he naturally falls back when his first choice has been abandoned animo et facto, and whilst he is deliberating before he makes a second choice. Lord Cottenham in Munro v. Munro (1) says, " So firmly indeed did the civil law consider the domicil of origin to adhere that it holds that if it be actually abandoned and a domicil acquired, but that again abandoned, and no new domicil acquired in its place, the domicil of origin revives." No authority is cited by his Lord- ship for this. He probably alluded to some observations which (1) 7-C1. &F.871. VOL. I] SCOTCH APPEALS. 451 occur in the case of La Virginie (1) where Sir William Scott 186D said : UDNY v. It is always to be remembered that the native character easily reverts, and that it requires fewer circumstances to constitute domicil in the case of a native sub- ject than to impress the national character on one who is originally of another country. In the case of The Indian Chief (2) the question was whether the ship was the property of a British subject ; for if so, her trading was illegal. The owner, Mr. Johnson, averred that he was an American. Sir William Scott held him to be an American by origin, but that having come to England in 1783 and remained till 1797, he had become an English merchant. But he quitted England before the capture of the vessel, and letters were produced shewing his intention to return to America, which he does not appear to have reached until after. And Sir William Scott says, " The ship arrives a few weeks after his departure, and taking it to be clear that the natural character of Mr. Johnson as a British merchant was founded on residence only, that it was acquired by residence, and rested on that circumstance alone, it must be held that from the moment he turned his back on the country where he had resided on his way to his own country he was in the act of resuming his original character, and is to be considered as an American. The character that is gained by residence ceases by residence. It is an adventitious character which no longer adheres to him from the moment that he puts himself in motion bond fide to quit the country sine animo revertendi" Story, in his Conflict of Laws, sect. 47 (at the end), says : " If a man has acquired a new domicil different from that of his birth, and he removes from it with intention to resume his native domi- cil, the latter is re-acquired even while he is on his way, for it reverts from the moment the other is given up." The qualification that he must abandon the new domicil with the special intent to resume that of origin is not, I think, a reason- able deduction from the rules already laid down by decision, be- cause intent not followed by a definitive act is not sufficient. The more consistent theory is, that the abandonment of the new domi- (1) 5 Rob. Adm. 99. (2) 3 Bob. Adm. 12. 452 SCOTCH APPEALS. [L. K. 1869 cil is complete animo et facto, because the factum is the abandon- UDNT ment, the animus is that of never returning. ^ nave stated my opinion more at length than I should have done were it not of great importance that some fixed common principles should guide the Courts in every country on international questions. In questions of international law we should not depart from any settled decisions, nor lay down any doctrine inconsistent with them. I think some of the expressions used in former cases as to the intent " exuere patriam" or to become " a Frenchman instead of a Englishman," go beyond the question of domicil. The question of naturalization and of allegiance is distinct from that of domicil. A man may continue to be an Englishman, and yet his contracts and the succession to his estate may have to be determined by the law of the country in which he has chosen to settle himself. He cannot, at present at least, put off and resume at will obligations of obedience to the government of the country of which at his birth he is a subject, but he may many times change his domicil. It appears to me, however, that each ac- quired domicil may be also successively abandoned simpliciter, and that thereupon the original domicil simpliciter reverts. For these reasons, my Lords, I propose to your Lordships the affirmation of the interlocutors complained of, and the dismissal of the appeal with costs. LOED CHELMSFOKD : My Lords, at the opening of the argument of this appeal for the Eespondent his learned counsel were informed that your Lordships were of opinion that the domicil of Colonel Udny down to the year 1 812 was his Scotch domicil of origin, and that the case was therefore narrowed down to the questions raised by the Appellant, whether that domicil had been superseded by the acquisition of another domicil in England, and whether such after - acquired domicil was retained at the time of the birth of the Eespondent, and continued down to the period of the marriage of the Kespon- dent's parents in Scotland. In considering these questions it will be necessary to ascertain the nature and effect of a domicil of origin ; whether it is like an after-acquired domicil, which when it is relinquished can be re-ac- VOL. L] SCOTCH APPEALS. 453 quired only in the same manner in which it was originally acquired, i860 or whether, in the absence of any other domicil, the domicil of UDNY origin must not be had recourse to for the purpose of determining any question which may arise as to a party's personal rights and relations. Story, in his Conflict of Laws (sect. 48), says, " The moment a foreign domicil is abandoned the native domicil is re-acquired." Great stress was laid by the Appellant in his reference to this pas- sage upon the word " re-acquired," which is obviously an inaccurate expression. For, as was pointed out in the course of the argument, a domicil of origin is not an acquired domicil, but one which is attributed to every person by law. The meaning of Story, there- fore, clearly is, that the abandonment of a subsequently-acquired domicil ipso facto restores the domicil of origin. And this doctrine appears to be founded upon principle, if not upon direct authority. It is undoubted law that no one can be without a domicil. If, then, a person has left his native domicil and acquired a new one, which he afterwards abandons, what domicil must be resorted to to determine and regulate his personal status and rights ? Sir John Leach, V.C., in Munroe v. Douglas (1), held that in the case supposed the acquired domicil attaches to the person till the complete acquisition of a subsequent domici], and (as to this point) lie said there was no difference in principle between the original domicil and an acquired domicil. His Honour's words are : " A domicil cannot be lost by mere abandonment. It is not to be defeated ammo merely, but animo et facto, and necessarily remains until a subsequent domicil be acquired, unless the party die in itinere towards an intended domicil." There is an apparent inconsistency in this passage, for the Vice-Chancellor having said that a domicil necessarily remains until a subsequent domicil be acquired animo et facto, added, "unless the party die in itinere towards an intended domicil ;" that is, at a time when the acqui- sition of the subsequent domicil is incomplete and rests in intention only. I cannot understand upon what ground it can be alleged that a person may not abandon an acquired domicil altogether and cany (1) 5 Madd. 405. 454 SCOTCH APPEALS. [L. E. 1869 out his intention fully by removing animo non revertendi ; and UDNY why such abandonment should not be complete until another UDNT doinicil is acquired in lieu of the one thus relinquished. Sir William Scott, in the case of The Indian Chief (1), said : " The character that is gained by residence ceases by residence. It is an adventitious character which no longer adheres to a person from the moment he puts himself in motion bond fide to quit the country sine animo revertendi" and he mentions the case of a British- born subject, who had been resident in Surinam and St. Eustatius, and had left those settlements with an intention of returning to this country, but had got no farther than Holland, the mother country of those settlements, when the war broke out ; and it was deter- mined by the Lords of Appeal that he was in itinere, that he had put himself in motion, and was in pursuit of his native British character." Sir John Leach seems to me to be incorrect also in saying that in the case of the abandonment of an acquired domicil there is no difference in principle between the acquisition of an entirely new domicil and the revival of the domicil of origin. It is said by Story, in sect. 47 of his Conflict of Laws, that " If a man has acquired a new domicil different from that of his birth, and he removes from it with an intention to resume his native domicil, the latter is re-acquired even while he is on his way in itinere ; for it reverts from the moment the other is given up." This certainly cannot be predicated of a person journeying towards a new domicil which it is his intention to acquire. I do not think that the circumstances mentioned by Story in the above passage, viz., that the person has removed from his acquired domicil with an intention to resume his native domicil, and that he is in itinere for the purpose, are at all necessary to restore the domicil of origin. The true doctrine appears to me to be ex- pressed in the last words of the passage : " It " (the domicil of origin) " reverts from the moment the other is given up." This is a necessary conclusion if it be true that an acquired domicil ceases entirely whenever it is intentionally abandoned, and that a man can never be without a domicil. The domicil of origin always remains, as it were, in reserve, to be resorted to (1) 3 Rob. Adm. 20. VOL. L] SCOTCH APPEALS. 455 in case no other domicil is found to exist. This appears to me 1869 < yw to be the true principle upon this subject, and it will govern my UDNY opinion upon the present appeal. Upon the question whether Colonel Udny ever acquired an English domicil which superseded his domicil of origin, there can be no doubt that his long residence in Grosvenor Street for the space of thirty-two years from 1812 to 1844, is calculated to pro- duce a strong impression in favour of the acquisition of such a domicil. Time is always a material element in questions of domicil ; and if there is nothing to counteract its effect, it may be conclusive upon the subject. But in a competition between a domicil of origin and an alleged subsequently-acquired domicil there may be circumstances to shew that however long a residence may have continued no intention of acquiring a domicil may have existed at any one moment during the whole of the con- tinuance of such residence. The question in such a case is not, whether there is evidence of an intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil. As already shewn, the domicil of origin remains till a new one is acquired animo et facto. There- fore, a wish or a desire expressed from time to time to return to the place of the first domicil, or any looking to it as the ultimate home, although wholly insufficient for the retention of the domicil of origin, may yet amount to material evidence to rebut the pre- sumption of an intention to acquire a new domicil arising from length of residence elsewhere. In this view it would be a fair answer to the question, Did Colonel Udny intend to make England his permanent home ? to point to all his acts and declarations with respect to Scotland and his estates there, to the offices which he held, to the institutions to which he belonged, and to his subscrip- tions to local objects, shewing, that though his pursuits drew him to England and kept him there, and his circumstances prevented his making Udny Castle fit for his residence, he always entertained a hope, if not an expectation, that a change in his fortunes might eventually enable him to appear in his country of origin, and to assume his proper position there as a Scotch proprietor. If the residence in England began under circumstances which indicate no intention that it was to be permanent, when did it 456 SCOTCH APPEALS. [L. E. 1869 assume the character of permanence by proof that the Colonel UDNT na( i intentionally given up his Scotch domicil and adopted a u * different one ? It appears to me upon this question of fact, that throughout the whole of the Colonel's residence in London there was always absent the intention to make it his permanent home which is essential to constitute a domicil ; residence alone, how- ever long, being immaterial unless coupled with such intention. But even if it should be considered that Colonel Udny's residence in England, though not originally intended to be his permanent home, after a certain length of time ripened into a domicil, yet in 1844 he gave up the house in Grosvenor Street and returned to Boulogne, where he remained for nine years without any apparent intention of again taking up his residence in England. This abandonment of the English residence, both in will and deed, although accompanied with no immediate intention of resuming the Scotch domicil, put an end at once to the English domicil, and the domicil of origin ipso facto became the domicil by which the personal rights of Colonel Udny were thenceforth to be regu- lated. This makes it unnecessary to consider what would have been the condition of the Eespondent if his birth had taken place in Eng- land before the resumption of the Scotch domicil by Colonel Udny, and the subsequent marriage of his parents in Scotland after that domicil had been resumed. Because the domicil being Scotch, the place of the birth of the Eespondent is wholly imma- terial, and the case is completely governed by the authority of the cases of Dalhousie v. McDouall (1) and Munro v. Munro (2), in each of which the birth of the illegitimate child, and also the sub- sequent marriage of the parents, took place in England, but the domicil being Scotch it was held that neither the place of the marriage nor the place of the birth affected the status of the child. The existence of the Scotch domicil renders it also unnecessary to consider whether the parents of the Eespondent went to Scotland for the purpose merely of legitimating the Eespondent by their marriage there, and deprives the case of Rose v. Boss (3), which was insisted upon by the Appellant, of all application. For in that (l; 7 Cl. & F. 817. (2) Ibid. 842. (3) 4 Wile. & Shaw, 289. TOL. L] SCOTCH APPEALS. 457 case, as stated by the Lord Chancellor, " the parties were domiciled 1869 -**-/"-' in England, the child was born in England, the parties went to U DNY Scotland for the purpose expressly of being married, and having been married they returned to England to the place of their former domicil." I agree with my noble and learned friend that the interlocutors appealed from ought to be affirmed. LORD WESTBTJRY : The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions ; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status ; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The poli- tical status may depend on different laws in different countries ; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion esta- blished by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. International law depends on rules which, being in great measure derived from the Eoman law, are common to the jurisprudence of all civilized nations. It is a settled principle that no man shall be without a domicil, and to secure this result the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother if illegitimate. This has been called the domicil of origin, and is involuntary. Other domicils, including domicil by operation of law, as on marriage, are domicils of choice. For as soon as an individual is sui juris it is competent to him to elect and assume another domicil, the continuance of which depends upon his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished, and VOL. J. 2 U 458 SCOTCH APPEALS. [L. E. 1869 remains in abeyance during the continuance of the domicil of UDNY choice ; but as the domicil of origin is the creature of law, and UDNY independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obli- terated and extinguished It revives and exists whenever there is no other domicil, and it does not require to be regained or recon- stituted animo et facto, in the manner which is necessary for the acquisition of a domicil of choice. Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness ; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future con- templation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general an 1 unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is esta- blished. The domicil of origin may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal ; but it cannot be destroyed by the will and act of the party. Domicil of choice, as it is gained animo et faeto, so it may be put an end to in the same manner. Expressions are found in some books, and in one or two cases, that the first or existing domicil remains until another is acquired. This is true if applied to the domicil of origin, but cannot be true if su ;h general words were intended (which is not probable) to convey the conclusion that a domicil of choice, though unequivocally relinquished and aban- doned, clings, in despite of his will and acts, to the party, until another domicil has animo et facto been acquired. The cases to which I have referred are, in nay opinion, met and controlled by VOL. I] SCOTCH APPEALS. 459 other decisions. A natural-born Englishman may, if he domiciles i860 himself in Holland, acquire and have the status civilis of a Dutch- UDNY man, which is of course ascribed to him in respect of his settled abode in the land, but if he breaks up his establishment, sells his house and furniture, discharges his servants, and quits Holland, declaring that he will never return to it again, and taking with him his wife and children, for the purpose of travelling in France or Italy iu search of another place of residence, is it meant to be said that he carries his Dutch domicil, that is, his Dutch citizenship, at his back, and that it clings to him pertinaciously until he has finally set up his tabernacle in another country ? Such a conclusion would be absurd ; but there is no absurdity and, on the contrary, much reason, in holding that an acquired domicil may be effect- ually abandoned by unequivocal intention and act ; and that when it is so determined the domicil of origin revives until a new domi- cil of choice be acquired. According to the dicta in the books and cases referred to, if the Englishman whose case we have been supposing lived for twenty years after he had finally quitted Hol- land, without acquiring a new domicil, and afterwards died intes- tate, his personal estate would be administered according to the law of Holland, and not according to that of his native country. This is an irrational consequence of the supposed rule. But when a proposition supposed to be authorized by one or more decisions involves absurd results, there is great reason for believing that no such rule was intended to be laid down. In Mr. Justice Story's Conflict of Laws (the last edition) it is stated that " the moment the foreign domicil (that is the domicil of choice) is abandoned, the native domicil or domicil of origin is re-acquired." And such appears to be the just conclusion from several decided cases, as well as from the principles of the law of domicil. In adverting to Mr. Justice Story's work, I am obliged to dissent from a conclusion stated in the last edition of that useful book, and which is thus expressed, "The result of the more recent English cases seems to be, that for a change of national domicil there must be a definite and effectual change of nationality." In support of this proposition the editor refers to some words which appear to have fallen from a noble and learned lord in addressing 460 SCOTCH APPEALS. [L. B. 1869 this House in the case of Moorhouse v. Lord (1), when in speaking u]^ of the acquisition of a French domicil, Lord Kingsdown says, " A * man must intend to become a Frenchman instead of an English- man." These words are likely to mislead, if they were intended to signify that for a change of domicil there must be a change of nationality, that is, of natural allegiance. That would be to confound the political and civil states of an individual, and to destroy the difference between patria and domi- cilium. The application of these general rules to the circumstances of the present case is very simple. I concur with my noble and learned friend that the father of Colonel Udny, the consul at Leghorn, and afterwards at Venice, and again at Leghorn, did not by his residence there in that capacity lose his Scotch domicil. Colonel Udny was, therefore, a Scotchman by birth. But I am certainly inclined to think that when Colonel Udny married, and (to use the ordinary phrase) settled in life and took a long lease of a house in Grosvenor Street, and made that a place of abode of himself and his wife and children, becoming, in point of fact, sub- ject to the municipal duties of a resident in that locality ; and when he had remained there for a period, I think, of thirty-two years, there being no obstacle in point of fortune, occupation, or duty, to his going to reside in his native country ; under these circumstances, I should come to the conclusion, if it were neces- sary to decide the point, that Colonel Udny deliberately chose and acquired an English domicil. But if he did so, he as certainly relinquished that .English domicil in the most effectual way by selling or surrendering the lease of his house, selling his furniture, discharging his servants, and leaving London in a manner which removes all doubt of his ever intending to return there for the purpose of residence. If, therefore, he acquired an English domi- cil he abandoned it absolutely animo et facto. Its acquisition being a thing of choice, it was equally put an end to by choice. He lost it the moment he set foot on the steamer to go to Boulogne, and at the same time his domicil of origin revived. The rest is plain. The marriage and the consequences of that marriage (1) 10 H. L. C. 272. VOL. I.] SCOTCH APPEALS. 461 must be determined by the law of Scotland, the country of his domicil. LORD COLONSAY : I regard this case as one of very considerable importance, inas- much as it has afforded an opportunity for bringing out, more clearly than has been done in any of the former cases, the radical distinction between domicil of origin and doinicil of choice. The principles of that distinction and the facts have been so clearly put before the House that I need do no more than express my concurrence. 1869 JUDGMENT: Ordered and Adjudged, that the said interlocutor of the Lords of Session in Scotland, of the Second Division, of the 14th of December, 1866, com- plained of in the said appeal, be varied by substituting for the words "that he never lost his said domicil of origin " these words, " and that if such domicil of origin was ever changed, yet by leaving England in 1844 his domicil of origin reverted ;" and that, with this variation, the said interlocutor be, and the same is, hereby affirmed, and that the said petition and appeal be, and the same is, hereby dismissed this House. Solicitors for the Appellant : Cover dale, Lee, Bristow, & Withers. Solicitors for the Respondent : White, Broughton, & White. UDNY V. UDNY. 462 SCOTCH APPEALS. [L. R. 1869 CAMPBELL APPELLANT ; ". THE EAKL OF DALHOUSIE ek al. . . . . RESPONDENTS. Perpetuation of Testimony Witnesses out of the Jurisdiction. Proceedings under the 5 & 6 Viet, c. 69, and 22 Viet. c. 20, ought to be jealously watched. Per THE LORD CHAKCELLOB : It was not intended to give a party seeking to perpetuate testimony rights stronger than those which would belong to him in an actual and present litigation. Subpoena duces tecum. A witness may well excuse himself for not bringing with him and producing documents which he has under trust, and the right to which is, or may become, the subject of litigation. He is not bound to search for them, if he shews that they are in a place to which access on his part is buth legally and physically impossible. 1 HE Appellant, Donald Campbell, in the event of the death of his elder brother without issue, will be, as he contends, the next heir male of the body of John Campbell, first Earl of Breadal- bane ; and as such will be entitled to the honours and dignities of Earl of Breadalbane and Holland, Viscount Tay and Pentland, Baron GlenorcTiy, &c. ; and also to the estates which belong to the possessor of these honours and dignities. On the 16th of September, 1865, the Appellant filed a bill in the English Court of Chancery to perpetuate testimony for the establishment of his contingent claim. This was done under the 5 & 6 Viet. c. 69, which allowed the proceeding. As it turned out that some of the proposed witnesses, and cer- tain of the documents required, were in Scotland, the Appellant took advantage of the 22 Viet. c. 20, which provides for the taking of evidence from witnesses who, though beyond the jurisdiction of the Court, are within the Queen's dominions. One of the Vice- Chancellors was consequently asked to appoint an Examiner (Mr. Duncan, of the Scotch Bar) in Scotland. This was done; and, afterwards, a writ of subpoena duces tecum was sued out for service on the witnesses ; the writ setting forth the documents desired. On the 14th of May, 1867, the Appellant petitioned the Scotch Court to order the examination of Lord Dalnousie, Lord Jervis- VOL. I] SCOTCH APPEALS. 463 woode, and Mr. Currie (trustees of the late Marquis of BreadaTbane), 1869 and of their solicitors, Messrs. Davidson & Si/me. The Appellant CAMPBELL further prayed that "the said trustees should produce and exhibit THEEABLOF the papers and writings mentioned in the subpoena duces teeum, DALHOUSIE. or such of them as were in their possession, custody, or power." On the llth of June, 1867, the Court ordered the proposed witnesses to appear before the examiner for examination; but, quoad ultra, the Court superseded the consideration of the Petition ; making no order as to the production and exhibition of documents. A correspondence then ensued between the solicitors of the Appellant and the solicitors of the Respondents in Edinburgh, from which it appeared that the witnesses sought to be examined were in fact the Respondents, from whom the Appellant expected the production before the Examiner of various documents and title deeds supposed to be deposited in the Charter or Muniment room of Taymouth Castle; of which room the Respondents had the key, but to which room they had no access, as the castle itself was in the possession of the present possessor of the estate, the Earl of BreadaTbane. It was, however, arranged that Lord Jerviswoode, one of the late Marquis's trustees, should be examined. On the 10th of October, 1867, his Lordship gave the following evidence: I am one of the testamentary trustees of the late Marquis of Breadalbane. Messrs. Davidson & Syme, writers to the signet, are the agents of the trustees. I have been informed by them that a list of documents and papers which the Plaintiff desires to have now exhibited, has been communicated to them as agents for the trustees, and that list I have now received. I have none of these docu- ments or papers with me. Q. Are the trustees willing to exhibit before the Examiner the documents and papers specified in that list, or any of them? A. There was a key taken possession of by the trustees, after the late Marquis's death, which was understood to be the key of the charter room at Taymouth Castle. This key was in the hands of Messrs. Davidson & Syme, as agents for the trustees. It is still in their hands. There has been no search, so far as I am aware, of the room at Taymouth Castle, understood to be the charter room, for any of the documents or papers in said list. 1 cannot say that the trustees will undertake a search of this room. I may say that they will not make such a search, unless under the authority or order of the Court. He-examined. I understand the reason why the trustees will not search for or exhibit the documents and papers called for without judicial authority to be, because there is a question raised as to the party who has right to the documents 464 SCOTCH APPEALS. [L. R. 1869 in the charter room, or connected with the family or estates, and that they think it proper to do nothing in the matter without judicial authority. CAMPBELL v. THE EABL OF The Appellant was not satisfied with the explanation of Lord DALHOUSIE. j erv i swoo d e . Accordingly, on the 26th of November, 1867, he presented to the Court of Session a supplemental Petition, praying an order upon the Kespondents to search for and exhibit the documents in question. The Court of Session, however, refused this application, holding that under the extraordinary circumstances of the case the Petition must be refused (1). Hence the present appeal to the House. Mr. Anderson, Q.C., Mr. Prentice, Q.C., and Mr. Steele, were of Counsel for the Appellant. Mr. Pearson, Q.C., and Mr. Stair Agnew, appeared for the Respondents. The Solicitor-General for Scotland (2), Sir Eoundell Palmer, Q.C., and Mr. Hellish, Q.C., for Lord Breadalbane, who had intervened in the suit, and opposed the Appellant's application. The following opinions were delivered by the Law Peers : THE LORD CHANCELLOR (3) : The parties against whom this order is asked are not engaged in the litigation. They are simply witnesses subpoenaed in a suit as to possible rights which may arise to the Appellant on the death of his elder brother without issue. A bill having been filed to perpetuate testimony, all that is now essential to observe is, that a subpoena duces tecum was issued. It behoves us, however, to be very careful in watching over the course of procedure under the powers given by the 5 & 6 Viet. c. 69, and the extensive jurisdiction which is afterwards given by the 22 Viet. c. 20. It was not intended to give a litigant who wished to perpetuate testimony, as against a person witli whom he contem- plated a future litigation, rights of any stronger character than those which would be possessed by him in case the Defendant were an actual Defendant without any obstacle to the immediate prose- (1) Session Cases, 3rd Series, Yol. vi. p. 632. (2) Mr. Young. (3) Lord Hatherley. VOL. I.] SCOTCH APPEALS. 465 cution of the suit to its ultimate result. It was not intended in 1869 > ''V"' any way to enlarge the rights which he might in that case possess. CAMPBELL Now, my Lords, throughout the whole course of these proceedings ' THE EARL OF there is abundant evidence of an intention on the part of this DALHOUSIK. Appellant to press this Act of Parliament to an extent which certainly appears, as I read the Act, to be very foreign to the objects contemplated by it. He has an opponent against whom, when the due time comes, he sees that he shall have a case to make, and the course which he takes at present is this he says : "I will summon as witnesses all those who are in possession of documents which relate to the title and the property of my oppo- nent or of myself, and I will not (perhaps ' cannot,' seeing that the time for the litigation has not yet arisen), I cannot proceed against my opponent himself in person, with reference to the production of documents relating to his title ; but this I will do ; I will find out who are in custody of the documents which relate to the title in question, and I will summon them as witnesses to produce those documents not for the purpose in any way of obtaining informa- tion, especially from them, with relation to the matters to which the documents may refer, but simply because they are the persons in custody of those documents ; and I shall be able to obtain from them at once a mass of information which, undoubtedly, if I were in a position to litigate the title immediately, I should not be able to get from my opponents." My Lords, it is of course that when parties are in immediate litigation they cannot, on such allegations as are here made, investigate their opponents' title deeds. The present case, therefore, I say, my Lords, is one which ought to be jealously watched. Having obtained a subpoena duces tecum in England, and finding that some of the witnesses were resident out of the English juris- diction, the Appellant wished to avail himself of the Act of the 22 Viet. c. 20, and he applied to the Scottish Court for an order to examine witnesses, and to compel them to search for and produce any documents in their possession. The Scottish Court in the first instance thought it right to grant him simply a power of examina- tion. The witnesses, therefore, were ordered to be examined ; but the rest of the application was as to the search and production postponed. VOL. 1. 2 2 X 466 SCOTCH APPEALS. [L. E. 1869 A correspondence then took place between the Appellant's CAMPBELL solicitor and the solicitors of the late Marquis of Breadalbanes * trustees, who had become possessed of the key of his muniment THE EABI, OF * DALHOUSIE. room at Taymoutli Castle, with reference to documents that might possibly be found in Taymouth Castle. And the only question founded upon that is, whether the witnesses had or had not the documents there referred to. There are few, very few, of these documents speci- fically described in the singularly fishing list served on the witnesses ; the first few, comprising letters patent and deeds of entail, appear to be sufficiently described ; but afterwards comes a long series of general headings, such as '' Various Letters and Correspondence," which have passed for two centuries in the family. Then there is a number of other things, headed as " Various Deeds and Docu- ments," plainly intended to sweep in all the information which could possibly be obtained from the trustees. That is the list which is given as the foundation for this application to search the muniment room of Taymouth Castle, and to ransack the whole of it for the benefit of the Plaintiff in his present investigation. Certainly the statute would be pressed to its extremest limit if it were carried to the extent here proposed with regard to information to be obtained from witnesses under a subpoena duces tecum. You have Lord Jerviswoode stating that his reason for the non- search in the charter room, and the consequent non-production of the documents (for he knows nothing until he has searched) is, that although the trustees have the key of the room, there is a dispute between them and the other claimant, who is in possession of the property, with regard to the right to the possession of the deeds. It is upon this answer of Lord Jerviswoode 's that the supplemental petition was presented, to which the Court in Scot- land refused to accede ; and it is that decision of the Court which your Lordships are now asked to reverse. The Petition itself states the litigation between the present pos- sessor of the estates and the trustees with reference to the custody of these documents. We know, therefore, on the face of the pro- ceedings themselves, without going any farther, that there is a liti- gation pending, and that it was pending when the application was made to the Court of Session ; and an interdict had been asked against the possessor of the estates because he had threatened to VOL. I] SCOTCH APPEALS. 467 enter into this muniment room and in some way to deal with it. In 18(;9 the pleadings which took place upon that proceeding he positively CAMPBELL again asserted that neither the trustees, nor any one else but him- THE ^ AKL op self, had any right to approach that muniment room at all. We DALHOUSIE. are further informed by the trustees, as a matter of fact not denied by the possessor of the estates, that he has put a special lock upon this particular room, so as to debar the trustees from access to it. Now, in that state of circumstances no Court would say that under a subpoena duces tecum you could compel them to solve instantly that question of right which is in litigation, and which will be solved in due course when brought to its legitimate con- clusion. To say, 'that because the trustees have the key of the muniment room they are therefore in a condition to comply with the exigency of a subpoena duces tecum would be, under the circum- stances of this case, absurd. If there had been some difficulty of a technical nature from the fact that the Scottish Court had given no order whatever for the production of the papers, the difficulty was overcome by the corre- spondence. All that took place in the case shews that the papers in the TaymoutJi muniment room, and these alone, were in question. And so little were any of the trustees personally acquainted with the matter, that the parties by consent took the evidence of one of them as the evidence of all. Lord Jerviswoode stated that he would not make the search or produce the documents without the order of the Court ; but at the same time he informed those who were examining him that his reason was that the whole matter was in litigation. Therefore, legally, as well as physically, those documents are not such as the Court could by any possible means call for, and they would have been taking a step which in the result could have had no beneficial effect whatever as regards the administration of justice if they had pronounce 1 a formal order that the witnesses were to search for and produce these docu- ments. It appears to me, therefore, that all that is right and just has been achieved between these parties by the order which has been made ; and that, therefore, that order should be allowed to stand ; that the appeal should be dismissed ; and, I should suggest to your Lordships, with costs. 468 SCOTCH APPEALS. [L. R. 1869 LOED COLONS AY : CAMPBELL It is said that the order under which Lord Jerviswoode was THEEARJ.OF examined was imperfect; that it was merely an order to examine DALHQUSIE. n j m ag a w jtness without ordering him to bring with him docu- ments. 1 do not think there is anything in that objection. The order that was made as to the examination of this person was precisely in conformity with what has been asked by the Appel- lant in the Petition which he presented. He asked for the ex- amination of the trustees, and for an order requiring them to produce and exhibit documents. The Court superseded the pro- duction and exhibition of the documents; but they granted all that he had asked beyond that. If it was implied in the demand made by the party that there should be an expression in the judgment to the effect that they were to bring with them documents, though not to exhibit or to produce them, the statement in the evidence given by the trustee was a sufficient answer to his not having brought with him docu- ments. He stated that there was a litigation in which the possessor of the estates claimed to be the party entitled to all those do- cuments. Then came the' petition upon which the judgment now under appeal was pronounced. That petition asked for an order upon the trustees to exhibit and produce documents. In that discussion the possessor of the estates made his appearance, and the whole matter, including both the physical objection and the legal objection, was stated to the Court. All being explained, the Court did not make any order to produce documents, and they dismissed the Petition. I think there was no other course to be followed. The litigation is said to be now very nearly ready for decision. When that matter is disposed of, the present Appellant will know against whom to direct his application. I do not understand that the statute under which we are now proceeding gives a right to a party to get documents irrespectively of any valid objection which the possessor or custodier of those documents may have to state against the exhibition of them. But at present, to require that the trustees shall produce and exhibit documents when there are both physical and legal obstacles to their getting possession of them, appears to me to be quite out of the question. VOL. I] SCOTCH APPEALS 469 LOED CAIENS: i860 hY) If, in the first instance, when the application was made by the CAMPBELL original Petition, the Appellant had been dissatisfied with the order THE EARL OF then made, and had come to this House and had asked an order DAT - HOUSIE - which would be equivalent to a subpoena duces tecum in this country, your Lordships might have entertained that application ; and perhaps might have given him an order upon the persons sup- posed to hold the documents, that, like any other witnesses, they should bring those documents with them, and say whether there were or were not grounds to resist their being adduced in the proper manner as evidence in the case. But the Appellant before going into the examination of witnesses, had a correspondence with the agents of the late Marquis's trustees, in course of which it became evident that the whole question between the parties was as to certain documents supposed to exist in the muniment room of Taymouth Castle. The Appellant was told beforehand that the trustees conceived that they had not power to produce those docu- ments except under some judicial order, if then ; and, moreover, that questions would clearly arise as to whether they could have access to the documents even for the purpose of searching out those that were required. In that state of things one of the three trustees was called as 'a witness to speak for himself and the other trustees. So that the state of things which was anticipated has now been put upon record, and in substance it amounts to this : that in their actual custody the trustees have not any documents ; that there is a muniment room at Taymouth Castle, and that there is a key to the room, which is in the possession of the trustees. But it does not appear that they have any power to enter the castle and to use that key for the purpose of searching. On the contrary, it is said in the case of the Respondents, and not denied, that the possessor of the estates has taken means pending the litiga- tion to prevent the trustees from entering the room or dealing in any way with those documents. Therefore we are not in the same position as that in which we should have been had the application for a subpoena duces tecum been made while as yet it was uncertain what would be the case set up by those upon whom that subprona would be served. Here their case has been stated ; and it appears to me that your Lofdships must deal with it just as if there had VOL. I. 2 2 Y iTO SCOTCH APPEALS. [L. R. 1869 been a subpoena duces tecum in tlie first instance, and you were CAMPBELL called upon to take some further steps in consequence of disobedi- THE EARL OF ence * ^ a * ^P (Kna > duces tecum. It appears to me that no case DALHOUSIE. -whatever of such disobedience has been made out against the Respondents. I think that, in substance, the Appellant's case en- tirely fails ; so that I quite agree with what my noble and learned friend on the woolsack has proposed to your Lordships, namely, that this appeal should be dismissed with costs. Interlocutor affirmed, and appeal dismissed with costs. Solicitors for the Appellant : Steele & Sons. Solicitors for the Respondents : Loch & McLaurin ; John Graham. 1869 WILLIAM PATRICK RALSTON SHEDDEN 1 , ^"v^ > A T^PT^T T AIVT^ * July 31. AND ANNABELLA JEAN SHEDDEN . / PATRICK AND THE ATTORNEY-GENERAL, l _ V RESPONDENTS. et al ) Six Judgments against the Legitimacy of one Individual. Case in -which a gentleman, the Appellant, William Patrick Balston Shedden, born in America, but claiming by descent a Scotch estate, was, so far back as 1803, pronounced by the Court of Session illegitimate; in which the sentence so pronounced was, in 1808, affirmed by the House of Lords ; in which an action brought to set aside the sentence of both tribunals was, in 1852, dismissed by the Court of Session with costs ; in which such dis- missal was, in 1854, affirmed by the House of Lords with costs; in which a Petition presented by the said Appellant and by his daughter, to have him declared not only legitimate, but also a natural-born subject of the Queen, was, by the Court for Divorce and Matrimonial Causes, in 1860, dismissed with costs ; and, finally, in which, upon appeal from the adjudication of the Court for Divorce and Matrimonial Causes, the House of Lords, on the 31st of July, 1869, affirmed it with costs (1). Evidence of Marriage before tJie Birth of CJiildren. Per LORD CHELMSFORD : The only question which the Court below had to determine was, whether there had been a marriage of the parents of the Appellant, William Patrick Ralston Shedden, prior to his birth. His claim (1) The litigation still proceeds, see infra, p. 548. VOL. I.] SCOTCH APPEALS. 471 to be declared legitimate was placed upon no other ground. For many years before the father's death, Ann Wilson was living with him, sitting at the head of his table, and acting in every respect as the mistress of the establish- ment, being visited by the respectable families in New York, and generally reputed to be his wife. Evidence was given by members and friends of the family of their being always reputed to be man and wife, and visited as such by respectable families in the neighbourhood. If the case of the Appellants had rested on this description of proof, without anything to oppose it, it would have been conclusive in favour of a prior marriage. Evidence of Marriage after the Birth of Children. Per LORD CHELMSFORD : The presumption of a prior marriage arising from cohabitation and acknowledgment was completely rebutted by evidence on the other side of the strongest character. The Appellant relied originally on the marriage after the birth of children. Per THE LORD CHANCELLOR : If, according to the theory now set up, there had been a prior marriage, which was known to everybody, then there was not a shadow of ground for a second marriage. That second marriage, unex- .plained as it is, wholly cuts away the ground for any such prior marriage. Trial by Jury as of Rigid. Per LORD CHELMSFORD : It was clearly in the discretion of the Judge Ordinary to decide whether the trial of the Appellants' Petition should be by a jury or before himself, either alone or with other Judges of the Court. And the Appellants had no right to insist upon having a jury. Per THE LORD CHANCELLOR : In the case of an heir-at-law who has been disinherited, he has, on the issue devisavit vel non, a right to a trial by jury. But in no other case is there such a right. JL HE litigation in this case was commenced about seventy years ago, in order to ascertain whether the Appellant, William Patrick Ralston Shedden, was legitimate or illegitimate ; whether he was an alien or a British subject ; and whether his father, William Shedden, had had his domicil in Scotland or in America. The facts were, shortly, that William Shedden, the father afore- said, a Scotsman by birth and origin but an American by residence, a week before his death, in November, 1798, married Miss Ann Wilson, by whom he had had two children a son (the Appellant William Patrick Ralston Shedden), and a daughter. The son, born in 1793, was in 1800 sent to /Scotland for education. On the as- sumption that he was illegitimate, his cousin, Robert Patrick, daimed the family estate and took possession; but a suit was in- stituted in 1801 to displace PatricJc, by shewing that the Appellant, William Patrick Ralston Shedden, was the lawful heir under the Scotch law of Ipgitimation per sulsequens matrimonium. 1869 SHEDDEN v. PATRICK AND THK ATTORNEY- GENERAL. Jlldg- 2 Y 2 472 SCOTCH APPEALS. PL. B. 1869 v*>w SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. ment to the contrary was pronounced by the Court of Session in 1803 (1) ; whereupon an appeal was presented to the House of Lords, and fully argued before Lord Chancellor Eldon and Lord Redesdale, who, on the 3rd of March, 1808, concurred in recom- mending that the interlocutor of the Court below should be affirmed (2). On the 28th of February, 1848 (forty years after the judgment of the House of Lords) the Appellant William Patrick Ralsfon Shedden instituted a suit in the Court of Session, renewing the assertion of his legitimacy, and insisting that the decree of the Court of Session, and the Lords' judgment affirming it, should be rescinded and set aside, on the ground that both decisions had been procured by fraud and misrepresentation. In this fresh proceeding the Appellant William Patrick Ralston Shedden asserted that his father and Miss Wilson had been reco^- O nised as standing towards each other in the relation of husband and wife before the birth of their son and daughter. The Court of Session, on the report of Lord Fullerton, dismissed William Patrick Ralston Shedden s suit, with costs. An appeal brought to the House of Lords came on for argument in March, 1854 (3), before Lord Chancellor Cramvorth, Lord Brougham, and Lord St. Leonards. After a very full argument and much consideration, the House, in May, 1854, gave judgment against the Appellant William Shedden with costs (4). The main ground of this determination was, that the allegations of fraud (1) The following is the heading of Shedden v. Patrick, as decided in 1803, by the Scotch Court : " FOREIGN : One Avhose parents were afterwards married in a country where legitimation per sub- sequens matrimonium is not recognised, does not succeed to a landed estate in Scotland ab intestato, as a lawful child." Fac. Coll. 1 July, 1803, and 1 Macq. 536. (2) There is no report of the de- cision of the House. The Appellant's printed case (signed Ar, Fletcher, Henry Brovrjlmm) insisted mainly : 1. That by the Scotch law children in the position of the Appellant are ab initio- legitimi, non legitimati. 2. That the decision must be according to the lex loci where the estate claimed is situated. These were the chief arguments of the Appellant. The respondent's printed case (signed Saml. Romilly, M. Nolan) urged 1. that the Appellant " could not succeed to any property by descent, or by personal representation, as he was born in America, and his parents were domi- ciled there. 2. That he was an alien. (3) 1 Macq. 589. (4) Ibid. 535. VOL. I] SCOTCH APPEALS. 473 were neither specific nor relevant. On the merits Lord Chancellor 1869 ^y*f Cranworth said : SHEDDEN v. The Appellant's argument is, that his father, though resident in America, had PATRICK his domicil in Scotland. I will assume that the Appellant has made out that AND THE for which he contends. But the question is, whether he is a natural-born subject G ENERAL . of Her Majesty, or of the King at that time ? He was an alien when born ; and alienage attached upon him irreversibly. The allegation of a marriage by reputation before the birth of the children was regarded by Lord Cranworth, Lord Brougham, and Lord St. Leonards, as in the last degree improbable (1). They pronounced no positive or definite opinion as to the question of domicil ; but they recognised the doctrine then recently established in Scotland (by a majority of seven Judges against six) (2), that legitimation per subsequens matrimonium operates only from the time of the marriage, and not from the time of the birth ; so that the Appellant William Patrick Ralston Shedden was not, when born, the son of a native British subject but vmajttius nullius. In August, 1858, an Act was passed (3) "to enable persons to establish their legitimacy and the marriage of their parents and others from whom they may be descended, and also to establish their right to be deemed natural-born subjects of the Queen." The Act authorizes a suit to have the marriage of one's grand- father and grandmother declared to have been valid. Belying on this enactment, the Appellant William Patrick Ealston Shedden, and his daughter Miss Shedden, on the 22nd of December, 1858, presented a Petition to the Court for Divorce and Matrimonial Causes, praying a declaration that William Shedden (father of the Appellant William Patrick Ealston Shedden) and Ann Wilson were lawfully married prior to the birth of the Appel- lant William Patrick Ealslon Shedden, and of his sister Jean Ealston Shedden ; and further praying a declaration that the Ap- pellant William Patrick Ealston Shedden was the legitimate son and heir of his parents, and a natural-born subject of Her Majesty. (1) Lord Cranworth thought that (2) The minority included the Presi- the alleged prior marriage by " cohabi- dents of the First and of the Second tation and acknowledgment was in- Division, and also Lord Moncrciff; the credible, and absolutely irreconcilable, decision was in 1840. in point of fact, with all the rest of the (3) 21 & 22 Viet. c. 93, J7ie Leg it i- case." 1 Macq. 615. macy Declaration Act. 474 SCOTCH APPEALS. [L. E,. 1869 SHEDDEX v. PATRICK AND THE ATTORNEY- GEXERAL. The Attorney-General, as required by the Act, was made a Respondent, and appeared along with the trustees and executors of William Patrick, deceased, also made Kespondents. The Court below (consisting of Sir Cresswell CressweU, assisted by Mr. Justice Wightman, and Mr. Justice Vaughan Williams) after an argument which went over many days, decreed, on the 27th of November, 1860, without the aid of a jury, that "the elder Peti- tioner was not legitimate, and was not a natural-born subject ; and condemned the Petitioners in costs" (1). A trial by jury was. demanded by the Appellants, but refused. On the appeal to the House of Lords, the printed case of the Appellants was signed by the Lord Advocate of Scotland (2), Sir Fitzroy Kelly, Sir E. P. Cottier, Sir Hugh Cairns, and Mr. Mathews, Q.C. The Solicitor-General (3) made several intermediate applications on their behalf. The printed cases on behalf of the Eespondents were signed by Mr. Bourlce, for the Attorney-General; and by Mr. Hellish, Q.C., Mr. Powell, Q.C., and Mr. Ashley, for the other Respondents. When the case was called, it became necessary for Miss Shedden, her counsel being unprepared, to address the House, which she did for twenty-three days. Her father, the Appellant William Patrick Ralston Shedden, followed her, and spoke for two days. Without hearing the Respondents' counsel, the House, on the 30th of July, pronounced judgment ; the Law Peers having delivered their opinions in the following terms : THE LORD CHANCELLOR (4) : My Lords, we were engaged during many days in hearing the dis- cussion of this case on the part of the Appellants, and at the close of the Appellants' case we thought it right to postpone the considera- tion of the matter until we had each of us had time fully to consider the enormous mass of documents which had been laid before us, with (1) See 2 Sw. & Tr. 170, where the is from Mr. Gurney's notes, ' which pleadings are set out. (2) Mr. Moncreiff, now Lord Justice Clerk of Scotland. (3) Sir John D. Coleridge. (4) Lord Hatlierley. The judgment were revised and settled by the Lord Chancellor before going to print ; as the litigation is not yet closed. See infra ,. p. 548. YOL. L] SCOTCH APPEALS. 475 such light as had been thrown upon them by the argument of the Appellants ; which argument, on the part of Miss Shedden, was con- ducted with the greatest possible ability during the first three or four days of the discussion, when all, I think, was said that fairly could be said upon the subject ; and although it was afterwards protracted to a most unreasonable length, yet still that very length, perhaps, has offered this one sole advantage (greatly, undoubtedly, to the prejudice of many other suitors at your Lordships' Bar), that we had the fullest and amplest time, even during the discussion, to consider the different propositions that were brought before us. Now the appeal in this case is from two Orders of the Court for Divorce and Matrimonial Causes the one being a decree by which it was declared in substance that the Appellants had failed to make out the case which they propounded to the Court, namely, a case in which they sought, under the Act of 1858, for a declaration with reference to the nationality and legitimacy of William Patrick Ralston Shedden. His daughter, Miss Shedden, appeared in the same suit as being a party interested in the declaration that was sought ; every person so interested being, under the Act, entitled to appear. The other parties who are now Eespondents before us were cited as being persons interested in the consideration of the question. The first decree declared against the claim of the Ap- pellant ; and the second proceeding, as to which there is an appeal, was a refusal on the part of the learned Judge who tried the case to direct a new trial. Since that there has been put in a sort of supplementary appli- cation on the part of the Appellants to your Lordships, with refer- ence to the custody of certain documents, which are alleged to be false documents, or documents which have been in some way or other tampered with. Now with reference to the proceedings that have taken place before the Judge of the Court below, and which led to his decree, the complaint is this : First, that the learned Judge ought to have tried the issue by a jury. Secondly, that the decision come to by the Judge, with the assistance of two other most learned and able Judges, Mr. Justice Wightman and Mr. Justice Vaughan Williams, was against evidence. Thirdly, that improper evidence was ad- mitted. Fourthly, that evidence which was tendered on the part 1869 SHEDDES v. PATRICK AND THE ATTORN EY- GENERAL, 47(3 SCOTCH APPEALS. [L. E. 1869 of the Appellants was improperly rejected. Then again, fifthly, that SHKDDEX * ne Appellants were taken by surprise that was part of the foun- p * elation of the application for a new trial ; and, lastly, that new and AND THE material evidence has been discovered since the trial, upon which 'GENERAL, ground also the motion for a new trial was rested. As to the last two points, namely, the being taken by surprise, and the discovery of new evidence, there is really scarcely a question. The main questions we have to consider are, in the first instance, whether the decree of the Court was against the evidence then before it ; whether the evidence then before it consisted of anything which ought not to have been received ; and, lastly, whether there ought to have been other evidence before it which was tendered and rejected. Now the case, after all that has been said, and after the enormous time that has been taken in the discussion, is reducible to the very simplest proposition, namely, whether or not the correspondence which took place (for that is the whole question) at the close of 1798, in the lifetime of William Shedden, in respect of whom the Appellant seeks to establish that he was his father, and married his mother, Miss Wilson whether that correspondence, which took place just at the close of his life, be a genuine correspondence in the sense of its being a correspondence expressing the real intents, feelings, and convictions of the parties to that correspond- ence a great part of it consisting of declarations which, if genuine declarations, are most important with reference to the decision of this matter declarations of the family who were then engaged in that correspondence. And then, secondly, which is the main point undoubtedly in the whole case, whether or not one most important letter in the correspondence, namely, the letter of the 12th of November, 1798, said to be written by William Shedden himself, be genuine in a different sense, that is to say, be authentic, as being the letter of the person to whom it is attributed by the Kespondent, or whether it be a forgery ? If that letter be authentic, there is no doubt that the whole case of the Appellants fails ; and therefore the whole case is brought to this, that we are bound to consider, and to consider deliberately, whether or not we are satisfied and convinced that the correspondence was a real correspondence, expressing the real opinions and feelings of the parties who entered VOL. I.] SCOTCH APPEALS. 477 into it ; or whether, according to the theory of the Appellants, it was a concocted correspondence, a correspondence in which all those who were engaged in it were playing their part, preparing a scheme in order to give effect and colour to an instrument which was afterwards, by one or other of them, forged, namely, the letter of the 12th of November, and therefore a correspondence which is, in itself, utterly unworthy of credit, and which, being displaced, other evidence could be let in which was given in reference to the alleged marriage of William Shedden with Ann Wilson. Now the facts of the case up to that time are shortly these : You have William Shedden, a gentleman possessing a small estate, which has been enormously magnified as everything else has been in the imagination of the Appellants a small estate of about 300 a year, enabling him to fill a place in society as a gentleman. And it appears that he sought to increase those not very ample means by engaging in commerce. He went as a very young man to Virginia, where he had relatives, with a view, no doubt, to ultimately engaging in some scheme of commerce. At that time, however, not being of age, he returned to Scotland, and he again went out after attaining his majority in 1770, forming at that time a house of business with a gentleman of the name of Archibald M'Call. He went to Virginia, at that time one of the colonies of Great Britain. He remained in Virginia until the outbreak of the American Revolution, which led to the ultimate separation of the United States from this country. In that state of things, Mr. Shedden seems undoubtedly to have taken part with the Royalists, and to have been a Eoyalist from that time down to the period of the separation by treaty in 1785. He appears to have been per- secuted in Virginia, and subjected to some inconvenience for his Royalist opinions. Then he went from Virginia to Bermuda, partly, I suppose, in consequence of this persecution. In Bermuda he engaged in another business with Mr. Goodrich and Mr. Robert Shedden, junior, who was himself the son of Robert Shedden the elder (who carried on business in London under the name of Shedden & Goodrich]. This Robert Shedden, junior, engaged with Goodrich and William Shedden in a firm at Bermuda for the pur- pose of dealing as prize agents, and in matters of a similar descrip- tion, under the firm of William Shedden & Co. This concern seems 1869 SHEDDEN o. PATRICK AND THE ATTOKNEY- GENEBAL. 478 SCOTCH APPEALS. [L. E, 1869 to have gone on until about the year 1783, when Robert Shedden SHEDDEX appears to have been disposed to break up the concern of William PATRICK Shedden & Co., or, at all events, to have taken steps towards its AND THK being broken up : and a new firm was formed to carry on business ATTORNEY- ? _. GENERAL, at New York, under the name of " Shedden, Patrick, & Co." in which Robert Shedden, junior, took a part, and in which Mr. William Patrick, of Virginia, the cousin of Mr. William Shedden, and a cousin more or less remote of Robert Shedden, was to have a share, he being introduced into it principally by the good will of his cousin Mr. Robert Shedden, who seemed disposed to assist him by furnishing him with capital for that purpose. The capital of the new firm of Shedden, Patrick, & Co. was divided into three shares; two-fifths were held by Robert Shedden, two-fifths by William Shedden, the person about whom our inquiry is now being made, and one-fifth by William Patrick, of Virginia. This concern being so constituted, I do not go through all the various letters which have been introduced from the very earliest period in the history of Mr. William Shedden, because I am at once willing to acknowledge, not only for the sake of argument, but, as it appears to me, as a matter of fact fairly appearing upon the letters and correspondence, that Mr. Shedden conducted him- self (as far, at all events, as is shewn upon the face of that corre- spondence) in a kindly and generous manner towards his relations. He carried on a friendly and kindly correspondence with them ; and he seems also to have been disposed to help one of his nephews, one John Patrick, about whom much more is afterwards said, who went out to him in 1791, in some capacity or other, with the in- tention, I suppose, of being eventually introduced into the busi- ness, but at first in the capacity of clerk. Mr. Shedden seems not only to have been disposed kindly towards his relations, but also to have carried on his business in a way which gained great approbation amongst those to whom he was known, and to have filled the place of a person of some degree of weight and consideration in New York. That being so, and as I really do not think it right to pause for the purpose of entering into the enormous investigation of corre- spondence to which we have been invited by Miss Shedden, having given my general view and opinion of the bearing of the letters upon the character of the parties, I shall come at once to that VOL. L] SCOTCH APPEALS. period which was very near to the death of William Shedden, 1869 namely, the year 1798, and about the month of September in that SHEDDEK year. Shortly before that time Robert Shedden the younger went p A ^ ICK out to New York, and in the month of September important trans- AND THE ATTOENEY- actions took place with reference to a bond, about which much has GENERAL. been said in the progress of this inquiry. Having, however, reached this point, the point, namely, where serious controversy begins, I will pause for one moment to consider the line of argument of the Appellants, principally, that is, of Miss Shedden, upon whom has fallen undoubtedly the main burthen of the argument. The course which the Appellants have thought it right to take in order to obviate the necessary inference which must be drawn from the correspondence, if it be genuine and authentic, if this : They allege that William Shedden was a man of model character, a man of exemplary honesty, integrity, and propriety, and that John Patrick, who went out to him in the capacity of clerk, was a man of a mean and low disposition a person capable of any degree of dishonesty. That is said to be proved by some circumstances which occurred anterior to William Shedden s death, and it is said to be proved still more, according to some of the evidence, by some matters which took place after the death of William Shedden. It is said that while these business arrangements were going on in America, what was taking place in Scotland was this: William Shedden, being out in America, had in the first instance appointed his brother-in-law, Mr. John Patrick the elder, who had married Mary Ann Shedden his sister, together with two other gentlemen of the names of Fullarton and M'Lellan, as factors to manage his property and estate, John Patrick the elder taking the principal part of the management. A good deal was said in the part of the inquiry which I am now upon about the intention expressed by William Shedden from time to time to return to Scotland, shewing that he had not the intention of becoming a domiciled American. But that is a point which I will reserve for the present. Mr. John Patrick the elder, who was acting as agent for Mr. William Shedden and for the brother-in-law of William Shedden, had three sons. He had, first, his eldest son Robert Patrick, afterwards called Doctor Robert Patrick, who served in the navy as a medical officer; then he had William Patrick, about whom a great deal 480 SCOTCH APPEALS. [L. K. 18G9 SHEDDEX v. PATRICK AND THE ATTOBNEY- GENEBAL. has been said in the course of this inquiry, who became a writer to the signet, and John Patrick, who went out in the manner I have described in 1791, and joined his uncle William Shedden, and assisted him in some way in carrying on his business. John Patrick the elder died some time before 1798. On John Patrick the elder's death, William Patrick is appointed to act as factor of William Shedden, as his father John had acted before him. He was to manage the estate, and he kept up a considerable corre- spondence with William Shedden with respect to the management of the estate. During all that time there was also a mass of cor- respondence going on between the brothers themselves. We have not got all the letters of both brothers, but we have numerous letters of John Patrick, who resided with his uncle in Virginia. The first observation I shall make upon the correspondence, of which we have a great mass, is this, that in that correspondence you find a great deal of family gossip. I have noticed several passages which, however, I do not think it necessary now to cite, because it would only improperly lengthen the address I am making to your Lordships. It is enough for me to say that you find over and over again such things as this, that George Brown is going to marry So-and-So, and that somebody else is thinking of marrying somebody else, and so on. There is a great deal of family gossip going on among the parties. I mention this as a matter of some little importance, because in all these letters there is not one word said from beginning to, end, with the exception of what I will presently notice as belonging to another part of the case (namely, a letter of Dr. Robert Patrick, which has been pro- duced with a view to a motion for a new trial), with that exception there is not one single word said from which it could be surmised, or in any way supposed, that Mr. William Shedden was married, or that he had any child whatever. There is an expression in Dr. Robert Patrick's letter, which I will afterwards refer to, where he says, " I always thought that William would give those children " (which, I suppose, means his bastard children) " some of his property." I will say a word upon that before I conclude but with that exception there is not one word written by any of the members of the family about William Shedden having any wife or child at all. VOL. I.] SCOTCH APPEALS. 481 But a great deal has been said by Miss Shedden in her argument 1869 about the difficulty which she is put to, and suspicions are thrown SHEDDEN out in fact, everything is suspected that comes from the adverse side. She throws out that William Patrick got some of her aunt's / ND THE . ATTORNEY- letters, some of the Fullartons' letters that he had an insatiable GENERAL. demand for documents. The Appellants charge William Patrick with looking over this lady's papers, and sorting her letters, and other things of that kind. But as a counterbalance to such remarks, there is a most remarkable circumstance as to the facilities which have existed on the part of the Appellants of obtaining information. In the first place William Patrick seems to have, in a most extra- ordinary manner to my mind, preserved an enormous mass of correspondence correspondence such as most men destroy at some period or other in the course of their lives long before they reach fifty or sixty years he preserved an enormous quantity, which has been produced. But, besides that, in the year 1849 Mr. Sliedden, the Appellant, goes to America, and there he finds two large boxes of his father's papers one in Mr. Farquhars, and another in another gentleman's custody some connection, I think, of the Jlosacks he finds those two boxes of papers, with which William Patrick would have nothing to do. Miss Shedden : John Patrick himself says that they came out of his own possession that they had been in the possession of William Patrick of Virginia. THE LORD CHANCELLOR: Miss Shedden, I cannot allow this interruption. I believe I am pretty accurate in stating these matters, and if I should fail upon any minute point of no real importance it would not be wonderful, considering that there is such an enormous mass of documents. Miss Sliedden: The papers were ransacked by the Patricks first. THE LORD CHANCELLOR : Mr. Shedden had an opportunity of seeing those papers, and he describes it as being one of the most wonderful and most miraculous things that he had that opportunity. Further than that, Mr. Shedden had another most singular oppor- 482 SCOTCH APPEALS. [L.E. 1869 SHEDDEN v. PATBICK AND THE ATTORNEY - GENERAL. tunity, he had the opportunity of seeing, through the medium of Mr. Van Hook (the administrator of John Patrick the younger), the whole mass of correspondence which had passed between William Patrick and his brother John Patrick, of the most con- fidential character. This mass of correspondence was all produced to him nothing having been removed by anybody else on the part of William Patrick. What had been removed by Miss Ralston we cannot tell, but Miss P^alston confesses to having suggested the destruction of one document, and Mr. Van Hook confesses to having destroyed that document at her request. Whatever else may have been destroyed we cannot tell, but this is certain, that William Patrick Miss Shedden : William Patrick ordered the destruction of the whole of those. THE LORD CHANCELLOR : Miss Shedden, pray do not interrupt me. I must order your removal if you do. It may be convenient to you to confuse me if you can. I shall not be confused by your interruptions, but it is 'most improper and most indecent. William Patrick had asked for these documents, and Mr. Van, Hook very properly refused 'to give them to him. Mr. Van Hook behaved extremely well. I have no complaint to make of Mr. Van Hook beyond this. I think he was wrong in allowing that document to be destroyed which Miss Ralston wished to have destroyed with that exception he seems to have acted most properly. He sum- moned Mr. William Patrick's agent to see the examination of the papers, and he did not deliver any of the papers or any copies of the papers to Mr. Shedden without having given ample opportunity to Mr. William Patrick's agent to be present at the examination. But, again, what Mr. Van Hook says, is this it is no evidence in itself, but it is only just to William Patrick to mention it that he has reason to believe that some other person did tamper with papers, but not William Patrick. Therefore, Mr. Shedden has had an opportunity in this case of seeing all these most private letters between the parties. Everything which they had a right to has been brought out that could be ferretted out with reference to William Patrick's correspondence, and the result is, that no men- VOL. I] SCOTCH APPEALS. 483 tion whatever is made in this correspondence of any existing wife 1869 or any existing children until we come down to that particular epoch of 1798. These circumstances are extremely strong to shew your Lordships that although there was this correspondence carried AND THE \TTORNKY~ on between Mr. William Shedden and his nephews in the most GENERAL. friendly tone, no suggestion is made of his having ever had a wife or child. In this state of things we are brought to the circumstances attending his last illness. Here I must be a little more particular here I must turn to the letters, and 1 am sorry to say I have been put to very great difficulty and inconvenience with regard to these letters because in a great number of instances where a passage comes which is unfavourable to the Appellants, they leave a blank in their copy of the letter as set out in the appendix. They merely say (in a parenthesis) "Here something about a marriage," or something of that kind ; so that I have been put to continual inconvenience by having to turn from one volume to the other. But I have endeavoured to go through the whole as well as I can. I believe I have read every single letter in the correspondence =since the case was heard, both that which was evidence and that which was not evidence, for I really thought it best to read them all as far as the Appellants are concerned and having read the whole of the evidence, I certainly have arrived at the clearest possible conviction that the correspondence is genuine and authentic, and that, as was well said by one of the learned Judges, no candid or unprejudiced mind could possibly come to any other conclusion whatever. But now I ought to mention another thing before I return to Robert Shedden's visit to Neiv York. There is a letter which Miss Shedden made a great point of, and I think justly so. With reference to the character of the parties she endeavoured to lay open to us, very ingeniously, the character on the one hand of this estimable man, Mr. William Shedden, a man held in respect by all who knew L him, and the character of the man he was dealing with namely, John Patrick, his nephew. I must say that, endeavouring as well as I can most justly to balance these arguments, what I see of John Patrick in the correspondence is not prepossessing in any way. In the first place, his style of letter writing does not in licate a man of cul- 484 SCOTCH APPEALS. [L. R. 1869 tivated mind, but it seems framed upon something like The Com- SHEDDEX plete Letter Writer. It is florid and bombastic, and in a tone PATRICK which is anything but agreeable. There is one letter of that kind AND THE tuat j w ju j us t specify. I do not remember its date. He has a ATTORNEY- GENERAL, quarrel with William Sliedden, and he thereupon writes a high flown letter complaining of being treated with want of confidence. And there was another letter which Miss Sliedden justly commented on, and which I think shewed the two men in the light in which she wished to shew them, namely, William Shedden as a man of much higher honour than John Patrick. It is a letter in which John Shedden writing to George Shedden says, " You gave me some information which evidently you wished to have conveyed to Mr. William Shedden. He (John Patrick) did not know how to convey it in a manner likely to be received in a favourable way. And he says, ' I would have tried the plan of dropping your letter for Mr. William Shedden to see it, but I have tried that once before, and I found the dropped letter returned on my desk. Mr. Shedden had not opened it.' " Miss Shedden very properly says the man who tried such a scheme was not a man of very high mind and it shewed the other to be a man of high character* that when he found a letter addressed to another person he did not open it, but returned it to the person to Avhom he thought it belonged. I have omitted to notice all the little points suggested by Miss Shedden, because I cannot possibly do so. It is impossible to take all these minute matters point by point, and to go through all the extensive mosaic of argument which was pieced together from them. We must go to the broad features of the case. Then, on the 1st of September, 1798 (and a good deal turns upon the bona fides of this) a bond, beyond all question, was given to the firm of Robert Shedden & Sons in London (Shedden & Good- rich of London had become Shedden & Sons by that time) in respect of the sum of 4000 which was owing by William Sliedden at that time to the firm of Shedden & Sons, in this fashion, not that William Shedden was himself alone answerable, but the condition of the bond recites this : Whereas, the late firm of Sliedden, Patrick, & Co., whereof the within men- tioned Robert Shedden was two-fifths, the within mentioned William Shedden was two-fifths, and William Patrick, now of SmitJiJltld, in Virylnia, was one-fifth VOL. I.] SCOTCH APPEALS. concerned, are indebted unto Robert and George Sliedden, of the City of London, merchants, trading under the firm of Robert Shedden & Sons, as within mentioned, upwards of 10,000 British sterling, the within hond for 4000 British sterling and interest, is hereby declared to be given by me in consideration of and as security for my proportion of said debt. And afterwards we find that after William Shedden had died certain arrangements were made for its being paid. Now, a great deal, no doubt, does depend upon this : and there- fore Miss Sliedden has laboured in the most extraordinary manner to prove this to be a forgery, like everything else that comeg athwart the case of the Appellants ; but the bond is proved in the most distinct manner by Miss Sliedden : By the son of the bondholder. THE LOKD CHANCELLOR : Eeally, it is impossible to go on with these interruptions. It is proved by the son, who proves the handwriting of his own father. [Miss Shedden corrects this : " He was nephew."] The witness to the bond is his own uncle, then, and he proves the handwriting, and that is the way in which all instruments are attested and proved. Miss Sliedden: -But his uncle was one of the holders of the bond. LORD CHELMSFORD : I really must request that something may be done to stop these interruptions. THE LORD CHANCELLOR : If you cannot avoid interrupting in this way, Miss Shedden, we must insist upon your removal. Miss Sliedden : Very well, I will not do so again. I only pray your Lordships that it may not go out to the public that it was otherwise than a bond given to the firm of Robert Shedden & Sons. THE LORD CHANCELLOR : Miss Shedden, I shall be obliged to order your removal. It is nonsense to talk about these matters going out to the public. The public has nothing to do with this case beyond seeing that justice is administered. The public do not care about the details of this case any more than any other case. It is one of those hallucinations which, unfortunately, besets YOL, L 2 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. 486 SCOTCH APPEALS. [L. E. 1869 SflEDDEX V. PATRICK AXD THE ATTORNEY- GENERAL. the minds of Appellants here, that theirs is a case in which all the world is interested. The public is interested in seeing that justice is done ; but beyond that it is not interested in the slightest degree. Now, this bond is a bond which, undoubtedly, is given to the firm of Robert Shedden & Sons. Bobert Shedden, junior, is one of the firm of Robert Shedden & Sons, and, therefore, is one of the partners. He is also a witness to the bond. It is against his own interest, however, to witness it, because the condition of the bond recites that the New York firm, in which he was also a partner, is indebted to the same extent as the man who had given the bond. Miss Shedden : It is precisely the other way. It is Robert Shedden, junior, who purports to attest the bond. ' THE LORD CHANCELLOR : It was against the interest of his firm in America, and thus I thought it was against his own interest. Miss Shedden : It was in his own" interest and his father's. He attested his own bond, because he was a partner in the firm of Robert Shedden & Sons. I thank God, before Heaven, that the truth has come out. He witnessed his own bond. THE LOED CHANCELLOR: He was a partner in the firm to which the bond is given. Miss Shedden : I thank your Lordship for the admission. THE LOED CHANCELLOR : His handwriting is proved to that attestation, and he was also a partner in the New York firm, which is recited to be indebted to the London firm. Miss Shedden : His writing is proved by the grandson of the bondholder. THE LORD CHANCELLOR : Miss Shedden, I do assure you most seriously that I must give orders for your removal if you interrupt me. I shall not allow you to interrupt, unless you are asked so to do. Now, this bond being proved most clearly and distinctly, as to the handwriting of the witness, which is the only mode in ivhich bonds are proved, there were a variety of attempts, some of VOL. L] SCOTCH APPEALS. 487 them of a character which I think exceedingly improper, to get 1869 from this witness to the bond in after-life some acknowledgment SHEDDEN that he had nothing to do with witnessing this bond, although he p A ra ICE had attested it. But another attempt vras made to shew that he . AND TKK ATTORNEY- could not have attested this bond on the 1st of September, because GENEBAU. on the 1st of September he had left New York, for the purpose of going to New Jersey, in consequence of fever prevailing at New York; and, therefore, the attestation being dated on the 1st of September, it could not possibly have been executed on that day. Now, in the correspondence Avhich took place, let us see how that stands. He writes on the 4th of September. Miss Shedden : Your Lordship refused to allow that letter to be produced. You said you would not allow it to be produced at the Bar of this House because it had not been produced in the Court below. I said that if that letter were produced it would have disproved that at once ; I challenged them to produce it. THE LOKD CHANCELLOR : There is another letter of the llth of December, 1798, from Robert Shedden, junior, to his father, dated from Neiv York, in which he writes : " My dear Father." I desire to observe that in reading this letter I do not read it to prove anything that is there stated beyond the point for the sake of which I refer to it. Of course it would not prove that there was any money owing, but when the question is raised whether it is possible that the writer was at New York on the 1st of September, the day the bond bears date, and which would be assumed to be the real date, inasmuch as everything is assumed that is on the face of a bond unless the contrary is proved ; in this case it is important to read it with reference to that alleged impossibility : I wrote George on the 16th ult., copy whereof you have enclosed. On the day after, I received a letter from J. Patrick, of the 8th of November, informing me of the sudden change in Mr. William Shedden's health, and that in the course of eighteen hours his disorder had got to such a height, that every succeeding hour was expected to be his last ; I therefore left Norfolk immediately, that is the first fair wind, and crossed the Chesapeake in six hours, got to Philadelphia on the seventh day, where I was very sorry to learn that he had expired on the 13th inst., which I have to regret much, as part of your orders were not complied with regarding the application for an heritable bond : however the simple bond of this country I have for 4000 sterling, payable the 3rd of September, 1799, which, 1 understand from the first lawyer, his landed property is liable for. 2 2 Z 2 488 SCOTCH APPEALS. [L.B. 1869 WVJ SHEDDEN v. PATRICK AND THE ATTOBNEY- GENEBAL. Of course I do not read this letter to shew that the property is liable, or anything of the kind. He then accuses William Shedden in a manner which I do not read, because I have nothing to do with those accusations. He says : I think it fortunate, from what has appeared since his death, that I got the bond at all, for he was a scoundrel. I have only to thank the fever for it, as when I came to the point on the 3rd of September, although he had promised me the Saturday before, still he was unwilling to execute it, and I was a long time endeavouring to get it finished, and actually told him I was determined, let the consequence be what it would, not to quit New York till I got the bond. Miss Shedden : I would only ask permission to state that that is dated a whole month after my grandfather was in the grave. THE LORD CHANCELLOR : I am quite aware of all that, I am not dealing with any of the facts, beyond the fact that on the 3rd of September that which was promised on the 1st of September was done. This is all said in the year 1798, and then it is supposed, like everything else in this case, that it is an ingenious mode of anticipating the possible results of law suits and all possible diffi- culties, by this letter, written at this time, in the most perfect simplicity Miss Shedden : No, indeed, it is only a copy of the letter. THE LORD CHANCELLOR : I must order your removal if you interfere once more the officer must take you out forthwith I cannot bear such intolerable interruption. Now, I say, so far from there being any improbability or impossibility with reference to this bond, it is all simply and naturally explained, as everything is explained in the course of this correspondence, to anyone who takes the pains to read it simply as it stands, and does not read it with that extraordinary view which is taken by the Appellants at every stage of this case. Therefore we have at this period in 1798, shortly before William Shedden's death, this bond, which is of the very greatest importance, as shewing an acknowledgment of debt to the London firm to the extent of 10,000, and that given apparently without any demur or any difficulty, beyond the dislike to commit himself to the execution of the bond. VOL. I.] SCOTCH APPEALS. 489 Then the next thing which happens is this, we get to the cor- respondence of November. That correspondence of November is, of course, of the greatest possible importance ; and, wholly irrespec- tive of the testator's letter of the 12th of November, it appears to me that that correspondence, even if that letter had not existed, would have been fatal to the claim of the Appellants, namely, the claim of the male Appellant to be the legitimate child of his father, in consequence of some previous marriage which had taken place with Ann Wilson. The letter of the 9th of November is the first of the important letters of John Patrick. On the 9th of November he writes to William Patrick thus : Dear William, I wrote you some time ago, via London, informing yon of the melancholy state of this city, and so on. I have now to inform you that our friend, Mr. William Shedden's disorder has at last arrived at a crisis. He is at this moment in the most advanced stage of an unconquerable consumption, and all the weakness of mortality before his eyes. Every revolving hour this is part of his odious style every revolving hour threatens a dissolution to his existence ; his fate is fixed he must die he cannot live ; but this is not all : he has, from considerations which he conceived moral, natural, legal, and proper, at the moment when eternity was staring him in the face, united himself in matrimony to the woman who has for many years lived with him in a very different situation. Now, my Lords, I should have been inclined to say that this extravagant, stilted style might have created suspicion if it had not been for the previous letters I have referred to letters which do not at all predispose me in his favour either as a man of educa- tion or as a man of straightforwardness of character ; but those letters are just as stilted and just as preposterous as this letter is. He says : When eternity was staring him in the face he united himself in matrimony to the woman who has for many years lived with him in a very different situation. His object in this proceeding was to rescue from a state of bastardy, and introduce into the world, with all the privileges appertaining to those who are born under the influence of the law, two infant children, one a girl of about six years old, the other a boy of about five. The ceremony took place only on the 7th instant ; it was to him a hard struggle, but the considerations above mentioned preponderated. I, of course, was not consulted ; but he communicated the whole to me after it 1869 SHEDDEK v. PATRICK AND THE ATTORNEY- GENEBAL. SCOTCH APPEALS. [L. R. 1869 had taken place, with his motives. It was out of my power to interfere or prevent v ^ v ^' it ; nor was it my wish. I have always had a pride in acting in things of that sort with a spirit of independence and propriety ; nor did I ever interfere. In PATBICK addition to that instrument, he has likewise executed his last will and testament, AND THE ^ su b s tance of which I am unable to communicate at present ; but you may, of QSNEEAL course, guess nearly the contents. Now a great deal of comment was made upon the fact of this person saying that he was not likely to be consulted at all. We have the fact that he was made an executor. Of course a man whom you make executor you are not unlikely to consult. Again, Miss Shedden remarked that he says : " In addition to that instrument," yet he does not mention any instrument before that. It is not very safe to reason upon a man's language who writes in this ridi- culous and stilted style. Possibly he might call the certificate of the marriage an " instrument." He seems to say that the object of William Shedden was to rescue the children from a state of bas- tardy, in which case I suppose he would require a certificate of the fact of the marriage on the part of the clergyman. However that may be, I could not build upon these words the supposition of some suppressed and missing instrument, of which we have no trace except in the imagination of the Appellant. He says : On his death-bed (which it will doubtless prove) he communicated to me things that have been hid from the world facts that would excite surprise. He likewise requested me to accept of the office of executor in conjunction with two others who are but little connected, to which I consented, being unwilling to refuse this last request, although it will undoubtedly entail on me a world of toil, trouble, and difficulty, and, besides, place me in a situation that may prove unpleasant and delicate : but the thing is done. Besides the two children mentioned, he has one other, a girl of about twelve years old, by another woman who is long dead his very image, but who can reap no benefit from the measures adopted, being con- sidered in the eye of the law a bastard. The other two children, though charm- ing (1) infants, have not the same resemblance to him, I have further to add, in the most perfect confidence, that in my opinion the state of things will be such as to render a disposal of his property necessary, iu order to liquidate the ckims that I apprehend will come against it. Then comes a passage which he marks with asterisks, and which he begs may not be communicated, intimating that the property would disappoint them, because he would be found to be in debt. There I will pause one moment, not because John Patrick's saying so was any proof that he was in debt, but when Miss Shedden saw (1) Much stress was laid on the word " charming " used in this letter. VOL. L] SCOTCH APPEALS. 491 in her imagination vast amounts of wealth transmitted to Sliedden & Goodrich in London for prize-money and other things, and when her father afterwards soared to the amount of one million sterling, of which he says he is deprived, it is as well to notice that the Appellants themselves give us the balance of money at the bankers this enormously wealthy merchant left at his bankers about 250 sterling. Miss Shedden : If you look below in the same page, you Avill see that they were indebted to him. THE LORD CHANCELLOR : I am speaking of the balance at his bankers. The balance at his bankers was 1000, and odd pounds in dollars, as stated by yourselves. Miss Shedden : On the same page there is 30,000 dollars. THE LORD CHANCELLOR : Then the letter goes on about the legal claims, and so on. This letter, I must say, is a natural letter for such a man to write, remembering he was a man who was in the habit of writing in such a ridiculous style. He says : I would act with strict propriety ; nor would I swerve one degree from that justice that devolves as a duty on every honest man ; but I would carefully watch over those rights that become our inheritance, in common with the rest of man- kind. These are my ideas, and I well know that yours will fully co-operate. Then there is a part of the letter referring to the condition of his brother. He says : This being the case (of which I will in due time communicate more), and as we have claims, and they from natural right are certainly entitled to a priority, I think, in justice to ourselves, they ought not to be overlooked, and on you, as representative of the family, the guardianship of this right will devolve I mean the dowry left to our mother, with interest, the interest on the advances by our father during the war, the commission for his agency in accepting and paying bills, and likewise as factor for the estate on the rents. I have interests of my own to watch over, and I have likewise those in opposition to them as an executor to promote. These must be reconciled as much as the nature of the thing will admit ; and the sacred duties devolving on me will be fulfilled, as far as I am able, with justice and a regard to truth and rectitude. Yours is likewise extremely so, as agent for his heirs, and as representative of those who have claims that counter- act them ; but you must reconcile them to the best of your ability, holding in view the sacred and unerring principle of truth and justice. This is a situation we never could have contemplated ; but it is a part of that thorny path that we must all encounter through life, and we must meet it with a fortitude proportioned to its magnitude. 1869 SHEDDES v. PATEICK AND THE ATTORNEY- GENEBAL, 492 SCOTCH APPEALS. [L. B. 1869 SHEDDEN v. PATEICK AND THE ATTORNEY- GENERAL. i Now I only say tliat that man writes in the same ridiculous style in which he wrote in his previous letters when he quarrelled with his uncle and patron. It is very absurd and very ridiculous, but I see nothing in that to render it probable that the letter was otherwise than genuine in the sense of its expressing correctly the narrative of the events there mentioned. It shews the conscious- ness which every man must feel of the difficulty that he would be placed in with reference to a marriage at the last moment entered into with the view to legitimate children. Assuming the writer to- be honest (and we are not to assume him to be dishonest ; that has to be proved ; I do not see anything in the letter which neces- sarily leads to such an inference), it seems to me to be a simple narrative of what actually took place. He is borne out by all the extrinsic facts. The father of the children had died ; he had married their mother on his deathbed ; and he had appointed the writer of the letter, and the other persons there mentioned, his executors. Then comes the postscript, dated " Evening of 9th November," in which he says, "But amidst this gloom," Miss Shedden, no doubt, would wish me to read this (though I have no doubt, as I have stated, that her grandfather had many high qualities of mind) : But amidst this gloom, I have inexpressible pleasure in adding that he bears his situation, which is as trying a one as can possibly fall to the lot of human nature, with that greatness of soul, and with a composure, recollection, and resig- nation, that extracts the greatest reverence and admiration from all who have an opportunity of approaching him. Indeed, he shines irnder the shade of death greater, if possible, than when in the sunshine of prosperity. He has a heart pure and untainted ; his memory with me will always be held in the most reve- rential remembrance. Oh, could I but imitate his virtues, while I could divest myself of those foibles that have unfortunately thrown a momentary shade over a character that would otherwise have been unsullied, and a memory that would have defied the shafts of malice ; but such perfections are not to be met with in this sublunary world. He is reconciled to his fate, has made his peace with his Maker, resigns himself to his bosom, and dies a man and a Christian. Now considering that this is the letter of a man shewn by his other letters to be a man of imperfect education, and with a highly-stilted manner of writing, I see nothing at all unnatural in his writing exactly in this way. Then comes another postscript of November the llth, which Miss Shedden makes a great stir about, YOL. I.] SCOTCH APPEALS. 493 but as to which it appears to me to be wholly immaterial to the 1869 question whether it was written on a separate sheet or not, or SHEDDEN whether it was sent with this letter or not. I pass on to the only passage which appears to me important : AND THE ATTORNEY- He has two important letters to write, and he dies contented. One is to yon _ respecting his children, &c. That, no doubt, is important. That is said to be all a contri- vance and scheme to foist in a forged letter. He goes on : The boy is to be sent to Scotland. I will be glad if you will keep that part of my letter to yourself which is comprehended between the mark x . Now, your Lordships will observe that the letter of the 9th had that mark of asterisks to one passage, and therefore this, which bears the date of the llth, would seem to be a genuine postscript to the letter of the 9th. This postscript, about which so much has been said, refers to that letter of the 9th, and to that very mark, and it can refer to nothing else. Then comes another letter, which is also, no doubt, of import- ance, a letter from John Patrick to Robert Shedden, of London. After saying that Mr. Sliedden is approaching his end, he talks about his behaving like a " good Christian," and so on (I need not read that again), and then he says ; He acknowledged himself guilty of an error, the only one in his life, an unfor- tunate propensity, which you well know ; it led him to his ruin. It forced him (on the 7th instant) at the moment when death was before his eyes, to an alter- native which he could never have contemplated, an union with the woman that had long been with him in a different situation. His motives in this proceeding were pure ; they were dictated by a feeling heart ; he conceived it a duty, a moral, a legal, and a natural obligation to rescue from a state of bastardy, and introduce into the world, with all the privileges common to the rest of mankind, two infant children. It was a hard struggle, but the considerations above men- tioned preponderated. He has executed another instrument a last will and testament. He has appointed three executors, of whom I am one. It was an office I would rather have declined, but it was a last request, and I could not deny it. It is a curious thing that he speaks of his executing " another instrument " immediately after the marriage here, as he did be- fore. I can only consider that he conceived the certificate of mar- riage to be an " instrument ;" no doubt it is an odd expression, but 494 SCOTCH APPEALS. [L.B. 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GBNEBAL. it is not one from which we can infer that there was something else concealed. Then at the end of the letter he says : I shall soon have occasion to write to you again. Perhaps you will excuse this hasty communication. Here, therefore, we have two letters which do not appear to me to bear the slightest mark of there being anything fictitious in them. As to his writing to Mr. Wittiam Patrick, he was the most natural person for him to write to, when Mr. Wittiam Shedden was about to entrust him with the care of his only boy, and when he had been his factor. Now I pass over, for the moment, the letter of the 12th of No- vember, and I come next to the letter of John Patrick to Robert Shedden, of London, dated New York, November 17th. He there only says : " The boy WiUiam is directed to be sent to Scotland ;" but, before that, he speaks of the will which had been executed on the. 7th, no doubt. Then there is another letter, dated New York, November the 18th, from John Patrick to William Patrick, telling him of the death of Mr. WiUiam Shedden on the 13th. There is a passage which I will beg your Lordships to notice. He says : The boy William is left under your guardianship, and is directed to be sent to Scotland to receive a genteel education, and to be put to such profession as may appear best to suit his genius. ... He has appropriated a fund, say 400 to 500 sterling Mark that, because it is a matter of some importance. There is nothing in this about a definite amount of 417 which appears in the letter of the 12th of November, and nowhere else, but 400 to 500 sterling for those purposes to be at your disposal, and indepen- dent of his executors. I shall write you again in a few days by some of the Greenock ships. On the day which proved Mr. Shedden's last, yours of 18th September came to hand, as did that to him, but he was unable to read it. I pass over altogether the letter of the 7th of December acknow- ledging the receipt of an account current, because it was after the testator's death. Then we have a letter from Mr. WiUiam Patrick, of Virginia, to Miss Jean Shedden, of Beith he was a relation, too. Now the Appellants say that William Patrick, at or after the death of William Sliedden, formed the plan of plundering his partner, and that was the object of his joining in this scheme with the other Patricks. It is a strange notion undoubtedly, but every- VOL. L] SCOTCH APPEALS. 495 body is to be brought in somehow or other as taking part in this conspiracy. William Patrick, of Virginia, then writes thus to this lady : I wrote you from this in June, since which I have not heard from you. I left Virginia 20th last month, at which time I left Mrs. Patrick and our little girl in good health. Before I got here Mr. William Shedden had paid the debt of nature ; it had been long expected. He gradually declined to the very last ; he went off on the 13th of last month very much regretted. A few days before his death he married the woman that had lived with him many years, by whom he has two children, a boy and girl, besides which he has another daughter about thirteen years of age. Whatever property he has left goes to his children ; tha marriage took place to throw off the stigma from the children. This man writes natural English. " I don't believe it was from much regard to the woman." This is a natural letter, certainly, although wanting in expression of feeling. This gentleman does not, in fact, seem to have had highly refined feelings, for some of the expressions in his letter are very coarse. However, at all events, he had not the affectation of exhibiting magniloquent lan- guage, but in saying what he has to say he simply tells the tale of all that, to his knowledge, has taken place. This William Patrick, of Virginia, then also mentions the fact of the death-bed marriage as being intended to remove the stigma from the children. Then follow several other letters from about this time, through February, 1799, to the end of the year 1799. I do not intend to go through those other letters, because they do not bear directly upon the important and turning point of the case. But I will now turn back to the letter of William Shedden of the 12th of November, upon the authenticity of which much neces- sarily turns. I should say that in what I have read of William Patrick's letter and John Patrick's letter, you have declarations by relations who were perfectly competent to know all that had taken place. And it seems to me that, barring the extravagant diction of John Patrick, which I have commented upon, the facts are related in a manner that is extremely natural and simple. Now this important letter of William Shedden of the 12th of November is as follows. It is headed " Duplicate," " Original per ship Fanny, via Greenock, New York, 12th November, '98." My very dear Nephew, My long and painful illness must apologize for my long silence. I am now going to quit this world. I have married Miss Ann 1869 SHEDDEN t>. PATRICK AND THE ATTORNEY- GEKEBAL. 496 SCOTCH APPEALS. [L.E. 1869 SHEDDEN v. PATRICK AND TIIE ATTORSEY- GENERAL. Wilson, whicli is approved of by my friends here, and which restores her, and two fine children I have by her, to honour and credit. I have settled all my affairs, and appointed executors here, who will correspond with you. One of my children, is a boy, named Wittiam Patrick Shedden ; they are charming children, he in particular. I have ordered my executors to send him to you. I now remit first of Griffiths & Walronds' exchange on Messrs. Thomas Daniel & Co. He gives the exact particulars of those three bills, which amount together (and it is important to observe this), to 417 15s. 8d. sterling. Then he says : and I desire that such further sum or sums of money may be appropriated for the purpose of maintaining and educating him genteelly, and according to his talents and inclination, not exceeding 500 sterling, without the consent of my executors, of whom you are to be totally independent in this business. I can only add, that I remain, till death, dear William, your affectionate uncle, William Shedden. Now, I say that, to my mind, John Patrick could not have written such a letter. It is perfectly impossible, if you compare its simplicity with his ridiculous, inflated, and stilted style. That letter is one which, to my mind, could not possibly have been written by him. But why are we to imagine such a thing ? We are asked to suppose that this man is possessed of such cleverness that he is both to prepare this letter of the 12th of November, and to insert in it that word which was pointed out and commented upon by the learned Judge of the Divorce Court, as being the very thing upon which almost the whole turns, " to restore her to credit." That he should have hit upon that expression just in this alleged forgery is, to my mind, most improbable. Now, the question turning largely upon this letter, I intend to confine the observations which I am compelled to make in this case to the question of fact Whether that letter be a genuine letter, in the sense of authenticity, or not ? In the first place, as regards internal evidence, there is, to my mind, everything in favour of it. As regards the facts ; he had, in fact, by his will done what this letter refers to. He had, by his will, directed that William Patrick should take care of his son. He had, by his will, appointed a different guardian, Mr. Cunningham, for his eldest daughter by the other lady. He had made provisions also that his executors should deal with his younger daughter ; but this boy was to be sent home. Everything in the will tallies exactly with what the letter expresses. Then he contemplated sending home VOL. I] SCOTCH APPEALS. 497 his son at once, and because he felt that there would be some dif- ficulty in the arrangement of his affairs, he was very anxious that William Patrick should have a sum in hand, and he sends him 417 at once, wishing that " such further sum or sums of money may be appropriated for the purpose of maintaining and educating him genteelly, and according to his talents and inclination, not ex- ceeding 500 sterling." His idea seems to me to have been this : About from 900 to 1000 will be enough for my boy. The boy is but a child at present, William Patrick will get this sum of 417 at once, and by investing that sum at interest, as 5 per cent. could be got generally at that period of our history, it would pro- duce 20 a year or thereabouts, by means of which he would be able to go on until he got the further sum of 500 from his execu- tors. What could be more simple or natural than such an arrange- ment? There has been an amazing struggle on the part of the male Appellant, Mr. Shedden, to shew that he knew nothing whatever of this letter until the year 1841, beyond being told (and that only comes out when he was pinched and pressed, in an affidavit he makes it did not come out at the trial) - Miss Shedden : My Lord, it was directly sworn to at the trial. THE LORD CHANCELLOR : We will take it as having been sworn to at the trial if you like. I shall make precisely the same observation upon it. Feeling, after all his conduct upon the subject of this letter (to which I must hereafter refer), the excessive difficulty of evading this point, he says, " I knew nothing of it until 1841 in detail, but I was told by Mr. Robert Patrick, another cousin, in some conversation in 1823, that there was a letter speaking about the mar- riage with my mother, the details of which I did not know, of the document itself I knew nothing at all." Now the very extraordi- nary part of the matter is this, that as to this letter, after he had been furnished with a copy of it in 1841, he deals with it in a very particular manner. There had first of all been the suit in 1801, which is commented upon a good deal as evidence of fraud (I pass by that at present), a suit with reference to the legitimacy of Mr. Shedden, which was decided in Scotland, and afterwards on appeal by your Lordships' House, adversely to Mr. Shedden, and that suit 18G9 SHEDDEH GENERAL. 498 SCOTCH APPEALS. [L. E. 1869 SHEDDEN v. PATRICK AND THE ATTOHNEY- GENEBAL. had turned entirely, no doubt, upon the question whether or not a death-bed marriage would be sufficient in America, regard being had to the law of America, to give the children the privilege of legitimation. That was decided adversely in the boy's infancy. We have got all the details of that. The decision by the House of Lords was, I think, in 1808. Then in 1848, after some events had taken place which I must here mention, Mr. Shedden had got information through his soli- citor of this letter ; he had, I think, what is called the original duplicate sent to him. He had never, he says, had the original letter, but he says he got the original duplicate then. And then in 1848 he instituted proceedings in Scotland to set aside the proceed- ings of 1801 for fraud, and in the pleadings in the course of those pro- ceedings he found fault with William Patrick for having kept back this letter. He distinctly found fault with him for having kept it back, because he considered it to be of considerable importance with reference to some other matters there mentioned. Afterwards, that is to say, after his voyage to America in 1849, on his coming back with some new ideas in his mind which had been there sug- gested to him, though he says he had heard before from his sister something about his mother having been married previously to the death-bed marriage, but he did not attach much importance to it ; in 1849 he brings forward a case something analogous to what we have heard now at the Bar, alleging that there was, in fact, a prior marriage, and that there had been fraud committed, but not any longer a fraud with reference to keeping back that letter which he had before that time dealt with as a genuine and an important letter. Let us see, then, how the facts stand. Mr. Shedden comes back from India to "England in 1823. And here, in justice to Mr. Patrick who really has been attacked in a manner which, to my mind, is inconceivable, except as the result of gross and extraordi- nary misconception let me say that Mr. William Patrick certainly did his duty to the Appellant, so far as he educated him well. Certainly the Appellant's demeanour before us, as well as his letters, shew that he must have had the advantage of a good education, whatever may be said of the character of the school at which he was placed ; because a person whose boyhood had been neglected VOL. L] SCOTCH APPEALS. 499 could not exhibit the marks of education which Mr. Shedden has exhibited. In the year 1823, then, Mr. Shedden comes back from India, and then it is for the first time, through the medium of Mrs. Robert Patrick, that he is informed about the circumstances of his birth, and then also it is that certain documents are sent to him, undoubtedly in October, 1823, for that we have in his own evidence, wholly independently of the question of the list which has been produced, for he says, in his examination as a witness, that in 1823 he saw some of the documents, as he calls them ; he will not say that he saw everything in that list, or anything like it, but that he first began to see some of those documents. Now at the end of that year, 1823, some of the documents having been sent to him, which he says (in a subsequent correspondence that took place in 1829) he then returned, this remarkable fact took place. Some documents, at all events, were sent to him on the 3rd of January, 1824. He says this : Dr. Patrick and William invited me, and I went to Scotland. I knew nothing about the suit or controversy. Mrs. Patrick said, " You seem to know so little of your affairs ; look at that book, it will give you information." William Patrick came and said he must give me some account of this matter. Then he says : William Patrick said the estate was eaten' up by debts, and besides, there is a case and opinion received from America, which he shewed me. He shewed me printed proceedings. He then tried to smooth me over. He entreated me to re- main, and he would do this and that. I said have you letters from my father ? Can you shew me his handwriting ? This was about October, 1823. I remained there till end of December. Keturned to Edinburgh 2nd January, 1824. Finally left Edinburgh about 4th January. He never said anything about letter from my father, 12th November, 1798. Before this, a letter of John Patrick to him had fallen out of some documents that he had sent me. I sent him some extracts. He called and said it was a private letter, and asked to have ifback(dtiplic(tte and triplicate handed). Then he says : He never shewed me the original of this. I never had it in my custody (list shewn). No. 1 is the one that dropped out by mistake. No such letter as llth November. and so he goes on. I only read this to shew that I am accurate in saying that in October he received some documents. That being so, there conies shortly afterwards that letter of the 18G9 SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. 500 SCOTCH APPEALS. [L.E. 1869 SHEDDEN v, PATHICK AXD THE ATTORNEY- GENERAL. 3rd of January, 1824, the importance of which is undoubtedly very great. This is to William Patrick : Dear Sir, On my arrival last night from the West Country, I received your letter of the 31st ultimo, and I have to thank you very sincerely for the letter of my father to you and the obituary. As I have never seen my father's hand- writing before, you will easily be assured that this is a dear relic to me, being, perhaps, his last signature in this world. The time that is now left me before bidding you farewell is so short that I am only able to make you a hurried acknowledgment. In doing this I beg leave to say that no person in the world can lament more deeply than I do the cause which has given rise to my unfor- tunate feelings and sufferings. Then there follows a great deal more, which I pass over, because it really has no bearing upon the particular point in controversy. Therefore, we have this fact, that Mr. Shedden is asking about his father's letters. In October, 1823, he is having communica- tion upon that subject, and having asked for them, he has some- thing shewn him. Then we find him saying here in this letter, " I had never seen my father's handwriting." I think, therefore, I am bound to give him credit for the observation that he did not see the original letter of the 12th of November at that time. I think, for reasons which I shall afterwards give, that he saw what is called the duplicate or triplicate, because Mr. Patrick having two copies, the duplicate and triplicate, of course for the purpose of conveying information, it would not signify to him in the least which he sent ; indeed he might possibly prefer to retain the ori- ginal in his own possession. That a duplicate and triplicate of this document did come I think is strongly corroborated by other circumstances; indeed it is hardly controverted, because Miss Shedden in her argument says that these bills came over, and that some letter or other was written, but that this is not the letter. The Appellants feel compelled to say that, because of course the bills would not come over without some letter or other being written to accompany them. It would be on the face of it absurd to suppose that they would. The bills were remitted to Mr. William Patrick, and for what possible purpose they could have been re- mitted to Mr. William Patrick except for the purpose of the educa- tion of the cliild it is difficult to say. I was going to mention that in the Appellant's Appendix there is a quadruplicate of this very bill on Messrs. Daniel & Co. for 326. Therefore, I think it is YOL. i.] SCOTCH APPEALS. 501 clear that there existed duplicates and triplicates of this bill, and nothing could bo more probable than that William Patrick should have shewn to the Appellant a duplicate of this letter in October. Then, returning to Mr. Shedderis evidence, the letter of the 3rd of January was shewn to him, in which he says, " As I have never seen my father's handwriting before, you will easily be assured that this is a dear relic to me, being, perhaps, his last signature in this world." Now what does he produce as being the letter of which he was there speaking ? He can now only produce a letter dated 1783, which, of course, it would be ridiculous to say was the letter referred to here. Of course he does not say so ; he knows that it cannot be said of a letter of 1783 that it was perhaps his father's last signature. Now what is Mr. Shedden' s story about this ? I must say he is either misled by his strong feelings about his own case, or he has had his mind warped and misled by the extra- ordinary way in which he has brooded over the case. He has done, probably, as Miss Shedden said with regard to one of the witnesses, a man of the name of Arden, a man who swore positively to knowing Mrs. William SJiedden, although on a' previous occasion he had said he never knew anything about her I pointed out the extraordinary discrepancy, and Miss Shedden's remark was, " Some- times the mind so broods over a subject that you begin to believe that which you brood over to be the fact." I think that explains a great deal of what has taken place both in Miss Shedden s and Mr. Shedden's remarks. I find, as a matter of fact, as far as the written documents go, that we have his own clear and conclusive evidence that he had sent to him in the letter of January, 1824, a document " probably containing his father's last signature in this world;" and then we are told that what was so shewn to him in January, 1824, was not his father's letter of the 12th of November, 1798, which contained probably his last signature in the world and which did deal with those things which concerned him at the last moment of his life, namely, the sending over his son to be educated by Mr. William Patrick, together with money to be sup- plied to him for that purpose. But we are told that the letter so sent was a document referring to some ancient transaction with his first partners, the MCalls. Mr. Shedden 's story is, that Mr. Patrick came back, or rather sent, to say, " Keally I have given you a letter VOL. I. 2 3 A 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. 502 SCOTCH APPEALS. [L. E. 1869 which is rather important to me, it does not signify to you whether SHEDDEN you have one letter or another so long as it is your father's hand- PATRICK writing." Then Mr. Shedden says, " I returned the letter as to AND THE M^Call and accepted this letter of 1783. I was thankful for it GENEBAL. and I kept it." We have nothing else whatever by way of explana- tion. Miss Shedden : May I interrupt your Lordship may I say one single word ? THE LORD CHANCELLOR : If you can point out to me any other witness to support that statement. Miss Shedden : You will remember that Mr. Patrick, by his own statement, led him to suppose that my grandfather could not write for a week before he died. THE LORD CHANCELLOR : That is quite immaterial that has nothing to do with what I am upon. This is utterly irrelevant. I am not misstating the evidence. I must say that I think this throws very grave doubt upon Mr. Shedden's testimony in this matter, and that I am not in any way satisfied that he has not had that original letter of the 12th of November, 1798, and has not done something with it. The inference from the facts is all that way. We have nothing but his own testimony upon the subject, and I do ask whether that testimony is testimony which ought to be regarded by us as credible. On the one hand he says in his own letter, " I have got my father's last signature, which is a dear relic to me ;" but instead of that Mr. Shedden is content to take a letter of 1783, which has no bearing whatever upon himself, and he says he cannot produce anything but that, and this letter which was such a dear relic to him was only a settlement of accounts with the Messrs. M'Catt. We are asked to take that as against all the other evidence there is about this letter. I say every fact is in accordance with the reality of the letter of the 12th of November, it is in accordance with the sending of these bills, which must be accounted for somehow, so that Mr. Shedden is obliged to say that there was some letter of that date, but he says it was not this. What has made me thus strongly express my conviction upon this YOL. I] SCOTCH APPEALS. 503 point is this, that in the subsequent correspondence which took 1869 place in June, 1839, 1 think there is clearly, to my mind, demon- SHEDDEK stration of the fact that Mr. Shedden did know in 1839 of that P AT ^ ICK document of which he declares he knew nothing till 1841 beyond . AND THB ATTOBNEY- the fact that a letter existed in which the marriage with his GENEBAL. mother was spoken of. And therefore it is very important here to look to the letters which passed in 1839. Now this fact is most remarkable undoubtedly. This gentle- man, although aware of his position in 1823, and although aware of all that had been done in his infancy in 1803, and although coming back to England in 1833 with a fortune, yet takes no pro- ceedings to set aside anything that had been done till 1848. It is odd enough in itself that nothing was done till then. But what took place in the meantime ? There had been rather a, serious correspondence between him and William Patrick, which however had not yet arrived at a quarrel till 1839. The corre- spondence begins in May, and Mr. Shedden, the first-named Ap- pellant, says, " I received your invitation to dinner too late in the evening to send you my reply ;" and he says, " I cannot, with my present feelings, join in the spirit of free and happy intercourse which it has been my earnest wish to cultivate, and to see my children follow with you and your family." Then he goes on to complain of many of these things that he now complains of. I do not enter into that in detail. Then, on the 20th of May, Mr. Patrick writes thus, " I have received your letter, which I have read over with great surprise and vexation." Why? they had parted on good terms in 1823 and had not seen one another since. They had had a little skirmish in 1823, but nothing of the serious magnitude that is implied here. But Mr. Shedden had been brooding over it, and the result is a refusal to see his cousin at dinner. Then comes this letter : , I have received your letter, which I have read over with great surprise and vexation. A full explanation was given you on a former occasion when you were about to leave this country for India. As the events to which you allude happened nearly forty years ago, they are known to, or recollected by, very few persons now alive. By the law of England, and by that of America, founded on. it, subsequent marriage does not legitimate children previously born. This being the law, the civil rights of all children, born before marriage, whose parents were resident in America, must be regulated by it. There are many persons of the 2 A 2 504 SCOTCH APPEALS. [L. B. 1869 SHEDDEX v. PATRICK AND THE ATTORNEY- GENERAL. first rank and respectability in England whose patrimonial interests have been, affected by this law, but in no other respect. There is no doubt that your father (whom I had never seen) on his death-bed wrote a letter appointing me your guardian, and committing you to my charge. Here the two points of the letter of the 12th of November are mentioned, namely, that on his death-bed he wrote a letter appoint- ing Mr. Patrick his guardian and committing his boy to his charge. Then he goes on to say, " But you are mistaken in supposing that I accepted of the guardianship." Then he goes on to explain that that was not the case, and in fact it was not the case as it ulti- mately happened, for he refused it when he found the position he was likely to be placed in. This letter then raises the issue at once distinctly that some letter of the father existed that it was a death-bed letter, and that it had reference to the appointment of guardian. Now, how does Mr. Sliedden answer that ? He answers it in a letter of the 14th of June, 1839, a very remarkable letter in many respects. He says : Just to think of you seeking for an American certificate when you had received my father's own letter telling you of his marriage with my mother. Miss Shedden says that what is here called a certificate was an opinion, and we may take it so. Now, observe that Mr. William Patrick had not said a word about the letter telling him of the marriage with the Appellant's mother. He mentioned two other facts as being contained in the letter. He mentioned the death- bed letter appointing him as guardian and consigning the boy to- his charge but the answer shews that Mr. Shedden knew perfectly well what letter he was referring to, for he says in his answer, " When you had received my father's own letter telling you of his marriage with my mother." This is an enormously long letter of the Appellant, but I have here the most important passages marked. He complains very much of what was done. He says that his father wished to give him the property ; and then he relies a great deal upon the letter of John Patrick, on which also Miss Shedden laid great stress. Then comes another passage to which I call particular attention : Again, when you speak of my education, you will recollect when you told me in 1823 that my father had sent you home about 400 to 500 for it, and you/ VOL. I] SCOTCH APPEALS. 505 offered to give me an account of your disbursements, I told you that I wanted no particulars, but if you exceeded the amount I would be happy to send you a cheque on my banker for it any agent would have paid my bills. Then he writes this as to a suggested purchase of his father's property : Consequently, the above price of 10,000 would have been higher, therefore conferring no favour on me, and I was ready then to give it particularly as it is likely that no other person knowing my claims would be anxious to have it, or at all events without an indemnity bond ; for although I am not able to establish just now my father's first private marriage, which I have given you notice of, what is known already would not be in your favour; and I conceive it to be my duty now to inform you that my sister told me it was really the case that my mother was a respectable young person, living with her parents upon a small farm on my father's land, and he did not acknowledge the marriage publicly on account of her humble birth, but nevertheless he always, treated her as his wife. And Mr. JRdbert Shedden informed me that he found her at the head of my father's table when he went to America, which is not against the statement. Moreover, my sister told me in 1829, when she mentioned these circumstances, that a woman was still alive who was present at the first private marriage. As for the truth of the thing I can only say that my sister believed it, and I can depend upon her veracity. I think this is important as shewing how fully aware he seems to have been of all the circumstances that he could set up in favour of his present contest, but it is even much more so on account of the important passages referring to the death-bed letter of William Shedden. But the matter does not rest there. This very singular corre- spondence goes on, and on the 29th of June Mr. William Patrick writes thus : Sir, I have received yours of this day, and shall take an early opportunity of searching for and sending you a copy of your father's will, which I hope I shall find preserved among my old papers. As for my brother's private letters to me, which were formerly sent you for perusal, you seem to have retained copies of them, so you can have no occasion to ask for additional copies of them. Observe the words " Sent you for perusal." This is important, because it explains a good deal that was afterwards done about the document sent in October. He goes on : * It is not true that the will or any papers were withheld ; the printed appeal cases which you have seen prove the contrary. You talk of a reference to arbiters 1869 SHEDDEN v. PATRICK GENERAL. 506 SCOTCH APPEALS. [L. IL 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. Then on the 2nd of July there is a still more important letter : Sir, Having now found the probate of your father's will, I send you a cop}-. From this you will see that I am only only appointed to the personal guardian- ship of you for the purpose of superintending and directing your education. You have seen from the opinion of Messrs. Hamilton and Harrison, taken in 1799,. that the marriage could not legitimise children previously born. Observe what follows : You know from the correspondence that the sum remitted/or your maintenance and education was 417. Now that letter of the 12th of November is the only place where that exact sum is mentioned. There is no other place whatever in which the 417 appears. In John Patrick's letters it is said to be between 400 and 500. But William Patrick says: " You know from the correspondence that the sum remitted for your maintenance and education was 417." Then what have we here ? We have William Patrick at first saying to him : " You know very well that you were sent over to my care, and I was appointed guardian by a death-bed letter." His answer to that is : " Yes ; and you know that you had a letter mentioning my mother's marriage. Only think of your doing this when you had my father's death-bed letter about the marriage of my mother." Therefore, we have two parts of the letter agreed on by both sides. Now we reach at last the whole letter by degrees. William Patrick says: "You know from the correspondence that the sum remitted " (because he had been asking what the sum was that he might repay it) "for your maintenance and education was 41 7 r and you will see by the will that the executors were empowered to make further remittances for the purpose." Now, I say that such evidence as this does satisfy my mind completely that Mr. Shedden did see this letter, and it satisfies me more completely that the letter which he received in January, 1824, was that identical letter, because it is the only letter which corresponds with the statement there of a letter written a short time before his father's death. Eeally all the labour of going through these letters in this manner ought not to have been thrown upon this tribunal, because what is there from beginning to end which would cast a shadow VOL. I.] SCOTCH APPEALS. 507 of suspicion upon anybody as being concerned in forging this letter ? You have everybody writing to the same effect as to that which took place. There is the fact of the marriage ; there is the fact of the remittance of 417 ; there is the fact of the bill being paid exactly as is said in the letter ; there is the fact of John Patrick being made executor just as he is said in the letter to have been the executor ; there is the fact of the bond existing just as is said in the letter, which shews what were the debts existing, but which it is said we are not to believe now. You have all these facts put together, and I must say most unfeignedly that I come without hesitation to the conclusion which is so well expressed by Lord Fullerton in his judgment on the proceedings for reduction) Xow the first thing which must strike every one not absolutely blinded by personal prejudices on reading these letters is, that the letters as they stand are absolutely negative of any fraudulent intent whatever. They are the letters of persons who had interests adverse to that of the Pursuer, and of course were lawfully entitled to defend their own interests, but who were at the same time desirous that those of the Pursuer should be fairly protected, and who recom- mended the steps necessary for that purpose. Now, my Lords, having come to the conclusion at which I have arrived, I shall be very brief in my observations with reference to the alleged subsequent misconduct of the Patricks, from which we are told that we ought to infer previous fraud of this gross descrip- tion. What we are asked to infer is this, that this gentleman being evidently taken by surprise by a death, which though ex- pected in one sense was not expected to be so sudden a letter is written in his name which had been deliberately planned, that that letter so sent was fabricated and forged, and that the alleged copies which have " duplicate " and " triplicate " put upon them are now produced. This " duplicate " and " triplicate " being attested by a clerk, one Mills (who, be it observed, as I gather from the Appellants' own case, had been employed for four years in his master's service, the date of his appointment being 1794) are also wholly fraudulent, and we are asked to suppose that Mills falsely testified to the existence of a letter which did not ever exist, but which was a forgery. All these things we are asked to believe. We are asked also to hold that there is no proper and legitimate evidence of the existence of this letter, there being to I860 SHEDDIX r. PATBICK AND THE ATTORNEY- GENEBAL. 508 SCOTCH APPEALS. [L. R. ]869 my mind the clearest and plainest evidence of its loss, and the SHEDDEN consequence of that loss being the right to have recourse to the PATRICK " duplicate " and " triplicate " of that letter so attested by Mills. AND THE These are monstrous assumptions to make, and they could not be GENERAL, established except by the clearest and plainest proofs of such deliberate fraud on the part of the parties. Now what is the evidence of fraud ? That William Patrick accepts the guardian- ship, which at the first moment in a sense he did. That he puts his brother Robert immediately into possession of the estate under what is called a " retour " in Scotland, and that he keeps back the fact of the child having been born Miss Shedden : He was the judicial factor. THE LORD CHANCELLOR: You told us that, Miss Shedden, every day we sat, and four times every day, that he was the judicial factor what we call the receiver to the estate being appointed judicial factor at that time in consequence of the ex- pected debts. The debts were expected, I have no doubt, to be much more heavy than they were found to be. There was a heavy debt of 4000 on the bond, which was quite a surprise to them. There is no doubt that the Patricks reasonably expected much more serious debts. There was a great deal said by Miss Shedden about a bond for 700. It is impossible to follow all the details of these matters. We cannot grapple with them. We are asked now after an interval of sixty years to sift and examine all these transactions as if they had occurred only yesterday, and of course it cannot be done. Miss Shedden has asked for a new trial, because she says if you let her take all the accounts of the part- nership of Shedden & Co. in London, and Shedden, Patrick, & Co. in New York, she can prove that there was no debt to justify the bond for 4000. But we are now dealing with alleged fraud on the part of William Patrick. The Appellants say : " You, the judicial factor, you, the person who was entrusted with the care of the boy, and who undertook to take care of him, you put upon the records of the Court a sham suit. You employed a sham agent ; he was a man indebted to you ; he was a tool and creature of your own. You bring forward a sham case, and in that sham case you recover the estate for your brother Robert" And all this VOL. I.] SCOTCH APPEALS. 509 is said notwithstanding the proceedings in 1848, in which Lord Fullerton and the other Judges, having the whole of this corre- spondence and these facts, including this judicial factorship and the alleged guardianship, before them, came to the conclusion that they amounted to no evidence of fraud whatever. I have not time to read that judgment. I am taking up a great deal of your Lordships' time, and that of the public, who are in- terested in other causes ; and it would not be right to go through that case of 1848 again. I can come to no other conclusion than that William Patrick was placed in a difficult and delicate posi- tion. There are many men who would say in such a case, " I will have nothing to do with the matter, I will 'wash my hands of the concern. I have on the one hand my brother, who up to the time of the appearance of this child, whom nobody had heard of before in my family, was supposed to be the heir of the property, and I find an attempt by this marriage to oust him from it. I do not believe that this will succeed, because the marriage law of Ame- rica would not allow such a marriage as this to legitimate the children. Still that is a moot and doubtful point, which will have to be investigated." It might have been better for him to renounce all charge as to the children. But in justice to him we should examine what he does. He writes a letter to the executors to tell them his difficulties, and he says, " I will not be guardian of the child." He declines entirely to be guardian of the child. He says, " You ought to take it upon you to defend the child's in- terests." They decline to enter into that contention. Then he says, " The mother ought to do it." Then comes that singular episode of the mother's letter. On the 3rd of September she writes to Robert [Patrick an expostulatory letter, imploring pity rather than otherwise, in reference to dealing with her child. She says that the marriage was perfectly solemn, and that the will was perfectly solemn, but not a word does she say in that letter of any previous marriage.' Then it is said there exists a piece of evidence which the Ap- pellants have discovered by a most marvellous circumstance, and which shews, as they allege, a gross fraud on the part of William Patrick in this matter. " We have discovered," they say, " in the box of John Patrick copies of two affidavits made and sent over 1800 uv*> SHEDDEN v. PATRICK AND THE ATTORNEY- GENEBAL. 510 SCOTCH APPEALS. [L. R. 1869 SHEDDEN PATRICK AND THE "GESTEBAL. by Mrs. Vincent to prove a previous marriage, and that [ William Patrick kept these back from the Court, and did not allow the House of Lords to know of this evidence." Now just let us con- s ider for a moment how that stands. It stands thus : these affi- davits were not sent to Wittiam Patrick by Mrs. Vincent, they were sent to her own solicitors, persons as competent to act as Mr. William Patrick himself, namely, to Messrs. CunningJiame and Macfarlane. How does Miss Shedden deal with that fact ? She says they lived in the same street as Mr. William Patrick, and it was very easy for William Patrick to go to them and manage them according to his own interest and that of his brother Robert. Now this is just one example of the way in which charges are dealt out against all persons connected with this case. But how is the business of life to be conducted if fraud is to be assumed in this manner ? We all know that fraud is easy, if men are fraudulent ; but the presumption is in favour of honesty till the contrary is proved. It is asked, Why did not Messrs. Cunninghame & Mac- farlane proceed ? I think I can answer that question at once. There never were more absurd documents sent over than those two affidavits. No solicitor would for a moment attach the slightest importance to them, unless they could be followed up : I quite agree that they might be followed up, and that they called for inquiry, but per se they were worth nothing. They were affi- davits made by the nurse and another servant before a magistrate, to say that the mother was highly respected, that she was received by everybody as a married woman, and that they knew this of their own knowledge. Any lawyer receiving these affidavits would say, " What is the use of these ? Why do not you give me affidavits of the persons who, you say, saw her and respected her, and re- ceived her in society ? Here is a man marrying on his death-bed, a thing itself requiring great explanation, if he was ever married before, and the only explanation I get is these two documents. Mr. William Patrick has copies of them, and he writes to say, what falsehoods these must be." Can any one be surprised at these absurd statements being thought little of, when l)r. Hosack was alive, and he was an executor ; and when Mr. Farquhar was alive, and he was an executor ? Why did not Dr. Hosack and Mr. Farquhar send over an affidavit, to say that they knew of VOL. I] SCOTCH APPEALS. 511 that previous marriage, and that this marriage on the death-bed was only for some reason which we have never yet heard of; and that there had been a marriage before ? I must say that to accuse William Patrick of any impropriety in not submitting to the House of Lords that which the lady's own solicitor never ventured to submit to anybody, seems to me one of the most singular con- tentions that can possibly be set up. I will at once concede to Miss Shedden that a man placed in the position in which Mr. William Patrick was placed had better not act as guardian. It was a very difficult position. I concede at once that Mr. William Patrick might have done better to say, " I will wash my hands of the whole matter altogether." That might have been very hard upon his brother and other persons interested in claiming his assistance ; but still a man in such a difficult position must do his best. But then, as to the appointment of Mr. Crawfurd to act as next friend for the infant. William Patrick's first proposal to the executors is, Do you, the executors, take the defence of the child's interests in hand ? The next proposal is, Do you, Mrs. Vincent, the child's mother, then married to her second husband, take it in hand ? His next proposal is, whoever wins let him pay all the costs. An extremely fair proposal. Then when the decision is given against the child's legitimacy in the Court below, Mr. Craw- furd himself appeals, and, as far as I can see, the most able counsel of the day, both at the hearing in the Court below, and at the Bar of this House, were procured. If there had been any fraud on the part of the Patricks, would not those counsel have suggested everything that ought to be suggested ? Among other things, it is said that William Patrick kept back evidence. It is said that there was evidence that Mr. Shedden talked of returning to Scotland. He would not let his estates for more than a year at a time, and that, it is said, shews an animus revertendi. We all know how recently it has been settled, that there can be the slightest hope of proving a man to have had a Scotch domicil who has been twenty-eight years settled, first in the Colonies, and afterwards in the United States of America (1). Certainly at that time it would have been considered quite hopeless. But with (1) See Udny v. Udny, supra, p. 4-1-1. 1869 SHEDDEIT v. PATRICK AND THE ATTORNEY- GENERAL. 512 SCOTCH APPEALS. [L. R. 1860 SHEDDEN v. PATRICK AND THE ATTOEKEY- GENERAL. what we now know, it is just possible that some of those letters might have been important, with reference to the possibility of his returning to Scotland as bearing upon the question of domicil ; but William Patrick could not at that time possibly have conceived them to be in that respect important. Then, I ask, what explanation has been given of this death-bed marriage, the fact of which is clearly proved ? I have heard no explanation given at all of it. I have only heard that the Earl of Dundonald was married two or three times over, and that other people have been married two or three times over. But there was some particular reason for it in each of those cases. But here there is no reason whatever shewn why this second marriage should have taken place, if all the world knew of the marriage before. Mr. Sliedden says, in his letter in 1839, that the marriage was kept secret on account of the lady's position in life. We are told now that all the world knew it. I cannot, I confess, see any- thing at all to shake that which is my firm belief, that those letters written by members of the family were genuine letters, describing what passed as it passed, and that the letter of the 12th of November, 1798, was authentic as well as genuine authentic, as being written by the person by whom it purported to be written, and genuine, as expressing his real sentiments. My Lords, I despair of going through all the details which have been brought before us to shew that there is the mark of a rascal here, and there is the mark of a scoundrel there. I have dealt with the broader features of the case. I must say my own conclu- sion is, that William Patrick, placed as he was in an extremely difficult position, 'if he had been aware of all that might be said hereafter, might possibly have taken a different course, but that he did his best, and that having chosen his course, he did supply all the information which it was right and proper for him to supply. He did furnish the best counsel he could for the persons whose case was to be argued. He undertook that all the expenses of the case, whichever side should fail, should be paid by the winner, though it would have been difficult, perhaps, to maintain against the infant the bargain that if he won he should pay the costs, if the result had been the other way. It might (as I have said) have been better if the difficult task had fallen into other hands, but I YOL. I.] SCOTCH APPEALS. 51! must add that I think he did extricate himself from the difficulties of his position as well as any person in such a position could do. Whether he might have examined, with Mr. Sliedden's assistance, all the witnesses in America, in order to ascertain more facts about this child, it is not for us to inquire. I must say that it is not reasonable to expect that he should do what the lady's own solicitor did not do. Miss Sliedden : They had not a farthing, and lawyers will not act without money. They had exhausted their funds so as to prevent their coming over. THE LOED CHANCELLOE : That is a most improper interposition, I must have you removed if you do not stop. Mrs. Vincent had friends in America. There was this Mr. Cunningrhame, or a gentle- man of the same name. I do not know whether he was a relation of Mr. Cunningliame, of the firm of Cunningliame & Macfarlane. She married a person who was said to be in a good position Cap- tain Vincent, the master of a merchant vessel and I see no reason why she should not have furnished that which it would have been so easy to furnish, the evidence which is now supplied, at this enormous distance of time, of persons who could speak from their own knowledge as to the way in which she was received in society. That evidence, standing quite alone and uncontradicted, would have established the fact of a prior marriage, because, of course, the presumption of a marriage is very strong. But if, according to the theory now set up, there had been a prior marriage, which was known to everybody, then there was not a shadow of ground for having a second marriage. That second marriage, unexplained as it is, wholly cuts away the ground for any such prior marriage. I may just refer to the evidence of one of the witnesses, a man named Arden, as shewing the extreme danger of acting upon evi- dence with respect to the condition in which people were living, given after the lapse of sixty years, and after controversies have arisen on the subject. It is a strong instance of the difficulty we are placed in. The witness was in his eighty-third year. The question is : Q. Were you personally acquainted with his wife, Mrs. Shedden ? A. I was always acquainted with Mrs. Shedden as a lady of distinction and propriety. I 18G9 SHEDDEN v. PATKICK AND THE ATTORNEY- GENERAL. 514 SCOTCH APPEALS. [L. K. 1869 was personally acquainted with her, and have met her at different places, and in company at my aunt's, Mrs. Hamilton's. Q. Do you know how she was regarded SHKDDEK m ^ e soc j e ty j n -which she lived? A. She was always esteemed as a lady of PATBTOK distinction, as a lady of good manners, and very respectable : AND THE ATTORNEY- and so on. Then he goes through the names of people in the best (jrENERAL, - possible position. Then he is cross-examined. There is a paper put into his hands, and he says in his cross-examination : I do not recollect that I have ever seen the person referred to in my direct examination as Mrs. Shedden. This is the person who had before stated that he was acquainted with her, and saw her at his aunt's, and at other places, and had given her the highest reputation. I have heard Mrs. Hamilton speak of Mrs. Shedden repeatedly as having been at her (Mrs. Hamilton's) house, and that is the only knowledge I have on the subject. He is asked : Did you or not when examined as a witness, in reference to Mr. William Shedden in 1850, as already stated, use these or similar words ? He answers : I do not know ; you have there what I said on that occasion ; I cannot recol- lect what I said on the occasion. Q. "Was the deposition which you made in 1850, correct, according to your best belief and recollection, at the time ? A. I presume it was right. I have no doubt it was. This is the man who had before sworn positively to his personal knowledge of her. Upon his re-examination, it is attempted to set him up by asking : You have stated that your deposition of 1850, in which you say that you do not recollect that you have ever seen Mrs. Shedden, was correct according to your best knowledge and belief at that time. Have you since the taking of that depo- sition been enabled to recall the matter more particularly to your recollection, so as to say to-day that you were personally acquainted with her, as you have stated in your direct examination ? So that he would be supposed to have a more distinct recollec- tion of her eight or nine years afterwards than he had eight or nine years before. His answer is : I now say that I did not mean to say in my direct examination that I was per- sonally acquainted with her. I knew her, and where she associated, and as Mrs. Shedden ; when I bowed to her, she bowed in answer. VOL. I.] SCOTCH APPEALS. 515 That really shews the extreme danger of such evidence as that. 1869 People go talking round the town about a certain case. All the SHEDDEK old people who can be found are collected together and talk P A TBICK together. And Miss Shedden very ingeniously put it to me, when ****> THE ATTORNEY- I called her attention to this sort of evidence, that people some- GENERAL. times brood over things till they believe those things which they brood over to be facts. Miss Shedden : I was speaking of Mr. William Patrick. THE LORD CHANCELLOR : I took it down at the time, and I quite agree with it. I believe that that is the real explanation of the whole case. Therefore, as regards that part of the case, I am of opinion that the decision is according to the evidence. I do not mean to go through the details (which we did while hearing Miss Shedden) of evidence which was rejected, and which, she says, ought to have been admitted. It is absurd to talk about going into accounts, and letters produced as containing declarations which were no declarations at all. All that was most properly rejected. And, at the same time, I have been unable to discover anything that was improperly admitted at the trial. I am clearly of opinion that nothing was improperly excluded, and that nothing was im- properly] admitted. And as to the application for a new trial, when a gentleman, first of all, had from 1823 to 1848 to consider whether he would proceed, and then after 1848 had the advantage, in 1849, of going to America and getting all the evidence he could get, and then has had the advantage under this new Act of bring- ing to the Bar all the evidence he has so collected, and then, when there has been decision after decision, he comes and tells us that he is taken by surprise, and that he ought to be admitted now to produce further evidence ; if that is to be allowed, how can any suit ever be brought to an end ? My Lords, I said that I would just refer to some letters of Dr. Robert Patrick's, some letters picked up since the cause was heard, written from Minorca, in which he complains of not hear- ing at all from Mr. William Patrick. He says the letters do not reach him. To which, Mr. Shedden, the Appellant, appends one of his very characteristic notes, in which he states that communica- tions passed safely every few days between England and the Medi- 516 SCOTCH APPEALS. [L.K. 1869 SHEDDEN v. PATRICK AJJD THE ATTOKXEY- terranean, including Minorca, throughout the year 1799. In that letter of Dr. Robert Patrick's, he says, " I always expected that he would leave his property to his," then a word is left in blank as a great deal of this evidence is printed by the Appellants, " his [blank] children." I suppose that means " his bastard children." The same sort of blank is left in other cases. That would be no declaration; I do not use it in that sense. The letter, in one sense, would be rather favourable to Miss Shedden s view, namely, what Miss SJiedden was wishing to persuade us, that though the family might choose to call them bastards, still they knew all about the existence of these children. But I do not find a single trace of Mr. William Shedden, as to~these children, nor anything to indicate that they had been heard of until the father's (known) death, except in this passage. It looks as if some little gossip had oozed out about these children, but it amounts to no more. Having dealt with the application for a new trial and the objec- tions to the acceptance of evidence, and the decision upon the evidence, I will only say a word upon the question of directing an issue for trial by jury. My noble and learned friend (Lord Clielms- ford), I know has more to say upon that point. It is an entire mistake for Miss Shedden to suppose that this Act of Parliament was meant to direct and impose upon a Judge the duty of trying these matters of fact by a jury. Nothing can be more clear than this. The Legislature had before their minds the law upon the subject when they were introducing a new law, and no doubt they felt the extreme grievance which might be caused by forcing people to contest these 'matters before juries, and the extreme in- convenience and expense of collecting people from all parts of the world and keeping them in an assize town, to come before a jury, and, on the other hand, the jury may be detained there day after day upon one case. In one instance, Miss Shedden is right, in the case of an heir-at-law who has been disinherited, he has, on the issue Devisavit vel non, a right to a trial by jury. But in no other case is there such a right. And cases of fraud in reference to matters of the greatest magnitude, and other rights of property, are tried constantly in Courts of Equity (Small v. Attwood, for in- stance (1) ), and have been so tried from all time, without the inter- (1) You. 407 ; 6 Cl. & Fin. 232. VOL. I] SCOTCH APPEALS. 517 mention of a jury. The Act says that the learned Judge is to i860 follow the course of procedure under the Divorce Act where the SHEDDEN course is plainly pointed out. He is not directed there to have a i> A ^ ICK iury except in certain specified cases which have nothing in com- A AI *D THE A - 1 . ATTOKNEY- mon with this case. There is no such direction in the Act with GEXERAL. reference to this case. That being so, it is left to the discretion of the learned Judge, and I cannot interfere with that discretion, exercised as it was by Sir Cresswell Cresswell, assisted by Mr. Justice Wightman and Mr. Justice VaugJian Williams. Miss Shedden: No, my Lord, it was only Sir Cresswell Cress- well who refused it. THE LORD CHANCELLOR : Sir Cresswell Cressu-ett was the Judge to exercise the discretion, but he had the assistance of Mr. Justice Wiglitman and of Mr. Justice Vauyhan Williams, he had their assistance in the trial, and the question is, whether he exercised a sound discretion in saying that he would rather try the case with those two learned Judges, than whom he could not have had two more competent assessors, than submit the case to a jury which would be one of the most damaging things that could happen to Miss Shedden because I venture to say she would not find any jury to sit for twenty-four days, as your Lordships have done, with- out being long before that time wearied out. In the first three days she, Miss Shedden, argued the case very ably, and I felt that she had made some points deserving great consideration and I .gave great consideration to them. I must say that for the remain- ing nineteen or twenty days she did nothing but weaken the force of her previous arguments. The consequence is, of course, that the case has been exceedingly embarrassed. One has had to read through the whole case with all this immense mass of printed matter. I have read every letter through carefully, and in read- ing every letter through, I have used none against Miss Shedden in delivering my opinion, which I ought not to have read, and I believe that I have read a great many which I ought not to have read against the other side. And in all this mass of papers so im- properly thrust upon us, I have been unable to discover anything to shake me in the conviction at which I have arrived, and which was expressed by the learned Judges who gave judgment upon the VOL. I. .-} 15 518 SCOTCH APPEALS. [L. R_ 1869 action for reduction in Scotland, and by the other three learned SHEDDEX Judges to whom I have referred in the Court of Divorce ; and I PATBICK mus t sav that I concur with the Judge Ordinary in saying that I AND THE deeply regret the result as regards Miss Shedden, believing, as she ATTOBNEY- r J GEXEKAL. naturally does, that that which she receives from her parent is true. She has been imbued with conviction which nothing will shake r which the decision of all your Lordships' House assembled together, or the decision of all the learned Judges in the country assembled together, or the decision of all the juries in the country assembled together, would not shake if the decision were against her. But where fraud is averred fraud must be proved. Fraud has been> averred here, but it has not been proved. It is necessary for me^. therefore to conclude, by moving your Lordships that these appeals be dismissed with costs. LORD CHELMSFORD : My Lords, this is an appeal and supplemental appeal against two decrees or orders of the Court for Divorce and Matrimonial Causes, dismissing a Petition presented by the Appellants under the Legitimacy Declaration Act, 1858, by which they prayed that Court to pronounce that William Shedden and Ann Wihon* the father and mother of the Appellant, William Patrick Ealston Shedden, were lawfully married prior to his birth, and that he was their legitimate son and heir, and a natural-born subject of Her Majesty. The argument of the appeal was conducted principally by the female Appellant, with great ability, -but was prolonged to the extraordinary and unnecessary length of twenty-four days by inces- sant repetitions, perpetual digressions, and the continual introduc- tion of matters which were not in evidence before the Court below, and which were wholly irrelevant to the questions to be determined. Considerable embarrassment was also occasioned by the Appellants having printed a volume containing more than 1100 pages, in which they had introduced a variety of letters and documents (many of them not very faithfully given), which formed no part of the evidence upon which your Lordships were called upon to decide. To these frequent reference was made during the argu- ment, occasioning the necessitv for the continual interference of VOL. I.] 519 the House, which, being submitted to for the moment, was almost immediately afterwards disregarded, and the irregularities which had to be thus continually checked were over and over again repeated. The case, though thus drawn out to such an unreasonable length, really lies in a very narrow compass, and its merits may, without impropriety, be said to depend upon the genuineness of a single document, the disputed letter of the 12th of November, 1798. But the real questions have been completely obscured in the cloud raised over them by the mode in which the case has been argued by the Appellants. Those questions are : 1. Whether the Appellants were entitled as of right to have their Petition tried by a jury, or whether the Judge Ordinary exercised a proper judicial discretion in refusing a jury trial. 2. Whether the decree pronounced upon the Petition was justi- iied by the evidence before the Court. 3. Whether improper evidence was admitted, or admissible evi- dence rejected. 4. Whether the application of the Appellants for a rehearing upon the circumstances stated in their affidavits presented to the Court ought to have been granted. The first question, as to the right of the Appellants to have their Petition tried by a jury, may be very shortly disposed of. By the 4th section of the Legitimacy Declaration Act, 1858, all the provisions of the prior Act establishing the Court for Divorce and Matrimonial Causes were extended to applications and proceedings in that Court under the later Act. By the 36th section of the former Act, 20 & 21 Viet. c. 85, it is enacted, that in questions of fact arising in proceedings under the Act it shall be lawful for, but, except as hereinbefore provided, not obligatory upon, the Court to direct the truth thereof to be determined before itself, or before any one or more of the Judges of the said Court, by the verdict of a special or common jury. The exception thereinbefore provided for is contained in the 28th section, which authorizes parties to insist upon having the contested matters of fact tried by a jury, but it is unnecessary to say that the excepted cases have no analogy to the case of the Appellants. 2 3 B 2 I860 SHEDBEN v. PATKICK AND THE ATTORNEY- GENERAL. 520 SCOTCH APPEALS. [L. K. 1869 tj The 35th section of the Act for establishing the Court of Pro- SHEPDEN bate, 20 & 21 Viet. c. 77,- was referred to for the purpose of p * proving that where an heir-at-law is interested. the Legislature has AND THE recognised his right to have a trial by jury. This Act has nothing \-TTOFXEY- GENERAL, whatever to do with the question, and I should not have noticed it if it had not been that I was desirous of shewing that no part of the argument had been overlooked. If this Act has any applica- tion, it refers only to cases in which an undisputed heir-at-law is party ; and the question in the present case being whether Mr. Shedden is legitimate, and therefore truly the heir-at-law, it is, of course, wholly inapplicable to him. It was clearly in the discre- tion of the Judge Ordinary to decide whether the trial of the Appellants' Petition should be by a jury, or before himself, 1 either alone or with other Judges of the Court, and the Appellants had no right to insist upon having a jury. But although your Lordships would be very reluctant to over- rule the judicial discretion upon this subject, yet, if it could be shewn to have been improperly or capriciously exercised, it might be rightly subject to revision. But it appears to me that this was peculiarly a case in which the judgment of three learned and able Judges, accustomed to weigh evidence, and consider its bearing, was far preferable to that of a jury only accidentally (if at all) experienced in legal inquiries. I can easily understand that the Appellants may have earnestly desired a trial by jury in the con- fidence that the powers possessed by the female Appellant would enable her to enlist their sympathies, and to exercise a consider- able influence over their minds ; but for the calm and impartial ascertainment of the truth no better tribunal could possibly be imagined than that which was constituted by the learned Judges who tried the Petition. The case of the Appellants having been thus, in my opinion, tried and investigated under the most favourable circumstances for arriving at the truth by Judges who had many of the witnesses examined viva voce before them (an advantage which your Lord- ships have not possessed), the question is, whether upon the evi- dence produced they came to an erroneous conclusion that William Shedden and Ann Wilson, the father and mother of the Appellant, Mr. Shedden, were not married prior to his birth, and that he was VOL. I.] SCOTCH APPEALS. 521 not their legitimate son and heir, and a natural-bom subject "^of Her Majesty. The Appellant Mr. Shedden was the son of William Shedden and Ann Wilson, and was born at New York in the year 1793. His father, William Shedden, went to America at an early age, and settled as a merchant in Virginia. On the death of his father he succeeded as heir-at-law to an estate in Ayrshire, called Bough- wood. When the Kevolution in America broke out he went to Bermuda, but afterwards returned to the United States of America, where he carried on business at New York until his death on the 13th of November, 1798. For many years before his death Ann Wilson, the mother of the Appellant, was living with him, sitting at the head of his table, and acting in every respect as the mis tress of the establishment, being visited by the respectable families in New York, and generally reputed to be his wife. A few days before William Shedden s death, viz., on the 7th of November, 1798, he went through a ceremony of marriage with Ann Wilson, upon the object and effect of which the case mainly turns. The Respondent says that the communication of the fact of this mar- riage was made in a letter from William Shedden, dated on the 12th of November, 1798, the day before his death, in which he wrote to William Patrick : . * "I have married Miss Ann Wilson, which is approved of by my friends here, and which-restorcs her and two fine children I have by her to honour and credit." The original of this letter is not forthcoming, and it was the subject of dispute at the trial whether any original letter containing the passage above mentioned ever existed. As this letter, if proved to have ever been in existence, would be fatal to the Appellant's case in the Court below which (as ob- served) was founded upon the allegation of a marriage of his parents prior to the birth of the Appellant Mr. Shedden, every effort was made to impeach its genuineness, and to discredit the evidence in support of its having been written by Mr. William Shedden. Ac- cordingly it was strongly and repeatedly asserted in argument that copies of this letter, called respectively " duplicate " and " tripli- cate " were fabricated for the purpose of carrying out the designs of the Patricks which were alleged to have been formed even during I860 SHKDDE* v. PATRICK AND THE ATTORNEY- GENERAL. 522 SCOTCH APPEALS. [L. B. 1860 SHEDDEN v. PATRICK ' AND THE ATTOBNEY- GENEBAL. the life of William Shedden,io secure his estates to the person next in succession in the event of the illegitimacy of the Appellant being established. The persons said to be implicated in this conspiracy to deprive the Appellant of his inheritance are various members of the Patrick family, and principally Mr. William^ Patrick of Edin- burgh, together with Robert Shedden, junior, and Hugh Craurfurd, besides some subordinate instruments of the principal parties. The manner in which their fraudulent scheme was alleged to have been carried out was, first, by fabricating debts so as to reduce the value of the estates of William Shedden, and then by forging various letters to prove the illegitimacy of the Appellant. As the proof of the illegitimacy of the Appellant would at once have opened the way to the succession of Dr. Robert Patrick to the estates, it is difficult to understand why the unnecessary trouble should have been taken to create debts whereby their value would be diminished. But to dispose at once of this question of fictitious debts. Amongst those asserted to have been fabricated is one of 4000 upon a bond given by William Shedden of the date of the 3rd of September, 1798. This bond was proved in the regular way at the trial, by a witness, William George Shedden, who swore to the signature of his uncle Robert SJiedden, junior, the attesting witness, who was dead. Not the slightest attempt was made to disprove the validity of this bond at the trial, and yet Miss Shedden did not hesitate to assert repeatedly in the course of her argument that the bond was a forgery, and that William George Shedden had been guilty of perjury in proving his uncle's signature. With respect to the letter of the 12th of November, 1798, upon which the question of the Appellant's illegitimacy principally rests, it was not denied in argument that some" letter of that date was written by William Shedden enclosing bills of exchange. It was denied, however, that such letter contained the material statement of his marriage with Ann Wilson, by which she and the children were restored to honour and credit ; but it was strongly asserted that the Patricks suppressed the original of that letter, and pro- duced only copies, which they called respectively " duplicate " and " triplicate " in which they had caused this passage to be inserted. The reason of the non-production of the alleged original letter was the subject of direct conflict of evidence between the parties. TOL. I.] SCOTCH APPEALS. 523 William Patrick, who was examined in the cause under a commis- sion, swore that he handed the letter of the 12th of November, 1798, to the Appellant, Mr. Shedden, in the year 1823 or 1824, and that he never got it back nor saw it afterwards. The Appellant swore that he never had jn his custody nor saw the original of this letter. He stated that William Patrick did give him a letter in his father's handwriting, written five or six days before his father's death, but that he afterwards said " he would give the Appellant another of his father's signature, and gave him one of the 17th of April, 1783, and that he had the former letter in his possession not more than twenty-four hours." Sir Cresswell Cresswell and Mr. Justice Wightman were of opinion, not only that there was an original letter of the date of the 12th of November, 1798, of the tenor of the copies called " duplicate " and " triplicate " (upon which fact Mr. Justice Williams expressly agreed with them), but also that this original letter had been given to Mr. Shedden, the Appellant, and never returned. As these facts are of vital importance in the case, I will examine whether, upon the evidence, the learned Judges were justified in the conclusions at which they arrived. The copies of the letters which were produced were (as already observed) called " duplicate " and " triplicate." A great deal of criticism was employed in argument upon the application of these names to copies of letters ; but it appears to me, that covering letters of the second and third sets of bills of exchange might, without any great offence to propriety, be so called. It is observ- -able, also, that they profess to be only copies, as the word " signed " is written against the name of William Shedden. They are at- tested by John Mills, by which I understand him to vouch for the correctness of the copies, the original of which is said to have been sent "per ship Fanny, via Greenoch" Now this copy of the letter of the 12th of November, 1798, in the most material part of it at least, is alleged by the Appellants to be a fabrication. But if this were so, John Mills must have .been a confederate in the conspiracy to render the Appellant illegitimate, and without any assignable motive must have asserted what he knew to be false, that there was an original letter of the date and of the contents of the one in question. 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. 524 SCOTCH APPEALS. [L.E. 1869 - SHEDDEN v. PATRICK AND THE ATTOKXEY- GEXERAL. Strong proof of the existence of such an original letter is afforded by the evidence in the case. The copy of. the letter produced states that the writer of the original had ordered his executors to send his boy to Mr. William Patrick, Avhoni he addresses as " my very dear nephew." And the letter proceeds : I now remit first of Griffiths & Walrond's exchange on Messrs. Thomas Daniel & Co., London, dated Barbadoes, the 23rd of June, at 60 d/s, for 326 15s. ScZ,,. and first of B. Farquharson & Co., on JJarclay, London, dated Martinico, the 21st of July, at 60 d/s, for 91, together 417 15s. 8d. sterling ; and I desire that such further sum or sums of money may be appropriated for the purpose of maintaining and educating him, and according to his talents and inclination, not exceeding 500 sterling, without the consent of his executors, of whom you are to be totally independent in the business." All this is in exact conformity to what is said in the will of William Shedden, which it can hardly be imagined had been seen by the writer of the duplicate and triplicate copies, so as to enable him to give the supposed original an air of truth from its corre- spondence with the expressed intentions of the testator. By his will, dated the 7th of November, 1798, William Shedden orders, wills, and directs that his son William, as soon as his executors and trustees thereinafter mentioned shall think proper and con- venient, be sent by them to his nephew William Patrick, Esquire, writer to the signet at Edinburgh, and he adds : I do hereby nominate and appoint the said William Patrick the guardian of my said son, and I direct that he be educated by my said nephew, and that hs be brought up to such profession as my said nephew shall think best suited to his talents and inclinations. Of course, if the "duplicate" and "triplicate" are true copies of a letter written on the 12th of November, 1798, the day before- William Shedden s death, this close correspondence in terms with the will is a strong circumstance in favour of the genuineness of the original letter itself. The fact of the transmission of bills of exchange of the exact description of those stated in the duplicate is confirmed by an entry in the ledger of William Patrick, under date of January, 1799, in which he charges the Appellant, by the name of William Sliedden, junior, with Postage of different letters from your father, enclosing first, second, and third of two bills of exchange for your behoof, one for 326 15s. 8d., the other for 91 ; iu all, 417 15s. 8d. sterling. YOL. I.] SCOTCH APPEALS. 525 The mere fact of the bills being sent to William Patrick does not, of course, prove the purpose to which they were to be applied ; and the Appellants, in their argument, asserted that they were intended for some other object than that which is stated in the " duplicate " and " triplicate." But in a letter from John Patrick, of Neiv York, to William Patrick, dated the 18th of November, 1798, he writes : The boy William is left under your guardianship, and is directed to be sent to Scotland to receive a genteel education, and to be piit to such profession as may appear best to suit his genius. He has appropriated a fund, say 400 to 500 sterling, for those purposes, to be at your disposal, and independent of his executors. This is represented by the Appellants as having been written in furtherance of the conspiracy against Mr. Shedden, the Appellant ; but they can hardly fasten any imputation of this character upon letters written to and received from William Shedden s executors, of whom two, Mr. James Farquhar, the friend, and Dr. Hosack, the physician, of William Shedden, are certainly above all suspicion. Now, Mr. William Patrick, writing to them in a letter of the 5th of April, 1860, says : It is only in consequence of my uncle's last request contained in his settlement, and in a letter written to me the day before his death, that I shall endeavour to the best of my judgment (in case you think it advisable to send the boy to Scot- land), to lay out the money remitted by Mr. Shedden to the best advantage Tor his board and education. It is hardly possible to believe that Mr. William Patrick would have ventured to write in these terms to the executors if he had not received a letter written by William Shedden the day before his death, and if there had been no remittance accompanying the letter to be laid out for the board and education of the Appellant. A still stronger confirmation of the genuineness of this portion of the letter in question is to be found in a letter of the executors to William Patrick, dated New York, 28th of May, 1800, in which they say : In conformity to the will of our deceased friend William Shedden, Esquire, we now send you per the ship Fanny, D. II. Braine master, his son William to be brought up and educated under your direction, agreeable to his letter of instruc- tions to you. 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. Now there is no letter to which these words " letter of instructions " 526 SCOTCH APPEALS. [L. R. 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GENEBAL. can possibly apply but that of the 12th of November, 1798. The executors proceed : The funds transmitted to you at the death of Mr. Shedden will, we hope, prove sufficient for his present purposes, and when the affairs of the estate are arranged we will be enabled to say what further provision can be made. No one, I think, after considering these extracts from the corre- spondence can reasonably doubt that there was a letter, written by William Shedden himself, on the 12th of November, 1798, inform- ing William Patrick of his intention to send him his son, the Appellant, remitting to him bills of exchange, and directing them to be appropriated to the Appellant's board and education. These portions of the letter, however, are of small importance in comparison with the passage in which Mr. Shedden is said to have written : I have married Miss Ann Wilson, which is approved of by my friends here, and which restores her, and her two fine children I have by her, to honour and credit. The authenticity of this passage, as having been contained in the original letter, was strenuously denied by the Appellants, and it was alleged by them to have been falsely and fraudulently in- serted in the copies called the duplicate and triplicate. But (as already observed) in order to render this serious charge in the slightest degree probable, it is necessary that John Mills should have been a party to the conspiracy against the Appellant, and the proof ^already adverted to, that some part of the contents of the letter must have been faithfully copied, affords some slight security at least to the attestation of Mills as to the accuracy and fidelity of the whole of the copies. But in addition to this probable evidence, there are letters written in the lifetime of William SJiedden, and after his death, which state the facts of the marriage with William Shedden and Ann Wilson, and the motive for it, in terms exactly corresponding with the statement in the letter of the 12th of November, 1798. As a matter of course any letters which are in any way adverse to the strong views of their case entertained by the Appellants are treated by them as false and fabricated, or as part of the con- spiracy between the writers to render the Appellant illegitimate, and so to deprive him of the succession to his father's estates. VOL. I.] SCOTCH APPEALS. 527 I am bound to say that in my judgment there is not a particle of proof, nor even a shadow of probability, to brand the parties with any fraudulent design upon the inheritance to William Sheddens estates, or to render the letters to which I am about to refer in any way suspicious, as not containing a true relation of the circumstances to which they refer. On the 9th of November, 1798, John Patrick, of New York, one of the executors of William Shedden, and therefore a person pos- sessing his confidence, wrote to William Patrick a letter, in which he says : Mr. William Shedden has, from considerations which he conceived moral, natural, legal, and proper, at the moment when eternity was staring him in the face, united himself in matrimony to the woman who has for many years lived with him in a very different situation. His object in this proceeding was to rescue from a state of bastardy, and introduce into the world with all the privi- leges appertaining to these who are born under the influence of the law, two infant children, one a girl of about six years old, the other a boy of about five. The ceremony took place only on the 7th instant ; it was to him a hard struggle, but the considerations above mentioned preponderated. I, of course, was not con- sulted, but he communicated the whole to me after it had taken place with his motives. And in a letter from the same John Patrick to Eolert Shedden, of London, of the 10th of November, 1798, he writes of William Shedden : He acknowledged himself guilty of an error, the only one in his life, an unfor- tunate propensity which you well know. It forced him (on the 7th instant) at the moment when death was before his eyes, to an alternative which he could never have contemplated, an union with the woman that had long been with him in a different situation. His motives in this proceeding were pure, they were dictated by a feeling heart ; he conceived it a duty, a moral, a legal, and a natural obligation, to rescue from a state of bastardy, and introduce into the world with all the privileges common to the rest of mankind, two infant children. It was a hard struggle, but the considerations above-mentioned preponderated. After the death of William Shedden, William Patrick, of Virginia, in a letter to his aunt, Miss Jean Shedden, of the 8th of December, 1798, wrote : A few days before his death he ( William Shedden) married the woman that had lived with him many years, by whom he has two children a boy and girl besides which he has another daughter about thirteen years of age. The mar- riage took place to throw off the stigma from the children. I don't believe it was from much regard to the woman. 1869 SHEDDEN v. PATRICK AXD THE ATTORNEY- GENERAL. 528 SCOTCH APPEALS. [L. E. 1869 SHEDDEN v. PATRICK AND THE ATTORNEY- GENERAL. The statements in these letters between members of the family, relating the fact of the death-bed marriage, and the motive which led to it, are of an unsuspicious character, because it is introduced by way of narrative, and apparently not to serve any purpose of the writers. If they were really written in furtherance of a fraudu- lent and nefarious scheme they display consummate artfulness, as they are made to wear the appearance of entire absence of design. But there is one letter with reference to this marriage, which the Appellants exercised all their ingenuity in vain to disable. This is a letter written by Mrs. Vincent, the widow of William Shedden (formerly Ann Wilson], nearly a year after his death* when she had become the wife of another man, and, consequently, could neither have had her mind disturbed by recent bereavement, nor have been in a state of unprotected widowhood. The letter is addressed to Dr. Robert Patrick on the 3rd of September, 1799, and contains this passage : My chief reason for troubling you at present is owing to a report circulating here that my husband's relations mean to interfere and claim the estate, to the prejudice of the child, on the pretence of illegitimacy. As you are next of kin to Mr. Shedden, of course, if a claim of this kind should be set up, it must be from you. The fact is, the marriage was solemnly performed, and the will as regularly executed as any two acts of their nature could possibly require ; and ample testi- mony of the facts, I trust, I have furnished. There can be no doubt that this passage refers to the death-bed marriage, and speaks of it as a contemporaneous event with the will which was made on the 7th of November, 1798. I shall have occasion to refer to this letter upon another part of the case, but at present I will merely remark that it is not to be got rid of in the summary way in which the Appellants dealt with this and every other letter and document prejudicial to their case, by strong and positive and reiterated assertions of fraud and fabrica- tion. There is nothing to make any dispassionate mind hesitate to believe the integrity of the members of the family in the refer- ence to the marriage of the 7th of November, 1798, in their letters to each other, and the genuineness of the letter of Mrs. Vincent, relying upon the fact in support of her children's legitimacy. But if this is the correct conclusion to be drawn from all the preceding circumstances, what reason can there be for doubting whether the original letter of the 12th of November, 1798, con- YOL.L] SCOTCH APPEALS. 529 tained the important passage iu question, which has such a material i860 bearing upon the whole case of the Appellants. SHEDDEN ' Sir Cresswett Cresswell and Mr. Justice Wiglitman were therefore, PATRICK in my opinion, perfectly correct in their conclusion, that there was ^ ND THE J J ATTORNEY- an original letter of William Shedden of the 12th of November, GENERAL. 1798, of which the duplicate and triplicate are faithful copies. And I proceed to consider whether they were also right in holding that this original letter had been given to Mr. Shedden, and re- tained by him. As already observed, William Patrick swore that he delivered the original letter to the Appellant in 1823 or 1824, and never received it back again. In confirmation of this fact, a list of papers was produced at the trial, some of which were admitted to have been received by the Appellant. This list, which appears to have been chiefly in the handwriting of William Patrick (the two last lines only having been written by the witness Love, who pro- duced it), is headed " List of papers sent for perusal of William P. R. Shedden, 7th October, 1823." No. 3 of this list is " News- paper of 14th November, 1798, intimating do." (i.e., Mr. Shedden s death), and No. 5, " Letter from him (Mr. Shedden) to William Patrick, of 12th November, 1798, inclosing two bills of exchange, amounting together to 417 15s. Sd. sterling," which is the letter in question. Against these two items there is written in pencil, but in whose handwriting was not proved, the words " not re- turned." The Appellant swore at the trial that the letter of the 12th of November, 1798, was never in his custody, and that he never saw it nor heard anything of it till the year 1841, when he heard of a copy of it as " duplicate." But in a letter from the Appellant to William Patrick of the date of the 3rd of January, 1824, he wrote: On my arrival last night from the west country, I received your letter of the 31st ultimo, and I have to thank you very sincerely for the letter of my father to you, and the obituary. As I have never seen my father's handwriting before, you will easily be assured that this is a dear relic to me, being, perhaps, his last sig- nature in this world. This language certainly applies very closely to a letter written by William Shedden on the 12th of November, .1798, the day 530 SCOTCH APPEALS. [L. before his death. The letter of the 31st of December referred to by the Appellant in his letter of the 3rd of January, 1824, was not p * in evidence. The Appellant swore it was not in his possession. AND THE H a d it been produced it probably would have proved what letter \-TXO R X E Y- GENERAL, it was which was sent with the obituary. In the absence of any such reliable information on the subject, the Appellant stated that A letter of his father's of no consequence, written probably five or six days before his father's death, was given to him by William Patrick, that he had this letter in his possession not more than twenty-four hours, and that William Patrick came again and said he would give him another of his father's signature, and gave him one of the 17th April, 1783. Now, neither of these letters can possibly refer to the letter which was sent to the Appellant in William Patricks letter of the 31st of December; nor to the one of the 17th of April, 1783, because of course it was not the last signature of William Shedden ; nor to the one referred to as having been in the possession of the Appellant not more than twenty-four hours, because he speaks of the letter sent to him as " a dear relic," which imports that it was something which he was to retain in his possession. Besides, the tenor of the Appellant's letter of the 3rd of January, 1824, evi- dently points to some matters with which he had recently become acquainted, and which had occasioned him great unhappiness, for he says : Since my return, the circumstances which have been communicated, and the matters which have been unfolded to me, have proved a source of continued misery, and all the pleasure and happiness which I expected to find lias been turned into the greatest pain. There is no circumstance to which this can be taken to refer except to the knowledge of his illegitimacy acquired by the Ap- pellant about this time, which the letter of the 12th of November, 1798, Avould prove to him, but not the letter (according to his description of it) which the Appellant had in his possession for twenty-four hours, and which was exchanged for the letter of 1783. Upon the conflict of evidence as to this letter between the Ap- pellant and William Patrick, I have arrived at the conclusion that the letter of the 12th of November, 1798, was in the possession of the Appellant and retained by him. Whether it was amongst the VOL. I.] SCOTCH APPEALS. 531 list of papers sent to him for perusal on the 7th of October, 1823, i860 or in the letter of the 31st of December, 1823, is not very material. SHEDDEN It is possible that having been sent with the other papers for P A TI' IICK perusal in October, after having been in the possession of the >NI>THE A t ATTORNEY- Appellant for twenty-four hours, it was returned and again sent to GENERAL. him in the letter of the 31st of December. This is rendered even probable by the fact that the Appellant in his evidence at the trial stated that William Patrick must have sent him the obituary in October, 1823 (which is confirmed by its being in the list of papers sent for perusal at that date), and yet in the letter of the Appellant of the 3rd of January, 1824, he thanks William Patrick for the obituary as well as for his father's letter, both of which lie had received with William Patrick's letter of the 31st of December. It would appear from these circumstances as if the letter of the 12th of November, 1798, and the obituary, had been originally sent for perusal in October, 1823, and that both of them being returned were sent again in December, 1823, and that when the list of the 7th of October, 1823, carne afterwards to be examined, and these two documents were not found amongst the papers sent at this time, the words " not returned " were placed by some one in ignorance or forgetfulness of the fact, that as far as concerned the list itself this was not correct. However this may be, I enter- tain no doubt upon the evidence that Sir Cresswell Cresswell and Mr. Justice Wiglitman were right in their opinion that the original letter of the 12th of November, 1798, was sent to the Appellant in William Patrick's letter of the 31st of December, 1823, and was retained by him. For a very long series of years the rights of all parties were supposed to depend upon the effect of the marriage of the Appel- lant's father and mother on the 7th of November, 1798 ; and no one appears to have imagined that his claim to the succession to his father's estates could be rested upon any other ground. The family at first seem to have been under the impression that the death-bed marriage would have had the effect intended by William Shedden of legitimating the children, and they expressed some displeasure at it. However, they very soon took steps to ascertain the law upon the subject ; and by the desire of William Patrick a case was laid before American counsel for their opinion, " Whether 532 SCOTCH APPEALS. [L.R. SHEDDEN PATRICK '* by the law of New York the marriage was sufficient to legitimate children previously born, and to entitle them to all the privileges of lawful children." To which the following answer was given on the 20th of May, 1799 : If Mr. Shedden apprehended the children antecedently born would become legitimate in consequence of the marriage he was so far mistaken, the law of the State corresponding with that of England upon the point in question. The Appellant's legitimacy being thus at least questionable, and if he had no legal claim to his father's estates, Dr. Robert Patrick, the nephew of William Shedden, was his heir-at-law, Mr. William Patrick, in October, 1799, procured his brother to be served heir to the estate of William Shedden in Scotland. A great deal was made by the Appellants of the alleged injustice of this proceeding, and of the manner in which it was conducted. But although it would have been a generous act on the part of Dr. Robert Patrick to have given up his claim to William Slieddens estates in favour of the Appellant, there was nothing in the circumstances of the case to call for such an act of generosity ; and the proceeding differed in no respect from the ordinary character of a service as heir, nor can any suspicion fairly and justly attach to it unless it can be concluded that all which had previously occurred was the result of fraud and contrivance ; for which, as already observed, there is no colour or pretence except in the prejudiced imaginations of the Appellants. There was not the slightest attempt to conceal this proceeding from the persons whose duty it might be considered to be to defend the rights of the Appellant. The service was expede in October, 1799, and on the 5th of April, 1800, William Patrick wrote to the executors of William Shedden a letter, in which he said : Being at present obliged to act as factor and commissioner for my brother, Dr. Robert Patrick of Treehorn, the heir-at-law to the late Mr. William Shedden's landed property in Scotland, I cannot accept of the appointment of guardian to William Patrick S/iedden, the son born to the late William Shedden by Ann Wilson, nor can I take charge of his affairs in this country, being obliged to attend to the interest of my brother, which may in some respects be considered as different from that of the boy. In the following month the executors, in conformity with the will of William Shedden, sent the Appellant to William Patrick, VOL. I.] SCOTCH APPEALS. 033 and in their letter of the 28th of May, 1800, announcing the fact, they say : We take this opportunity to request that you will communicate with us on the subject of the estate in Scotland, its value, in what manner by the laws of Scotland it descends, and in general to furnish us with every information respect- ing the operation of the laws of Scotland on the will, the legitimacy of the children, and in general with every information necessary to guide us in the -exercise of our duties as executors. William Patrick accordingly, on the 18th of September, 1800, wrote a very long explanatory letter to the executors, in which he told them that the marriage of William JShedden and Ann Wilson did not confer the privileges of legitimacy on their children. That the children being illegitimate in America, could not take property in that country by descent, but only by will. That William Shedderis will could not affect to convey the property in Scotland, because it was not conceived in a form sufficient to convey Scotch landed property, and it was executed on death-bed, and was therefore reducible by the heir-at-law. He told them that he had taken the opinion of lawyers in Scotland as to whether the children, being illegitimate in America, must not be held to be illegitimate in every part of the world, and that they seemed to think the landed estate in Scotland must descend to his brother. And he added : At the same time it is fair and candid to inform you that, as the point has never been tried by the Courts here, it cannot be considered as clear that the children are to be held as illegitimate in this country. It involves a question of considerable intricacy, which, as guardians for the children, I do not think you can avoid bringing to trial by putting in a claim to the landed property in the Courts of Scotland. Dr. Robert Patrick also, in a letter to John Patrick, one of the executors, in December, 1800, writes : I understand from William he has applied to the executors to have the point about the succession finally settled by a decision of the Court of Session. I wish you would push this as much as possible, as it is equally a thing of the greatest Importance for the children and me. And again, in a letter of the 29th of March, 1801, Dr. Robert Patrick writes to John Patrick : I request that you will use every means as one of the executors to get them to agree to appoint a commissioner for the boy in this country, and authorize him tu VOL. I. 2 3 C I860 SHEDDEN- v. PATRICK AND THE ATTORNEY- GENERAL. 534 SCOTCH APPEALS. [L. 1869 ^ D1)EX PATRICK AND THE employ agents and counsel in the Court to have the question of succession decided. Of course some relation of Mr. Sliedderi's in this country would be the most proper person, who would attend to the conduct of the agent, and see everything con- ducfed for his interest. . . . And as my brother agrees to pay the expense parties out of the rents of the estate, it becomes very much the interest of to et tlie uestion decided. He afterwards writes : I trust you will be able soon to send William the act of the executors appoint- ing a commissioner for the boy. Certainly one of Mr. Shedden's relations is the most proper for this, and Mr. H. Crawfurd is now among the nearest, and besides is the most intelligent, a man of the most respectable character, and one who would interest himself to see justice done to both parties. If you do not approve of him, Mr. William and John Fullarton are the only near relations, but they are not so likely to take an active part. Mr. John Shedden of Crawfield is almost the only other relation, and very likely to attend to the business. I have referred so largely to these passages in the letters of the Patricks because the Appellants, invariably attributing fraud to every act opposed to their interests, and to the parties engaged in it, have not scrupled to charge the selection of Mr. Ifugli Crawfurd to be the factor loco tutoris to the Appellant, as part of the manage- ment and contrivance of the Patricks to defeat the rights of the Appellant and secure the succession to themselves. They over and over again insisted that Mr. Crawfurd was wholly unfit for this office, and incapable of acting impartially in it, as he was dependent upon William Patrick, and a mere instrument to serve his purposes ; and that he conducted the proceedings in the re- duction suit in such a manner that the real facts and circum- stances in i'avour of the Appellant's case were concealed, and thereby a decree adverse to him was obtained. But it clearly appears that both Dr. Patrick and William Patrick were most anxious that the defence of the rights of the Appellant should b& undertaken by some one wholly independent of themselves, and they urgently and repeatedly entreated the- executors to discharge a duty which properly belonged to them. The executors having declined to take any steps in the matteiv it was necessary, if a suit were to be instituted to assert the claim of the Appellant to his father's estates by descent, that some one- should be appointed to prosecute such suit. And upon a petition presented to the Court of Session, Mr. Hugh Crawfurd was duly appointed factor loco tutoris to the Appellant. I am bound to say TOL. I.] SCOTCH APPEALS. 535 that there does not appear to be the slightest foundation for the strong observations made by the Appellants on the character and conduct of this gentleman. Immediately after his appointment to his office Mr. Crawfurd brought an action for reduction of the service expede by Dr. Bobert Patrick, on the ground that the Ap- pellant was the only lawful son of the deceased William Shedden, and the only person entitled to be served as his nearest and lawful heir. The case was argued in the Court of Session, and that Court repelled the reasons of reduction and decreed against the claim of the Appellant. Mr. Crawfurd appealed from this decree, and your , Lordships' House gave judgment that the Petition and appeal be dismissed, and the interlocutor complained of be affirmed. There is no report of the reasons of the judgment in this House, Lord Eldon stating that it was not usual to give any reasons for affirming the judgment of the Court below. But there is no ground for supposing that all the circumstances of the case in favour of the Appellant were not brought fairly before the Court of Session and the House of Lords in that suit. The case of the Appellant upon the appeal to this House was prepared by Lord Brougham, then at the Bar, and displays all the acuteness and ingenuity for which he was so eminently distin- guished. And in his judgment upon the appeal in the case of Shedden v. Patrick, in the year 1854 (1), he said : It is undeniable that that case, which was then called Crawfurd v. Patrick (Mr. Cravifurd being the Pursuer in the case), underwent great argument in the Court below, and was afterwards fully discussed at the Bar here, and disposed of by this House, affirming the interlocutors of the Court below, and in substance declaring Mr. Shedden, the infant then, the present Appellant, to be not legiti- mated to the effect of obtaining the Scotch estate, to be not legitimated by the marriage of his parents contracted subsequently to his birth in America, where the Scotch civil law of legitimation by subsequent matrimony does not prevail. This judgment of the House of Lords was delivered in 1808, and no endeavour was made to impeach it until forty years afterwards. It was said in argument that the Appellant, being an infant at the time, was ignorant of the proceedings taken on his behalf in the reduction suit. But he knew of his alleged illegitimacy in January, 1824 ; he knew also of the service of Dr. Bobert Patrick as heir in (1) 1 Macq. 622. 2 3 C 2 18 GO j?HEDDEN V. PATMCK AND THE ATTOUNEY- ' GENERAL. 536 SCOTCH APPEALS. [L. E. 18G9 SHEDDEN v. PATBTCK AND THE . ATTORNEY- GENERAL. special to his father's Scotch property, and it is impossible to doubt that at this time, when he was twenty-nine years of age, he must have known of the proceedings for reduction of that service, and of the establishment of its validity by the judgment of this House ; yet he took no steps to question the propriety of the judgment, or to impeach the title of the Patricks to the Scotch estates, till the year 1848, when he brought an action of reduction and declarator in the Court of Session in Scotland to set aside the proceed- ings. In his original summons of the 22th of February, 1848, and his supplementary summons of the 25th of April, 1849, the Appellant proceeded upon the marriage of his father and mother on the 7th of November, 1798, which he alleged was effectual to legitimate him, and entitle him to succeed to the heritable estate of his father in Scotland. And he sought to set aside the decreet and judgment in the reduction suit, on the ground of their having been obtained by fraudulent misstatements and fraudulent concealment of facts, and by gross fraud and collusion on the part of William Patrick, Dr. Robert Patrick, and John Patrick, acting in concert with each other, and in pursuance of a fraudulent conspiracy to deprive the Appellant of the succession to his father's property. In the original summons of 1848 the Appellant thus stated his case : It was during this last temporary residence in New York that he (i.e. William Shedden) formed an intimacy and connection with Miss Ann Wilson, mother of the Pursuer, William Patrick Ralston Shedden, and of which connection there were born the Pursuer and a daughter. With the special view and avowed pur- pose of legitimating the Pursuer and his sister, the Pursuer's said father married the said Ann Wilson, the Pursuer's mother at New York, on or about the 7th of November, 1798. And he charged the Defender, William Patrick, with having " carefully suppressed certain letters," and amongst them the letter of the 12th of November, 1798. In his revised case the Appellant stated that : While residing at New York, William Shedden married the Pursuer's mother on or about the 7th of November, 1798 ; and that, being at the date of the mar- riage a domiciled Scotchman, the marriage had the effect of legitimating the Pursuer, and indeed, as will appear from Mr. Shedden's own letters, the main object of the marriage was the legitimation of the Pursuer and his sister. YOL. I] SCOTCH APPEALS. 537 The Appellant therefore in this proceeding relied originally on the marriage of the 7th of November, 1798, and upon the proof of it contained (amongst others) in the letter of the 12th of November, 1798, which he accused William Patriek of suppressing. But in 1851, the Appellant having obtained leave to file a sup- plementary summons, set up an entirely new case, and alleged a marriage of his parents prior to the one on which he had down to this time wholly relied, and prior to the birth of the Appellant and his sister. After stating the marriage of the 7th of November, 1798, his summons proceeded : Besides his regular marriage publicly solemnized as now mentioned, the said William Shedden (although he had not acquired a domicil in America) and Miss Wilson had been, according to the law of America, where they resided, married persons, prior to and at the birth of the Pursuer, inasmuch as they had, previous to that event, as well as afterwards, lived and cohabited together as man and wife, acknowledged each other as such, and were held and reputed as such by their friends, neighbours, and acquaintances ; and the said William Shedden afterwards got his marriage publicly and regularly solemnized, in order the more certainly to secure and place beyond doubt the legitimacy of the Pursuer and his sister. It is impossible not to view with some suspicion a case thus brought forward for the first time at so late a period of the dispute between the parties, and so inconsistent with what had been pre- viously alleged in the same proceeding, that the marriage of the 7th of November, 1798, was " with the special view and avowed purpose of legitimating the Pursuer and his sister," born of a previous intimacy and connection of their parents. The Appellant endeavoured to explain away the extraordinary circumstance of this alleged prior marriage never having been brought forward before, in a Petition presented to the House of Lords in 1854, in which he says : Your Petitioner first became aware of the civil contract of marriage between his father and mother in the month of October, 1849, when in New ForA:,and he then, with the assistance of eminent lawyers in that State, collected the most satisfactory and conclusive evidence of the marriage of his father and mother previous to the birth of his sister, who was born before your Petitioner. But this statement that the Appellant, in the year 1849, first acquired the knowledge of an earlier marriage of his parents than the one upon which ho had been all along relying is, to say the least of it, not very correct. For in a letter which is in evidence, 1869 SHEDDEX v. PATRICK AND THE ATTORNEY- GENERAL 538 SCOTCH APPEALS. [L. E. 1869 SHEDDE* v. PATRICK AND THE ATTOBNEY- GEXEBAL. written by the Appellant to William Patrick on the 14th of June, 1839, he says : I am not able just now to establish my father's .first private marriage, which I have given you notice of ; what is known already would not be in your favour ; and I conceive it to be my duty now to inform you that my sister told me that it was really the case that my mother was a respectable young person, living with her parents upon a small farm on my father's land, and he did not acknowledge her publicly on account of her humble birth, but nevertheless he always treated her as his wife, and Mr. Robert Shedden informed me that he found her at the head of my father's table when he went to America, which is not against the statement. Moreover, my sister told me in 1829, when she mentioned these circumstances, that a woman was still alive who was present at the first private marriage. As for the truth of the thing, I can only say that my sister believed it, and I can depend upon her veracity. The Appellant, when he commenced his proceedings in 1848, could not have placed much reliance upon this supposed prior marriage, of which he heard in 1829, as the terms of the letter of the 12th of November, 1798, which he vouched for proof of the marriage of the 7th of November, 1798, are inconsistent with the idea of such prior marriage. Intending, therefore, originally to rest his case upon the marriage of the 7th of November, 1798, of which the letter of the 12th of November furnished conclusive evidence, he charged William Patrick with having " carefully suppressed " that letter. But after the suit had been pending about three years, it seems to have occurred to the Appellant, or to have been suggested by his legal adviser, that the cohabitation of his father and mother prior to his birth might be evidence of a marriage having taken place between them at this earlier period. Accordingly, he intro- duced into his supplementary summons the allegation that his parents " were married persons prior to and at his birth," as a fact noviter veniens ad notitiam. To this case thus brought forward, however, the letter of the 12th of November, 1798, upon which he proposed at first to rely, would have been utterly destructive, and the Appellant, therefore, no longer charged William Patrick with having "carefully suppressed" it, but in his condescendence he stated that : In 1841 William Patrick sent a letter to the Pursuer's former agent, Mr. \Vil- Uam Hunt, bearing date 12th November, 1798, and purporting to be an original document, on the express condition that it should not be given to the Pursuer, nor leave Mr. HunPs custody. This original letter was returned by Mr. Hunt to TOL. I.] SCOTCH APPEALS. 539 Mr. Patrick. And again, the Defender William Patrick transmitted to the Pursuer's agent a copy of a letter alleged to have been received by him from Mr. Shedden, and purporting to be dated the 12th November, 1798. The original of this letter has, however, never been exhibited, and the Pursuer does not admit that the alleged duplicate and triplicate produced are correct or authentic, or that the late Mi-. Shedden ever signed or wrote such a letter. The Appellant thus endeavoured to reconcile his case as origin- ally presented to the Court and the new one contained in the supplementary summons with each other. And while not denying that there had been in existence a letter of the 12th of November, 1798, purporting to be an original document (which he could hardly have done after his former statements), he insinuates, rather than asserts, that the duplicate and triplicate produced are not correct copies, as their contents would be fatal to his alleged newly-discovered case. The statement in the condescendence above referred to is evi- dently intended as an allegation that the Appellant never knew of the letter of the 12th of November, 1798, until the year 1841, which he also swore at the trial. It is quite true that William Patrick did deliver to Mr. Hunt, in 1841, various papers, and amongst them, " Letter (duplicate), William Shedden to William Patrick, dated at New York, 12th November, 1798," which was returned by Mr. Hunt to William Patrick in August, 1842. But it is not true, as sworn by the Appellant at the trial, that he never heard anything about this letter before 1841, when he had a copy of the alleged letter as duplicate; for, in addition to all the evidence of the original letter having been in his possession in January, 1824, in his letter of the 14th of June, 1839, writing with reference to the opinion obtained from the American lawyers as to his legitimacy, he says : And just to think of your seeking for an American certificate, when you had received my father's own letter telling you of his marriage with my mother. In the action of reduction and declarator, nothing was deter- mined with respect to the marriage or marriages of the Appellant's father and mother, or as to his legitimacy. The case proceeded entirely on the ground of fraud, by which it was alleged the decreet of the Court of Session in 1803, and the judgment of the House of Lords affirming it in 1808, were procured. The Court of 1869 SlIKDDEN V. PATRICK AND THE ATTORNEY- GEJJEBAL. 540 SCOTCH APPEALS. [L. R. 1869 Session decided that no ground bad been laid for impeacbiiig the proceedings taken for reduction of tbe service of Dr. Robert Patrick PATRICK as ^ e * r * W^ am Shedden. And tbe House of Lords beld tbat AND THE tbe Court of Session was right in rejecting tbe application for .A. TT ORN" E Y" GENERAL, reduction, as no fraud had been stated or proved which rendered it competent to the Pursuer to reopen the question. These early proceedings, therefore, stand unimpeached ; and tbe question of the legitimacy of the Appellant, so far as it is founded on the marriage of his parents on the 7th of November, 1798, was then finally determined against him. Thus matters stood at the time of the passing of tbe Legitimacy Declaration Act, 21 & 22 Viet. c. 93, on the 2nd of August, 1858. The Appellants lost no time in availing themselves of its pro- visions, and on the 22nd of December, 1858, they presented their petition to the Judges of Her Majesty's Court for Divorce and Matrimonial Causes. It would have been hopeless, after all that had occurred, to attempt to establish the legitimacy of Mr. Shedden upon the mar- riage of the 7th of November, 1798, and therefore the Petitioners prayed the Court to pronounce that William Shedden and Ann Wilson were lawfully married prior to the birth of the Appellant William Patrick Ralston Shedden, and that he is their legitimate son and heir, and a natural-born subject of Her Majesty. The only question, therefore, which the Court below had to determine (which was completely lost sight of in the lengthened arguments of the Appellants) was, whether there bad been a marriage of the parents of the Appellant prior to his birth. The claim of the Appellant to be declared legitimate was placed upon no other ground. Evidence was given by members and friends of William Shedden and his family of the position of Ann Wilson in the household of William Shedden, of her sitting at the head of his table, of their being always reputed to be man and wife, and being visited as such by respectable families in their neighbourhood. It was con- tended by tbe Appellants tbat proof of this description, which in Scotland is called habit and repute, in New York constituted actual marriage. But from the opinions of American lawyers produced at the trial it appears that the law of New York is precisely similar YOL. L] SCOTCH APPEALS. 541 to that in Scotland, and that habit and repute are merely evidence 1869 of marriage, and not one of the modes by which marriage is con- SHEDDEN stituted. If the case of the Appellants had rested upon this P A TR TC K description of proof without anything: to oppose to it, it would , AND THK r J . . * ATTORNEY- have been conclusive in favour of an actual marriage having taken GENERAL. place between the parties. But the presumption arising from cohabitation and acknowledgment was completely rebutted by evi- dence on the other side of the strongest character. The presumption in favour of this earlier marriage was rather shaken even in the course of the Appellants' evidence. For in order to account for the marriage having been a private and un- acknowledged one it was stated that the father of Ann Wilson objected to the match, because "Mr. Shedden was too old, old enough to be her father." But if this had been the motive for keeping the marriage secret, it is difficult to understand how Mr. Wilson could be satisfied with the cohabitation of the parties while the fact of their actual marriage was kept from him. A totally different reason, however, is assigned for the absence of any public acknowledgment of the marriage in the letter of the Appellant of the 14th of June, 1839, before referred to, in which he says : My sister told me it was really the case that my mother was a respectable young person, living with her parents upon a small farm on my father's land, and he did not acknowledge the marriage publicly on account of her humble birth, but, nevertheless, he always treated her as his wife. These different explanations of the admitted fact of the alleged marriage being private and unacknowledged are calculated to raise some doubt as to the accuracy of the recollection of the witnesses who gave evidence of habit and repute. But whatever might have been the just conclusion to be drawn from this evidence if it had stood alone, the effect of it is alto- gether destroyed by the letter of the 12th of November, 1798, the contents of which have been shewn to be faithfully copied in the duplicate and triplicate produced in evidence. If there had been a previous marriage between William Shedden and Ann Wilson, it .is impossible that he could have written as he did in that letter: I have married Miss Ann Wilson, which is approved of by my friends here, and which restores her and her two fine children I have by her to honour and credit. 542 SCOTCH APPEALS. [L.B. 1869 SHEDDEN v. PATRICK AND THE ATTORNEY - , GENERAL If they had been married before the birth of the children, where was the necessity for another marriage to restore the wife and children to honour and credit ? The Appellants acknowledge the conclusive effect of this letter upon the case set up in their Petition, by their strenuous but vain efforts to discredit the au- thenticity of this passage, and by their strong and often-repeated assertion that its insertion in the duplicate and triplicate was the result of the fraud and contrivance of the Patricks. But the evidence against the fact of the previous marriage alleged in the Petition does not rest here. The letter of Mrs. Vincent, formerly Ann Wilson, of the 3rd of September, 1799 (which I have already referred to), is equally decisive against the case of the Appellants in the Court below. Mrs. Vincent is writing to Dr. Robert Patrick : " Owing to a report that her husband's relations meant to claim the estate in Scotland on the pretence of her child's illegitimacy." Of course no one could know better than herself whether there had been a marriage between her and William Shedden before the birth of her children. And she could easily have dispelled all doubt as to their legitimacy by at once stating the fact of this marriage, which at that time, if it had ever taken place, there would probably have been no difficulty in prov- ing. Instead of this obvious mode of setting at rest all question upon the subject, she relies solely upon the marriage contempo- raneous with the will, and says : " The fact is, the marriage was solemnly performed, and the will as regularly executed, as any two acts of their nature could possibly require, and ample testi- mony of the facts I trust I have furnished." Upon the evidence, therefore, before the Court below I entertain no doubt that the Judges came to the right conclusion that William Shedden and.' Ann Wilson were not married prior to the birth of the Appellant and his sister, and that the Appellant was not their legitimate son and heir, nor a natural-born subject of Her Majesty. I proceed to consider whether the Appellants are entitled to a new trial on the ground of the rejection of evidence which ought to have been admitted, or the admission of evidence which ought to have been rejected. In order to lay the foundation for objec- tions of this kind it is necessary to shew that the question proposed to be put was formally tendered to the Judges, and rejected by YOL. I.] SCOTCH APPEALS. 543 them, or that the evidence admitted was received after having been objected to. The only authentic information as to the admission or rejection of evidence is the Judge's notes. From them it appears that some declarations of members of the family were rejected as having been made post litem motam. It was argued by the Appellants that the rejection of these declarations was improper, because the previous Us or controversy upon the ground of which they were excluded was not upon the very point which was in contest in the case then before the Court. But in all the litigation which has taken place, and which commenced long prior to any of the declara- tions offered in evidence, the question in dispute was the legiti- macy of the Appellant. The subject matter of controversy was the same throughout, although the ground upon which it was originally placed was changed during the litigation. No declara- tion of the legitimacy of the Appellant offered in evidence was properly admissible. The Appellants tendered in evidence certain extracts from Lloyd's books to shew that only two vessels arrived from New York at Greenock between certain dates. It was proved that Lloyd's lists contain a report of the arrival and departure of ves- sels, which is printed from letters received daily from agents at the different ports. The Court very properly rejected this evi- dence, as the books could not be of higher authority than the letters from which the entries were made, and the letters them- selves clearly would not have been admissible. The Appellants complained of the rejection of William Shed- den's ledger, which was made up by his executors after his death. But it would have been contrary to one of the commonest rules of evidence to allow the account books of one person to be read in evidence against another who was a stranger to their contents. The Appellants objected to the refusal of the Judges to permit Miss Jean Ralston Shedden to be re-called to make some additions to her evidence previously given. The permission to recall a wit- ness is entirely in the discretion of the Judges, a discretion usually exercised with great caution, on account of the obvious danger of the proposed evidence being skilfully applied to supply any de- ficiencies which might have been left in the case upon the former 1869 SHEDDEN v. PATRICK ,' AND THE ATTORNEY- GENERAL. 544 SCOTCH APPEALS. [L. K. 1869 proofs. I think the Judges exercised a very sound discretion in refusing to allow Miss Shedden to be re-called towards the close of PATBICK tne case * r tne Petitioners. AND THE There were two or three letters rejected which call for no par- ATTOBNEY- , . . GENERAL, ticular remark, as they were too obviously inadmissible to raise any doubt as to the propriety of their rejection. The Appellants complained of the admission in evidence of the depositions of John Barr and William Neilson, taken under a com- mission issued in the action of reduction and declarator in the Court of Session in 1848, in which no record was made up or closed. It is unnecessary to consider whether the examination of witnesses in a cause between the same parties or their privies, in which both parties took part by examination and cross-examination, would not be evidence against them both in a subsequent litigation, because it does not appear that any objection was made to the reception of these depositions, but they were read apparently without any observation as to their admissibility. It has not been shewn that any evidence was either admitted or rejected which would entitle the Appellants to a new trial. With respect to the application for a re-hearing, founded upon affidavits of the Appellants, which was unanimously refused by the Court, it is unnecessary to offer many observations. The affidavits, which were of a most irregular and unusual character, consisted partly of attacks upon the characters of some of the witnesses, and of contradiction to their testimony, asserted to be proveable by documents and conversations, partly of arguments upon the evidence before the Court at the trial, to shew that the Judges had come to an erroneous conclusion, and, lastly, of allegations of being taken by surprise at the evidence produced at the trial, and of statements of new evidence in the possession of the parties, and of additional evidence which had not been, but which might be obtained by them. With respect to the grounds of application founded upon the impeachment of the credit of the witnesses, and upon the alleged erroneous view of the facts of the case taken by the Judges, these were not the proper subjects of affidavits ; but they ought to have been argued solely upon what was presented to or appeared before the Court at the trial. It was for the Judges to decide upon the credit due to the witnesses from their demeanor, as well VOL. I] SCOTCH APPEALS. 545 as from the evidence which they gave, or which was offered against them ; and if there were circumstances to impeach their credit which might have been produced at the trial, but which were not brought forward, the Appellants could not be allowed another opportunity to rectify this omission. The Appellants had no right to make their affidavits a vehicle for reasoning the case as to the alleged miscarriage of the Judges. They could only regularly take the evidence as given at the trial, and argue from that evidence against the conclusions at which the Court arrived. As to the suggestion of further evidence than that produced at the trial being, at the time of swearing the affidavits, in the possession of the Appellants, and of other evidence being obtainable which was not then obtained, the Judges were quite right in refusing a re- hearing upon these grounds. It is an invariable rule in all the Courts, and one founded upon the clearest principles of reason and justice, that if evidence which either was in the possession of par- ties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting a new trial. If this were permitted, it is obvious that parties might endeavour to obtain the determination of their case upon the least amount of evidence, reserving the right, if they failed, to have the case re-tried upon additional evidence, which was all the time within their power. The learned Judges were so clear as to the affidavits not furnishing sufficient grounds to entitle the Appellant to a re-hearing, that they did not require any answer from the other side, but refused even a rule to shew cause why there should not be a re-hearing ; and I do not see the slightest reason to doubt the propriety of the determination at which they arrived. The appeal must be dismissed, and with costs. ' LORD COLONSAY: My Lords Miss Shedden : My Lord, I protest against you as a Judge, you having been the Patricks counsel and an avowed partizan. We 1869 SHEUDKN v. PATRICK AND THK ATTORNEY- GENERAL. 546 SCOTCH APPEALS. [L. E. 1869 did so before, and we put our protest here before God and our BBKDOBX country on record. V. A^D THE LORD COLONSAY : My Lords, this case has been regarded and ATTOKNEY- treated by the Appellants, not unnaturally, I think, as one to them CrENKRAT of deep interest and paramount importance. Miss Shedden : As one of life and death, my Lord, and the Patricks' own counsel is our murderer. THE LORD CHANCELLOR : I must really enforce the order for your removal, Miss Shedden, if you continue these interruptions. LORD COLONSAY : The Appellants have pleaded the cause per- sonally at your Lordships' Bar, and at unusual length, as not unfre- quently happens when parties plead their own cause, diverging sometimes into matters that are irrelevant, and sometimes indulg- ing in unnecessary repetition Miss Shedden : We were refused counsel ; they would not even defer the case for three weeks. LORD COLONSAY : But I listened to the argument Vith patience, and I think that in the course of that argument nothing was omitted that could have been advanced in support of the case as it presented itself to the minds of the Appellants. I say this, not only having regard to the argument itself, but from the examina- tion which I have subsequently made of the voluminous materials which are now before us. Applying myself to these materials, which was a task somewhat tedious, and at the same time, I may say, not uninteresting, as a judicial search for truth, I have formed my opinion upon certain points, as I separately examined them, and after the judgments which have now been pronounced in detail, I shall do nothing more than enumerate those points in the order in which I expiscated them, and state the conclusions at which I have arrived. The first point was whether a trial by jury was matter of right to the Appellants. That is a question of law, it depends upon the construction of certain statutes, and I cannot conceive that any one carefully examining those statutes as a lawyer can entertain a doubt upon that question as to the matter of right. YOL. I.] SCOTCH APPEALS. 547 The next point which I had to consider was whether, not being 1869 matter of right, but matter of discretion, that discretion which was SHEDUEX vested in the Court had been improperly exercised. I do not think it was improperly exercised. It is not to be presumed that AND THE * a discretion so vested has been improperly exercised. There must GEXKRAL. be some strong ground stated against the exercise of it. But I think that it was properly exercised here. I think that looking to the points involved in this cause, and looking to the multitude of documents that were referred to in this litigation, it was a cause better suited to the tribunal which tried it than it would have been for the consideration of a jury. The case was tried and the judgment was arrived at by the Court consisting of three Judges. The next question which I had to consider, was, whether the judgment so arrived at was a right judgment, or was a judgment that ought to be reversed or altered. I considered that question with reference to the proper record which we have of the evidence all that I could find that is relevant or competent to be taken into consideration in the printed materials on record and I have arrived at the conclusion that the judgment was right upon the evidence as it was presented to the Court. But then there was a motion made for a new trial, and it is de- manded that that new trial should be one before a jury. Now, the demand to have a new trial merely in order to have the verdict of a jury is not a good ground for granting a new trial. To obtain first the judgment of a Court competent to try a question, and which has properly and fairly tried it, and then to shift the case from that tribunal to the consideration of a jury, merely in order to take the chance of what might be the verdict of a jury, would be a mode of throwing matters into confusion, and giving rise to difficulties, and leading to endless applications for new trials. But still there are recognised grounds on which new trials may be granted. These grounds are numerous, and I believe there is scarcely one of them that has not been stated as one of the grounds upon which the application for a new trial here is rested. The first consideration is, whether the verdict, if I may so call the judgment of the Court, was against evidence. That is the same question that I have already alluded to when I said that the Judges had arrived at a right conclusion. Then the next question 548 SCOTCH APPEALS. [L. E. 1869 is, was evidence improperly rejected ? And the third is, was evidence improperly admitted ? Now, to that I have directed uiy PATRICK attention very carefully. I did so the more because I thought it AND THE was possible that the Appellants arguing their own case might not GENERAL, know or see the full legal force of the objections that might be taken to the admission or exclusion of evidence. But I must say that, after considering that point, I have arrived at the same conclusion with your Lordships, and very much upon the grounds which have been stated by my noble and learned friend who last spoke. Then there comes the question of surprise, and the further ques- tion of res noviter veniens ad notitiam. These matters rest upon the affidavits of the parties. Now, as to surprise. I cannot find anything set forth in these affidavits that the law would regard as surprise, and it is only upon matters which the law regards as sur- prise that a new trial could be granted. As to res noviter veniens ad notitiam, I think it is plain upon the face of the affidavits that there is nothing of the kind set forth that would be relevant and competent evidence in the cause. On the contrary, I think it came out in evidence, and in the discussion, especially in the statement which was made to us by the male Appellant in his address from the Bar, that some of the main points now brought for- ward were matters known to him at a very early period. The law does not consider the mere discovery of a document, or the mere discovery of a fact, to be a matter noviter veniens ad notitiam, as giving a right to a new trial. It must be a matter not only that was not, in point of fact, before known to the party, but which the party could not by reasonable inquiry, such as he ought to have made, have put himself in possession of. Now, I see nothing of that kind here. I, therefore, feel that I am forced to arrive at the same conclusion with the rest of your Lordships, with regard to the dismissal of these appeals. Miss Shedden : There is now pending another appeal in the Court below, in which proceedings are still going on, and we are anxious to have the documents kept in the custody of the House until that appeal is determined. I believe that the other side will not object. VOL. L] SCOTCH APPEALS. 549 Mr. Hellish : May I ask for your Lordships' order that the 1869 documents be given back ? SHEDDEN Miss Shedden : We only ask that they should be retained for safe custody till the proceedings in the Court below are over. ATTORJJKY- J GENERAL. THE LORD CHANCELLOR : These documents were ordered to be deposited with the Clerk of the Parliaments. This case is now disposed of, and has passed from the House. Miss Shedden: Will your Lordships allow us to have photo- graphs taken of the documents before they leave the custody of the House ? Ordered: That the two documents referred to in the Order of this House of the 27th of May, 1864 ; also the ledger of William Patrick, deceased, referred to in the Order of this House of the 30th of June, 1864 ; now in the custody of the Clerk of the Par- liaments, be returned to the agents for William Ralston Patrick, John Fullarton Patrick, James McEwen, John Garment, and Robert William Cochran Patrick, certain of the Eespondents ; they giving a proper receipt for the same. Decrees affirmed, and appeals dismissed with costs. Solicitors for the Appellants : Clayton, Cookson, & Wainewright. Solicitors for the Eespondents : Loch & McLaurin. VOL. I. 2 3 D 550 SCOTCH APPEALS. [L. R. 1869 HOWDEN, et al. APPELLANTS; Aug. 10. ROCHEID, et al. RESPONDENTS, Entail of a Pro Indiviso Share. Per THE LORD CHANCELLOR : An estate in tail may properly be created under the Act of 1685, in a share held pro indiviso of land. Per LORD COLOXSAY : Holding that an estate possessed pro indiviso is within the ordinary meaning of the Act of 1685, upon what authority is it described as incapable of being entailed ? I know of none. Effect of Subsequent Division. An entail of lands held pro indiviso is not disturbed by the subsequent division and allocation of the property. Per LOBD COLONSAT : The contingency of subsequent division is no objection ; and when the division takes place it is not necessary that there shall be dispositions by the several parties to each other. I hold that to be clear. The feudal right remains on the original infeftment, just as it did before the division. The partition ascertains and delineates the boundaries. It does not change the land which forms the subject matter of the entail. Per THE LORD CHANCELLOR : The Appellant contends that new deeds were necessary on the division of the property. But after the division the lands are not different. The Sheriff simply delivers to each owner his own share by his own title ; and it requires no concurrence on the part of the other owner, by way of deed or instrument, to effectuate the transaction. Per THE LORD CHANCELLOR : It struck me at one time that there might be something in the argument that the register did not after division give notice of the title on which the whole is held ; but I think that all parties concerned, having notice of the entail of the moiety held pro indiviso, must be taken to know that such moiety was subject to the law which renders the whole property divisible ; and, therefore, that an entire separate interest may be at any time allocated out of the whole to the heir in tail. Prohibitory, Irritant, and Resolutive Clauses Reasonable Construction. Commentaries by the Law Peers, concurring with the Court below, to the effect that the words used in the prohibitory, irritant, and resolutive clauses of an entail were, upon a reasonable construction, sufficient to satisfy the requirements of the Act of 1685. 1-HE Appellant, as trustee of the sequestrated estate of James Rocheid formerly of Inverleith tlie Respondent's great grandfather, instituted the present suit to have it found and declared that the entail in the pleadings mentioned was invalid, and that the estate in question had consequently been held by the late bankrupt VOL. L] SCOTCH APPEALS. 5 in fee simple that is to say, subject to the demands of his creditors i860 under the Scotch Bankruptcy Statutes of 1856 and 1857. HOWDEK The entail was executed in 1749 by Elizabeth Rocheid, daughter E HOWDES ,., , v. THE LORD CHANCELLOR (1) : IvOCHElD. My Lords, The Appellant, as sustaining the rights of the- creditors of James Rocheid, whose estate was under sequestration at his decease, seeks by this action to have it declared, as against the Respondent, that the deed of entail under which the estate of Inverleitli is alleged by the Respondent to be held, did not during the possession by the bankrupt, and does not now, constitute a valid and effectual tailzie, pursuant to the Act of 1685. The history of the devolution of the property is as follows : Sir James Rocheid, some time before the year 1749, was the owner of estates at Inverleitli, in the county of Edinburgh, and Darnchester T in the county of Berwick, which on his death descended to his- his four daughters. Elizabeth, one of them, acquired another fourth part in addition to her original share before making the disposition on which this case mainly turns. Her sister, Lady Kinloch, held one other fourth part ; and her nephew, Mr. Cath- cart, the remaining fourth part. All these shares were held pro indiviso. On the 14th of January, 1749, Elizabeth Rocheid entailed, or purported to entail, upon Alexander Kinloch (third son of Sir Francis Kinloch by the above-mentioned Lady Kinloch) and the heirs whatsoever of his body, whom failing, to other heirs specified in the deed, all and whole her equal half or two fourth parts of the property therein described, being the lands at Inverleitli and Darnchester which had descended from her father. The deed contained numerous conditions and provisions, amongst others the usual name and arms clause with reference to the name of Rocheid, and also provisions against altering the destination of the estate, and against burdening the property or allowing it to be burdened. An objection has been raised to this deed of entail on the ground that the resolutive clause is not co-extensive with the irritant clause.. The irritant clause declares that in the event of any of the heirs under the entail Contravening or failing to fulfil, obey, and perform the conditions and provisions above expressed, or any one of them, or acting contrair to the said restrictions and (1) Lord Hatherley. VOL. I.] SCOTCH APPEALS. 553 limitations, or any of them, that then such facts, deeds, debts, omissions, and 1869 commissions done, contracted, neglected, or committed contrary hereto, shall be ^ HOWDKN void. Wt ROCHEID. Whilst, on the other hand, the resolutive clause says that The persons so contravening or failing to fulfil the before-written conditions or provisions, or any of them, shall lose their right in the estate. without adding the words which occur in the irritant clause, namely Acting contrair to the said restrictions and limitations. And it has been argued that the " acting contrair to the restric- tions and limitations " would have a wider effect than merely con- travening the conditions and provisions. Without forgetting the caution given in some of the authorities which have been cited before your Lordships in this part of the argument against straining the construction of the words in order to effectuate the supposed intention of the creator of the tailzie, I confess I am unable to discover in this deed any " restrictions or limitations" different from and beyond the conditions and pro- visions of the deed. And if so, "the contravening of such con- ditions and limitations " would necessarily be " an acting contrair to them." It was further objected, that the irritant clause itself was not sufficiently extensive to fence the deed of entail as against written instruments executed in contravention of it ; and authorities were cited to shew that " facts and deeds done " might be limited to acts committed, so as not to include instruments executed. It cannot, however, be denied that the words "deeds done" may include, though they do not necessarily include, the execution of a written instrument ; and in order to restrict that meaning some- thing should be shewn in the context to indicate the intent of the entailer so to restrict it. But what are the deeds here struck at by the relative word " such ? " They must be the deeds referred to by the immediately preceding sentence, namely, "deeds in contravention of the conditions and provisions of the instrument." But amongst those conditions and provisions we find an express prohibition against " disponing, altering, innovating, or changing the tailzie or order of succession thereby prescribed ;" also a 54 SCOTCH APPEALS. [L. K. i860 general prohibition " against selling or disponing," and against " any HOWDEK wadset." It is clear, therefore, to me, that the conditions involve > * a prohibition against written instruments which would affect the liOCHEO). r entail, and therefore such written instrument would be a " deed " in contravention of the conditions, and would be struck at by the irritant clause. ' To carry back the relative " such " (as was at- tempted in the argument) to the words occurring some ten sen- tences back, so as to restrict the facts and deeds to those there mentioned, would be contrary to the most ordinary rules of gram- matical construction, and would, in fact, be forcing the language in order to destroy the instrument. On these two objections we did not hear the counsel for the Respondents, it appearing to us that they were clearly unfounded. But two other questions have been put very forcibly in the argu- ment before us which were not discussed in the Court below; namely, first, that there can be no valid tailzie within the Act of 1685 of a share held pro indiviso in lands. Secondly, that even, if such a tailzie can be created, yet that the tailzie would not affect the entire interest in a portion of the same lands when they have been allocated to an heir in the succession under a decree of divi- sion in respect of his pro indiviso interest. It was supposed that the Court below would adhere to its decision on a similar question- in a recent case of Stewart v. Nicolson (I), and that it was more respectful to the Court simply to submit to them those points with- out argument (2). They have now been fully argued before us on both sides. In order to appreciate the arguments we must first consider the leading facts which occurred between 1749 and 1824, the date of the death of James Rocheid. In 1755 James BocJieid, on the death of his father, became the owner of the two fourths of the Inverleith and Darncliester estates pro indiviso, as heir under the entail created by the deed of 1749, assuming its validity. He was also at the same date the owner in fee simple, as was determined, after some litigation, of another one fourth pro indiviso of the same estates, derived from Lady Kinlocli, the sister of Elizabeth Rocheid, and Mr. Cathcart was the owner of the remaining one fourth. On the 2nd of July, 1773, by (1) 2nd Series, vol. xxii. p. 72. (2) 3rd Series, vol. vi. p. 307. VOL. I.] SCOTCH APPEALS. 5,>; a decree of division of the Sheriff of Edinburgh, a specific one i860 fourth of the Inverleith estate was allocated to Mr. Cathcart, and HOWDEUT the remaining three fourths were specifically allocated to James Eo ^ Eocheid. As to Darnchester, James Rocheid acquired Mr. Cath- carfs one fourth and conveyed it to a Mr. Anderson, as a trustee for himself, in order, in effect, as it appears, to make a division. And by a decree of division of the Court of Session in February 1785, one fourth was allocated specifically to Anderson, and three fourths to James Eocheid. James Rocheid, however, being ultimately declared to be entitled in fee simple to the one fourth in both estates which he had de- rived from Lady Kinloch, became desirous of separating the two fourths of the estates derived from Elizabeth Eocheid from the one fourth derived from Lady Kinloch. And he conveyed the latter one fourth to Mr. Dundas as a trustee for himself. He accordingly obtained a decree of the Court of Session, on the 5th of July, 1796, which allocated specific property to James Eocheid in respect of the two fourths of Inverleith and Darnchester purporting to be held under the deed of 1749, and the remainder was specifically allo- cated to Mr. Dundas. It appears that, owing to some subsequent litigation, new decrees of declaration and division were pronounced in March, 1803, and March, 1817. The property specifically allocated in respect of Elizabeth Eocheid's two fourths has ever since the above-mentioned proceed- ings of division been held distinct and apart from the property allocated in respect of the other shares. But no instruments have been executed for the purpose of giving any further or other effect to the decrees of division ; and the titles have been expede as under the deed of 1749, and by the description therein contained of the pro indiviso two fourth parts. James Eocheid died in December, 1824, and several successions have taken place by which parties, claiming as heirs designated under the deed of 1749 have held possession of the specifically allocated property the present Kespondent being now in such possession, and the Appellant claiming as trustee under the sequestration against James Eocheid. The first contention, then, under this state of circumstances is, that the original attempt to entail two fourth shares of estates 556 SCOTCH APPEALS. [L. E. 1869 pro indiviso was futile ; and that according to the law of Scotland HOWDEN in this matter, as regulated by the Act of 1685, a pro indiviso share R v - in an estate is not the proper subject matter for an entail. No authority has been adduced in support of any such proposition. The words " lands and estates " occurring in the statute, of them- selves have been held sufficient to include property of a heritable character, such as fisheries and teinds, not being strictly lands. But it is suggested that the words " lands and estates " point to an entire subject and not to a partial interest in a subject. It may be conceded that the word " estate " is not in this particular statute directed to the amount of interest in the subject (such as fee simple, or for life, or the like) but to the subject itself. But I can see no ground for holding that the half of an heritable estate is not itself a definite subject as much as the whole estate, whether held pro indiviso, or whether, as at any time it may be, actually divided. Mr. Anderson, in his argument, said that he did not doubt that an entail might be created inter hseredes of a share held pro indi- viso. But if that be so, then we should have expected this statute, finding such entails in existence, or capable of being so, to have struck at their continuance, and to have prohibited them as re- gards any validity in the view of the statute. On the other hand, in the case of Stirling v. Dun (1), the very question now brought forward was raised and decided, adversely to the view of the Appellant, by your Lordships' House. It is said that the subject matter there was an appurtenant only to an estate, being an interest pro indiviso in a loch adjoining the estate, and that it passed therefore in that respect as an appurtenant. Still the case was argued on the broad ground of an alleged unfitness of such a subject for an entail, not only in the Court of Session, but in your Lordships' House, as appears very plainly by the appeal case. This decision in Stirling v. Dun (1) was adopted unanimously in Stewart v. Nicolson (2) by the four eminent Judges who decided that case. Lord Curriehill, on this part of the case, did not ex- press any doubt as to the competency of such an entail. Lord Deas said that There were few entailed estates in the country which had not at one time or another consisted partly of shares in an undivided commonty, or other pro indiviso (1) Wil. & Sh. 22 June, 1829. (2) 22 Session Cases (2nd Series), p. 72. VOL. I] SCOTCH APPEALS. 557 property, and it never was supposed that this part of the estate was not validly 1869 entailed equally with the rest. It seems to me that the onus is thrown on the Appellants of shewing, by decision, that property which can be sold, mortgaged, and dealt with in all respects like other property, and which can even (as Mr. Anderson admitted in the argument) be entailed as inter hasredes, is not " land or estate " capable, under the Act of 1685, of being entailed. The Lord Advocate, in his very able argument, has greatly re- lied on the authorities, which have decided, that if an entire estate be entailed the fetters of the entail drop off as soon as the estate falls to heirs portioners. But surely this only shews that when the subject of the entail is divided the entail ends, because its subject is destroyed. This does not afford any ground for inference that where the original subject is a share held pro indiviso the entail is bad db initio. The author of the entail deals as he pleases with his property, and points out one entire subject of entail, though that subject may be his pro indiviso share in an estate ; and it is only when that subject ceases to exist that it must be assumed that his intention, as expressed in the deed, is at an end. In fact, the instance that was put proves that an entail may be good db initio, though liable to destruction by subsequent events, and this was very ably urged l>y Mr. Gordon in his argument for the Eespondents, as affording an answer to many of the difficulties which have been suggested in argument as to the rights of the several portioners in regard to undivided property, Take, for instance, the case, which was much pressed upon us, of a house, or other heritable property, incapable of division. If a forced sale should take place at the instance of one of the co-owners, it would necessarily destroy a previous entail of a moiety held pro indiviso, by destroying its subject, supposing such an entail to have been created. But I do not see why the entail made originally of a moiety should not be good until the event happens, as in the case of an entail which is good till the estate falls to heirs portioners. As regards the inconveniences which it has been suggested might be occasioned by an entail of an undivided share, with reference to modern Acts of Parliament, I think no inference can justly bo raised from that circumstance adverse to the right of entailing the HOWDBN V. 558 SCOTCH APPEALS. [L. K. shares. For the inconvenience would be the same inter lieeredes, HOWDEN an( J might occur in any other portion of the undivided property , * than in an entail. EOCHEID. Mr. Anderson, however, raised a question in the course of his argument, as to the construction of the Act of 1685, as compared with that of 1681, regulating the qualification of electors of Mem- bers of Parliament. It has been held, it appears, under the latter Act, that a share pro indiviso would not be a good qualification of " land or estate," although its annual value may greatly exceed the value required. But the decisions on this point may well have proceeded partly on the Act itself, which in a case of property ad- judged by several creditors, allows only the first in date to vote, and therefore shews an indication in the Act itself that persons who are in the position of co-owners shall not all participate in the privilege. And those decisions may have been founded partly also upon the character and intent of the Act, which might be fraudulently evaded by the multiplication of shares purporting to be held pro indiviso without any actual division of the estate. We are not favoured with the reasons upon which those decisions were founded except, I think, in one case where President Blair refers to the propriety of strictly following adjudged cases in elec- tion law, but does not otherwise announce any special ground as forming the reason for his judgment. I, therefore, my Lords, come to the conclusion that an estate in tail may properly be created under the Act of 1685, in a share held pro indiviso of land. But another point has been raised as to the effect of the decrees of division. It has been argued that the effect of those several decrees is to destroy the entail. It is said that the subject itself has no longer any existence that the pro indiviso right referred to land situated both in Edinburgh and in Berwick, two distinct counties, and that the allocated share might, in a very possible case, be in one of those counties alone whilst the other pro indiviso owner took the land held in the other county. Again, it is said that the pro indiviso owner had no interest whatever at the date of the entail in one moiety of that land the entirety of which he now holds that the register therefore gave no notice of the real title, especially in this case, where, on the face of the register, the en- VOL. I.] SCOTCH APPEALS. 559 tailed title still appears as of the pro indiviso share, whilst James 1869 Rocheid before and at his death held the entirety of the lands allocated to him. This is no doubt the gravest portion of the inquiry upon which your Lordships have had to enter in this case. It does not appear to be touched distinctly by decision otherwise than by the case of Stewart v. Nicolson, and in that case Lord CurriehUl appears to have doubted whether or not he could, as then advised, concur in the view expressed by the other three Judges. The Appellant contends that new deeds were necessary on the division of the property and, in fact, the creation of a new entail ; involving neces- sarily, the doctrine that the original feudal title of James Rocheid was gone. ; The question seems really to turn on this last point. We are here inter apices juris, and I shall not attempt to avail myself, even by way of illustration, of any maxims of English law. The case must rest upon Scottish authorities alone. First, then, is any conveyance necessary on a decreet or a divi- sion, or is the act of the Sheriff or of the Court simply an act marking out the limits within which each proprietor pro indiviso is, for the future, to exercise his original right of ownership over his share of the property. On merely looking to the first principles of reason upon this subject, it would appear that there is nothing necessarily in common between the titles of the co-owners. Each of them respectively may derive a title from a distinct ancestor or from a distinct vendor. And how, then, on the first blush of the case, can it be necessary that a title should be made from one co- owner to the other when succession takes place under a decreet for division ? For greater certainty, and by way of evidence under certain circumstances, it may be desirable that some such instru- ment of disposition should be executed ; but the one owner cannot confer any title in reality upon the other ; neither can one owner be required to take any part of the land allocated to him affected by a title or burdened with charges which have been created by the other co-owner on his moiety, though it may be that the divi- sion itself might be reduced if any of the parties interested in a pro indiviso share were not parties to the division. Then as regards the authorities, the Appellants have cited only two : Lord Banldon, lib. iii. tit. 5, sect. 35, and the Style Book 560 SCOTCH APPEALS. [L. E. 1869 In the passage cited from Lord BanJcton, lie refers to the case of HOWDEN division where part of the subject matter is indivisible, namely, a superiority; and he says, "that it will be adjudged to the eldest heir portioner, and the rest must denude of their shares in her favour." And the Style Book suggests "that the Pursuer and Defender in a summons for division and sale should be decerned to execute such deeds and writings as may be necessary to complete the titles of the parties to their respective portions." (1) It will be at once observed that Lord BanJcton refers in the passage cited only to the case where an indivisible subject is handed over to one portioner, and of course in that case the sliares of the other portioners in the subject matter should be made over by some proper instrument ; but the question before us is, whether it is equally necessary to have any such conveyance when the division is actually made, and each portioner takes his aliquot share, and is compelled by the decree itself to withdraw himself into those limits. The Respondents complete the citation from Bankton by adding the reference in the very passage cited to another portion of his work, book ii. tit. 4, sect. 6, where he speaks of the necessity of the elder portioner paying for the shares of the others in the indivisible superiority. Of course, therefore, when those shares had to be purchased, it was right and proper that the conveyances of the shares which were so purchased should be made to the party purchasing them, and therefore taking the conveyance of their shares. In no other author, from Sir James Balfour downwards, does there appear to be any direction for the con- veyance under a decree for division in the case of a brieve of division by the Sheriff. In the other mode of procedure to which the Style Book refers, which is the more recent mode, by an action for division, it seems that directions are contained, not always, but frequently, for the execution of proper deeds and writings for carrying the proceedings into effect ; but this may well be ex majore cauteld, and certainly there appears no instance, at least none has been produced before us, of any such deeds being either compellable in a division made by the Sheriff, or even under a decree. Lord Ivo.ry, in Stewart v. Nicohon, cites an opinion of an eminent Scottish feudalist, to the effect that such a conveyance (1) 3 Jur. Styles, p. 146. YOL. I] SCOTCH APPEALS. 501 would be improper in a case where, singularly enough (as here), i860 part of the estate was held pro indiviso in tail, and the other part HOWDEX pro indiviso in fee simple. I confess I can see no reason for doubt- ing the soundness of the reasoning of Lord Deas in Stewart v. Nicolson, which leads him to his conclusion, " that after the division the lands are not different, but that anterior to division the lands of each had not been ascertained." In fact, where the property is in its nature capable of division, as, say, a single field, the Sheriff simply makes a fence or fences across the field, and delivers to each owner his own share by his own title ; and it requires no concurrence on the part of the other owner, by way of deed or instrument, to effectuate the transaction. It struck me at one time that there might be something more in the argument that the register did not after division give notice of the title on which the whole is held ; but I think that all parties concerned, having notice of the entail of the moiety held pro indiviso, must be taken to know that such moiety was subject to the law which renders the whole property divisible by the Sheriff or the Court, at the instance of any person who might so require the division to be made ; and, therefore, having notice of the whole extent of the property the share in which is entailed, they must be taken to know that in any part of that property an entire sepa- rate interest may be, or may have been, at any time allocated out of the whole to the heir in tail. For these reasons I venture to submit to your Lordships, though of course with diffidence upon a subject of this character at the same time, however, feeling greatly confirmed by the concurrence of all the four Judges in the case of Steivart v. Nicolson upon the first point, and of three of those Judges upon the second point that the interlocutors complained of be affirmed, and the appeal dismissed with costs. LORD COLONSAY : My Lords, I begin with the question, whether an estate held pro indiviso can be made the subject of an entail under the Act of 1G85. It was argued that the words of that statute, " their lands and estates," must necessarily mean separate or separated lands and estates, as contradistinguished from lands and estates held J562 SCOTCH APPEALS. [L. B. 1869 pro indiviso. But there is nothing, I think, in the words them- selves to indicate this they are quite general. One who holds large landed estate pro indiviso is an owner of " lands and estate " in the ordinary signification of the words of the statute. Holding that an estate thus possessed pro indiviso is within the ordinary meaning of the words of the Act of 1685, upon what autho- rity is it described as incapable of being entailed ? I know of no author who says so. I know of no case which has so decided. It may be sold or mortgaged, and it is subject to the same rules of succession as any other landed estate. An argument was deduced by the ingenuity and research of my learned friend Mr. Anderson from the Statute of 1681, which he designated as contemporaneous legislation. His argument was, that the language of that statute must be read as explanatory of the language of the Statute of 1685. Now, in the first place, I do not find in those two statutes any identity or even similarity of expression beyond this that the word " lands " occurs in each of them. In the second place, they have no similarity of purpose. They deal with matters altogether different ; they are not in reference to the same objects or subjects. The Act of 1681 has reference entirely to rights of political franchise, derivable indeed from land, but only from land held in a particular manner, and described in the statute as being qualified by a certain valuation. It has been ruled in election law that an individual claiming under that statute to exercise the franchise must shew not only that he individually is the owner of lands, but that such lands are sepa- rately valued in the cess-books at the requisite amount, and that can only be arrived at by having those lands separated from all others in the valuation-roll. From expressions and provisions in the Act of 1681, it is obvious that such separation or division was contemplated with a view to the franchise, and accordingly the course of decisions on election law has been in that direction. But there is no authority or ground for saying that, in reference to the law of entail, or the Act of 1685, there has been any ruling in that direction, or that the same reasons are applicable. An estate held pro indiviso may be destined to descend like any other estate. But it is said that it is liable to the contingency of being divided, and that therefore it cannot be the subject of YOL. I.J SCOTCH APPEALS. 563 an entail under the Act of 1685. The contingency of subsequent 1869 division is not an objection to an entail, as is shewn by the case HOWDEK of heirs portioners. In the case of an entail of an estate not held pro indiviso, that estate, if the entail does not exclude heirs por- tioners, is liable to division when the succession conies to heirs portioners; and it has been held under the entail law, for rea- sons which I shall afterwards notice, that when heirs portioners succeed the entail comes to an end. But the possibility of that occurrence is not regarded as a reason why the entail should not be good until that occurrence arrives. And therefore I see no ground for holding that because this class of estate may at some future period come to be divided, it should not, in the first instance at least, be capable of being made the subject of entail. I have not the slightest doubt that there are several entails of estates of this character there are certainly many in which parts of the estate are of this character and we see from the case quoted by Lord Ivory (1), giving us the opinion of one of the most eminent of our real property lawyers (2), that such a thing occurs, occa- sionally at least, and that it was not considered in former times as at all out of the rule of the Act of 1685. I therefore think that an estate, though held pro indiviso, may be made the subject of entail. It may be made the subject of sale ; it may be made the subject of mortgage ; and it descends like any other feudal estate. I see nothing in its character different from that of the most ordinary feudal right, except that it may at any time be made the subject of division. It is asked, if this doctrine be sound, what is to be said in refer- ence to an entail of a pro .indiviso half of a house, where the entail might be put an end to by a process of sale ? That rather belongs to the other branch of the argument; but I will just observe, in passing, that although it could be shewn that as to a certain class of subjects which do not admit of division an effectual entail of a pro indiviso share could not be made, it would not follow that all property held pro indiviso is to be put beyond the pale of the statute. But there arises a question of great importance, namely, whether <"!) See Stewart v. Nicokon, 2nd Dec. 1859 ; 2nd Scries, vol. xxii. p. 72. (2) The late Mr. Thomas Thomson. 564 SCOTCH APPEALS. [L. E. 1869 the property when separated by division from the properties of the HOWDEN other pro indiviso proprietors remains under entail. Now, that v - point, I think, is one which runs a little into subtlety, but it is one which must be dealt with. Does the division of the property alter the estate ? Or does it merely alter the mode of possessing the estate ? When the division takes place it is not necessary (I hold that to be clear) that there shall be dispositions by the several parties to each other. The matter of division of a property of this kind is treated of by all our authorities, from Sir James Sal/our downwards, and not one of them suggests that such dispositions are necessary. And the styles, till a recent date, did not contain any clause for executing dispositions. The clause which has been lately introduced into the styles does not necessarily imply that the con- veyances provided for are to be from the one party to the other of property which admits of division. Such a clause may be useful if there is property concerned which does not admit of division ; or it may be useful if one of the parties has to make a conveyance or a deed, in order to complete his own right; but still there is no trace in our authorities, from the earliest to the latest, that a conveyance from one pro indiviso proprietor to another is necessary to complete the right. On the contrary, the feudal right remains on the original infeftinent just as it did before the division. Then, if that be so, why should not the entail right remain ? It is said that parties going to the register of entails will not know that what they see there as the entail of a pro indiviso estate is the entail of what is now possessed as a separate estate. But if the estate is feudally the same, if no alteration is necessary upon the register which shews the right to the property, the register which parties look at to see who is owner of the property, if that register does not require to be altered, why should it be necessary to alter the register of entails, where you go only to see whether the entail of the right has been recorded. A decree of division has always been held to be a complete arrangement of the right, requiring no new feudal investiture to be made at the time. And therefore I cannot see why it should necessitate the making and recording of a new entail, or the entry in the register of entails of something which is neither an old entail nor a new entail. YOL. L] SCOTCH APPEALS. 565 If the subject be of a kind which does not admit of actual par- 1869 tition, such as a superiority, which Lord Bankton (1) has alluded HOWDEN to, it may be necessary, when a division of interests takes place R v ' among co-heiresses, that conveyances should be made from one to the other. It is true that Avhen a division among heirs portioners takes place the entail previously existing is held to be destroyed. Why ? Is that a parallel case ? The division we are now dealing with is not a division of the entailed estate, it is not a division within the entail. The estate now to be possessed, and which must be held to have been from the beginning the property of the party, though the mode of possession is now to be varied, remains complete. The party has as much as he had before. The whole object of the entailer is accomplished by handing down the estate, neither greater nor less than it was. But when an estate descends to heirs por- tioners, then each is to take his or her own share of that estate. If the entailer had intended that the estate should descend to one of them he would have excluded heirs portioners. But not having done so, the estate is divided, and so there comes to be a parti- tion within the entail which destroys the unity of the estate ; and if these heirs portioners were to be again succeeded by heirs portioners, the estate would be frittered down to mere shreds. That is not the object of an entail ; the presumed object of an entail is to keep the estate entire, and, therefore, when there comes to be a partition of the entailed estate in the course of succession, the presumed object of the entail has come to an end, whereas the kind of division or separation we are now dealing with not only preserves the whole entailed estate, but gives to it greater unity. For these reasons, without adding more to what has been said by my noble and learned friend upon these points, I think that neither of them can be effectually maintained. I think it is impos- sible to read the full judgments given by Lord Ivory and Lord Deas, in the case that has been referred to (2), without seeing that the conclusion arrived at is the one which ought to be sustained. I have the greatest possible respect for the opinion of my late learned (1) Book iii. tit. 5, s. 75. (2) Stewart v. Nicolson, 2ud Dec. 1859, 2nd Series, vol. xxii. p. 72. VOL. I. 2 3 E 566 SCOTCH APPEALS. [L. E. 1869 friend Lord Curriehill (1), who was a great authority ; but upon HOWDEN that particular point upon which he expressed doubt I think he * was hesitating about minor matters, not taking a sufficiently broad EOCHEID. * view, but rather going upon particular critical views, such as I can- not giA r e my assent to. Supposing all I have said to be right, supposing that an estate held pro indiviso was a proper subject for entail, and supposing that the partition of the estate did not operate as a destruction of the entail, still there remains the question whether this particular deed of entail, as applied to any estate, would be a good entail, or whether it is not defective in one or other of the cardinal clauses. Now the objections that have been stated to these clauses are, I think, hypercritical. Objections are stated to the prohibitory clause of the entail. That clause is as follows : It shall not be lawful to, nor in the power of, Alexander Kinlocli, or his heirs, to alter, innovate, or change this present tailzie and settlement, or yet the order of succession hereby prescribed, nor to do any other deed that may import or infer any alteration, innovation, or change of the same, directly nor indirectly, nor to sell, annalzie, or dispone, either irredeemably or under reversion, nor yet to wadset or burden with infeftments of annual rent, or any other servitude, or burden my lands and estate above written, or any part thereof. Now the first objection to this clause is, that it does not prohibit sale. That objection is founded upon these words " nor to sell, annalzie, or dispone, either irredeemably or under reversion," and stopping there, the prohibition is said to be imperfect. To sell and dispone what ? The obvious answer is found in the words " my lands and estate above written or any part thereof." Another objection is, that the clause does not sufficiently prohibit the contraction of debt. I cannot see that there is any force in that. It says, " nor yet to contract debts upon the said estate " But it is said that this applies only to contracting debts in a par- ticular manner. That is a point which has been so often decided that it is quite in vain to struggle against it now. Then an objection is taken to the irritant clause. That clause provides that if any person shall contravene or fail to fulfil and obey and perform the several conditions and provisions above expressed, or any one of them, or shall act contrary to the said (1) See Lord Curriehiffs opinion in Stewart v. Nicolson, already referred to. VOL. I.] SCOTCH APPEALS. 567 restrictions and limitations, or any of them, that then, and in these or any of these 186$ cases, not only such facts, deeds, debts, omissions and commissions done, contracted, v ^ y ^ / neglected, or committed contrary hereto, with all that may follow thereupon, shall be in themselves void, null, EOCHEID. and so on. It is said that this is not a good irritant clause, because it does not say expressly that if they " contract debts " or " commit deeds " contrary to the conditions and provisions above expressed, or any one of them, such debts and deeds shall be void. JSTow assum- ing the prohibitory clause to be complete, then this irritant clause contains a declaration that if they shall contravene or fail to fulfil the provisions above expressed, or any one of them, or shall act contrary to them, then in any of those cases what is to happen? Such facts, deeds, debts, omissions, and commissions, and so forth, shall be void and null ; but facts, deeds, and debts are words which, I think, in their collocation here, and in the position in which they stand in the context, admit of no doubt at all. Facts and deeds are themselves words of very large application, and must be applied with reference to the subject matter of the clause, and when we see that this clause relates to any contravention, any failure to obey> or any acting contrary to the restrictions and limitations before mentioned, or any of them, I think there can be no doubt that the words are sufficient to strike at all contraventions of the pro- hibitions. But then the resolutive clause must be looked at, as it is also said to be imperfect inasmuch as it says that any person so contra- vening or failing to fulfil the " conditions and provisions " shall lose the estate, but does not say that any person contravening the " restrictions and limitations " shall lose the estate. It is attempted to be shewn that according to the particular use of words in this deed, " restrictions and limitations " mean one thing, and " con- ditions and provisions " mean another. Now I cannot go with that distinction. I think that " conditions and provisions " cover every thing. In the first place, they are the words of the Act of 1685. And in the next place, I see that every one of the prohibitions is under a special provision. Every one of them is introduced as a provision, and this clause says that any person failing to fulfil the before-written conditions and provisions, or any of them, shall lose his right and interest in the estate. I therefore think that there is 2 3 E 2 568 SCOTCH APPEALS. [L. E. 1869 HOWDEN V. KOCHEID. no ground for maintaining these critical objections. I think that they cannot possibly receive effect, and upon the whole I fully concur in the conclusion of my noble and learned friend on the woolsack that the appeal must be dismissed with costs. Interlocutors affirmed, and appeal dismissed with costs. Solicitors for the Appellant : Holmes, Anton, Greig, & White. Solicitors for the Kespondents : Connell & Hope. 1367 April 11. THE KEVEREND G. H. FOKBES, OF THE SCOTCH) . > APPELLANT : EPISCOPAL CHURCH J THE EIGHT KEVEREND BISHOP EDEN, PRIMUS\ OF THE SCOTCH EPISCOPAL CHURCH, AND SEVEN OTHER BISHOPS, TOGETHER WITH FOURTEEN > KESPONDENTS^ OF A GENERAL SYNOD OF THE SCOTCH EPISCOPAL CHURCH, HOLDEN AT EDINBURGH IN 1863 ; AND ALSO AS INDIVIDUALS (1) Voluntary Associations Their Independence. Per LORD CRANWOBTH : Save for the due disposal and administration of property there is no authority in the Courts either of England or of Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs. But if funds are settled to be disposed of amongst members of a voluntary association, according to their rules and regulations, the Court must necessarily take cognizance of these rules and regulations, for the purpose of satisfying itself as to who is entitled to the funds. Per LORD COLONSAT : A Court of Law will not interfere with the rules of a voluntary association, unless to protect some civil right or interest which is said to be infringed by their operation. Church Canons Negation of Civil Jurisdiction. Suit instituted in a Civil Court by a clergyman of the Scotch Episcopal Church, to set aside certain canons passed in 1863, for the purpose of (1) This case, formerly given in the Weekly Notes of the 20th of April, 1867, is now reported more fully at the request of a high authority, having regard to recent events, and possible questions. VOL. L] SCOTCH APPEALS. 5G9 cementing the union between the Scotch Episcopal Church and the Church igg? of England and Ireland, v " v "*' Suit dismissed with costs. V. EDEN. Ecclesiastical Synod Its Character and Authority. Per THK LOBD CHANCELLOR : A General Synod of the Church duly and regularly summoned, has the undoubted power to alter, amend, and abro- gate the canons in force, and tp make new ones. Per LORD CRANWORTH : The Synod is the supreme body where there is not (as there is in the Church of England) a temporal head. HE Episcopal Church of Scotland, though only tolerated by the State, and deriving no support from the civil government, yet, nevertheless, claims authority to ordain, change, or abolish cere- monies and rites of merely human authority, as distinguished from doctrines and principles which, founded on the Scriptures, are fixed and immutable. In 1811 a General Ecclesiastical Synod of the Protestant Bishops of Scotland, with the deans of their several dioceses and the repre- sentatives of their other clergy, passed certain canons for the pre- servation of ecclesiastical order and discipline. A second General Synod was held in 1828, when the Canons of 1811 were revised and altered ; and a third was held in 1829, when some of the enactments of 1828 were repealed. But, in consequence of a general desire expressed that the entire code of the Episcopal Church of Scotland should be wholly re- vised, another General Ecclesiastical Synod was summoned, and assembled in Edinburgh on the 29th of August, 1838 ; and, being duly constituted, did then and there adopt and sanction an amended general Code of Canons for the future government and discipline of the said Church the resolution to this effect, with its several provisions and enactments, being signed by seven bishops, three deans, and six delegates. The recital of that resolution expressly stated that the Episcopal Church of Scotland was " in full communion with the United Church of England and Ireland ; the Scotch Church adopting as the standard of her faith the Thirty-nine Articles ; and claiming, under the 34th of them authority to ordain, change, or abolish ceremonies and rites established only by man's authority, so " that all things should be done to edifying." 570 SCOTCH APPEALS. [L. K, 1867 Such being the state of things, it happened that in the year FORBES 1848, Mr. Forbes, the above Appellant, was ordained a clergy- EDE - man (1) * *^ e Scotch Episcopal Church ; and in 1850 was insti- tuted to the pastoral charge of Burntisland in Fifeshire ; where, out of his own private means, he built a house, a school, and part of a chapel receiving from his congregation 40 per annum for stipend. Prior to his ordination he was called upon to subscribe, and did subscribe, as follows : (1.) The book of Articles of Eeligion agreed upon by the archbishops and bishops of both provinces of the realm of England and the whole clergy thereof, in the convocation holden at London in the year of our Lord 1562 ; and (2.) The Canons of the Episcopal Church in Scotland, drawn up and enacted by the bishops and clergy of that Church, in a Synod holden for that purpose at Edinburgh in the year of our Lord 1838. From the date of his institution Mr. Forbes laboured zealously in the discharge of his duties. But an event occurred which rendered him uneasy and dissatisfied. In the year 1863 a new body of canons was issued by the General Ecclesiastical Synod, holden at Edinburgh. In order to cement more closely the union between the Church of England and Ireland and the Episcopal Church of Scotland, while recognising the use of the Scotch Office, wherever it had previously been followed, and in all new congregations of whom, the majority should be disposed to adopt it the General Synod of 1863 established the Book of Common Prayer of the Church of England and Ireland as the Book of Common Prayer of the Episcopal Church of Scotland. The Appellant conceived that this new Code of 1863 involved the breach of an indissoluble contract with him, inasmuch as he had accepted his ordination and institution under the Code of 1838, from which the Code of 1863 involved, in his judgment, unwarrantable deviations. Acting under this conviction, Mr. Forbes, on the 21st of March, 1864, instituted the present suit, calling upon the Court of Session to rescind, reduce, and set aside the following portions of the Code of 1863, namely Article 20, sect. 4; Article 28, sect. 20 ; Article (1) A presbyter VOL. L] SCOTCH APPEALS. 571 29 ; Article 30, sects. 2-4, and Article 38, sect. 3 (1) ; and, " in any 1867 event," he sought a judicial declaration that it was ultra vires of FOBBES the Kespondents, or of any General' Synod of the said Church, E *^ to alter, amend, or abrogate any of the Canons of 1838, except in so far as might be in conformity with the constitution and practice of the said Church at the period of the Appellant's ordination. The Appellant further asked by his summons to have it found and declared as follows : namely, That he was entitled to celebrate Divine worship, and all the other services, and to administer the sacraments and all other rites of the said Church, in con- formity with the said canons enacted in the year 1838 ; and that he was entitled to the free exercise and enjoyment of all the privileges conferred on him under the said canons, or under the deed of institution in his favour. And that the said Respondents should be ordained to make payment to the Appellant of the sum of 120, being the amount paid by him, or for which he was liable in payment, to the Piev. John Wilkinson, for his services as curate to the said Pursuer, in terms of an agreement between them to that effect, of which services the Pursuer was deprived through the wrongous refusal of a license to the said Rev. John Wilkinson, and also of the sum of 200, in name of compensation, damages, and solatium, for the loss and injury which he has sustained patrimonially, and in his health and feelings, by and through such wrongous refusal of licence. The Kespondents, in their defence, relied upon the principle that Courts of civil jurisdiction will not take cognizance of ques- tions as to religious doctrine or discipline, except for the purpose of enforcing civil rights or redressing civil wrongs. The Lord Ordinary (2) held that the grounds stated were not sufficient to support the suit, and he therefore gave judgment (1) The Appellant alleged that the sacrifice, and one which has both, as Code of 1863 had displaced the Scotch the Scotch Episcopal Church had up to Communion Office, so that the relative the passing of the Canons of 1863." positions of the Scotch and English The Appellant objected to the power Offices were reversed inasmuch as that given to bishops to open missions. He formerly the Scotch Office was the objected to the power given to General authorized one and the English only Synods to enact new canons and abolish permitted whereas now, the English existing ones. He objected to the use Office was the authorized one and the of the Book of Common Prayer. And Scotch only permitted. In one passage he objected to the directions of 1863 as of his printed case the Appellant said: to the Visitation of the Sick and the " It is needless to point out what a real Burial of the Dead, difference there must be between a (2) Lord Barcaple. Church which has neither altar nor 572 SCOTCH APPEALS. [L. B. 1867 against Mr. Forbes, with costs ; making, in explanation, the folio w- FOBBES ing remarks : V. EDEX. The Lord Ordinary does not know of any similar demand having hitherto been made for the intervention of a Court of law in matters touching the faith and dis- cipline of a religious denomination. There is not here any violation of statutory duties and rights as in the Aucliterarder Case (1). Neither is there the alleeed perversion of property from its destined nse, as in Oraigdallie v. Aikman (2) ; Smith v. OaTbraith (3); and Attorney- General v. Pearson (4); and the case of Lady Henley's Charity (5). Nor is there the allegation of direct patrimonial injury done by an ecclesiastical body acting illegally, as in the case of McMillan v. Tlie Free Church (6), or of injury by libellous matter contained in an ecclesias- tical sentence, as in Duribar v. Skinner (7). In all these cases it was not only alleged that the ecclesiastical body or its office-bearers had violated the law or constitution of the Church, but a direct and substantive injury was alleged to have been inflicted on the party seeking redress (8). Against this adjudication Mr. Forbes having reclaimed, the Second Division of the Court of Session, on the 8th of December, 1865, adhered to and confirmed the interlocutor complained of with further costs. Mr. Forbes, conceiving that both these judgments were contrary to Law and Equity, appealed for justice to the House of Lords having for Counsel Sir Roundell Palmer, Q.C., and Mr. Fitzjames Steplien, Q.C. When, however, the case was called, Mr. Forbes desired to offer his argument in person. He accordingly addressed the House, and stated, with great ability, his case to the House. The Attorney-General (9), and Mr. Mundell, Q.C., were heard for the Eespondents. The following opinions were delivered by the Law Peers. THE LORD CHANCELLOR (10) : My Lords, this is an appeal from certain interlocutors pronounced in an action brought by the Pursuer, the Keverend George Hay Forbes, described as the minister of the Scotch Episcopal Congre- gation, Burntisland, against the bishops and several of the clergy (1) McL. & R. 220; 6 Cl. & Finn. (6) 23 Dun. 1314. 646. (7) 11 Dun. 945. (2) 1 Dow. 1 ; and 2 Bli. 529. (8) 2nd Series of the Scotch Cases, (3) Fac. Coll. June 6, 1839. vol. iv. p. 143. (4) 7 Sim. 290. (9) Sir John Rolt. (5) 7 Ibid. 309. (10) Lord Chelmsford. VOL. I.] SCOTCH APPEALS. 5' of the Scotch Episcopal Church, all as members of a General 1867 Synod of the said Church, holden at Edinburgh on the 8th of July, FORBES 1862, and continued by successive adjournments and prorogations E ^, N until the 13th day of February, 1863, and as individuals. The object of the action is to have it declared that certain canons enacted by the General Synod ought to be reduced, or, in any event, to have it declared that it was ultra vires of the De- fenders, or of any General Synods of the Church, to alter, amend, or abrogate any of the canons contained in the Code which was enacted by an Ecclesiastical Synod holden at Edinburgh in the year 1838, or to make new canons for the Church, except in so far as they may be in conformity with the constitution recognised, and the practice acknowledged, in the said Church at the time of the Pursuer's ordination as a minister thereof, and set forth in the Code of Canons of 1838, which was then subscribed by him. And that it ought to be found and declared that the Pursuer is entitled to celebrate Divine worship and all the other services, and to administer the sacraments and all other rites of the Church, in conformity with the canons enacted in 1838. And the Pursuer also claimed that the Defenders should be decerned and ordained conjunctly and severally, or severally and respectively, to make payment to the Pursuer of the sum of 120, for which he is liable to the Rev. John Wilkinson for his services as curate, of which services he was deprived through the wrongous refusal of a license to Mr. Wilkinson, and also of the sum of 200 for the loss and injury which the Pursuer has sustained patrimonially, and in his health arid feelings, by and through the wrongous refusal of the license. Mr. Forbes was ordained a minister of the Episcopal Church of Scotland in the year 1848. Prior to his ordination, in accordance with the law of that Church, he subscribed the Thirty-nine Articles and also the Canons of the Episcopal Church in Scotland, enacted, in the year 1838. He was instituted to the charge of the Epis- copal Congregation of Burntisland, as the pastor or minister of the congregation, with a license to him " to read in his present place of assembly for public worship, or any chapel in the diocese, the public prayers of the Church ; to administer God's Holy Sacra- ments, to preach His Holy .Word, and to perform, according to the 574 SCOTCH APPEALS. [L. E. 1867 rites and ceremonies of the Episcopal Church in Scotland, every other FOBBES sacred office which it is competent for a presbyter to perform." EDEX This institution of the Appellant differs from the form of "in- stitution to a pastoral charge," given in the Appendix to the Code of Canons of 1838, which, after reciting a presentation offered to the bishop by the Episcopal Congregation, assembling for public worship at a particular chapel, in favour of the person to be in- stituted, runs : " We, the bishops, do hereby institute and appoint the said Eeverend [ ] to be pastor or minister of the said congregation." The Appellant, after his institution, erected, at a cost of between 3000 and 4000, a clergyman's house, a school, and part of a chapel. He alleges in his condescendence, that as minister at Burntisland he is in receipt of an income which amounts to about 40 a year, and that he receives from the Scotch Episcopal Church Society an annual grant of 10 towards the expenses of a school which he maintains. And also that he is a member of the Scotch Episcopal Friendly Society, which is confined to the clergy of the Scotch Episcopal Church, and which gives to the widows of the sub- scribers annuities of 30, and to their children the sum of 300. The ground of action laid by the Appellant is, that the General Synod, in making alterations in the Code of Canons of 1838, by the New Canons of 1863, have departed from the recognised con- stitution and acknowledged practice of the Scotch Episcopal Church, and have therefore violated the contract into which he entered by subscribing the Code of 1838. And he alleges that he cannot conscientiously obey this New Code, and in consequence may become liable to penalties, even to the degradation from his office of minister of the Scotch Episcopal Church, and thereby be deprived of all the temporal advantages he derives from his office of minister of the congregation of Burntisland, which is a damage and injury of which the Civil Courts can take cognisance. The Appellant does not allege any actual damage which he has sus- tained, except with regard to the refusal to license his curate ; but he founds his action upon the possibility of his sustaining damage hereafter by a conscientious adherence to his own views of his obligations, and upon what I must call a sentimental feeling of having been brought to be a member of an association which, VOL. I.] SCOTCH APPEALS. 575 departing from the original terms of communion, has left him in 1867 the position of a dissenter. FORBES If it had not been for the petitory conclusion of the summons, I think there might have been a plea to the relevancy of the action upon the claim for reduction of the enactments in the Code of Canons of 1863. Supposing the Appellant to have really sus- tained damage by reason of the Code of 1863, it would have been open to the Court to consider whether the General Synod had au- thority to make the canons from which this civil injury had arisen. But actual damage flowing directly from the effect of the Canons of 1863 is wholly out of the question. The Court had, therefore, to consider whether it could properly entertain the ques- tion of the reduction of the canons upon the ground that they were a departure from the doctrine and discipline of the Scotch Epis- copal Church at the time the Appellant became one of its minis- ters. Now, this it refused to do, as it was a mere abstract question involving religious dogmas, and resulting in no civil consequences which could justify the interposition of a Civil Court. The case of McMillan v. The General Assembly of the Free Church of Scotland (1) was frequently relied upon in the course of the argument, and the opinions of the Judges were referred to on both sides. The Appellant urged it as a strong authority in his favour, because it was there held that sentences of suspension and deposition pronounced by the General Assembly of the Free Church of Scotland, a voluntary religious association, against one of its ministers, were properly the subject of an action of reduction and damages on the allegation that such sentences had been irre- gularly pronounced in excess of their powers, and in violation of the conditions which regulated the proceedings of the association amongst themselves, and which were alleged to form a contract amongst the members of the association. But it must be observed that in that case there were actual sentences of suspension and deposition, from which the loss of the Pursuer's emoluments as minister of the Free Church of Cardross followed as a consequence. The Appellant in this case has not been disturbed either in his charge of the congregation at Burntisland, or in his legal position as a minister of the Scotch Episcopal Church. If he had been, (1) 23 Dunlop, 1314. 576 SCOTCH APPEALS. [L. B. 1867 though in this latter respect only, I should have considered, with FOEBES the Lord Justice Clerk, that " the possession of a particular status, E * T meaning by that term the capacity to perform certain functions, or to hold certain offices, is a thing which the Law will recognise as a patrimonial interest, and that no one can be deprived of its pos- session by the unauthorized or illegal act of another without having a legal remedy." The Appellant not having sustained any injury which can be the subject of cognizance in a Civil Court, his appeal might be shortly disposed of upon that ground. But the questions of the power of the General Synod to enact the Code of Canons of 1863, and their moral effect upon the position of the Appellant as a minister of the Scotch Episcopal Church, have been so earnestly and strongly pressed upon your Lordships' attention that I do not feel justified in passing them by without notice. The Appellant rests his claim to maintain his action upon the following grounds. He- alleges that by his ordination as a minister of the Scotch Episcopal Church he became a member of a volun- tary religious association under a contract, the terms of which were contained in the Canons of 1838, which he subscribed. That it was not competent to any number of the members of the associa- tion, short of the whole body, to change its fundamental character, and that the enactment of the Canons of 1863 was a violation of the contract into which the Appellant had entered, and materially and injuriously affected his position as a member of the association. It does not appear to me that the Canons of 1838 can properly be regarded as the contract between the members of the Scotch Episcopal Church at the time when the Appellant was ordained to the ministry. They are principally, if not altogether, directed to the regulation of order and discipline, and contain nothing with regard to the fundamental doctrines or articles of faith upon which the constitution of a religious community depends. But assuming that the Canons of 1838 are to be taken as the contract between the members of the Scotch Episcopal Church, the Appellant sub- scribed (amongst the rest) to the 33rd Canon, which declares that " a General Synod of the Church, duly and regularly summoned, has the undoubted power to alter, amend, and abrogate the canons in force, and to make new canons." And by his subscription to the YOL. I.] SCOTCH APPEALS. 577 Thirty-nine Articles he , agreed that the Church has authority over 1867 rites and ceremonies, as declared in the 20th and 34th Articles. FOBBES But the Appellant says that the 33rd of the Canons of 1838 EDEN. only permits such alterations, amendments, abrogations, and new canons as are in conformity with the recognised constitution and acknowledged practice of the Church, and that the 30th of the Canons of 1863 is at variance with such acknowledged practice, as, upon certain occasions, it displaces the Scotch Communion Office, and substitutes for it the Communion Office of the Book of Common Prayer. In support of this objection the Appellant relies upon the 21st Canon of the Code of 1838. That canon, after referring to the 20th and 34th of the Thirty-nine Articles, and reciting that the Episcopal Church in Scotland had long adopted, and very generally used, a form for the celebration of the Holy Communion known by the name of the Scotch Communion Office, which form had been justly considered as the authorized service of the Episcopal Church in the administration of that sacrament, and that in order to promote an union among all those who profess to be of the Episcopal per- suasion in Scotland, permission was formerly granted by the bishops to retain the use of the English office in all congregations where the said office had been previously in use, which permission is now ratified and confirmed, enacts " that in the use of either the Scotch or English office no amalgamation, alteration, or interpolation whatever shall take place, nor shall any substitution of the one for the other be admitted unless it be approved by the bishop." From respect, however, for the authority which originally sanctioned the Scotch Liturgy, and for other sufficient reasons, it enacts " that the Scotch Communion Office continue to be held of primary authority in this Church, and that it shall be used not only in all consecra- tions of bishops, but also at the the opening of all General Synods." Now, by the 30th of the Canons of 1863, it is enacted that " at all consecrations, ordinations, and synods, the Communion Office of the Book of Common Prayer shall be used." This, the Appellant contends to be clearly contrary to the acknowledged practice of the Church, and that the primary authority of the Scotch Com- munion office is not preserved by the enactment in this 30th Canon, ' that the adoption of the Book of Common Prayer as the service 578 SCOTCH APPEALS. [L. E. 1867 book of the Church shall not affect the practice of the congrega- FORBES tions of this Church which now use the said Scotch Communion Office ;" the practice of the congregations of the Church being something different from the acknowledged practice of the Church. And the Appellant com plains that as he is obliged to attend ordina- tions, he may be compelled to receive the Communion according to the Office of the Book of Common Prayer, to which he has a con- scientious objection. It seems difficult to say that there can be any acknowledged practice with respect to the use of the Scotch Communion Office, when the 21st Canon of 1838, upon which the Appellant relies, notices the previous permission to use the English Office, and rati- fies and confirms that permission, and also sanctions the substitu- tion of the one office for the other. The acknowledged practice, therefore, was not the uniform use of the Scotch Office in the Episcopal Church, but of the English and Scotch Offices in dif- ferent congregations. The Appellant lays great stress upon the enactment in the 21st Canon that the Scotch Communion Office shall continue to be held of " primary authority " in the Church. I understand these words as merely giving to this office the highest claim to respect and deference, in consequence of the authority from which it pro- ceeded. But if more than this was meant, then the same power of a General Synod which gave the paramount place to this Com- munion Office might make a new canon respecting it, unless such canon was at variance with acknowledged practice. Now it has been shewn that there is no uniform, and, consequently, no acknow- ledged practice in the Church with respect to the Communion Office. The different forms are used in different congregations and all the congregations together make up the Church. I now turn to the complaint of the Appellant, the General Synod having, by Canon 29 of the Code of 1863, enacted " that the Book of Common Prayer as now authorized, according to the sealed book, is, and shall be held to be, the service book of the Church for all the purposes to which it is applicable, and that no clergyman shall be at liberty to depart from it in public prayer and admini- stration of the sacraments, or in the performance of other Divine offices, except so far as the circumstances of this Church require, VOL. L] SCOTCH APPEALS. 579 and as specified in the Canons of this Church." The Appellant 18G7 contends that this canon is an essential change in the Canons of FORBES 1838, and not within the competency of the General Synod. And he complains that it lays a burthen upon his conscience by im- posing upon him the necessity of using certain offices of the Church to parts of which he has a conscientious objection, as for instances, the Office of Baptism, of the Visitation of the Sick, and of the Burial of the Dead. The ground of this objection is, that the Canons of 1838 nowhere require that the Book of Common Prayer should be used upon every occasion in the performance of the Divine offices ; the 28th Canon merely enacting " that in the performance of Morning and Evening Service the words and rubrical directions of the English Liturgy shall be strictly adhered to." But although in the Canons of 1838 it is nowhere said in so many words that the Book of Common Prayer shall be used on all occasions, yet with respect to the services to which the Appellant refers, in each instance pro- vision is made that the Book of Common Prayer shall be used, and in each the two Codes of Canons substantially agree. Take, in the first place, the Sacrament of Baptism, under the 17th Canon of 1838. It certainly is not expressly said that the form in the Book of Common Prayer shall be used, but it is more than implied when it is said, " As uniformity in the administration of the Sacrament is as desirable as in the other services of the Church, the privacy of the administration shall be no reason for any departure from the form prescribed for public use, to which the minister shall always adhere, except in cases of extreme danger, where the form of private baptism shall be used as directed by the Rubric," which can mean no other Rubric than that in the Book of Common Prayer. Again, the same canon refers expressly to this book in providing for the case of baptism where there is a doubt as to the validity of a former baptism, for it requires the clergyman " to baptize the person in the form of words prescribed in the Book of Common Prayer in cases of doubt." I am unable to appreciate the objection made to the Canon of 1863, with respect to the parents of the child being sponsors in default of other godfathers and godmothers. The Canon 17 of 1838 speaks of parents either becoming sponsors themselves, or of 580 SCOTCH APPEALS. [L. E. 1867 procuring godfathers and godmothers. The difference is slight, FOBBES and scarcely perceptible, and, at all events, can hardly be considered E v " a substantial objection to the canon. I now turn to the Office for the Visitation of the Sick, in which I am at a loss to discover any difference between the Old and the New Canons. In Canon 23 of 1838 the clergyman called upon to visit any sick member of his congregation is required to repair to the sick person's house, and there be ready to administer all suit- able comfort and instruction, either according to the Order for the Visitation of the Sick as appointed in the Book of Common Prayer, or in any other way as he shall think most needful and convenient. Is the Appellant, by the Canons of 1863, compelled to use an office to which he conscientiously objects ? On the contrary, the 38th Canon of the Code of 1863 permits him, in the very words of the Canon of 1838, to administer comfort and instruction, " either according to the Order for the Visitation of the Sick, or in such other way as he shall think most needful and convenient." The Appellant complains of the obligation always to use the Book of Common Prayer in the performance of Divine Offices, as making it compulsory upon him to read the Burial Service over the Dead, as if it were a duty imposed upon him for the first time by the Canons of 1863. Whereas in Canon 23 of the Canons of 1838, it is enacted that the clergyman shall be ready to do the last duty when he shall be called upon to read, " Order for the Burial of the Dead, which he shall use as prescribed in the Book of Common Prayer, as far as circumstances will permit that order to be observable by the clergy of this Church." The Canon 38 of 1863 is in these terms, " At the Burial of the Dead the rubrical directions of the Book of Common Prayer shall be complied with so far as the circumstances of this Church will permit." It thus appears, with respect to all the particulars in which the Appellant complains of the burthen laid upon his conscience by imposing upon him the necessity of using the Book of Common Prayer, that in the case of the Order for the Visitation of the Sick he has the same liberty which he before enjoyed ; and with respect to the Offices of Baptism and the Burial of the Dead he was already bound by his subscription to the Canons of 1838. I think that I ought not to trespass upon your Lordships with any CRANWORTH : My Lords, the decision of this case depends on certain well- established principles of law. Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs. If funds are settled to be disposed of amongst members of a voluntary association according to their rules and regulations, the Court must necessarily take cognizance of those rules and regula- tions for the purpose of satisfying itself as to who is entitled to the funds. So, likewise, if the rules of a religious association prescribe who shall be entitled to occupy a house, or to have the use of a chapel or other building. This is the principle on which the Courts have administered You I. 2 3 F . I] SCOTCH APPEALS. 581 observations as to the canon permitting a bishop under special 1867 circumstances to open a mission in any part of the diocese. It is FORBES not a case in which conscience is involved, and no attempt has been made to interfere with the Appellant's ministry over the -congregation at Burntisland. I will only add one word as to the petitory conclusion for dam- ages for the refusal of a license to Mr. Wilkinson. If the bishop 'had authority to grant or refuse a license at his discretion of course no valid cause of complaint arises. But if he wrongfully refused he would be personally answerable for his own act, and the General Synod cannot be liable for it in any way. And if a license was improperly withheld, it would be Mr. Wilkinson who would have a right to complain, and not the Appellant for the remote conse- quences of suffering health and mental anxiety resulting from his not obtaining a curate. I have gone, perhaps at too much length, into the whole case, but as the Appellant has pressed it so earnestly and so anxiously on your Lordships' attention I was unwilling to leave any part of it unexamined. I therefore submit to your Lordships that the interlocutor must be affirmed and the appeal dismissed, and I regret to add, that it must be dismissed with costs. 582 SCOTCH APPEALS. [L. R. 1867 funds held in trust for dissenting bodies. There is no direct power FORBES i Q tne Courts to decide whether A. or B. holds a particular station F r< according to the rules of a voluntary association. But if a fund held in trust has to be paid over to the person who, according to the rules of the society, fills that character, then the Court must make itself master of the questions necessary to enable it to decide whether A. or B. is the party so entitled. These considerations go to the root of the present case. The Appellant contends that he was ordained under the Canons of 1838, and, so ordained, was entitled to exercise the functions of a clergyman of the Episcopal Church of Scotland according to the doctrine, and practice established by those canons. And he com- plains that the effect of the Canons of 1 863 has been to impose on him the maintenance of doctrines and the adoption of a practice different from those to which he bound himself on his ordination under the prior canons. But assuming that to be so, assuming that the General Synod of 1863 had no power, according to the consti- tution of 1838, to make the alterations of which the Appellant complains, that of itself gives no jurisdiction to the Superior Courts. There is no jurisdiction in the Court of Session to reduce the rules of a voluntary society, or, indeed, to inquire into them at all, except so far as may be necessary for some collateral purpose. The only remedy which the member of a voluntary association has, when he is dissatisfied with the proceedings of the body with which he is connected, is to withdraw from it. If, connected with any office in a voluntary association, there is the right to the enjoyment of any pecuniary benefit, including under that term the right to the use of a house or land, or a chapel, or a school, then, incidentally, the Court may have imposed on it the duty of inquiring as to the regularity of the proceedings affecting the status in the society of any individual member of it. But here there is no question of that sort. This seems to me to dispose of the whole case ; for I cannot think that the statements of the Appellant allege the violation of any legal right which enabled the Court of Session to inquire into the power of the General Synod to frame the Canons of 1863. The Appellant states that, as minister at Burntisland, he is in receipt of an income of -10 per annum, besides an annual grant VOL. I.] SCOTCH APPEALS. 583 of 10 from the Church Society towards the maintenance of a 1867 school. This may all be true, but there is no allegation that he FORBES is entitled, as of right, to this income, or that there is any inten- El ^, N tion on the part of those from whom it is derived to deprive him of it under the provisions of the New Canons. He states that he is a member of a friendly society to which none but clergy of the Scotch Episcopal Church can belong, and he complains that if he is deprived of his status as a clergyman of the Scotch Episcopal Church he will lose all benefits from the premiums which he has paid since his ordination in 1848. But here, again, there is no allegation of an intention to deprive him of his status as a clergy- man ; and if there were, it is not that status which entitles him to the benefits of the friendly society, but a contract into which he has voluntarily entered with that body. If any rights which he or his representatives may have acquired, or may acquire, under that contract, should be violated or withheld, he will seek, and no doubt will obtain, proper redress. But until such a question arises there is no power to pass any judgment on the validity of the canons of which the Appellant complains. They are the mere rules which a voluntary association has prescribed for itself. In the view I have taken of this question I do not feel myself in strictness called on to go any further ; but the Appellant has argued his case with so much earnestness and ability that I have felt it due to him that I should shortly examine the case from his own point of view, that is, that I should consider whether, assuming that there is any power in the Court to reduce the Canons of 1863, he has shewn any ground for such reduction. I am of opinion tli at he has not. The Appellant rests his case on the analogy which he supposes to exist between the body associated as the Scotch Episcopal Church and an ordinary commercial partnership. He contends, truly, that, unless so far as the articles of partnership authorize it, no change can be made in its provisions by the mere will of a majority of the partners, nor, indeed, without the concurrence of every individual of whom the partnership is composed. And he contends that on the same principles the Synod, or general assem- bly of persons associated as a church or religious body, can have no power to alter the canons or rules of that church or religious 2 3 F 2 584 SCOTCH APPEALS. [L. E. 1867 body without the consent of every member of it, except so far as FOKBES they are expressly authorized to do so by the terms of their con- EDEN stitution. But the Synod of a Church seems to me to resemble rather the Legislature of a State than the articles of association of a partnership. A religious body, whether connected with the state or not, forms an imperium in imperio, of which the Synod is the supreme body, when there is not, as there is in the Church of England, a temporal head. If this is so, I feel it impossible to say that any canons which they establish can be treated as being ultra vires. The authority of the Synod is supreme. It may indeed be that a Synod, or general assembly, of a religious body has no power to affect civil rights already acquired under existing canons or rules. But that is very different from saying that the canons or rules themselves have no force among those who have no such complaint to make. This is my view of the principles involved in this case, but I think it right to add that, even on the narrower ground on which the Appellant has proceeded, I think he fails to establish any ground of complaint against the New Canons. The most material complaint relates to Articles 2 and 4 of the 30th Canon of the New Code. The Appellant complains that these two articles of this canon effect very generally a substitution of the English for the Scotch Communion Service. I will assume that they do so ; but I cannot think that this affords any ground of complaint to the Appellant. The language of the 21st of the Old Canons, when fairly in- terpreted, treats the old Communion Service as merely a form ordained by man's authority, and recognises in the fullest way the right of the Synod to vary the form as may be desirable. The language of that canon seems to admit of no other construction. It begins by reciting that Every particular church hath authority to ordain, change, and abolish cere- monies or rites of the church ordained only by man's authority. Then the 21st of the Old Canons proceeds to say that The Episcopal Church in Scotland, availing herself of this inherent right, hath long adopted and very generally used a form for the celebration of the Holy Com- munion known by the name of the Scotch Communion Office, which form hath been justly considered, and is hereby considered, as the authorized service of the Episcopal Church in the administration of that sacrament. VOL. L] SCOTCH APPEALS. 585 But it then goes on to say that the English Office ought to be 1867 retained where it had theretofore been in use, and that no substi- FOKBES tution of the one for the other shall be admitted unless approved by the bishop ; and it declares that the Scotch Communion Office shall be held of primary authority, and that it shall be used in all consecrations of bishops and at the opening of General Synods. I find it impossible not to deduce from the terms of this canon that the framers of the Canons of 1838 treated the Scotch Com- munion Office as a ceremony or rite of the Church ordained by man's authority, and liable to be changed by the same authority. The language appears to me to admit of no other construction; and if this be so, how can the Appellant complain that a subsequent Synod has, by the 30th Canon, reversed, as it were, the position of the two offices, and made the English the office of primary au- thority instead of the Scotch ? It is to be observed, if that be important, that this canon has no direct effect on the Appellant. He is left at liberty to use the Scotch Office as he has hitherto done, and so may any new congregation on its formation if the majority desires it. I cannot conceive anything more fairly to be treated within the competence of the General Synod than such a change of what the 21st Canon of 1838 describes as a ceremony or rite of the Church ordained by man's authority, and the power to make which change the canon itself treats as the inherent right of the Episcopal Church in Scotland. The next canon in point of importance of which complaint is made, is the 29th, which makes the Book of Common Prayer the Service Book of the Scotch Episcopal Church for all purposes. Under the Old Canons (Canon 28), as in the New Canon 29, the Book of Common Prayer was alone to be used in the celebration of morning and evening service ; but the Appellant complains that the 29th Canon makes the use of it compulsory, not only in the reading of the ordinary morning and evening services, but also in the occasional services, particularly in the Baptismal and Burial Services and in the Visitation of the Sick ; and this he complains of as a grievance. But I can discover none. As to baptism, the 17th Old Canon prescribes the form to be adopted in baptism, and evidently intended that the form prescribed by the Book of 586 SCOTCH APPEALS. [L. R. 1867 Common Prayer should be generally used. When any applicant FORBES f r baptism expresses a doubt as to the validity of baptism pre- EDEN viously obtained from some other sect, this canon directs the form prescribed by the Book of Common Prayer in a nearly similar case to be used, and this is said to have been provided for in con- sequence of the unhappy multiplicity of religious sects prevailing in Scotland. This, however, cannot be treated as a substantial deviation from the form in the Book of Common Prayer. It was certainly in the power of the Synod to prescribe the use generally of that which was already in common, if not universal, use. As to the Burial Service, the Appellant's objection is plainly unfounded. By the Old Canon 23, he was bound to read the Church Service for the Burial of the Dead when called on so to do. The Appellant says that this left him at liberty to use any service which he might prefer when not so called on. I desire not to be taken as at once assenting to this construction of the Old Canon ; but even if that be its true interpretation, the Appellant cannot complain of the change introduced by the New Canon. It only obliges him to use the Church form on all occasions, instead^ of leaving him at liberty to use a different form when not required to follow the form found in the Book of Common Prayer. Under the Old Canons he was bound sometimes to use the Church Burial Service. Now he is bound always to use it. This change was certainly within the competency of the Synod. In both the Old and the New Canons exceptions are made when and so far as the circumstances of the Scotch Church make a change of form necessary. As to the Form for the Visitation of the Sick, there is no pretence for any complaint. It is true that the general introduction by the 29th Canon of the Book of Common Prayer would introduce, as part of the services to which the Appellant must adhere, the Order for the Visitation of the Sick. But this is expressly qualified afterwards by the 38th Canon, which authorizes the Clergyman to give comfort and instruction, either according to the Order for the Visitation of the Sick, or in any other way which he may think most needful and convenient. This differs in no respect from the previous regulations contained in the 23rd Canon of 1838. The complaint as to the 3rd Article of the 38th Canon relates to VOL. I.] SCOTCH APPEALS. 587 the necessity of attending to the rubrical directions of the Book 1867 of Common Prayer at the Burial of the Dead. This head of com- FORBES plaint I have already dealt with. EJ ^ N A fourth head of complaint is founded on the 4th Article of the 20th New Canon, which enables a bishop under special circum- stances to open a mission in any part of his diocese when it may seem to him desirable. To this I' can only say that such a provision may be highly convenient for a church in the position of the Episcopal Church of Scotland. It is vain to say that no such course could be taken in the Established Church of England. The circumstances of the two Churches are entirely different, and I cannot imagine any reason why the Synod should not be at liberty to make this arrangement if it appeared to them desirable. The only other part of the New Canons of which the Appellant seeks reduction is the 20th Article of the 28th Canon, which de- clares that the General Synod shall have power to alter, amend, and abrogate canons in force, and to enact new canons, provided that such alterations, amendments, abrogations, and new canons be in conformity with the recognised constitution of -this, that is, the Scotch Episcopal Church. The same power is found in the 33rd Canon of 1838, except that there the alterations, amend- ments, abrogations, and new canons are required to be in conform- ity with the recognised constitution and " acknowledged practice " of the Scotch Church. The Appellant argues that the omission of these words " acknowledged practice " vitiates the New Canon as giving to it a force which the Old Canon did not possess. I do not feel any force in this objection. The remarks which I have already made on what I conceived to be the general power inhe- rent in a Synod are sufficient to shew my doubt whether one Synod can validly control the power of another which is in the nature of an independent legislature. But even supposing this could be done, and supposing, further, that these words amounted, which, however, they do not, to a prohibition on the Synod against altering, by virtue of its inherent power, the acknowledged practice of the Church, and not merely to a restriction of the power con- ferred by the 33rd Canon, still I think the subsequent Synod was entitled to say that these words were necessarily included in the other words " recognised constitution," and so to reject them as 588 SCOTCH APPEALS. [L. K. 1867 inconvenient surplusage. Nothing can be described or imagined as- FORBES constituting the acknowledged practice of the Church which would EDE no ^ a ^ so ^ e P ro P ei 'ly described as part of its recognised constitution, This exhausts all the parts of the New Canons of which the Appellant seeks reduction. To state shortly, therefore, my view of the whole case, I am of opinion, first, that the canons made from time to time by Synods of the Episcopal Church of Scotland are to- be treated merely as the rules of a voluntary society over which- the Court of Session has no jurisdiction, except in cases where the interpretation of them is necessary for a collateral purpose, as for determining the rights to trust property depending on their con- struction ; secondly, that no such questions of right are raised on this record \ and, thirdly, that even if the validity of the New Canons had been properly before the Court, the Appellant has not shewn any valid ground of complaint. I concur, therefore, with my noble and learned friend in think- ing that the appeal ought therefore to be dismissed. LORD COLONSAY : My Lords, I so entirely concur in the views which have been- stated, that I have scarcely anything to add. A Court of Law will not interfere with the rules of a voluntary association unless to protect some civil right or interest which is said to be infringed by their operation. Least of all will it enter into questions of disputed doctrine, when not necessary to do so in? reference to civil interests. In the present case no objection is taken to the jurisdiction of the Court, for the plain reason that the Appellant has, by the- shape of his action, coupled with his allegations against the pro- ceedings of the Synod, as affecting his civil rights and interests,, entitled himself to have the judgment of the Court on those civil rights and interests, and the conclusion for reduction which thia summons contains was not an inept conclusion in reference to such a demand ; because it might have been pleaded against a mere petitory action that those rules stood in the way, and that until they were set aside it was incompetent to the Court to go into the- question, which would have been raised by a petitory action. The meaning of that part of the summons which seeks for reduction- VOL. L] SCOTCH APPEALS. 589 therefore, is, that in so far as those rules can be pleaded against the demand for redress in reference to his civil interests, they are complained of and assailed by the summons. But if the Appel- lant has not made out a case which the Court can maintain in the way he asks it to do in reference to the civil rights and interests said to be involved, then I apprehend that his case must fail. His demand rests entirely on the allegation that he is exposed to pecuniary consequences in respect of the position in which he is placed with reference to the refusal of a license to his curate. That is a question which may yet have to be tried between him and his curate, if either of them fails to fulfil the contract which has been entered into between them. But at present we cannot go into that question. It is not a matter which is properly raised here, and therefore I apprehend there is no relevancy in this action as regards that demand, and theje being no relevancy in this action as regards that demand, I apprehend that we cannot go into those further questions of reduction and declaration which are made, as it were, the prelude to dealing with that petitory conclusion. If we were to go into those questions, I think that the conclu- sion which has been arrived at by my noble and learned friends who have already addressed the House, is irresistible. The whole case of the Appellant rests upon this, that the Synod had no power to do what they have done, and that they had no power to do so, because by the 33rd Canon of the Code of 1838 there was a prohibition against the alteration of anything which was accord- ing to the recognised or established practice. The whole case of the Appellant is, that the Canons of 1863 were ultra vires of the Synod, because the Synod was restrained by that clause in the Canons of 1838. Now the canons of this Church are, according to the recital in the Canons of 1838, matters applicable to the discipline of the Church, which it is declared that the Church has power to alter from time to time ; and the recital of the Canons of 1838 bears that the Church has from time to time altered and repealed some of those canons. There must be some supreme authority, and, looking at the power of the Synod in the mode in which my noble and learned friend who last addressed the House put it, I think the Synod, which is the supreme authority in this Church, 590 SCOTCH APPEALS. [L. B. 1867 ', had the power to regulate and change those matters ordained (as FOBBES the canon expresses it) by man's authority, which the recital of EIJEN *ke Canon f 1838 declares that every church has power to re- gulate and change. I cannot, therefore, hold that it was ultra vires of the Synod of 1863 to make that alteration. If, my Lords, we were to go into the particulars of the altera- tions that have been made, I cannot say that I differ from the observations that have 'been made to your Lordships. It does not appear to me that there is any great infringement made upon any position which the present Appellant occupies by the New Canons of 1863. The use of the English Communion Service does not appear to me to be a matter of novelty in this Church. On the contrary, the Canons of 1838 recognise it. They allow the two modes, the two services ; but, although they allow the two services, it is not to be inferred that these arA two things which are incom- patible in the estimation of the Church. On the contrary, it is repugnant to reason to hold that these two services are incom- patible, or that the doctrines discovered now to be contained in them are things which were regarded by the Church as incom- patible with each other. It could not have been a united Church or union of Churches if it were so ; such a thing would be a con- tradiction in terms. These canons which are now complained of do nothing more than substitute the more comprehensive Com- munion Service of the English Church for the Communion Service of the Episcopal Church of Scotland, a thing which, as it appears to me from the recital of these Canons of 1838, it was perfectly within their power to do. Therefore I entirely concur in .the pro- position which has been made that this judgment should be affirmed. Interlocutors affirmed, and appeal dismissed with costs. Solicitor for the Appellant : William Robertson. Solicitor for the Respondent : Connell & Hope. END OF VOL. I. INDEX. ABLE-BODIED PERSONS, RELIEF OF : See Poor LAW. ACCOUNT An Account directed.'] The House directed that the Kespondent should be decreed to account for all surplus rents and profits, in- cluding grassums, if any, that had come to his hands since the signetting of the summons, but not prior thereto. UNIVERSITY' OF ABERDEEN v. IBVINE - - 289 Account under the Montgomery Statute Signature to : See IMPROVEMENTS BY HEIR OF ENTAIL. Case of account : See PEACTICE. 7. ACQUIESCENCE : See APPEAL. 1. PRACTICE. 1. ADMINISTRATION OF A CHARITY Distinction between the object and the mode : See CHARITABLE TRUST. 2. ADULTERY : See DIVORCE. ALIENATION : See ENTAIL. 2. ALLEGIANCE: See DOMICIL. 1. ALVEUS OF RUNNING STREAM : See RIPARIAN OWNERSHIP. AMENDMENTS OF PLEADING AND ISSUES Remarks by The Lord Chancellor [Cairns'] shew- ing the facilities which exist in England for such amendments. MACFARLANE v. TAYLOK - 245 ANCIENT DECREES ; See DECREES, ANCIENT. ANTE-NUPTIAL TRUST : See CONQUEST. APPEAL Appeal against an Interlocutor ac- quiesced in, and not reclaimed against."] A pre- liminary defence which, if sustained, would have prevented examination of the merits, was repelled by the Lord Ordinary, whose interlocutor, more- over, stated the Defender's acquiescence. The Court afterwards gave judgment on the merits against the Defender, who appealed to the House of Lords appealing also against the Lord Ordi- nary's interlocutor : Held, that the appeal against the Lord Ordinary's interlocutor was irregular and incompetent. Per Lord Chelmsford : The Appellant relies on the proviso in the 15th sec- tion of the 48 Geo. 3, c. 151, " that when a judg- ment or decree is appealed from it shall be com- petent to either party to appeal to the House of Lords from all or any of the interlocutors that may have been pronounced in the cause, so that the whole, as far as is necessary, may be brought onder the review of the House of Lords." The APPEAL continued. interlocutor of the Lord Ordinary, repelling the preliminary defences, having, by the acquiescence of the Defender, and the absence of all notice of it afterwards, been virtually withdrawn from the cause, it could not be " necessary " upon the ap- peal from the final interlocutor upon the merits to bring it under the review of your Lordships' House. Per Lord Colonsay : The proviso applies to judgments of the Lord Ordinary only so far as " necessary " to enable this House to deal with the merits of the case. The purpose of bringing up this interlocutor is to exclude us from doing so. ALEXANDER v. OFFICERS OF STATE FOR SCOTLAND [277 2. When against an exercise of discretion specially devolved by a charity trust irregular and incompetent. CLEPHANE v. LOUD PROVOST OF EDINBURGH - - 417 Competency of : See PRACTICE. G. Costs of : See COSTS. 2, 3. Excluded by acquiescence: See PRACTICE. 1. Not encouraged : See COSTS. 1. Personal bar against objecting to : See PRACTICE. 2. AWARD, NO APPEAL FROM : See PRACTICE. 2. BANKRUPTCY OF A DECEASED DEBTOR Per Lord \Ycdbunj: -Under the 19 & 20 Viet. c. 89, where a sequestration issues against a deceased debtor, nothing passes to the trustee for the cre- ditors except such property as the debtor was beneficially entitled to at the time of his de< The trustee under a sequestration is in the .-amc po.-itiun a.s a gratuitous alienee. He takes subject to all the rights and equities that affecinl the properly at the tune of the bankruptcy. FLEKMING v. HOWDEN - - 372 BANKRUPTCY : See POST-NUPTIAL SETTLEMENT. BAR, PERSONAL Against objecting to an ap- peal. See I'KACTICE. 2. BENEFICIAL INTEREST; See SUCCESSION Dun-. BREACH OF CONTRACT Unmarketable Article Damages.'] A company of merchants ordered, and a eumjiniiy of di.-tillers agreed to furnish, :i cargo df whisky to be coloured like rum for the African market. It was stipulated that the co- louring matter should be harmless. The stipu- lation was disregarded. The whisky produced 592 INDEX. [S. & D. VOL. I. BREACH OF CONTRACT continued. effects alarming and startling, though not shewn to be actually deleterious. It consequently proved unmarketable: Held, that the distillers were liable in damages. Per The Lord Chancellor : The article has been sold for a specified purpose ; and the seller must be considered to warrant that it is fit for that purpose. MACFARLANE v. TAYLOR 245 BROUGHAM, LORD His description contrasting the English and Scotch Poor Law. JACK v. ISDALE [4,n. CANONS : See CHTKCH CANONS. CHALLENGE, RIGHT OF: See SALMON FISH- INGS. 2. CHANCERY Injunction from, against suit for restitution of conjugal rights : See Di- YOECE. CHARITABLE BEQUEST When a charitable bequest is capable of two constructions, one which would make it void, and tlie other which would render it effectual, the latter must be adopted. The awarding of costs out of charity estates an encouragement to groundless litigation. BRUCE v. PRESBYTERY OF DEER - 96 CHARITABLE TRUST Vindication of an Ancient Trust.] Case in which it was held upon the construction of ancient documents, and the expo- sition afforded by the conduct of parties that an e.-tate in fee simple absolute (now of the value of 500 a year) has been dedicated more than two centuries ago to charitable uses, and was still subject to the trusts of the original benefaction ; the bar of prescription, positive and negative, bfing excluded by the fiduciary relation esta- blished and acknowledged. The judgment of the Court below, to the effect that the estate was the lifspondent's, and that the charity was entitled only to a rent-charge of 63 6. Sd. issuing out of it, reversed. The Court of Session having a juris- diction us to charities similar to that of the Court of Chancery, the House directed that a new scheme of administration should be settled, suited to the alteration of circumstances occasioned by the reversal. UNIVERSITY OP ABERDEEN v. IRVINE [289 2. Charity Trust Distinction between the Object and the Mode.] In Scotland, as in England, there is an enlarged administration of charitable trusts distinguishing between the charity itself and the mode prescribed for its accomplishment. One charity will not be substituted for another charity ; nor will a charity intended for one pur- pose be applied to a purpose altogether different ; but in the progress of society a change of mode may become desirable, and the Courts have sanc- tioned such change of mode to secure more effec- tually the benefits intended. Where the House lias directed that a scheme shall be framed for the administration of a charity, leaving it open to the exercise of discretion whether a certain speci- fic. I operation shall, or shall not, be performed; and where in the exercise of the discretion so devolved it is determined that the specified opera- tion is unnecessary and inexpedient the decision is final, and the House itself is precluded from reviewing it. CLEPHANE v. LOBD PROVOST OP EDINBURGH - 417 CHURCH CANONS Negation of Civil Juris- diction.] Suit instituted in a Civil Court by a clergyman of the Scotch Episcopal Church, to set aside certain canons passed in 1863, for the pur- pose of cementing the union between the Scotch Episcopal Church and the Church of England and Ireland. Suit dismissed with costs. FORBES v. EDEN - - - 568 CIVIL STATUS : See DOMICIL. 1. CLAIM TO ROYAL PREROGATIVES Challenge by the Crown.] On the strength of an ex parts service and retour the appellant claimed extensive territories in North America, with three peerages, and powers of government, &c., under grants from James I. and Charles I. Suit on behalf of the Crown to reduce and set aside the service and retour. Judgment for the Crown, on the ground that the evidence was insufficient to sustain the alleged heirship. The Sovereign, though not ordinarily entitled to oppose or to compete in a service, may impeach its validity and demand its reduction where the rights of the Crown or the interests of the state are likely to be compromised, Per Lord Westbury : I consider it clear, beyond the possibility of doubt, that there is competency in the Crown to maintain this action. The ques- tion is not as to a right to compete in the service, but as to a right to reduce it. Per Lord Colonsay : The Crown has a perfect title to pursue this action. The onus probandi in suing for the reduction ot a service is on the Pursuer. ALEXANDER v. OFFICERS OF STATE FOR SCOTLAND - - 276 CLAIM UNDULY DEFERRED Per Lord Cran- worth: It is in the last degree important that Courts of justice should look with the utmost sus- picion on the conduct of parties who intentionally keep secret matters at a time when they might be explained, in order to divulge them only when lapse of years may have made contradiction or explanation impossible. CAMPBELL v. CAMPBELL [182 COLLABORATEUR, INJURY BY : See INJURY BY FELLOW- Wo RKMAN. COMPANIES, DOCTRINE AS TO : See JOINT STOCK COMPANY. COMPROMISE OF A DIVORCE SUIT FAVOURED : See DIVORCE. CONDITIONAL SUBSTITUTION : See OWNERSHIP, ABSOLUTE. CONDONATION, MISCONDUCT AFTER : See Di- TORCE. CONQUEST Ante-Nuptial Trust.] The word " con- quest," when used as a verb active, and not as a noun substantive, has a wide and flexible significa- tion. Where a lady had, by ante-nuptial settle- ment, assigned and conveyed to trustees whatever she might " conquest or acquire" during the mar- riage : Held, that the words " conquest " and " acquire," so Tised, were sufficient to pass to the trustees property of every kind which during the marriage had come to her by succession. DIGGENS v. GORDON - - 136 CONSOLIDATION : See DOMINICM DIRECTUM. CONSTRUCTION : See LEGATEES. Prohibitory, Irritant, and Eesolutive Clauses : See ENTAIL. 1, 4. CONTRACT: See BREACH OF CONTRACT. S.&D.VOL.L] IXDEX. 593 COSTS Appeals not encouraged.']' That expenses have not been awarded in the Court below, is no reason for refusing costs when the decree com- plained of is affirmed. To rule otherwise would but encourage litigation. DIGGENS v. GORDON 136 2. Costs of Appeal.] Where the decision below has been materially varied, the more jus-t course is to give no costs to cither party. STUAKT . McBARNET - - 387 3. Costs against the Crown] Per Lord CJielmsford: The 19 & 20 Viet. c. 56, s. 24, allows costs to be given for or against the Crown, and applies as well to all causes presently depending as to those which shall come to depend. ALEXANDER v. OFFICERS OF STATE FOII SCOTLAND - 277 4. SpecialOrder as to] Order made that the Appellants' costs should be paid out of the funds to be received by virtue of the judgment of the House. UNIVERSITY OF ABERDEEN v. IRVINE [289 5. Per Lord Westbury : When the counsel for a party considers that there is any question of costs to which he wishes to address himself, lie must make it part of his original argument. CAMPBELL v. EARL OF DALHOUSIE - - 260 Refused to an executor : See HEIR AND EXECUTOR. Where parties had been misled by the Court below : See PRACTICE. 3. See CHARITABLE BEQUEST ; PRACTICE. 3, 4. CROWN, THE, CHALLENGE BY Royal preroga- tives claimed by a subject : See CLAIM TO ROYAL PREROGATIVES. Costs against : See COSTS. 3. Immunity of, from poor-rate : See POOR RATE. 1. Right of, to reduce a service : See CLAIM TO ROYAL PREROGATIVES. CRUELTY : See DIVORCE. CUNNINGHAM v. CUNNINGHAM (2 Dow, 483} Comments by the Law Peers on.] CAMPBELL v. CAMPBELL - - 182 CURSUS CURL2E Appeal not allowed from interlo- cutor pronounced out of : See PRACTICE. 2. DAMAGES : See BREACH OF CONTRACT. DEATH-BED DEED : See REDUCTION EX CAPITE LECTI. DEBTOR, DECEASED, BANKRUPTCY OF: See BANKRUPTCY. DECLARATOR Its Power and its Utility in deter- mining a Eight of Way."] Per Lord Colonsay : My opinion is, that when an action of declarator to establish a right of way is fully and fairly tried, the verdict and the judgment, on becoming final, conclusively settle the question at issue as regards the public Per Lord Romilly : According to the English law, no party would be precluded by a prior judgment. But in the action of declarator which obtains in Scotland (a very desirable one), the whole question of right may be gone into ; and if the Court comes to judicial decision, I am by no means prepared to say that it will nut bind all. JENKINS v, ROBERTSON - 177 DECREE Finality of: See IMPROVEMENTS BY HEIK OF ENTAIL. 1 DECREE BY COMPROMISE lies judicata] A ' decree obtained by arrangement between the con- | tending parties, the Court bestowing no judicial examination on the merits of the question, can I never be res judicata. JENKINS v. ROBERTSON 117 DECREES, ANCIENT Their Interpretation.'] A liberal interpretation should be given to the lan- guage of decrees which have been supported by long usage, and by the acquiescence of parties who had an interest in disturbing them. But when it j appears plainly on the face of a decree that certain , things are omitted, no rule requires that the ! omitted things shall be deemed to have been in- cluded. NICOL v. PAUL - - 127 2. Presumption in their favour.'] A de- cree, to all appearance just in itself when pro- nounced, and strengthened, moreover, by constant possession and unvarying recognition for more than two centuries : Held, to require the strong- est grounds to warrant its impeachment, the great principle applicable to such a case being Omnia prxsumuntur a judice rite et sole it nit ur add. This principle was deemed peculiarly im- perative in a case where the decree in question, with its warrant and register, was shewn to have perished in a great fire so far back sis 1700 1 nothing remaining but an extract. LEE et al. v. j JOHNSTONE - - 426 DEVOLUTION OR SHIFTING CLAUSE in an unrecorded entail : See ENTAIL. 3. ; DIRECTORS : See JOINT STOCK COMPANY. 1 DISCRETION Appeal against an exercise of Incompetent. CLEPHANE v. LORD PROVOST OF EDINBURGH 417 DISCRETIONARY POWER TO GRANT RELIEF : See POOR LAW. DIVISION AND ALLOCATION OF PROPERTY Lands hold pro indiviso Effect of sub- sequent division : See ENTAIL, 4. DIVORCE Compromise of a Divorce Suit fa- voured.] Where a suit is in derogation of the marriage contract, the Divorce Court will favour an arrangement which prevents the scandal and opprobrium of a public investigation. Where a suit is not in derogation of the marriage contract, but, on the contrary, is for restitution of conjugal ! rights, the Divorce Court, in the exercise of its I jurisdiction, will disregard all private arrange- i ments ; subject, however, to the interposition of ! the Court of Chancery by injunction on proper [ occasions. The wife's suit for dissolution was I compromised, both parties agreeing to execute a deed of separation with the usual clauses; she specially engaging "not to institute other pro- ceedings in the Divorce Court." In the face of this undertaking, she presented a new Petition for dissolution, alleging adultery committed by her husband subsequently to the agreement, and also renewing the allegation of the adultery and cruelty relied upon in the suit which hud been compromised : Held, that misconduct by tho husband after the agreement had not the effect of reviving the wife's remedies, as in the case of condonation, and, consequently, that she was pre- cluded from suing on any facts anterior to tho compromise. ROWLEY v. ROWLEY - 63 DOCKS : See POOR RATK. 1. 2 3 G 2 594 INDEX. [S.&D.VoL.I. DOCUMENTS HELD UNDER TRUST : See SUB- PCENA DUCES TEC I'M. DOMICIL Political and Civil Status Allegiance distinguished from Domicil] Every individual at his birth becomes the subject of some parti- cular country by the tie of natural allegiance, which fixes his political status ; and becomes sub- ject to the law of the domicil, which determines his civil status. Per Lord Westbury : To suppose that for a change of domicil there must be a change of natural allegiance is to confound the political and the civil status, and to destroy the distinction between patria and domicil ium. Per The Lord Chancellor [Lord Hatherley] : A man may change his domicil as often as he pleases, but not his allegiance. Exuere patriam is beyond his power. Dictum of Lord Kingsdown in Moor- house v. Lord (10 H. L. C. 272) qualified. Per Lord Westbury : It is a settled principle that no man shall be without a domicil ; and to secure this end the law attributes to every individual as soon as he is born the domicil of his father if the child be legitimate, and the domicil of his mother if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law not of the party. It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status civilis of the criminal ; but it cannot be destroyed by the will and act of the party. Domicil of choice is the creation of the party. "When a domicil of choice is acquired the domicil of origin is in abeyance ; but is not ab- solutely extinguished or obliterated. When a domicil of choice is abandoned, the domicil of origin revives, a special intention to revert to it being unnecessary. Per Lord Chelmsford : Story says that the moment a foreign domicil is aban- doned, the native domicil is re-acquired. The word " re-acquired " is an inaccurate expression. The meaning is, that the abandonment of an acquired domicil ipso facto restores the domicil of origin. If after having acquired a domicil of choice a man abandons it and travels in search of another domicil of choice, the domicil of origin comes instantly into action and continues until a second domicil of choice has been acquired. Per Lord Westbury : A natural-born Englishman may domicile himself in Holland; but if he breaks up his establishment there and quits Hol- land, declaring that he will never return, it is absurd to suppose that his Dutch domicil clings to him until he has set up his tabernacle else- where. Per the Lord Chancellor : The status of the child, with respect to its capacity to be legi- timated by the subsequent marriage of its parents, depends wholly on the status of the putative father, not on that of the mother. According to English law where at the time of a bastard's birth the father has his domicil in England no subsequent change of domicil can render practica- ble the bastard's legitimation. UDNT v. UDNY 441 2. Domicil of Birth or Origin Its Adher- ence and Tenacity.'] Per The Lord Chancellor [Cairns'] : The law is, beyond all doubt, clear with regard to the domicil of birth, that the personal I status indicated by that term clings and adheres ! to the subject of it until an actiial change is made by which the personal status of another domicil is ! D OMICIL contin ued. acquired. Per Lord Westbury: The domicil of origin adheres until a new domicil is acquired. !- Per Lord Chelmsford : The onus of proving a change of domicil is on the party who alleges it. BELI, v. KENNEDY - - 307 DOMINIUM DIRECTUM Dominium utile Con- solidation.'] Where by a testamentary settlement the dominium directum of an estate had been given to A., the settlor subsequently acquiring the dominium utile; and where A., after comin"- into the estate, consolidated the dominium utile with the dominium directum : Held by the House (Lord Cranworth dissenting), that a conditional substitution or gifc over, on taking effect, did not embrace the consolidated plenum domi?iium, but was still limited to the dominium directum. Per Lord Westbury : The plenum dominium may again be severed, and the conditional substitute will thus have all that he is entitled to under the testamentary settlement. BAESTOW v. BLACK. PATTISON v. HENDERSON - 392 DOMINIUM PLENUM : See DOMINIUM DIRECT. DOMINIUM UTILE : See DOMINIUM DIRECTOI. ECCLESIASTICAL SYNOD : See SYNOD. ELECTION UNDER THE MONTGOMERY AND RUTHERFORD STATUTES : See IM- PROVEMENTS BY HEIR OF ENTAIL. ENCROACHMENT ON ALVEUS: See KIPARIAN OWNERSHIP. ENTAIL Strict Scotch Entail Irritant Clause.'] Case in which it was held that the irritant clause in a strict entail was not rendered nugatory by the use of a word which, though unhappily chosen, expressed nevertheless with sufficient distinctness the meaning required for validity. The irritant clause, after nullifying all contraventions, closed with these words : " sicklike as if the same had never been made :" Held, that the word made, though translated concessa, was capable of being applied to the contracting of debt. Held, also, that the entire passage quoted was not restrictive of what went before, but was rather emphatic, or at the worst, amounted to no more than mere illus- tration or surplusage. HOWDEN v. FLEEMING 40 2. Alienation distinguished from Altera- tion of the Order of Succession."] Alienation is a destruction of the succession rather than an al- teration of its course. It removes the subject alienated from the operation of the tailzie, and leaves it as if no tailzie existed. A deed, how- ever, may in form partake of the character of an alienation, and yet not cease on that account to be a deed altering the order of succession. LIND- SEY v. OSWALD - - 99 3. Devolution or Shifting Clause in an Unrecorded Entail.'] A shifting clause binds the heir, though the entail be not recorded, and it binds his creditors if they have had notice of it. Such notice will be sufficient if the shifting clause is set out in the record of seisins. The heir of entail in possession in such a case will lie deemed a trustee for those entitled under the shifting clause ; more especially where' the clause requires the heir in possession instantly to de- nude, and he fails to do so. An obligation to do an act with respect to property creates a trust ; S.&D.VoL.!.] INDEX. 595- ENT AIL continued. and if the party who is subject to the obligation acquires or retains, by means of his neglect of duty, a greater interest than he would otherwise have had, he becomes a trustee of such excess for the benefit of those who would have been entitled to it if the obligation had been duly fulfilled. Per Lord Westbury: The doctrine of trusts has the same origin, and rests on the same principles in Scotch and in English law ; and it should be developed to the same extent in both systems of jurisprudence. FLEEMING v. HOWDEN [372 4. Entail of a Pro Indiviso Share.'] Per The Lord Chancellor [Hatlterley] : An estate in tail may properly be created under the Act of KJ85, in a share held pro indiviso of land. Per Lord Colon- say : Holding that an estate possessed pro indiviso is within the ordinary meaning of the Act of 1685, upon what authority is it described as incapable of being entailed ? I know of none. An entail of lands held pro indiviso is not disturbed by the subsequent division and allocation of the property. Per Lord Colonsay: The contingency of sub- sequent division is no objection ; and when the division takes place it is not necessary that there sh:ill be dispositions by the several parties to each other. I hold that to be clear. The feudal right remains on the original infeftment, just as it did before the division. The partition ascertains and delineates the boundaries. It does not change the land which forms the subject matter of the entail. Per The Lord Chancellor : The Appel- lant contends that new deeds were necessary on the division of the property. But after the divi- sion the lands are not different, The Sheriff simply delivers to each owner his own share by his own title ; and it requires no concurrence on the part of the other owner, by way of deed or instrnment, to effectuate the transaction. Per The Lord Chancellor : It struck me at one time that there might be something in the argument that the register did not after division give notice of the title on which the whole is held ; but I think that all parties concerned, having notice of the entail of the moiety held pro indiviso, must be taken to know that such moiety was sub- ject to the law which renders the whole property divisible ; and, therefore, that an entire separate interest may be at any time allocated out of the whole to the heir in tail. Commentaries by the Law Peers, concurring with the Court below, to the effect that the words used in the prohibitory, irritant, and re.-olutive clauses of an entail were, upon a reasonable construction, sufficient to satisfy the requirements of the Act of 1685. HOWDEN v. ROCHEID - - 550 See IMPROVEMENTS BY HEIR OF ENTAIL. EVIDENCE Suspicious.] Circumstances of sus- picion under which additional evidence tendered by the Appellant was rejected, and an application to make out the case by further proof was refused. ALEXANDER v. OFFICERS OF STATE FOR SCOTLAND [277 Of marriage : See LEGITIMACY. MARKIAGE. EXCEPTIONS FOR NON-DIRECTION Where the Judge's direction, if given, must necessarily have EXCEPTIONS FOR NON-DIRECTION continued. been against the Complainant : Held, that his exception for non direction was properly dis- allowed. MACFARLANE v. TAYLOB - - 245 EXECUTOR : See HEIR AND EXECUTOR. EXPERT Mere apprehension, without some shew of injury, will not ground a complaint ; but it is not necessary to obtain or to be guided by scientific opinions. BICKETT v. MORRIS - 47 See PRACTICE. 3, 7. FEE AND LIFE RENT : See VESTING. FELLOW WORKMAN Injury by : See INJURY BY FELLOW WORKMAN. FENCE OR BULWARK : See RIPARIAN OWNER- SHIP. FISHINGS : See SALMON FISHINGS. FRAUD : See JOINT STOCK COMPANY. FRAUDULENT CONCEALMENT OF PROFITS : Sec LEGATEES. GOVERNMENT OFFICES Immunity of, from poor-rate : See POOR-RATE. 1. GRADE, difference of, in the question as to injury by a collaborates : See INJURY BY FEL- LOW WORKMAN. HABIT AND REPUTE : See MARRIAGE. 1. HARBOURS AND DOCKS Liability of, to poor- rate : See POOR-RATE. 1. HEIR APPARENT : See SUCCESSION DUTY. HEIR OF ENTAIL : See IMPROVEMENTS BY HEIU OF ENTAIL. HEIR AND EXECUTOR Costs.'] How far an executor is entitled to be relieved from costs in- curred by him in resisting the demands of cre- ditors, the testator having made his debts " due at his death," a charge upon his real estate, and having also declared that they should "in no ways affect or diminish " his personal property. Circumstances under which the House decided that such costs ought not to be allowed to an executor, Lord Kingsdown dissenting. Opinions of The Lord Chancellor [Cranworth], of Lord Chelmsford, and of Lord Kingsdown. LOVAT v. FBASER - 24 IMPROVEMENT BY HEIR OF ENTAIL Mont- gomery and Rutherford Statutes Finality of th>> Decree under tie Montgomery Statute.'] The decree in the action of declarator calling as Defender the next collateral lieir is final, and bars all subsequent resistance. Per The Lord Chancellor [Cairns] : Parliament conceived that the maker of the im- provements would protect his own issue, and that the collateral heirs would be sufficiently guarded by calling the first of them those coming after having liberty to intervene. Per Lord West- Imry : The decree is final against the issue of the collateral heir called, in the same inann. it is final against the improver 'sown issue. Tho decree must shew with reasonable certainty th: i the improvements are truly within the meaning of the statute. Held (reversing the decree below), that where the improving heir had obtained and exercised authority under thr liutherford Stutut, , he abandoned all remedies under the Montgomery Statute. If an heir of entail makes improvements 596 INDEX. [S.&D.VoL.I. IMPROVEMENT BY HEIR OF ENTAIL conlil. on the estate with a view to charge the heirs suc- ceeding him, he must annually, within four months of the term of Martinmas, and while the improvements are in progress, lodge in the sheriffs office an account, with vouchers, of the sums ex- pended by him ; and such account must be signed by him. But where the improving heir had died four days before the term of Martinmas, and where, consequently, his signature was impos- sible : Held, that the signature of his executor, or personal representative, was, under the circum- stances, sufficient. CAMPBELL v. EARL OF DAL- HOUSIE - - - - 259 INJURY BY FELLOW WORKMAN, OR COLLA- BORATEUR Difference of Grade Master s Im- munity Principle of the Doctrine.'] Per The Lord Chancellor [Cairns']: I do not think the liability, or non-liability, of the master to his workmen can depend upon the question whether the author of the accident is not, or is, in any technical sense, the fellow-workman, or collulorateur, of the suf- ferer. Per Lord Colonsay: " Fellow- workman " and " collaborates " are not expressions well suited to indicate the relation on which the lia- bility or non-liability of a master depends, espe- cially with reference to the great systems of organization that now exist. And these expres- sions, if taken in a strict or limited sense, are calculated to mislead. The same may be said of such words as " foreman," or ' manager." AVe must look to the functions the party discharges, and his position in the organism of the force employed, and of which he forms a constituent part. Nor is it of any consequence that the posi- i tion he occupies in such organism implies some special authority, or duty, or charge. Per Lord Cranworih : Workmen do not cease to be fellow- i workmen because they are not all equal in point of station or authority. Per Lord Chelmsford : It has certainly been held by Scotch Judges of i great eminence that the exoneration of a master ; from liability for injury arising to one fellow- ! servant from the negligence of another does not take place where the servant occasioning the | injury is placed in superintendence, control, or ] authority over the others. But the subsequent English cases have clearly established that there ' is no such distinction. Per The Lord Chan- i ellor : The master has not contracted or under- I taken to execute in person the work connected i with his business. The result of an obligation on j the master personally to execute the work con- | nected with his business, in place of being bene- ficial, might be disastrous to his servants, for the master might be incompetent personally to per- form the work. At all events, a servant may choose for himself between serving a master who does, and a master who does not, attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate ma- terials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence this is not the negligence of the master; and if an accident occurs to a workman to-day in consequence of the negligence INJURY BY FELLOW-WORKMAN, OR COLLA- BOR ATEUR con tinned. of another workman, skilful and competent, who was formerly, but is no longer in the employment of the master, the master is, in my opinion, not liable, although the two workmen cannot techni- cally be described as fellow-workmen Per Lord Colonsay : Culpable negligence in supervision, if the master takes the supervision on himself; or. where he devolves it on others, the heedless selection of unskilful or incompetent persons for the duty, or the failure to provide or supply the means of providing proper machinery or ma- i terials ; may furnish grounds of liability ; and there may be other duties, varying according to the nature of the employment, wherein, if the master fails, he may be responsible. 23 & 24 j Viet e. 151 (1860), " An Act for the Regulation and Inspection of Mines." Commentary by Lord Chelmsford. WILSON v. MERRY - " - 326 INTERLOCUTORY ORDER : See TRACT-ICE. 1, C. IRRELEVANCY OF ALLEGATIONS : See JOINT STOCK COMPANY. IRRITANT CLAUSE : See ENTAIL. 1. Construction : See ENTAIL. 4. ISSUES FOR TRIAL.] Where issues, though prolix and untechnical, have been the means of ascertaining the real justice of a case, they will not be displaced or disturbed on appeal. Eemarks by the Lord Chancellor [Cairns'] shewing the facilities which exist in England fur such amend- ments. MACFARLANE v. TAYLOR - - 245 See PRACTICE. 3. JOINT STOCK COMPAHTYSharetalcing Contract Fraud Irrelevancy of the Allegations Doctrine, as to Companies, Directors, and Managers.] Suit to rescind a sharetaking contract, and for wstitutio in integrum, or, alternatively, for damages :*Hel/l. under the circumstances, unsustainable. Per Tin; Lord Chancellor [Chelmsford'] : Notwithstau enforce that contract, or where the person who has been deceived institutes a suit to rescind it, the misrepresentations are imputable to the com- pany, and the purchaser cannot be held to his contract. Per The Lord Chancellor: If an untrue statement is made, founded on a belief destitute of all reasonable grounds, or which the least in- quiry would immediately have corrected, it may fairly and correctly be characterised as misrepre- sentation and deceit. Per The Lord Chancellor : If the directors employed the manager to make false representations as to the stability of the company, the effect would have been the same i:.-- if made by the directors themselves. Per Tho Lord Chancellor : I entertain considerable doubt whether the Pursuer in this case has connertl the directors sufficiently with the alleged nJ:-- representations to make them imputable to the company. That the directors knew of the mana- ger's endeavours to get the pursuer to take shares is nowhere alleged ; nor is it alleged that the manager gave authority to the local agent from whom the misrepresentations were immediately 8. & D. VOL. I.] INDEX. 597 JOINT STOCK COMPANYconfmwed. derived. Per Lord Cranworth : The Court below framed issues for a jury trial ; but I think no such trial was necessary, because no relevant case was stated. Per The Lord Chancellor : No issues ought to have been directed. Per The Lord Chan- cellor : A company cannot retain any. benefit which they have gained through the fraud of their agents. Per Lord Cranworth: Corporate bodies may be miide responsible for the frauds of agents, to the extent to which they have profited by such frauds. Per The Lord Chancellor : If, instead of seeking to set aside the contract, the person defrauded prefers an action of damages for the deceit, such action cannot be maintained j against the company, but gnly against the di- rectors. Per Lord Cranworth : An incorporated I company cannot, in its corporate character, be called on to answer in an action for deceit. Per Lord Cranworth: Restitutio in integrum can be had only where the party seeking it is able to put those against whom it is asked in the same situa- tion as that in which they stood when the contract was entered into. Per The Lord Chancellor : Whether the change of a company from unincor- porate into corporate, for the mere purpose of more conveniently winding up its affairs, renders restitutio in integrum impracticable, is a question which, if it were necessary to determine, I should wish to consider more carefully. Per Lord Cran- worth: The incorporated company cannot be j sued for frauds committed by directors before the incorporation. Per The Lord Chancellor: That the complainant was himself a memher of the company whose agents had committed the fraud, would not be a valid objection to his suit for redress ; nor would it be an answer that his suit might prejudice those who had innocently ac- quired their shares after he had acquired his. WESTEUN BANK OF SCOTLAND v. ADDIE - 145 JURISDICTION, Witnesses out of : See TESTIMONY, PERPETUATION OF. See PBACTICE. 3. JURY Trial by, as of right.'] Per Lord Chelms- ford : It was clearly in the discretion of the Judge Ordinary to decide whether the trial of the Appellants' Petition should be by a jury or before himself, either alone or with other Judges of the Court. And the Appellants had no right to insist upon having a jury. Per The Lord Chan- cellor: In the case of an heir-at-law who has been disinherited, he has, on the issue devisavtt vel non, a right to a trial by jury. But in no other case is there such a right. SHEDDEN v. PATRICK - - 471 Case of account : See PRACTICE. 7. JUS ACCRESCENDL] The doctrine of the Roman law as to jus acerescendi is subtle and obscure ; it is but little used in Scotland. Where a fee is provided to a class, the question whether on the death of one of the class, his share shall go to the survivors or to his own representatives, is always H yuestio voluntatis. It would seem that the omis- sion of an express uccrescing clause will go far to exclude accretion. CARLTON v. THOMPSON 232 LAPSLEY v. GRIERSON (1 H. L. C. 498) -Com- ments by the Law Peers on.] CAMPBELL v. CAMPBELL 182 VOL. I. S. & D. LEASE UNDER THE MONTGOMERY ACT Statutory Nullity.] The Montgomery Act (10 Geo. 3, c. 51), in order to encourage the forma- tion of villages and the erection of houses on en- tailed estates in Scotland, authorized the owners of such estates to grant leases for ninety-nine years, of not more than five acres to each indivi- dual, such leases to be void if one dwelling-house of the value of 10 should not be built for each half-acre within ten years from the dates of such leases: Held by the House (affirming the judg- ment of the Lord Ordinary and of the Inner House), that where a lessee under the Montgomery Act had failed to erect within the prescribed period the dwelling-houses required by the Act, the case was not one of mere irritancy, which might be cured, but of statutory nullity, annihila- ting the lease. A lease under the Montgomery Act was granted for the erection of a powder magazine. Whether this lease, on the policy of the statute, was void ab initio, the Law Peers did not determine ; but they were clear in their opinion that inasmuch as the lessee, the erector of the powder magazine, had failed, within the pro- per period, to build the required dwelling-houses, his lease had become absolutely void, and his offer to build, after the proper period, gave him, under the circumstances, no claim to equitable relief or consideration. A letter from the lessor to the lessee, dispensing with the condition as to building the required dwelling-houses : Held, to impose no obligation on the subsequent heir of entail. CARRICK v. MILLER - - 356 LEGATEES, RESIDUARY, AND SPECIFIC LEGA- TEE Constrwtiott.'] Contest as to ten shares in the Carron Company, between residuary legatees under a testamentary disposition and the execu- tiixof a specific legatee under a codicil. Deci- sion by the House that the shares went to tne specific legatee, although, in consequence of a fraudulent concealment, the testatrix was ignorant of the real magnitude of the gift she was b< stowing. Per The Lord Chancellor [Cairns] : The codicil passed the shares with every right that was inci- dent to them. Per Lord Cranworth: The shares bequeathed by the codicil included everything ap- pertaining to them. Per Lord Colonsay : The real question is, whether the fund went to the specific legatee or to the residuary legatees. The testatrix died in ignorance of the facts. The words which she has used are not necessarily conclusive. But, upon the whole, I think that no violence is done to the will by the construction which is proposed to be put upon it : Held (reversing the decree be- low), that the residuary legatees had no title fo demand satisfaction in respect of the fraudulent concealment aforesaid, or in respect of the com- pensation which the executrix of the specific lega- tee had received for it. CARRON COMPANY v. HUNTEB - - 362 LEGITIMACY Six Judgments against the Legiti- macy of one Individual] Case in which a gen- tleman, the Appellant, William Patrick Kalston Shfdden, born in America, but claiming by descent a Scotch estate, was, BO far back as 1803, pro- nounced by the Court of Session illegitimate ; in which the sentence so pronounced was, in 1808, affirmed by the House of Lords ; in which an ac- tion brought to set aside the sentence of both 2 3G INDEX. [S.&D.VoL. I. LEGITIMACY continued. tribunals was, in 1852, dismissed by the Court of i Session with costs; ia which such dismissal was, in 1854, affirmed by the House of Lords with costs ; in which ft petition presented by the said Appellant and by his daughter, to have him de- clared not only legitimate, but also a natural-born subject of the Queen, was, by the Court for Di- vorce and Matrimonial Causes, in 1860, dismissed with costs ; and, finally, in which, upon appeal from the adjudication of the Court for Divorce and Matrimonial Causes, the House of Lords, on the 31st of July, 1869, affirmed it with costs. Per Lord Chelmsford: The only question which the Court below had to determine was, whether there had been a marriage of the parents of the Appel- lant, William Patrick Ralston Shedden, prior to his birth. His claim to be declared legitimate was placed upon no other ground. For many years before the father's death, Ann Wilson was living with him, sitting at the head of his table, ! and acting in every respect as the mistress of the establishment, being visited by the respectable families in New York, and generally reputed to be his wife. Evidence was given by members and friends of the family of their being always reputed to be man and wife, and visited as such by respec- table families in the neighbourhood. If the case of the Appellants had rested on this description of proof, without anything to oppose it, it would have been conclusive in favour of a prior marriage. Per Lord Chelmsford: The presumption of a prior marriage arising from cohabitation and ac- knowledgment was completely rebutted by evi- dence on the other side of the strongest character. The Appellant relied originally on the marriage after the birth of children. Per The Lord Chan- cellor \_Hatherley~] : If, according to the theory now set up, there had been a prior marriage, which was known to everybody, then there was not a shadow of ground for a second marriage. That second marriage, unexplained as it is, wholly cuts away the ground for any such prior marriage. SHEDDEN v. PATBICK - - 470 LEGITIMACY AND MARRIAGE.] Per the Lord Chancellor [Chelmsford] : Proof of the legitimacy of the offspring is proof of the validity of the marriage. CAMPBELL v. CAMPBELL - 182 LIABILITY TO POOE BATE : See POOB BATE. LIFE-RENT AND TEE : See VESTING. LORDS, HOUSE OP Immunity of, from poor- rate : See POOB-KATE. 1. " HADE " Capability of the word in Scotch en- tail : See ENTAIL. 1. MANAGERS, Doctrine as to: See JOINT STOCK COMPANY. MARRIAGE Habit and Repute Connection originally Illicit Transmutation into Matrimony Evidence.'] Cohabitation, with the required repute, as husband and wife, is proof that the parties between themselves have mutually con- tracted the matrimonial relation. It demonstrates that interchange of consent which alone constitutes marriage in Scotland. The law of habit and re- pute, however, is not peculiar to Scotland; al- though in countries where the facilities of matri- mony are less than in Scotland, the evidence to MARRIAGE continued. establish tiie marriage must be stronger. Mar- riage, technically, is not constituted, but evidenced, by habit and repute, which, for that purpose, must be uniform and positive. A connection com- mencing in adultery may, on ceasing to be adul- terous, become matrimonial by consent, and may be evidenced by habit and repute, the parties being at liberty to intermarry. The alteration in the character of the connection, from adultery to matrimony, need not be indicated by any public act, or by any observable change in the outward demonstration. It is not necessary to prove the specific period when the consent was interchanged. Per Lord Westbury : You must infer the con- sent to have been given at the first moment when you find the parties Vole to contract. Comments by the Law Peers on Cunningham v. Cunningham (2 Dow, 483) and Lapsley v. Grierson (1 H. L. C. 498). CAMPBELL v. CAMPBELL - - 182 2. Legitimacy and Marriage.'] Proof of the legitimacy of the ofl'spring is proof of the validity of the marriage. CAMPBELL v. CAMPBELL [182 Evidence of, before, and after, the birth of children : See LEGITIMACY. Declaration of : See REFERENCE TO OATH. MARRIAGE SETTLEMENT RENDERED NUGA- TORY : See POWEB COUPLED WITH A DUTY. MASTER AND WORKMAN Injury by fellow workman Duties of the matter : See INJURY BY FELLOW WOBEMAN. MINES.] 23 & 24 Viet. c. 151, "An Act for the Kegulation and Inspection of Mines." Commen- tary by Lord Chelmsford. WILSON v. MERRY 327 MISCONDUCT AFTER COMPROMISE OF A DI- VORCE SUIT : See DIVORCE. MISCONDUCT AFTER DEED OF SEPARATION : See DIVORCE. MONTGOMERY STATUTE (10 Geo. 3, c. 51), Finality of the decree under : See IM- PROVEMENTS BY HEIB OF ENTAIL. Lease under : See LEASE. MONTGOMERY AND RUTHERFORD STATUTES, Election under : See IMPROVEMENTS BY HEIB OF ENTAIL. Improvements under : See IMPROVEMENTS BY HEIB OF ENTAIL. NET AND COBLE : See SALMON FISHINGS. 2. NOBILITY, TITLES OF, AND ROYAL PRERO- GATIVES Challenge by the Crown : See CLAIM TO ROYAL PREROGATIVES. OATH OF PARTY : See REFERENCE TO OATH. OCCASIONAL PO RELIEF OF: See POOR LAW. ONUS PROBANDL] The onus probandi in suing for the reduction of a service is on the pursuer. ALEXANDER v. OFFICERS OF STATE FOB SCOTLAND [276 Per Lord Chelmsford : The onus of proving a change of domicil is on the party who alleges it. BELL v. KENNEDY - - 307 S. & D. VOL. I.] INDEX. 599 ONUS PBOBANDI continued. Where encroachment on alveus is complained of : See PEESCRIPTIVE POSSESSION. EIPARIAN OWNERSHIP. OWNERSHIP, ABSOLUTE Conditional Substitu- tion.'] The position of an absolute unlimited owner subject to a conditional gift over ia un- known to the law of England, but well known to the Scotch law. Hence in Scotland, although a conveyance to a man ' and his heirs and assigns whomsoever" makes him an absolute owner or flar, there may follow a valid conditional substitu- tion or gift over to which, on the occurrence of ttie contemplated events, eifect will be given. BARSTOW v. BLACK. PATTISON v. HENDERSON 392 PAETS AND PERTINENTS: See PRESCRIPTIVE POSSESSION. PERMANENT POOR, RELIEF OF : See POOR LAW. PERPETUATION OF TESTIMONY : See TESTI- MONY, PERPETUATION OF. PERTINENTS Salmon fishings will not pass under the mere word " pertinents." LORD ADVO- CATE v. SINCLAIR - - 174 See PRESCRIPTIVE POSSESSION. PLEADINGS AND ISSUES, AMENDMENTS OF : See AMENDMENTS OF PLEADINGS AND ISSUES. POLITICAL STATUS : See DOMICIL. 1. POOR LAW Relief of able-bodied Persons.'] Able- bodied persons are absolutely excluded from relief out of funds raised by assessment for relief of the poor under the 8 & 9 Viet. c. 83. The Poor Law Boards of Scotland have no discretionary power to grant relief to able-bodied persons, although those persons may be ready and willing to work, and are in destitution simply from the want of employment. The right to grant, and the right to receive, relief, must co-exist, and are correlative. JACK v. ISDALE - 1 POOR-RATE Immunity of the Crown Liabi- lity of Harbours and Docks General Liability 8*9 Viet. c. 83 ; 23 & 24 Viet. c. 48.] The statutes which authorize assessments for relief of the poor are silent as to the Crown : Hence the Crown is subject to no poor-rate. To this immunity a wide signification is ascribed; for not only are the palaces of which Her Majesty is in actual occu- pation deemed free from assessment, but even the House of Lords is held to be exempt on the ground that it is regal. So likewise Government offices, as the Post Office, the Horse Guards, and the Admiralty, escape this impost, simply because they are in the service of the Crown. In the days of Lord Mansfield, Lord Kenyan, Lord Elkn- boroitgh, and Lord Tenterden, an opinion prevailed that property held for public purposes (though unconnected with the Crown, the State, or the Government), was exempt from poor-rates. This opinion was shaken by Lord Denman, and sub- stantially overturned by Lord Campbell; but it was not finally extinguished till the judgments of the House of Lords pronounced last session in the English case of the Mersey Docks, and in the Scotch case of the Clyde Navigation Trustees v. Adamson. Per The Lord Chancellor [Gran- worth']: We arc all agreed that the principle of the POOR RATE continued. Mersey Docks Case and that of the Clyde Navigation Trustees v. Adamson are the same and not to be distinguished. Adjudged by the House that the Leith Commissioners were liable to be assessed for the relief of the poor in respect of their docks and harbours, as owners and occupiers of lands and heritages within the meaning of the statutes not for their own use, but exclusively for the benefit of the public, there being no exemption of pro- perty held for public purposes unless held by the Crown or for the Crown. LEITH HARBOUR AND DOCKS COMMISSIONERS v. INSPECTOR OF THE POOR 17 2. Res Judicata.'] That the Court has decided against a poor rate for one year, is no reason why it should not decide in favour of a poor rate for another and a different year, in respect of the same property, and in a suit between the same individuals. The doctrine of res judicata does not apply to such a case. LEITH HARBOUR COMMISSIONERS v. INSPECTOR OF POOR - 17 8. Rateability for Relief of the Poor where the Property, though Public, is unconnected with the Crown.'] The property of the Edinburgh University is neither held by the Crown nor for the Crown. It is therefore rateable to the relief of the poor. Per Lord Cranworth : The owner- ship of this property is not in the Crown neither is the occupancy. The University are not only the sole owners but the sole occupiers. Per The Lord Chancellor [CozVn]: That the property of the Edinburgh University is dedicated to public pur- poses, must now be taken to be a wholly insuffi- cient ground of exemption. Per Lord Cranworth : With regard to the question of value, the receipt of the matriculation fees and of the class fees is sufficient. The 8 & 9 Viet. c. 83, s. 37, directs that " the value shall be taken to be the rent which may be reasonably expected, one year with another." In making this estimate it is not clear that the tenant is to be regarded as precluded from using the property otherwise than as the University uses it. GREIG v. UNIVERSITY OF EDINBURGH - - 348 POSSESSION Presumption in favour of long Pos- session.'] Per Lord Westbury : We ought to pre- sume everything that can be reasonably supposed in favour of long possession. I do not find that doctrine quite so prominent as I could have desired in the judgments below. LEE et al. v. JOHNSTONE - - 426 See PRESCRIPTIVE POSSESSION. POST-NUPTIAL SETTLEMENT Husband's sub- sequent Bankruptcy Wife's Claim.~] A post-nup- tial settlement, in so far that it secured a separate provision for the wife during coverture, held, to have been voluntary and gratuitous, and to have been revoked and superseded by the husband's subsequent bankruptcy. Per Lord Colonsay : Grants by a husband to his wife, stante matri- monio, are revocable, unless special circumstances are established to make out an exceptional case. DLNLOP v. JOHNSTON - - 109 POWER COUPLED WITH A DUTY When a power, coupled with a duty, is conferred upon trustees, to be executed by them at a fixed period, and after they have come to a judgment as to the conduct of the individual to be affected, they can- 600 INDEX. [8. 4 D. VOL. I. POWER COUPLED WITH A DTJTY continued. not divest themselves of the power, or execute it until the time appointed ; nor can they enter into any anterior compact respecting it. The fact that the individual to be affected l>y the execution of the power (a youth of twenty-one), married three years before the time appointed for such execution ; the fact that the trustees formally approved of the marriage, and were made aware of the settlement thereon, including a provision out of the trust estate for the intended wife ; and the fact, moreover, that they gave no caution or warn- ing, that they might ultimately be obligt d to defeat it ; all these facts made no difference in the result ; for it was held to be the duty of the trustees (the husband having in their judgment, subsequently misconducted himself , to execute the power so as to restrict him to a life interest, although the effect was to defeat the provision for the wife, as well as other claims founded on a confident expectation that the marriage settlement would not be disturbed. Per The Lord Chancellor [Cranworth]: Did the trustees, by consenting to the marriage, and (as I think I may assume) by consenting to the settlement, deprive themselves of this power? My clear opinion is that they did not Per Lord Chdmsford: All parties knew, or ought to have known, that the provisions of the settlement must depend on the conduct of the son. WELLER v. KEB - - - 11 PRACTICE Acquiescence.'] Where a reclaiming note from a Lord Ordinary's interlocutor to the First Division had not been insisted in, and where the interlocutor was consequently allowed to stand : Held, by reason of this acquiescence, that an appeal to the House of Lords was ex- cluded. LOVAT v. FBASEB - -24 2. Personal Bar against objecting to an Appeal.] Where, with the acquiescence of both parties, a Judge Ordinary deviates from the cur- sus curix, he thenceforth ceases to act judicially, and becomes an arbitrator, subject to no appeal. But if the party against whom the Judge Ordi- nary qua arbitrator decides, reclaims to the Inner House, and there obtains a reversal, he is personally precluded from afterwards objecting to an appeal by his opponent to the House of Lords. BICKETT v MOKBIS - - -47 3. Jurisdiction Issues Uncertainty Eight of Way Ees Judicata Costs.'] Where proceedings are taken out of the ordinary cursus curias with the assent of the parties, all sub- sequent interlocutors in the course adopted, though pronounced adversely, are in the nature of awards, and not subject to appeal. 2. Where, in an action of declarator of right of way, the defender had consented to judgment against him upon issues describing the footpath claimed, as leading " by or near " a red line on a plan in process, the Court had subsequently directed an engineer to lay off the footpath so consented to " in such manner and such a line as to make the footpath least burden- some to the Defender." Held, 1 . That the Court, by so doing, had departed from the cursus curise. 2. That all the interlocutors following on that departure were extra-judicial and not appealable. 3. That the judgment was vague and uncertain in consequence of the alternative form of the issue " by or near." 4. Affirming the judgment of the PRACTICE continued. Court below, that a minute abandoning three out of five footpaths claimed in the summons, and lodged before closing the record, was irregular as a minute under the Judicature Act ; and that it was too late to receive another minute in the same terms after closing the record, and after judgment upon the issues as to the other two footpaths had been given, although some conclu- sions of the summons were still undisposed of. 5. Semble, judgment of absolvitor, quoad the three roads, the right to which was never put in issue, would not be res judicata in another action to establish such right. 6. An appeal against inter- locutors made after a departure from the ordinary course of the Court dismissed without costs; the House being of opinion that the parties had been led astray by the Court below. WHITE v. DLKE OF BUCCLEUCH - - 70 4. Costs Appeals not encouraged.'] That expenses have not been awarded in the Court below, is no reason for refusing costs when the decree complained of is affirmed. To rule other- wise would but encourage litigation. DIGGENS v. GORDON - - 136 5. At the close of the Eespondent's argu- ment, the appellant, who had opened her case in person, was told that the House would hear her counsel in reply ; but if she began she must finish. The House would not allow her to break off and then hear her counsel. LONGWOBTH OB YELVEBTON v. YELVERTON - - 218 6. Competency of an Appeal Interlocutory Order 48 Geo. 3 c. 151.] When a judgment is interlocutory, when it is unanimous, when it re- lates to the practice of the Court below, and when leave to appeal is not granted, an appeal to the House is incompetent. WESTERN BANK OF SCOT- LAND v. BAIBD - 170 7. Case of Account Jury Trial.] Where the result depends on voluminous and complicated commercial accounts, it may often be convenient and expedient to have a preliminary report from a professional accountant before sending the case to trial before a jury. WESTERN BANK OF SCOT- LAND v. BAIBD - 170 8. Res Judicata.] That the Court has decided against a poor-rate for one year, is no reason why it should not decide in favour of a poor-rate for another and a different year, in re- spect of the same property, and in a suit between the same individuals. The doctrine of res judicata does not apply to such a case. LEITH HABBOCB COMMISSIONERS v. INSPECTOB OF POOB - 17 PREROGATIVES, ROYAL, CLAIMED BY A SUB- JECT : See CLAIM TO ROYAL PBEROGATIVES. PRESCRIPTION, EXCLUSION OF BAR OF : See CHABITABLE TBUST. 1. PRESCRIPTIVE POSSESSION UNDER THE ACT OF 1617, c. 12 Parts and Pertinents Regalia.] To be effectual, prescriptive possessic >n must begin with a title, and must continue under it for forty years. The title originally may have been infirm or invalid, but by the required possession for forty years all challenge and impeachment are excluded. What is alleged to be " part and pertinent " must be shewn to have been possessed as belong- ing to the principal estate. Mere contemporaneous S. & D. VOL. I.] INDEX. 601 PRESCRIPTIVE POSSESSION UNDER THE ACT OF 1617 continued. occupation will not suffice. The onus of proof is on the party who sets up the claim. Discon- tiguity, per se, is not a bar. The Royal Palace of Dunfermline, claimed by the respondent as " part and pertinent" of his Barony of Pittencreiff, and possessed by him for forty years, but without any initiatory grant or title : Held (reversing the decree below), to be the property of Queen Victoria and her royal successors. LORD ADVOCATE v. HUNT - - 85 : See SALMON FISHINGS. PRO INDIVISO, LANDS HELD Effect of subse- quent division : See ENTAIL. 4. PROHIBITORY CLAUSE Construction. See EN- TAIL. 4. RATEABILTY FOR THE RELIEF OF THE POOR : See POOR-RATE. REDUCTION EX CAPITE LECTI An heir-at-law has no title to sue a reduction ex capite lecti unless he can shew that, but for the deed sought to be set aside, he must succeed to the property. An heir of substitutionary provision may sue a reduc- tion ex capite lecti where he can shew that, as such heir, the deed sought to be set aside pre- judices his interests. BAKSTOW v. BLACK ; PATTI- SON v. HENDEKSON - - 392 REFERENCE TO OATH OF PARTY In Scotland there may be a reference to oath at any time between the closing of the record and the extract- ing of the decree, although every other mode of proof has been previously tried and has failed. Even after the j udgment of the House of Lords on appeal a reference to oath is competent, and continues so till extract. Such reference, how- ever, is matter of judicial discretion, and not to be permitted where the status, the rights, or the interests of third parties may be prejudiced or wffected. The true principle is, to settle the immediate question between the parties litigant, and to go no further. A reference to oath ought not to be permitted where the response may in- volve an admission of criminality ; for no one is bound to swear in suam turpitudinem. As to whether a reference to oath is competent in a declarator of marriage, see the opinions of the Lord Chancellor [Chelmsford], p. 2^0; of Lord Cranworth, p. 226 ; and of Lord Colonsay, p. 227 LONG WORTH OR YELVERTON v. YELVERTON - 21J REGALIA : See PRESCRIPTIVE POSSESSION. SALMON FISHINGS. 1. RELIEF OF ABLE-BODIED PERSONS : See POOR LAW. REPUTE : See HABIT AND REPUTE. RES JUDICATA That the Court has decided against a poor-rate for one yenr, is no reason whj it should not decide in favour of a poor-rate fo another and a different year, in respect of the 8 c. 67 - 146 11 Geo. 4 & 1 Will. 4, c. 29 226 I Will. 4, c. 37 - 225 5 & 6 Viet. c. 69 - - 462 7 & 8 Viet. c. 112 - 340 8 & 9 Viet. c. 83 - 1, 17, 348 II & 12 Viet. c. 36 - 103, 259 13 & 14 Viet. c. 36 - 53, 171 15 & 16 Viet. c. 27 - - 225 15 & 16 Viet. c. 76 - - 248 16 & 17 Viet. c. 51 - - 411 18 & 19 Viet. c. 23 - - 307 18 & 19 Viet. c. 120 340 19 & 20 Viet. c. 47 - 146 19 & 20 Viet. c. 56 - - 277 19 & 20 Viet. c. 60 - - 251 19 & 20 Viet. c. 89 - - 372 20 & 21 Viet. c. 14 - 146 20 & 21 Viet. c. 77 - - 620 20 & 21 Viet. c. 85 - - 519 21 & 22 Viet. c. 76 - - 415 21 & 22 Viet. c. 93 - - 473 22 Viet. c. 20 - 462 23 & 24 Viet. c. 48 - - 17 23 & 24 Viet. c. 144 66 23 & 24 Viet. c. 151 - 327 25 & 26 Viet. c. 89 - - - - 160 STATUTORY NULLITY: See LEASE UXDER THE MONTGOMERY ACT. SUBPC3NA DUCES TECUM A witness may well excuse himself for not bringing with him and pro- ducing documents which he has under trust, and the right to which is, or may become, the subject of litigation. He is not bound to search for them, if he shews that they are in a place to which access on his part is both legally and physically impos- sible. CAMPBELL v. EARL OF DALHOUSIE - 462 SUBSTITUTION, CONDITIONAL ; See OWNERSHIP, ABSOLUTE. SUCCESSION DUTY Heir Apparent Beneficial Interest under the 16 & 17 Viet. c. 51.] Where an apparent heir died without taking possession, without making up a title without drawing rent and without incurring representation : Held that the case did not come within the meaning of the statute, and that succession duty was not de- mandable by the Crown. Per The Lord Chan- cellor [Hatherley] : The " beneficial interest " must be regarded as an interest to which the successor has become entitled in possession* Per Lord West- bury : It must not be a mere apparency. LORD ADVOCATE v. STEVENSON - - 411 SUCCESSION, ORDER OF Alteration distin- guished from alienation : (See ENTAIL, 2. SUPERIORITIES Sales of, under the 20 Geo. 2, c. 50.] Per Lord Westbury : There is an obliga- tion and trust created by the 20 Geo. 2, c. 50, re- quiring that property bought with the proceeds of the sales of superiorities, shall be settled to the original uses ; and this trust afiects the heirs re- spectively succeeding to the purchased lands. FLEEMING v. HOWDEN - 372 SURPLUSAGE: See ENTAIL. 1. SYNOD, ECCLESIASTICAL Its Character and Authority.'] Per The Lord Chancellor : A Gene- ral Synod of the Church duly and regularly sum- moned, has the undoubted power to alter, amend, and abrogate the canons in force, and to make new ones. Per Lord Cranworth : The Synod is the supreme body where there is not (as there is in the Church of England) a temporal head. FORBES v. EDEN - - 569 TACKSMAN OF TELNDS: See TITILAR AND TACKSMAN. TEIND Claim on Land formerly waste, but now made productive.'] Waste land overlooked in ancient decrees for teind becomes subject to teind when rendered productive by modern cultivation . Against the demand of a parish minister claim- ing teind, certain ancient decrees were produced by the heritors to shew that the lands sought to be fixed had already been charged ; but as the decrees did not appear to have been exhaustive, the Court of Session (acting as a Court of Teind , ordered an inquiry, and their order was affirmed by the House : Held, however, that where a de- cree for teind purports in terms to have valued all the lands of a parish, no question can afterwards be raised as to any of the lands which it embraces being teindable. NICOL v. PAUL - - 127 : See TITULAR AND TACKSMAST. TENENDAS CLAUSE Although this clause can- not transmit a right, it may aid in the construe- S. & D. Vui, I.] INDEX. 603 TENENDAS CLAUSE continued. tion of a clause which does transmit a right. LORD ADVOCATE v. SINCLAIR - 174 TESTIMONY, PERPETUATION OF Witnesses out of the Jurisdiction.'] Proceedings under the 5 & 6 Viet. c. 69, and 22 Viet. e. 20, ought to be jealously watched. Per The Lord Chancellor : It was not intended to give a party seeking to perpetuate testimony rights stronger than those which would belong to him in an actual and present litigation. CAMPBELL v. EARL OF DALHOUSIE - - 462 TITULAR AND TACKSMAN OF TEIND3 By the law of Scotland a person may be, at once, both tacksman and titular of the same teinds. LEE et al. v. JOHSSTONE - - 426 TRIAL BY JURY A3 OF RIGHT: See JURY, TRIAL BY. TRUST CREATED BY THE 20 Geo. 2, c. 50 : See SUPERIORITIES, SALES OF. TRUST : See BANKRUPTCY OF A DECEASED DEBTOR. SUPERIORITIES, SALES OF. TRUSTS Doctrine of trusts : See ENTAIL. 3. TRUSTEES, THEIR DUTY IN THE EXERCISE OF A POWER : See POWER COUPLED WITH A DUTY. UNCERTAINTY : See PRACTICE. 3. UNMARKETABLE ARTICLE Damages : See BREACH OF CONTRACT. VES1I8G Life-Pent and Fee.~\ The general rule is that the fee vests a morte testatoris ; whether given to individuals nominatim, or to a class. The leaning of the law is towards vesting. Thus the postponement of the period of payment till the expiration of a life-rent does not suspend the vesting. That some members of a favoured class were unborn at the testator's death is no obstacle to the right vesting in each of them as soon as they respectively come into existence ; although the amount of the benefit to each may not be then ascertainable. The jus crediti is in the beneji- VESTING continued. ciaries as a vested right, although ihejusdominii may be in trustees. Where a fee has vested, it passes to heirs and personal representatives, unless there be something in the language of the instru- ment, or in the nature of the subject:, that requires a deviation. CARLTON v. THOMPSON - 232 VINDICATION OF AN ANCIENT CHARITABLE TRUST : See CHARITABLE TRUST. 1. VOLUNTARY ASSOCIATIONS Their Indepen- dence.'] Per Lord Cranworth : Save for the due disposal and administration of property there is no authority in the Courts either of England or of Scotland to take cognizance of the rules of a volun- tary society entered into merely for the regulation of its" own affairs. But if funds are settled to be disposed of amongst members of a voluntary asso- ciation, according to their rules and regulations, the Court must necessarily take cognizance of these rules and regulations, for the purpose of satisfying itself as to who is entitled to the funds. Per Lord Colonsay : A Court of Law will not interfere with the rules of a voluntary association, unless to protect some civil right or interest which is said to be infringed by their operation. FORBES v. EDEN - 568 VOLUNTARY SETTLEMENT : See POST-NUPTIAL SETTLEMENT. WARRANTY : See BREACH OF CONTRACT. WATERS : See EIPARIAN OWNERSHIP. WAY, RIGHT OF : See DECLARATOR. PRACTICE. 3. WIFE, CLAIM OF, UNDER POST-NUPTIAL SETTLEMENT : See POST - NUPTIAL SETTLEMENT. WITNESSES OUT OF JURISDICTION : See TESTI- MONY, PERPETUATION OF. WORKMAN Injury by fellow workman Duties of the master : See INJURY BY FELLOW WORKMAN. LONDON: PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET AND CHARING CKOS3. JE2ffiJJSi N JLEGIONAL LIBRARY FACILITY A 000 981 480 m m