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WILL 

Scots  Revis 

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Green's  Bd 

111,..'  Ci'Ui] 
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r^h   number   cnUins-The    Decisions   of    the   Week   in   the   Court    of 

-     Mon    Out«fr   and   Inner   Houses,  House  of   Lords,  and   bhenff   Courts; 

V  DiL'cU  of  the  I'rtcedint'  Numbers;  Summaries  of  New  Acts  of  Parliament; 

New.     VrticleH,  and  Notes  on  Le^al  Subjects  of  Interest ;    A  Portrait  and 

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The  Juridical  Review:    Published  Quarterly.     Subscription,  12s. 

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Burns'  Conveyancing  Practice,  according  to  the  Law  of 

Scotland.     r.\  .'-mn  Ik  U-ns,  W.S.     Knyal  hvu.     2f>s.  nett.     1899. 
Stewart  on  Diligence.     A  Treatise  on  the  Law  of  Diligence.     By 
.1.  Ubaham  Stkwakt,   M.A.,  LL.B.,  Advocate.     Royal  8vo.     40s. 

n.f.         I'^'.tH. 

Glegg  on  the  Workmen's  Compensation  Act,  1897.    A 

Commentary.  Sccun.l  Edition.  By  A.  T.  Glegg,  Advocate.  Royal 
wv...     7-.  rA.  v".     1«!>9. 

Gloag  and  Irvine   on  Rights  in  Security,   Heritable  and 

.Moveable,  jncludiut^  Cautionary  Obligations.  By  W.  M.  Gloag, 
B.A.,  Aflvocate,  and  J.  IM.  Irvine,  LL.B.,  Advocate.  Royal  8vo. 
41H*.  »iWf.      1MU7. 

Sandeman's  Digest  of  Scots  Decisions,  1895-99.    Decided 

in  ih.-  .^ujn.  Hi.-  ( '(.ml.-  lit  Scuilaiul,  and  lujjurled  iu  tlie  various  Series 
of  U«jM.rls.     To^^ether  with  a  Table  of  all  Cases  which  have  been 
judicially  con-idereil  during  the  jieriod.     By  J.  C.  S.  Sandkman, 
AdvtK-ate.     Unyal  Hvo.     With  Supplement.     14.s.  nett. 
To  he  continual  annnalhj. 

Grierson's  Stamp  Duties.  A  Treali.se  on  the  Law  of  Stani}) 
iKiiie-  "11  WufLLii  lii-iruiuciils.  By  P.  J.  H.  Grierson,  Solicitor  to 
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Scotch  Appeal  Cases  in  the  House  of  Lords,  1851  to  1873. 

\\  Uh    'l.il»li--    I'l    ;ill    ilie   C.i.-e.-    cUcd,  Nole.s,  and    Copious    Index. 
Hei)ort«;<l  by  James  Patehhon,  M.A     2  vols.     Royal  8vo.     £5,  5s. 


Law  Books^^^uhlishfclMj  William  Green  &  Sons. 


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,   r    ^\ ,Y    ' ^^/A^^'"/' .<-  -•y-.'-x   '" 


Miller's  Law  of  Nature  and  Nations  in  Scotland.    A  Series 

oi  Lectures  delivered  in  Session  1895-96  in  the  University  of  Glas- 
gow. By  W.  Galbraith  Miller,  M.A.,  LL.B.,  Advocate.  Demv 
8vo.     4s.  ne,n.     1896.  ^ 

Irons'  Dean  of  Guild  Court.  A  Manual  of  the  Law  and  Practice 
of,  witli  Synopsis  of  the  Law  relating  to  Building  Restrictions, 
Servitudes,  &c.  By  James  Campbell  Irons,  S.S.C  Demv  8vo 
25s.  ndt.     1895.  ^ 

Brown's  Sale  of  Goods  Act,  1893.  Notes  and  Commentaries 
on  the  Sale  of  Goods  Act,  1893.  By  Professor  Richard  Brown, 
Glasgow.    Demy  8vo.    16s.  ndi.    1895. 

Conveyancing  Statutes  from  the  13th  Century  to  the 

Present  Time,  with  the  Repealed  Acts  and  Portions  of  Acts 
distinguished,  and  the  1863  and  1874  Acts  annotated  with  Cases 
relating  to  each  Section.  Arranged  and  Edited  by  John  Craigie, 
M.A.,  LL.B.,  Advocate.     Royal  8vo.     25s.  mtt.     1895. 

Shennan's  Parish,  Councillor's  Hand-Book.    A  Digest  of  the 

Local  Government  (Scotland)  Act,  1894  (57  &  58  Vict.  cap.  58), 
with  the  Text  of  the  Act,  and  an  Account  of  the  Powers  and 
Duties  of  Parish  Councils.  By  Hay  Shennan,  Sheriff-Substitute, 
Lerwick.     Fourth  Edition.     Demy  8vo.     Is.  6d.  neit.     1895. 

Cooper  on  Defamation.  A  Handbook  of  the  Law  of  Defamation 
and  Verbal  Injury.  By  F.  T.  Cooper,  M.A.,  LL.B.,  Advocate. 
Demy  8vo.    14s.  ndt.    1894. 

Dewar's  Penal  Servitude  and  Prevention  of  Crimes  Acts, 

1853-1891.  By  David  Dewar,  Chief  Constable.  Demy  8vo.  5s. 
mtt.     1895. 

Angus'  Dictionary  of  Crimes  and  Offences.    A  Dictionary 

of  Crimes  and  Offences  according  to  the  Law  of  Scotland,  with 
Appendix  relating  to  Criminal  Jurisdiction,  Arrest  of  Offenders, 
&c.  By  John  W.  Angus,  Chief  Constable,  Greenock.  Demy  8vo. 
12s.  ndt.     1895. 

Stewart  on  Mines  and  Minerals.    A  Treatise  on  the  Law  of 

Mines,  Quarries,  and  Minerals  in  Scotland.  By  D.  Ross 
Stewart,  LL.B.,  Advocate.       Royal  8vo.     30s.  ndt.     1894. 

Lorimer's  Finance  Act,  1894.  The  New  Death  Duties 
imposed  by  the  Finance  Act,  1894,  with  Text,  Introduction,  and 
Notes,  by  J.  Campbell  Lorimer,  Advocate.  Demy  8vo.  5s.  ncXi. 
1894.  Supplement  to  Do.  Being  the  Act  of  1896,  with  Annota- 
tions.    2s.  6d.  ndt.     1896. 

Doak's  Court  Procedure.  A  Manual  of  Court  Procedure,  Civil 
and  Criminal.    By  R.  A.  Doak,  M.A.,  B.L.    Demy8vo.    bs.nett.    1899. 

Law  Examination  Questions,     a  Handbook  for  the  use  of 

Students  preparing  for  the  Examination  in  Law  under  the  Law- 
Agents  (Scotland)  Act,  1873.  Compiled  by  a  Law- Agent.  Demy 
8vo.     5s.  nett. 


I  ,,„.  /,•,„,/-  n'hJUJwd  by  William  Green  &  Sons. 


Wallace  and  M'Neil's  Banking  Law.    ]^.arfkmg  Law,  with 

Fonu-,      Hv   William    Wallace,   M.A.,   Advocate,    and    Allan 
•'  \  '     •  r  and    X.P.,  Bank   of  Scotland,  Edinburgh,  and 

A  fur  the  lustitule  of  Bankers  in  Scothmd  (1894). 
.'vt'omi  L<iiUoii.     Royal  8vo.     15s.  lutt.     1899. 

Grierson's  Index  of  Cases  Judicially  Noted.    An  Index  of 

.  :.uu  Ml  .Ju.igiiu'nt.-  ill  Uic  Court  of  Session,  and 

'  to  the  House  of  Lords,  from  November  1862 
;■■  A:.'i;-;  l-..;i.  By  P.  J.  Hamilton  Griersox,  B.A.,  Advocate, 
lioiimi  lit  liali  k-atlicr.     Royal  8vo.     25s.  ndt._    1894. 

Handy-Book   of  Reference  to    Decisions  in  the  Court  of 

---:■!:.  C-url  uf  Ju.-iiciaiy,  and  House  ut   Lord.-,  from  July  1885 
:    A    -  i-t  1893.     Crown  8vo.     6s.  nett.     1894. 

riillar  on  Prescription.  A  Handbook  of  Prescription  according 
lo  the  Law  of  Scotland.     By  J.  H.  Millar,  Advocate.     Demy  8vo. 

Accounting  in  Theory  and  Practice.    A  Text-Book.    By  Geo. 

l.i-i  K.  <  .A..  I'.F.A.     Dfiiiysvo.     15s.  jjcW.     1899. 

Walton  on  Husband  and  Wife.  A  Handbook  of  Husband  and 
'.'.  :  •  acconliiig  to  the  Law  of  Scotland.  By  F.  P.  Walton,  B.A., 
LL.B.,  Advocate.     Demy  8vo.     20s.  licit. 

Stevenson's   Presumption  of  Life.    The  Law  of  Scotland  in 

;■  I.,  tiic  i'ri->uiiiiiii.ju  of  Life  of  Absent  Persons.     By  J.  H. 

■)N,  M. A.,  Advocate.     Crown  8vo.     6s. 

Blair's  Election  Manual     A  Manual  for  Parliamentary,  County 
<       iicil.  aii.l  Muuicijial  Elections,  and  Election  Petitions,  with  an 
■    ictical  Forms  and  Index.     By  P.  J.  Blair,  M.A., 
8vo.     15s.  luit. 

Pithie's  Inland  Revenue  Cases.  Summary  Proceedings,  together 
V,  i.  -  .  iiR-nt  of  Pr(.(edure  in  Appeals  in  Inland  Revenue  Cases 
in  Scotland.     By  ^L  Pithie.     Demy  8vo.     7s.  6d.  nett.     1899. 

Mackay's  Manual  of  Practice.  A  Manual  of  Practice  in  the 
'  :  bt,v.-iun.     By  .1-.  J.  G.  Mackay,  Advocate.     Royal  8vo. 

Hardie's  Law  Agents'  Book-keeping.     A  Manual  of  Book- 

l<ir  l>aw  Anenls,  with   Forms  tor  Trusts  Accounts.      By 
1 1    liiMK,  C.A.,  Greenock.     4to.     h^.  nel.t. 

Irons  on  The  Burgh  Police  Act,  1892.     An  Annotated  Edi- 

•    '11,.     I'.iu^ii    I'nlirc    iSi.ollaiid;   Art,    1892,   with    Notes  of 
Hy  J.  Campbell  Irons,  M.A.,  S.S.C.    Demy  Svo. 

•_--,  If  ", 

Menzies  on  Trustees.  Tlie  Law  of  Scotland  affecting  Trustees. 
V,\  A    '    '    Mh-N/iiE/^,  Advocate.    2  vols.    Demy  8vo.    30s.  ne«.    1897. 


excyclopj:dia 


or 


SCOTS    LAW 


TOLOiE  xn 


PRINTED  FOR 

WILLIAM    GREEN    &    SONS, 

BY    MORRISON   AND  OIBB  LIMITED, 

May   1899. 

AoEKra  IS  LoNDOK  .  SnxET  &  Maxwell  Ld. 

,,  „  ...  Stevens  &  Haynes. 

„         Glasgow  .  .  Jobs  Smith  &  Son. 

„         Amkrica  .  Boston  Book  Co. 


GREEN'S    ENCYCL0PJ5DIA 


or   THE 


LAW    OF    SCOTLAND 


EDITED    BY 


JOHN    CHISHOLM,   M.A,   LLB. 

ADVOCATE,    AND    OF   THE    MIDDLE   TEMPLE   BARRISTER-AT-LAW 


VOLUME    XII 
STANDING   JOINT   COMMITTEE 

TO 

TURNPIKE   ACTS 


EDINBURGH 

WILLIAM     GREEN     &     SONS 

LAW    PUBLISHERS 

1899 


T 


/,    |2- 


The  Articles  in  this  Volume  have  been 
Revised  by  their  respective  Authors  as  at 
March  20fh,  1899. 


THE  AUTHOES  OF  THE  PEINCIPAL  ARTICLES  IN  THIS  VOLUME 

AEE  AS  FOLLOWS:— 


Statute  Law. — F.  M.  Anderson,  Advocate. 

Statute  Law  Revision ;  and 

Statutory  Rules  and  Orders. — J.  A.  Fleming, 
Advocate,  formerly  Member  of  Statute 
Law  Revision  Committee. 

Stipends.  —  The  Teind  Clerk  (Nenion 
Elliot,  S.S.C). 

Stipendiary  Magistrate. — J.Campbell  Irons, 
S.S.C. 

Stipulatio.  —  J.  M.  Irvine,  Advocate, 
Lecturer  on  Roman  Law,  Glasgow 
University. 

Stockbroker.— F.  A.  LTmpherston,  Advocate. 

Stoppage  in  transitu.  —  F.  M.  Anderson, 
Advocate. 

Straightening  of  Marches.  —  J.  H.  Tait, 
Advocate. 

Subinfeudation. — John  Cowan,  Advocate. 

Siibrogatio7i. — A.  T.  Glegg,  Advocate. 

Substitute.—.].  H.  Tait,  Advocate. 

Succession.— J \siE8  Clark,  Advocate. 

S^iccession  in  Roman  Law. — J.  M.  Irvine, 

Advocate,   Lecturer    on    Roman   Law, 

Glasgow  University. 

Summary  Diligence  on  Bills  of  Exchange. — 
Allan  M'Neil,  Solicitor,  Bank  of 
Scotland,  Edinburgh. 

Summons. — J.  H.  Tait,  Advocate. 

Superiority. — A.  M.  Hamilton,  Advocate. 

Supervision  Order. — J.  Campbell  Lorimer, 
Advocate. 

Supplement,  Letters  of.  —  A.  J.  Alison, 
Advocate. 

Support.— C.  D.  Murray,  Advocate. 

Surrogatum.  —  Alexander  MacRobert, 
Advocate. 


Surveyor. — P.  Gardiner  Gillespie,  S.S.C, 
Edinburgh. 

Suspension;  and 

Suspension,  etc.,   in  Criminal   Law.  —  L.  T. 
Napier,  Advocate. 


Taxation  of   Acco^lnts.  —  R.   E.  Monteith 
Smith,  Advocate. 

Teacher. — J.  Edward  Graham,  Advocate. 

Teind  Court ; 

Teinds;  and 

Teinds,    Valuation  of. — The  Teind  Clerk 
(Nenion  Elliot,  S.S.C). 

Tenant. — William  Hunter,  Advocate, 

Tenants,  Kindly ;  Renfallers  of  Lochmaben. — 
David  Anderson,  Advocate. 

Tender. — L.  T.  Napier,  Advocate. 

Terce. — J.  Robertson  Christie,  Advocate. 

Tlieft. — C  N.  Johnston,  Advocate-Depute. 

Thellusson  Act. — J.  C  S.  Sandeman,  Advo- 
cate. 

Tliirlage. — Hay  Shennan,  Advocate,  Sheriff- 
Substitute  of  Zetland. 

Tholed  an  Assize;  and 

Threats. — A.  M.  Anderson,  Advocate. 

Timber. — William  Hunter,  Advocate. 

Time,  Computation  of. — Alexander  Mac- 
Robert,  Advocate. 

Title   to   Sue    and    Defend.  —  J .    H.   Tait, 
Advocate. 

Town  Clerk. — J.  Campbell  Irons,  S.S.C 

Trade,  Board    of.  —  J.   Edward  Graham, 
Advocate. 


7  if.  r-y^.iT^ri 


nn 


Tt\t<U  ,  and 

TfAs  twwia.— J.  Wright  Forbes,  Advo- 


LIST  OF  AUTHOES 

Triennial    Prescription.  —  J.    H.    Millar, 


cat«. 


Trtnt' 


T    B.  Ballingall, 


fr  .  A.  M.  Anderson,  Advocate. 

TVmuurt  TVtnv.— H.  P.  Macmillax,  Advo- 
cate. 

Trtspass.  —  C.  X.  Johnston,  Advocate- 
Dvpute, 


Advocate. 

Truck  Acts.  —  Andrew  Mitchell,  Advo- 
cate. 

Trust;  and 

Trustee. — C.  E.  A.  Howden,  Advocate. 

Trust  Deed  for  Creditors. — W.  J.  Cullen, 
Advocate. 

Tug   and    Tow.  —  Alexander    Mofpatt, 
Advocate. 


GREEN'S    EFCYCLOPtEDIA 


OF 


THE    LAW    OF    SCOTLAND 


Standing  Joint  Committee— In  the  system  of  county 

government  established  by  the  Local  Government  Act,  1889  (52  &  53  Vict, 
c.  50),  the  Standing  Joint  Committee  is  (by  sec.  18)  charged  with  important 
duties.  (1)  It  is  "  deemed  to  be  the  Police  Committee  under  the  Police 
Act,  1857  '■'  (20  &  21  Vict.  c.  72) ;  having  all  the  powers  of  such  Police 
Committee,  and  being  subject  to  all  the  provisions  of  the  Police  Act,  except 
in  so  far  as  these  are  expressly  modified  by  the  Local  Government  Act. 
(2)  No  works  involving  capital  expenditure  can  be  undertaken  in  any 
county  or  district  thereof,  in  virtue  of  powers  transferred  or  conferred  by 
the  Act  or  any  other  Act,  without  the  consent  in  writing  (signed  by  two 
members  and  the  county  clerk  (s.  67))  of  the  Standing  Joint  Committee. 
(For  definition  of  capital  works,  see  sec.  18  (7).)  The  committee  consists  of 
— (1)  Such  number  of  county  councillors,  not  exceeding  seven,  as  shall  be 
appointed  by  the  county  council  annually  at  their  meeting  in  May ;  (2) 
Such  number  of  the  Commissioners  of  Supply,  not  exceeding  seven,  as  shall 
be  appointed  by  the  Commissioners  of  Supply  annually  at  their  meeting 
on  the  same  day ;  and  (3)  the  Sheriff  of  the  county  (or  in  his  absence  one 
of  his  Substitutes  to  be  nominated  by  him  for  that  purpose  (s.  18  (1)  and  (2)). 
Casual  vacancies  are  filled  up  by  the  county  council  or  Commissioners  of 
Supply,  as  the  case  may  be  (s.  18  (3)).  The  committee  elect  one  of  their 
own  number  to  be  chairman.  The  county  clerk  acts  as  clerk  of  the 
committee,  "without  any  further  appointment  or  remuneration"  {ib.  (4)). 
See  County  Council  ;  Constable  (vol.  iii.  233). 

Statute  Law. — Statute  law  is  the  chief  part  of  what  is  known 
as  the  "  written  law  "  of  the  land,  and  consists  of  the  whole  body  of  Acts 
of  Parliament  now  in  force.  An  Act  of  Parliament  is  the  exi)ression  of 
the  will  of  the  supreme  legal  authority  recognised  by  the  constitution.  It 
is  "  enacted  by  the  Queen's  "  (or  King's)  "  Most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
Commons,  in  Parliament  assembled,  and  by  the  authority  of  the  same." 
It  cannot  be  altered,  suspended,  or  repealed,  except  by  the  same  authority. 
In  Scotland,  differing  in  tliis  respect  from  England,  it  may  fall  into 
desuetude.     (See  Desuetude.) 

Certain   fragments   in   the   Rerjiam    Majcstatcm   are   believed   to   form 


S.  E. — VOL.  XII. 


1 


2  STATUTE  LAAV 

portions  of  the  early  statute  law  of  Scotland,  but  this  is  uncertain,  and 
"under  statute  law]  in  its  proper  and  strict  sense,  those  Acts  only  are 
included  which  passed  in  the  reign  of  James  I.  of  Scotland,  and  from 
thence  down  to  tlie  union  of  the  two  kingdoms  in  1707;  and  such  of  the 
British  statutes  enacted  since  the  imion  as  concern  this  part  of  the  United 
Kingdom"  (Ersk.  i.  i.  37). 

Collections  of  Acts.  —  Several  collections  of  the  Acts  of  the 
Scots  Tarliament  were  made  and  published  by  authority,  of  which  the 
most  important  are:— (1)  The  edition  of  156G,  known  as  the  "Black  Acts," 
because  printed  in  black  letter;  (2)  a  collection  made  by  Sir  John  Skene, 
b>rd  Clerk  Register,  in  1597:  (o)  the  "  Glendook  Acts,"  edited  by  Sir 
Thomas  Murray  of  Glendook,  1G81,  folio,  and  1682,  duodecimo,  the  latter 
of  which  is  the'  most  commonly  used  for  the  statutes  down  to  that  date ; 
(4)  the  Eolio  liecord  Edition,  published  in  1807,  by  a  lloyal  Commission. 
Tins  is  now  the  authoritative  edition,  and  has  formed  the  basis  of  the 
work  of  revision  by  the  Statute  Law  Committee. 

Of  British  statutes  since  the  Union,  a  large  number  of  collections  have 
been  published,  most  of  them  by  authority.  Tlie  most  important  for 
practical  purposes  is  that  known  as  the  "  Statutes  Eevised,"  edited  by  the 
Statute  Luv  Committee  formed  by  Lord  Cairns  in  18G8.  (See  Statute 
Lvw  Bkvlsion.)  a  "  Chronological  Table  and  Index  of  the  Statutes" 
lias  been  prepared  and  published  by  authority,  giving  a  chronological 
table  of  all  the  statutes,  showing  total  or  partial  repeals  thereof,  and 
an  index  to  the  subject-matter  of  the  statutes  in  force  (13th  ed.,  1896). 
A  volume  is  published  annually,  containing  the  Acts  passed  during  the 
year. 

Statutes  applying  to  Scotland.  —  General  Acts  of  Parliament 
jia.ssed  since  the  L'nion  may  or  may  not  apjily  to  Scotland.  In 
many  cases  this  is  expressly  provided  for,  as  regards  either  the  whole  or 
certain  portions  of  a  statute;  or,  an  interpretation  clause,  indicating  the 
sense  in  which  particular  terms  are  to  be  read  in  applying  the  Act  to 
Scotland,  places  the  intention  of  the  Legislature  beyond  doubt.  In  the 
absence  of  such  indications,  the  presumption  is  that  the  Act  applies  to  the 
whole  of  the  United  Kingdom  {Brkhjcs,  1844,  G  D.  968 ;  1847,  6  Bell's 
App.  ]).  The  presumption  may  be  overcome  by  implication  from  the 
tenor  of  the  enactment  or  from  the  nature  of  the  remedies  which  it 
aJlords  (Jrrs/moj.s/cr  Fire  Office,  1888,  15  R.  H.  L.  89,  per  Ld.  Watson 
at  94).  But  this  result  does  not  follow  merely  from  the  fact  that  the 
Act  has  been  framed  with  apparently  exclusive  reference  to  English 
institutions  and  procedure,  and  its  application  to  Scotland  may  in  con- 
sequence be  extremely  difficult  (Perth  Water  Commissioners,  1879,  6  B. 
1050,  i.er  lil.  Moncreiff  at  1055  and  Ld.  Gifford  at  1061),  or  that  the 
nomenclature  is  distinctively  English  {e.g.  Dunloj^,  1895,  22  E.  (Just.  C.) 
34).  In  the  case  of  an  amending  Act,  the  leading  presumption  is  stronger 
where  thr;  original  Act  applied  to  Scotland  (Bunlop,  svjmi).  The  pre- 
sumj.tion  is  the  other  way  where  the  original  Act  was  not  so  applicable 
(  Westminster  Fire  Office,  siq^ra). 

Classification  of  Statutes.  —  Acts  of  Parliament  have  been,  for 
different  purj)Oses,  classified  on  various  principles.  As  regards  extent 
of  oi»eration,  they  have  been  divided  as  follows :  — (1)  Public  and 
General  Statutes,  which  are  of  general  application  to  the  whole  kingdom, 
or  to  one  or  more  of  its  main  divisions,— England,  Scotland,  Ireland, 
ami  Wales.  (2)  Private  —  Local  and  Personal,  including  {a)  Local  Acts, 
which  are  of  special   api.lication  to   particular  districts   or  towns,  e.g.  a 


STATUTE  LAW  3 

Burgli  Police  Act;  (I)  rersonal  Acts,  which  rehite  to  particular  under- 
takings, such  as  a  railway  or  a  water  su])ply.  (3)  I'rivate  Acts,  in  ;i 
narrower  sense,  which  relate  only  to  particular  persons,  c.f/.  an  Act  validatin" 
a  marriage  or  authorising  a  change  of  name.  In  the  case  of  private 
Acts,  the  Standing  Orders  of  botli  Houses  of  I'arliament  prescribe  a 
certain  i)rocedure  to  be  gone  through,  and  certain  notices  to  be  given  to 
the  public  and  to  persons  interested,  and  it  was  formerly  held  that 
failure  to  comply  with  these  regulations  invalidated  the  Act  quoad  persons 
who  had  not  received  proper  notice  {Donald,  1832,  11  S.  119).  It  is  now 
held  that  the  validity  of  the  Act  is  not  thus  afi'ected  {Wavchopv  1837 
IG  S.  227;  1842,  1  Eell's  App.  252).  The  dilterences  between  Public 
and  General,  and  Local  and  Personal  Acts  as  regards  citation  are  noted 
below  (see  Citation,  infra). 

With  reference  to  their  objects,  statutes  have  been  classified  as 
follows : — A  Declaratory  Act  is  one  passed  to  remove  doubts  or  correct 
mistakes  as  to  the  conmion  law,  or  the  meaning  or  eflect  of  a  statute, 
e.g.  the  Territorial  Waters  Jurisdiction  Act,  1878  (see  II  v.  Dudley,  1884, 
L.  Pt.  14  Q.  B.  D.  273,  at  281).  To  this  class  belong  Consolidation  Acts, 
intended  to  reduce  into  systematic  form  the  whole  of  the  statute  law 
on  a  given  subject  {e.g.  the  Titles  to  Land  Consolidation  Act,  18G8),  and 
Codifying  Acts,  which  systematise  the  law  laid  down  in  judicial  decisions 
or  previous  statutes  {e.g.  Bills  of  Exchange  Act,  1882 ;  Partnership  Act, 
1890).  A  Remedial  Act,  whether  enlarging  or  restraining,  is  passed  to 
remedy  some  defect  in  the  law.  Strictly,  almost  all  Acts  fall  under  tliis 
description.  An  EnaUing  Act  renders  it  lawful  to  do  something  which 
otherwise  would  not  have  been  lawful,  e.g.  an  Act  authorising  the  com- 
pulsory taking  of  land  for  some  public  object.  A  Penal  Act  is  one 
creating  an  offence  against  the  State. 

An  Adoptive  Act  is  one  the  application  of  which,  in  whole  or  in  part, 
depends  on  its  adoption  either  by  some  public  body  or  by  a  prescribed  number 
of  voters,  e.g.  the  Public  Libraries  Act,  and  the  General  Burgh  Police  Act. 

Parts  of  an  Act  of  Parliament. — A  statute  may  consist  of  the 
following : — 

(1)  The  Title  or  Ridjric,  which  gives  a  general  indication  of  its  purpose. 
This,  strictly,  is  no  part  of  the  Act,  and  it  cannot  be  resorted  to  in  the  con- 
struction of  the  enacting  part  {Farquhar&on,  1886, 13  E.  (Just.  C.)  29).  This 
rule,  liowever,  has  not  always  been  rigidly  adhered  to  {Salkcld,  1848,  2  Ex. 
256,  at  283;  see  Coomher,  1882,  L.  E.  9  Q.  B.  D.  17,  at  32-3).  It  is 
occasionally  necessary  to  treat  the  title  as  a  substantive  part  of  the  Act, 
in  order  to  prevent  an  enacting  section  from  becoming  unintelligible  {e.g. 
31  &  32  Yict.  c.  89).  Suh-titlcs,  or  general  headings  introducing  groups  of 
•sections  {e.g.  in  the  Glasgow  Police  Act,  1866),  have  often,  especially  in 
Scotland,  been  used  as  aids  in  construction  {Lang,  1877,  4  E.  779 ;  1878,  5 
R.  H.  L.  65,  at  67 ;  Nelson,  1889,  17  E.  (Just.  C.)  1,  per  Ld.  M'Laren  at  2 ; 
^cott,  1890, 17  E.  (Just.  C.)  35  ;  Rctyson,  [1893]  2  Q.  B.  304,  at  307).  Marginal 
notes,  like  brackets  and  punctuation,  form  no  part  of  the  statute,  though 
since  1849  they  have  been  inserted  in  the  record  copy  {Sutton,  1882,  L.  1!. 
22  Ch.  D.  511 ;  D.  Devonshire,  1890,  L.  E.  24  Q.  B.  D.  468). 

(2)  The  PreamUc  states  in  general  terms  the  object  of  the  Legislature 
in  passing  the  Act.  Frequently  this  is  not  coextensive  with  the  enactment 
which  it  introduces,  and  though  it  is  a  part  of  the  Act,  it  cannctt  in  general 
alter  the  effect  of  the  enactment  {Overseers  of  West  Ham,  1883,  L.  E.  8  App. 
€a^386,  at  388-9 ;  In  re  Watts,  1885,  L.  E.  29  Ch.  D.  947,  at  950 ;  Bentlcy, 
1876,  L.  E.  4  Ch.  D.  588,  at  592).     Where,  however,  there  is  ambiguity  in 


STATUTE  LAW 

•  \.  ,u  IV  ai.uid  help  ia  the  construction,  by  indicating 

t  .      X^.^    or  fixing  the  meaning  of  doubtful  words 

."Vv,    1881 '  8  K.  H.  L.  23,  per  Ld.  Chan.  Selborne  at 

•       ■•;    L  it.  11  App.  Ca.  28G,  at   288).      In  modern 

II  it  preambles. 
»•  _    ^,,^_,.,_the  substantive  portion  of  the  statute,     bee 

"■',.  DaU  now  forms  part  of  the  Act,  and  is  indorsed  on  it  by  the 

(  rarliamt'uts  (33  Geo.  ill.  c  13).  ,   ,      ,, 

■  —Schedules  are  commonly  appended  to  the  enacting  sections 
f^  ^  of  draftin"    and  contain  matters  of  detail,  such  as  lists, 

8iTlM"etc""  They  are  a  part  of  the  enactment,  but  if  any  discrepancy 
•Doeare  between  a  sciiedule  nnd  an  enacting  section,  the  latter  prevails 
^ZZn'lZrh'ugh,  1878,  L.  11.  3  Ex.  1).  229  ;  Dean,  1882,  L.  11.  8  P.  D. 
79  a'  ■•  ^'^ ;  Laird,  1879,  6  K.  756,  at  707).  .,...-        c 

'  1  tn-ATiOK.— The  object  in  all  cases  is  to  ascertain  the  intention  ot 

ihe  1  are,  asexpressed  or  implied  l)y  the  Act  itself.     The  words  of  the 

^..  ,,re  to  be  taken  in  their  plain,  ordinary,  and  grammatical  mean- 

,.  ieal   words  are   to    be   applied   with   their  technical  meaning 

,,  47,  IG  M.  &  ^y.  307,  per  Parke,  B.,  at  309;  B.  v.  Commrs.  of 

Income  Too:.  1888,  L  E.  296,  at  309).  Where  the  meaning  of  the  Act,  taken 
thus,  is  clear  and  exphcit,  eflect  must  be  given  to  it,  without  reference  to 

r  ■   '  ::nd  without  speculation  as  to  the  possible  meaning  and  object 

,  _^        lire.     Strictly  speaking,  there  is  no  place  for  interpretation. 

. ;  ■  scnUntia  expositore  non  eget.    "  The  business  of  the  interpreter  is  not 

lo  improve  the  statute ;  it  is  to  expound  it.     The  question  for  him  is  not 

what  the  Legislature  meant,  but  what  its  language  means;  what  it  has 

said  it  meant"  (Maxwell,  p.  7;  The  Queensberry  Leases,  1819,  1  Bl.  339, 

per  Ld.  liedesdale  at  497 ;  Hornsey  Local  Board,  1889,  L.  E.  24  Q.  B.  D.  1, 

jjcr  Li  Esher,  li.  \\.,  at  5 ;  Clerical  Assurance  Co.,  1889,  L.  E.  22  Q.  B.  D. 

440,  at  448).     Accordingly,  a  statutory  enactment  is  not  to  be  extended  so 

as  to  correct  defects  or  supply  an  omission  which  is  apparently  the  result 

of  a  mistake  {Jon(.<i,  1785, 1  T.  E.  44 ;  B.  v.  Dyott,  1882,  L.  E.  9  Q.  B.  D.  47). 

This  rule  is  departed  from  only  where  the  application  of  the  enactment 

y  ■  rict  grammatical  sense  would  produce  a  gross  injustice  or  manifest 

■  ■■!•  inconsistency  with  the  obvious  intention  of  the  Legislature,  and 

-'.;  the  sense  may  be  modified  only  so  far  as  may  be  necessary  to 

avoid  such  a  result  {Caledonian  By.  Co.,  1881,  8  E.  H.    L.  23,  per  Ld. 

y    "  "  :m  at  30  ;  Bradlaugh,  1883,  8  App.  Ca.  354,  at  384).     A  very  strong 

«^  '■    -'1    •  •••  ''"e  must  be  made  out  before  the  Court  will  construe  a  section 

in  a  wu;  :  .ay  to  the  natural  meaning  of  the  language  used  {in  re  Hall, 

:     ■<.  L  K.  21  Q.  IJ.  D.  137,  at  141-2). 

V  ihe  language  of  the  enactment  is  flexible,  and  the  meaning  more 

■'  d,  rules  of  interpretation  are  resorted  to,  in  order  to  ascertain 

at  of  the  Legislature.     "The  more  literal  construction  ought 

not  to  prevail,  if  it  \n  opposed  to  the  intention  of  the  Legislature  as  apparent 

and  if  the  words  are  sufficiently  flexible  to  admit  of  some 

'1  by  which  that  intention  will  be   better   effectuated" 

'  -     :-.  1881,  8  E.  H.  L.  23,  per  Ld.  Selborne  at  25).     The  Acts 

of  the  ScoU  ParHarnent  are  framed  in  much  more  general  terms  than  are 

and  accordingly   afford   more    room   for   interpretation 

V-"  '-.  i  Pat.  274,  per  Ld.  Eldon  at  p.  285). 

'■'it  must  be  construed  in  the  sense  appropriate  to  the  subject- 
.  and  with  reference  to  its  object  as  disclosed  by  its  own, 


STATUTE  LAW  5 

terms  {Lion  Inna-ancc  Association,  1883,  L.  li.  12  Q.  B  D  17G  at  18G  • 
Bridf/es,  1847,  6  Bell's  App.  1).  '        '  ' 

The  words  are  to  be  used  in  the  sense  in  which  they  were  understood  at 
tlie  date  of  the  passing  of  the  Act  (Montrose  Peerage,  1853,  1  Macq.  401,  per 
Ld.  Cranworth  at  40G ;  Sharpe,  1888,  L.  11.  2'2  Q.  B.  D.  239,  at  242). 
Contemporanca  cxpositio,  or  the  construction  put  upon  an  Act  at  the  time  of 
its  passing  and  consistently  followed  tliroughout  a  long  period,  cannot  over- 
ride the  plain  words  of  an  enactment,  but  where  the  Act  is  silent  on  a 
particular  point,  or  its  language  is  of  doubtful  import,  usage  long  continued 
may  supply  the  defect  or  explain  the  meaning  {Majs.  of  Dunbar,  1835, 

1  S.  &  M'L.  134,  per  Ld.  Brougham  at  195 ;  Beresford-Ho-pe,  1889,  L.  II.  23 
Q.  B.  D.  79,  at  91  ;  Hamilton,  1889,  L.  R  14  App.  Ca.  209,  at  p.'  221  •  cf 
MoUcson,  1892,  19  li.  581,  at  587). 

The  Act  must  be  read  as  a  whole,  since,  even  where  there  is  no 
Interpretation  clause,  the  context  may  modify  the  meaning  of  the  plainest 
words  (Colqnhoun,  1889,  L.  E.  14  App.  Ca.  493,  per  Ld.  Herschell,  at  506 ; 
Udirihurgh  Tramivay  Co.,  1877,  3  App.  Ca,  58,  at  68).  It  is  often  permissible 
to  go  beyond  the  Act  itself.  A  series  of  Acts  in  2')ari  materid,  i.e.  dealinj' 
with  the  same  subject-matter,  may  be  read  together  as  forming  one  con- 
tinuous code,  and  this  whether  or  not  there  is  any  reference  from  one  to 
the  other  (Waterlow,  1857,  27  L.  J.  Q.  B.  55).  Hence  the  construction  put 
upon  expressions  in  an  earlier  Act  applies  equally  to  the  same  expressions 
in  a  later  Act  ini^ri  materid  {Hodgson,  1890,  L.  B.  24  Q.  B.  D.  525,  at  528  ; 
Committee  of  London  Clearing  Bankers,  [1896J  1  Q.  B.  222,  at  227-8).  This 
applies  even  where  an  enactment  has  been  repealed  but  re-enacted  in 
substance  {Mayor  of  Portsmouth,  1885,  L.  E.  10  App.  Ca.  364,  at  371 ;  Smith, 
[1891]  App.  Ca.  325,  at  349 ;  cf.  Interpretation  Act,  1889,  52  &  53  Vict, 
c.  63,  s.  38  (1)). 

The  rule  as  to  statutes  in  pari  materid  has  been  said  not  to  apply  in 
Scotland  in  the  case  of  local  and  personal  Acts  {Straehan,  1850,  13  D.  272, 
per  Ld.  Pres.  Boyle  at  276). 

Similar  but  much  weaker  inferences  may  sometimes  be  drawn  from  one 
statute  to  another  which  deals  not  with  the  same  but  with  a  similar 
subject-matter. 

A  fundamental  rule  in  the  construction  of  statutes  is  that  laid  down  by 
Ld.  Coke,  "  that  for  the  sure  and  true  interpretation  of  all  statutes  in 
general  .  .  .  four  things  are  to  be  discerned  and  considered : — (1)  What 
was  the  common  law  before  the  making  of  the  Act  ?  (2)  What  was  the 
mischief  and  defect  for  which  the  common  law  did  not  provide  ?  (3)  What 
remedy  the  Parliament  hath  resolved  and  appointed  to  cure  the  disease  of 
the  Commonwealth  ?  and  (4)  The  true  reason  of  the  remedy  ;  and  then  the 
office  of  all  the  judges  is  always  to  make  such  construction  as  shall  suppress 
the  mischief  and  advance  the  remedy  "  {Hey dons  case,  1584,  2  Coke  Eep. 
p.  18  ;  see  Phillips,  1889,  L.  E.  24  Q.  B.  D.  17,  at  22 ;  Pelton  Brothers,  [l^n] 

2  Q.  B.  422,  at  424).  But  it  is  not  admissible  to  inquire  into  the  motives 
for  passing  the  Act  as  disclosed  by  its  history  in  Parliament  {Men:,  1862, 
31  L.  J.  Bankruptcy,  89 ;  R  v.  Hertford  Coll.,  1878,  L.  E.  3  Q.  B.  D.  693, 
at  707  ;  Holme,  1877,  L.  E.  5  Ch.  D.  901,  at  905.  But  see  >S^.  E.  By.,  1880, 
L.  E.  5  Q.  B.  D.  217,  at  236).  Nor  is  reference  allowed  to  the  reports  of 
Commissioners,  on  which  legislation  has  proceeded  {Salkcld,  1846,  2  C.  B. 
759,  at  747),  or  to  the  explanatory  memoranda  which  are  now  often  prefixed 
to  important  statutes.  In  the  case  of  local  and  personal  Acts,  plans  and 
notices  required  before  the  passing  of  the  Act  may  not  be  referred  to  for 
its  interpretation  except  in  so  far  as  they  have  been  incorporated  in  it 
(iV.  B.  By.  Co.,  1846,  5  Bell's  App.  184). 


g  STATUTE  LAW 

y  -  in  the  construction  of  statutes, 

•  '  -  ':onsiJercd.     Although  the 

from  merely  because  it  is 

re  two  constructions  are  open,  the  Court 

Tne  words  are  to  be  so  construed  ut  res  magis 

'  Co.,  1882,  L  E.  0  Q.  B.  D.  648,  at  660 ; 

_.  .  ...  ;..  L.  108.  i>er  Ld.  Blackburn  at  100  ;  Curtis, 

r>\^.  at  517).     Tlie  Legislature  is  presumed  not  to 
ice,  or  to  allow  a  person  to  profit  by  his  own 
277 ;  f^  p.  Corhett,  1880,  L  B.  14  Ch.  D.  122,  at  129). 
■::>'•  '>e  drawn  from  the  inconveniences  which  will 
-miction,  but  this  presumption  "is  not  to  be 
ed,  and  never  for  the  purpose  of  construing  a  statute  which 
IS  and  indicates  uuniistakeably  the  purpose  of  the  Legisla- 

ture ^    '  :p.  Ca.  404,  per  Ld.  O'Hagan  at  474). 

\  jer,  presumption  is  that  against  retrospection  or 

n  .1   disturb    existing    rights.       To    overcome    this 

p:  express    provision    or     necessary    implication    is    required 

(/  -".13  D.  742;  185-3,  1  Macq.  658:  Kerr,  1852,  14  D.  864; 

l5   ..  .  ... .    i   ;.JG;  Gardner,  1878,  5  E.  638:  1878,  5  E.  H.  L.  105).     And 

a  minor  rn!»'  involved  is  that  a  statute  is  not  to  be  construed  so  as  to  have  a 

•greater  i  ctive  effect  than  its  language   renders  necessary  {Lauri, 

[1892]  o  l/ii.  4U2,  at  420).     An  Act  may  be  retrospective  in  a  modified 

......      .  .v..  T.,,..,  ^ct,  1861,  which,  on  a  consideration  of  the  "language, 

.  .  general  object  and  scope  "  of  the  statute,  was  held  to 
apply  to  trusts  constituted  before  its  date  in  regard  to  their  future  management 
(/.    '  ^  ^    \\\.  774  ;  cf.  Cunningham,  1856,  18  D.  312). 

i  n  does  not  applv  d)  where  the  enactment  is  declaratory 

of  th.  .  .    .  {e.g.  Ait.-Gcn.  v.  Thcolahl,  1890,  L.  E.  24  Q.  B.  D.  557 ; 

d.Stolt.  1807.  24  E.  462,  per  Ld.  Kincaimey  at  467):  (2)  where  the  change 
ii-  to  procedure,  unless  a  reservation  is  made  of  existing 

*-  iiu2,  14  D.  927 ;  Hazccl,  1855,  18  D.  265). 

;  Parliament  are  supposed  to  express  fully  the  intention 
of  the  L  re,  and  the  tendency  is  therefore  to  apply  uniform  rules  of 

c<  ion  without  much  reference  to  the  differences  in  the  subjects  with 

*  '     '      The  distinction  between  a  strict  and  "  am-plc  "  construction  is 

n  - -'/"'ficance  than  formerly.     In  cases  of  doubt,  however,  it 

p-  .  .  Thus  it  is  presumed  that  the  Legi.slature  does  not 

intend  to  alter  the  law  beyond  the  immediate  scope  and  object  of  the  statute 
{II.  v.  //  1872,  L  E.  7  Q.  B.  361).     Acts  conferring  a  pri\-ilege  on 

'"^''"  ^  ••  '  :•'    rations  are  strictlv  construed  (ffogg,  1880,  7  E. 

,  :      i,  12  E.  309 ;  Port-Glasgow  Sailcloth  Co.,  1893, 
-^^  ^'^  *'  ^o  also  are  statutes  which  impose  penalties  or  restrain 

''      "  .tJ«e  subject  (Ilosack,  1839,  2    D.  129).     An  Act  which 

*•'•  ..:     --        t^j  which  it  is  to  apply  is  not  readily  extended, 

^:  .  ;  -•..  -J  prevent  obvious  evasion  (Philpott,  1857,  6  H.  L. 

^;.  '      '  ^^*n  »*♦  not  affected  by  a  statute  unless  expressly  named  in  it 

y  ',  ]  1  H.  L  443 ;  Somcrville,  1893,  20  E.  1050).    There 

[^  iii.=t  any  curtailment  of  the  juri.sdiction  of  the 

*;  ••    -^    -.-iid   the  Court   of   Session   and   the   Court   of 

^  ".  1S77,  LE.  2E.X.  D.  346). 

'ion  is  applied  to  local  and  personal  Acts.      These  are 
J,  "'i'lh' regarded  as  embodying  a  contract  between 

I*  '-"f  the  undertaking,  in  terms  chosen  by  the 

-',9  E.  H.  L.  108  :  Scnttish  Drainage  Co.,  1889, 


STATUTE  LAW  7 

16  If.  H.  L.  IG,  per  Ld.  Herschell  at  17;  Alirincham  Union,  1885  L  I;   1 ', 
Q.  B.  D.  597,  at  602).  .    •     ■    ■ 

Per  missive  and  Imperative  Words. — Words  which  are  permissive  or 
directory  may  be  shown  from  their  context  to  be  really  imperative,  and 
vice  versa.  Or,  in  either  case,  the  enactment  may  mean  that  a  discretion  is 
.  given  as  to  the  exercise  of  the  power  or  performance  of  the  duty.  As  in  other 
cases,  the  question  is  one  of  the  intention  of  the  Legislature,  and  the  onus  is 
on  the  party  who  seeks  to  displace  the  natural  meaning  of  the  words  {MaxiccU 
1831,  5  W.  &  S.  209  ;  Julius,  1880,  5  App.  Ca.  214,  at  222-3).  It  has,  how- 
ever, been  stated  as  a  general  canon  of  construction  that  primd  facie, "  where 
powers  are  conferred  in  a  statute  for  the  public  benefit,  they  must  be  exercised, 
and  the  enactment  is  imperative"  (  Walkinshaiij,l^Q{),  22  D.  627,  per  Ld.  J.-Cl.' 
luglis  at  631).     See  Interpretation  Act,  1889,  s.  32.     See  Maxwell,  518  sqq. 

Interpretation  Clause. — An  interpretation  clause  is  inserted  in  many 
Acts.  Its  object  is  to  define  the  sense  in  which  words,  otherwise  ambi'^uous, 
are  to  be  used,  and  though  it  is  not  understood  to  enact  anything,  it 
frequently  does  so,  by  including  in  the  definition  things  which  otherwise 
would  not  come  under  the  word  explained.  But  where  this  is  so,  the 
interpretation  clause  does  not  prevent  the  word  receiving  its  ordinary  and 
natural  signification,  wherever  that  is  applicable.  "An  interpretation 
clause  is  not  to  be  taken  as  substituting  one  set  of  words  for  another,  or  as 
strictly  defining  what  the  meaning  of  a  term  must  be  under  all  circumstances, 
but  rather  as  declaring  what  may  be  comprehended  within  the  term,  where 
the  circumstances  require  that  it  should"  {R.  v.  Cambridgeshire,  1838, 
7  A.  &  E.  480,  at  491). 

Technical  Terms  in  General  Act. — In  a  general  Act,  terms  are  often 
employed  which  have  difterent  meanings  in  England  and  Scotland,  or  which 
are  unknown  to  the  law  of  one  of  these  countries.  The  rules  applicable  to 
this  case  are  apparently  not  quite  definitely  settled  {e.g.,  see  B.  v.  Slator,  1881, 
L.  Pi.  8  Q.  B.  D.  267,  at  272).  The  sounder  opinion  seems  to  be  that  the 
meaning  should  be  taken  from  the  law  of  the  country  to  which  the  term 
properly  belongs,  and  the  term  should  then  be  applied  in  the  other  country 
in  the  sense  which  is  most  closely  analogous  {Ld.  Adv.  v.  Ld.  Saltoun,  1860,3 
Macq.  659,  at  675 ;  Income  Tax  Commissioners  v.  Pemsel,  [1891]  App.  Ca. 
531 ;  Macfarlane,  1894,  21  E.  H.  L.  28 ;  cf.  Studd,  1883,  10  E.  H.  L.  53). 

In  the  case  of  general  taxing  Acts,  it  has  been  held  that,  if  possible,  on 
any  fair  construction,  the  words  are  to  be  so  read  as  to  have  the  same  effect 
in  both  England  and  Scotland  {Ld.  Adv.  v.  Ld.  Saltoun,  supra;  Macfarlane, 
supra,  per  Ld.  Watson  at  34). 

Interpretation  Act,  1889  (52  &  53  Yict.  c.  63).— This  Act,  repealing  and 
re-enacting  Lord  Brougham's  Act  of  1850,  has  for  its  main  object  the  shorten- 
ing of  the  language  in  future  statutes.  It  defines  a  large  number  of 
words  and  expressions  in  common  use  in  Acts  of  Parliament.  Thus, 
unless  the  contrary  intention  appears,  "  person  "  includes  any  body  of  persons 
corporate  or  incorporate ;  words  importing  the  masculine  gender  include 
females,  and  words  in  the  singular  include  the  plural  and  vice  versd. 

Eepeal. — It  is  usual  now  to  annex  to  a  statute  a  schedule  showing  the 
extent  to  which  previous  legislation  has  been  alTected,  and  the  scheduled 
Acts  are  expressly  repealed  in  the  body  of  the  Act.  Eepeal  may  also  be 
effected  by  an  enactment  which  is  inconsistent  with  an  earlier  statute. 
Repeal  by  implication,  however,  is  not  readily  admitted,  and  where  two 
statutory  provisions  are  apparently  inconsistent,  the  Court  endeavours  to 
read  them  in  such  a  way  as  to  give  etlect  to  both,  cj.  by  construing  the 
second  as  providing  an  alternative  to  the  first,  or  a  special  Act  as  creating 


g  .STATUTE  LAAV 

;o   I  1  -r.il  {Dohbs,  1882,  L.  E.  9  Q.  B.  1).  151,  at  108 ; 

,.»',,  .it  271-2).     If  there  is  a  clear  inconsistency, 

.IS  being  the  hist  word  of  the  Legislature,  overrides  the 

V  of  two  dearly  repugnant  provisions  in  the  same  Act,  the 

■'     '■         /-^Vv,  1842,  5  Beav.  574,  at  582). 

'le,  repealing  an  earlier  one,  was  itself  repealed, 

.y  revived,  without  any  express  enactment  to  that  eflect. 

Tt»e  rule  now  is  lh:it  where  an  Act  passed  after  1850  repeals  a  repealing 

•  to  be  construed  as  reviving  any  enactment  previously 

...  ids  are  added  for  th;it  purpose  (Interpretation  Act,  s.  11 

any  Act  piissed  after  1889  repeals  any  other  enactment, 

then,  unless  the  contrary  intention  appears,  the  repeal  does  not  revive 

not  in  force  or  existing  at  the  time  at  which  the  repeal  takes 

■    "^  (2)).     AVhere  any  new  provisions  are  substituted  for  pro- 

tlie  latter  continue  in  force  till  the  former  come  into 

P.  11  (2)). 

i\  ON  OF  Acts  of  Parliament. — Acts  of  the  old  Scots  Parliament 

-      ■  formally  proclaimed  throughout  the  country  in  the  county- 

ul  baron  Courts  (1425,  c.  67  ;  1457,  c.  89).     But  after  the 

.11  to  be  printed   in  pursuance  of  the  Act  1540,  c.  127,  this 

luilly  fell  into  disuse,  and   by  the  Act   1581,  c.  128,  it  was 

.1   after  proclamation  at   the  market-cross   of   Edinburgh   no 

.'^itiou  should  be  required,  and  that  the  statute  should  come 

a  forty  days  after  such  proclamation. 

iiriii-sh  statutes  are  not  formally  promulgated.     They  are  printed  and 

•    1  among  the  ])orsons  who.se  names  are  entered  in  wdiat  is  known 

i'romulgation  List,"  the  object  being  not  so  much  publication  as 

-tribution  of  copies  to  public  oiiicials  for  judicial  and  administrative 

pi:  '  Hardcastle,  p.  39). 

u  Commencement. — Formerly  the  Pioyal  Assent,  by  which  a  Bill 

'-   "  •  ''■'■'   an  Act  of   Parliament,  was  given   at  the  end  of   the 

;         .  in  to  all  Bills  wliich,  during  that  session,  had  passed 

throucli  the  two  Houses.    At  that  period,  the  date  specified  in  the  Chancery 

'  of  Acts  was  the  beginning  of  the  session,  and  hence  every  Act 

'     ':  ■'  •  ^•■en  in  force  from  the  beginning  of  the  session  in  which 

it  •       .  w       rtson,  1758,  M.  11280;  Fanter,\77 2,  6  Brown's  Cases  in 

l*arl.  486).    To  prevent  the  injustice  which  often  resulted,  the  Act  33  Geo.  III. 

'■-1^  I  that  thenceforward  the  date  of  tlie  commencement  of  every 

*•  ■  "  the  date  on  whi("h  tlie  Poyal  Assent  was  given  to  it,  unless 

'.  .ij  was  specilied  by  the  Act  itself,  and  that  that  date  should 

'•d  on  the  Act  by  the  Clerk  of  the  Parliaments,  and  should  foitn 

he  Act.     Whurc,  however,  an  Act  expires  before  the  passing  of  an 

'in  tiie  same  session  for  its  continuation,  the  latter  takes 

date  of  the  exjtiration  of  the  former,  except  as  otherwise 

V  and  except  as  to  penalties  (48  Geo.  in.  c.  106). 

OF  Acts  ok  Pauliament.— The  record  of  a  statute  is  a  copy 
i  "  iiii  by  the  Queen's  printer. 

^  I'uldic  and  general,  is   assumed   to   be   known,  and  is 

■  '^   under  j\idicial    notice  by  the   ]»roduction  of  a   copy 

inted  by  the  Queen's  printer  or  under  the  authority  of  Her 

y  Ollice.     Formerly,  private  Acts  had  to  be  pleaded  and 

j.,  ■  ^'"^  1 3  it  14  Vict.  c.  21,  s.  7,  repealed  and  re-enacted  by 

"^ '       ,     ,    .     ;    •      1^^9  i'^'^  &  53  Vict.  c.  63,  s.  9),  every  Act  passed  sub- 

«it  U>  1000  IS  deemed  a  public  Act,  and  is  judicially  noticed  as  such 


it. 
1- 

y 


STATUTE  LAW  KKVISloX  9 

unless  the  contrary  is  expressly  provided.  The  elFect  is  to  make  almost  all 
modern  Acts  pul)lic  Acts  so  far  as  judicial  notice  is  concerned  (see  Aiton 
1875,  2  E.  470 ;  1 870,  3  IL  11.  L.  4,  per  Ld.  Cairns  at  0). 

Since  1889,  any  Act  may  l)e  cited  either  (I)  by  the  short  title,  if  any, 
or  (2)  by  reference  to  the  regnal  year  in  which  the  Act  was  passed,  and  wiieie 
there  are  more  statutes  or  sessions  than  one  in  the  same  year,  by  reference 
to  the  statute  or  session.  Particular  enactments  may  be  cited  by  reference 
to  the  sections  or  subsections  in  which  they  are  rontaincd  (Interpretation 
Act,  s.  35  (1)).  The  latter  is  the  method  generally  employed  in  statutes 
relating  to  Scotland. 

V>y  the  Short  Titles  Acts,  1892  and  189G  (55  Vict.  c.  10,  and  59  &  GO  Vict, 
c.  14),  short  titles  are  provided  for  large  numljers  of  Acts  and  groups  of  Acts. 

See  Act  of  1'akliament. 

[Maxwell,  Hardcastle,  and  Dwarris  on  Statutes.] 

Statute  Law  Revision.— The  Statute  Law  Revision  Act, 
1861  (24  &  25  Vict.  c.  101),  was  passed  on  the  preamble  that,  "with  a 
view  to  the  revision  of  the  statute  law,  and  particularly  to  the  preparation 
of  an  edition  of  the  statutes  comprising  only  enactments  which  are  in 
force,  it  is  expedient  that  divers  Acts  and  parts  of  Acts  which  have  ceased 
to  be  in  force  otherwise  than  by  express  and  specific  repeal,  should  be 
expressly  and  specifically  repealed." 

This  Act  was  followed  by  others  with  similar  preambles,  and  on  9th  July 
18G8  Ld.  Chan.  Cairns  nominated  a  committee  to  prepare  and  publish  an 
edition  of  the  statutes  containing  only  such  Acts  as  were  in  force. 

That  committee,  now  known  as  the  Statute  Law  Committee,  accordingly 
prepared  and  published  a  Revised  Edition  of  the  Statutes  brought  down  to 
the  year  1878.  They  also  prepared  a  series  of  Statute  Law  Revision  Bills 
having  the  same  object  as  the  Act  of  1861.  This  edition  was  completed  in 
1885. 

In  1886  Mr.  George  Howell,  M.P.,  called  the  attention  of  the  Chancellor 
of  the  Exchequer  to  the  expediency  of  providing  a  cheap  edition  of  the 
statutes  for  the  use  of  the  public,  and  in  particular  for  sale  to  public 
libraries  accessible  to  working  men.  The  Statute  Law  Committee,  to  whom 
the  matter  was  referred,  recommended  the  publication  of  a  new  edition  in  a 
cheap  form,  and  a  further  revision  of  the  statutes.  The  matter  was  pro- 
ceeded with,  and  Statute  Law  Revision  Acts  have  been  passed  almost  yearly 
from  1887.  The  new  edition  has  also  been  proceeded  with,  the  first  volume 
being  published  in  1888,  and  at  the  present  time  (December  1898)  volume 
13  has  been  published,  including  all  statutes  to  the  end  of  the  session  of 
1875.  It  is  understood  that  this  edition  will  be  carried  on  so  as  to 
include  session  1886. 

Various  provisions  saving  the  effect  of  the  enactments  thus  repealed 
have  been  inserted  in  the  various  Acts,  and  the  final  form  of  the  saving 
clause  is  given  in  the  Act  of  1898  (61  &  62  Vict.  c.  22).  As  to  the  effect 
of  repeals  by  these  Acts,  ■  see  ITorrison  v.  Stichhs,  1897  24  R.  (J.  C.)  61 : 
HawJce  v.  Bimn,  [1897]  1  Q.  B.  579. 

In  reading  these  Acts  it  must  be  noted  that  the  repeal  does  not 
extend  to  parts  of  titles,  preambles,  or  recitals.  These  are  not  rei»ealed ; 
the  provision  with  regard  to  them  is  merely  that  they  may  be  omitted  from 
any  revised  edition  of  the  statutes  published  bv  authority.  It  is  also 
further  to  be  noted  that  by  sec.  4  of  the  Act  of  1894  (57  &  58  Vict.  c.  56), 
what  are  called  the  enacting  words,  which  appear  as  the  introduction  to 
every  Act,  may   be   omitted   in   any   such  revised  edition  without  being 


,0  STATUTE  LAAV  KEVISIOX 

.te  Uxw  Ke vision  Act.     The  usual  form  of 

.  l.y  the  Queen's  most  excellent  Majesty,  by 

.1  "uf  the  Lords  spiritual  and  temporal,  and 

^nt  I'arliameut  assembled,  and  by  the  authority  of  the 

1890  the  Statute  Law  Eevision  Bills  were  prepared 

of  the  Statute  Law  Committee  by  English  counsel. 

r,  there  was  conjoined  with  them  a  Scottish  counsel, 

_.       .  '   lilies  to  the  llevision  Bills  so  far  as  they  aftected 

■  -  ..iland.     This  arrangement  terminated  in  189G,  and 

lias  been  no  special  Scottish  assistance  in  preparing 

Lt.  to  this  time  the  Statute  L;iw  Committee   have  dealt   only  with 
•■     •    -    \  •    vriortothe  Union,  and  Imperial  Acts  thereafter.     They  had 

^^^  ^  ...11  Irish  Acts  prior  to  the  union  with  that  country. 

In  1«97.  liowever,  on  a  strong  representation  being  made  to  them  by 

■ :        ,y,  the  Statute  Law  Committee  was  increased  by  the  addition 

f  three  Scottish  members,  and  the  revision  of  the  Scots 

.\^  , Union  was  undertaken. 

,s  now  in  preparation  a  Statute  Law  Eevision  Bill  to  effect  for 

-    .is  Acts  what  has  already  been  done  for  the  English  Acts,  with  the 

_r.  when  that  Bill  becomes  an  Act,  a  revised  edition  of  the 

ij.-v  ^         Acts. 

In  ,g  what  enactments  have  ceased  to  be  in  force,  the  Statute 

Law  Committee  have  prepared  a  note  for  the  preparation  of  the  schedules 
att  •  •  tlieir  Bills.     The  important  part  of  that  note  is  as  follows : — 

L   ;       •'  ■  purposes  of  the  schedule  six  different  classes  of  enactments 

arc  vrr. I  a.s  liaving  ceased  to  be  in  force,  although  not  expressly  and 

ally  repealed ;  namely,  such  enactments  as  are — 

1.  Expired. — That  is,  enactments  which,  having  been  originally  limited 
to  endure  only  for  a  specified  period,  by  a  distinct  provision,  have 
not  l»een  either  perpetuated  or  kept  in  force  by  continuance,  or 
whicli  have  merely  had  for  their  object  the  continuance  of  previous 
temixjrary  enactments  for  periods  now  gone  by  ettiuxion  of  time: 

it. — That  is,  enactments  spent  or  exhausted  in  operation  by  the 
atcomi>lishment  of  the  purposes  for  which  they  were  passed,  either 
at  the  moment  of  their  first  taking  effect,  or  on  the  happening  of 
'''iTH''  event,  or  on  the  doing  of  some  act  authorised  or  required  : 
3.  d  in  General   Terms. — That  is,  repealed  by  the  operation  of 

an  enactment  expressed  only  in  general  terms,  as  distinguished  from 
'mont  s]iecifying  the  Acts  on  which  it  is  to  operate: 
.  Il'jyrakd. — Where  an  earlier  enactment  is  inconsistent  with, 
r  iH  rendered  nugatory  by,  a  later  one: 
5.  ''. — Where  a  later  enactment  effects  the  same  purposes  as 

lUit-r  one,  liy  repetition  f)f  its  terms  or  otherwise: 
®  • — Where  the  state  of  things  contemplated  by  the  enactment  has 

■  (I  to  exi.st,  or  the  enactment  is  of  such  a  nature  as  to  be  no 
longer  caiKible  of  being  put  in  force,  regard  being  had  to  the 
alteration  of  iKjlitical  or  social  circumstance. 

y  ■«.  as  laid  before  the  Houses  of  Parhament  with  the  Bill, 

**' '  '     ''is  Ktruek  out  at  a  later  stage.     That  column  gives 

^'  ;    -■-  <'U  which  the  enactment  to  be  repealed  is  held  to 

^'  ■''  in  force.     When  considering  the  effect  of  these  Acts,  this 


STATUTOllY  liULES  AND  ORDERS  H 

column  is  of  great  interest,  but  unfortunately  is  only  f,.  1...  U>\iud  in  i\u> 
Bill  and  not  in  the  Act. 

In  addition  to  the  preparation  of  Revision  Bills  and  of  the  Revised 
Editions  of  the  Statutes,  the  Statute  Law  Committee  have  also  prei)ar(/d 
a  chronological  table  of  these  Statutes  and  a  subject  index  thereto.  1'be 
last  edition  of  this  work  was  published  in  189G,  and  it  is  understood  that 
new  editions  will  be  published  at  intervals  of  four  or  five  years.  This  work 
does  not  include  either  Scots  Acts  or  Irish  Acts  passed  by  the  respective 
Parliaments  of  these  countries. 

The  Statute  Law  Committee  have  also  undertaken  the  pultlication  of 
Statutory  Rules  and  Orders.     See  Statutory  Rules  and  OitDEit.s. 

Statutory  Rules  and  Orders  are  part  of  the  written  law 
of  tlie  land.  They  are  Orders,  liules,  or  Regulations  made  by  tiie  Queen 
and  Council,  or  a  Government  Department,  under  authority  of  Parliament 
conferred  upon  them  in  any  particular  Act  for  the  purpose  of  carrying  the 
provisions  of  that  Act  into  effect  l)y  establishing  procedure,  or  forms,  or 
tables  of  fees,  or  otherwise. 

These  Orders  are,  when  duly  made,  tantamount  to  Acts  of  Parliament ; 
and  in  many  cases  the  Act  giving  the  authority  to  make  the  Order  specific- 
ally declares  that  the  Order,  when  made,  sliall  have  effect  as  if  enacted  in 
the  Act. 

Until  1890  these  Orders  were  not  published  in  any  systematic  manner; 
and  although  they  had  become  numerous  and  important,  search  for  them 
had  to  be  made  through  many  and  different  otticial  and  non-official 
publications. 

In  that  year  the  Lord  Chancellor  and  the  Treasury  directed  publication 
annually  thenceforward  of  all  Orders  of  a  public  and  general  character 
made  in  each  year,  in  a  volume  uniform  with  the  official  annual  volumes 
of  the  statutes.  Accordingly,  volumes  containing  the  Orders  made  in  1800, 
1891,  1892,  and  1893  were  published  under  the  direction  of  the  Statute 
Law  Committee. 

Meanwhile  that  Committee  also  undertook  the  collection  and  publication 
of  all  similar  Orders  issued  prior  to  1890  and  still  in  force.  This  collection 
was  completed  and  published  in  eight  volumes. 

The  Rules  Publication  Act,  1893,  effected  a  change  in  the  authority 
responsible  for  the  publication  of  these  Orders,  which  were  there  termed 
Statutory  Rules.  The  principal  clauses  of  the  Act  are  sees.  3  and  4,  which 
are  as  follows  : — 

"  3.  [Printing,  Numbering,  and  Sale  of  Statutory  Rules.]  (1)  All  Statutory 
Rules  made  after  the  thirty-first  day  of  December  next  after  the  passing  of 
this  Act  shall  forthwith  after  they  are  made  be  sent  to  the  Queen's  Printer 
of  Acts  of  Parliament,  and  shall,  in  accordance  with  regulations  made  by 
the  Treasury,  witli  the  concurrence  of  the  Lord  Chancellor  ami  tlie  Speaker 
of  the  House  of  Commons,  be  numbered,  and  (save  as  provided  by  the 
regulations)  printed,  and  sold  by  him. 

"  (2)  Any  Statutory  Rules  may,  without  prejudice  to  any  other  mode  of 
citation,  be  cited  by  the  number  so  given  as  above  mentioned,  and  the 
calendar  year. 

"  (3)  Where  any  Statutory  Rules  are  required  by  any  Act  to  be  published 
or  notified  in  the  London,  Edinburgh,  or  Dul)lin  Gazette,  a  notice  in  the 
Gazette  of  the  rules  having  been  made,  and  of  the  place  where  copies  ot 
them  can  be  purchased,  shall  be  sufiicient  compliance  witli  the  said 
requirement. 


JO  STEELP.OW 

Mj4^  f;       •    •     -  uiuler  ihis  section  may  provide  for  the  different  treat- 

,....'  ,  ,,,.ies  which  are  of  the  nature  of  public  Acts,  and  of  those 

nature  of  local  and  personal  or  private  Acts ;  and  may 

nethe  classes  of  cases  in  which  the  exercise  of  a  statutory  power 

■:^r  autliority  constitutes,  or  does  not  constitute,  the  making 

iaife  within  the  meaning  of  this  section,  and  may  provide 

:..,  lion  from  tliis  section  of  any  such  classes. 

»  iu  the  making  of  such  regulations,  each  Government  department 

led  shall  be  co"nsulted,  and  due  regard  had  to  the  views  of  that 

■it. 

i.  L-  ttinttions.]     In  this  Act — 

"  •  Suitiitory  Rules '  means  rules,  regulations,  or  bye-laws  made  under 

.  .:■   Act  of  Parliament   which  (a)   relate   to  any  Court   in   the  United 

'  in,  or  to  the  ]>rocedure,  practice,  costs,  or  fees  therein,  or  to  any 

:    matters    applying    generally  throughout   England,   Scotland,   or 

• ;  or  (b)  are  made  by  Her  Majesty  in  Council,  the  Judicial  Com- 

uiitlee,  the  Treasury,  the  Lord  Chancellor  of  Great  Britain,  or  the  Lord 

:uint  or  the  Lord  Chancellor  of  Ireland,  or  a  Secretary  of  State,  the 

'•V.  the  Board  of  Trade,  the  Local  Government  Board  for  England 

i,  the  Chief   Secretary  for  Ireland,   or  any  other  Government 

«lepartnient. 

"'Rule-making  authority'  includes  every  authority  authorised  to  make 
any  Statutory  Rules." 

'  Regulations  by  virtue  of  sec.  3  (1)  were  made  by  the  Treasury  with 
the  requisite  concurrence  (No.  734  of  1894),  and  will  be  found  at  page  415 
of  the  volume  of  Statutory  Rules  and  Orders  for  that  year. 

The  volumes  for  1894  and  each  succeeding  year  are  edited  in  behalf  of 
♦V,..  ( itioen's  Rrinter  of  Acts  of  Barlianient  with  the  advice  of  a  committee 
led  by  the  Treasury,  the  Lord  Chancellor,  and  the  Speaker  of  the 
House  of  Commons. 

The  Statutory  Rules  and  Orders,  therefore,  are  now  to  be  found  in  the 
,.,.n...  iJQn  entitled  "Statutory  Rules  and  Orders  licvised,"  containing  all 
.a  force  issued  prior  to  1890,  and  in  the  annual  v^olumes  containing 
tho<e  issued  in  each  year  from  1890  onwards. 

An  inde.x  of  such  Rules  and  Orders  in  force  is  also  published  periodically. 

Steel  bow. — Steelbow  is  probably  the  oldest  form  of  agricultural 

aown  in  this  country.    Mr.  Cosmo  Innes  (Lrgal  Antiquities,^.  245,  note) 

uj  oj  the  oi>inion  tiiat  it  can  be  traced  to  Anglo-Saxon  times,  and  refers 

■    '-'  of  StvM,  mentioned  by  the  writer  of  the  Rental  of  Kelso  of 

;g  e<iuivalent  to   steelbow.      The   term   is   not   one   that   is 

"  'itland,  similar  expressions  being  found  in  the  FiscrnvicJiverlag 

u(  Germany  and   in   the  hcste  dc  fcr—bestio  fcrri—m   Old   French   and 

Latin.  -^ 

<'.-r.l»,r.w  .',,.., 1b  usually  consisted  of  corn,  cattle,  straw,  and  implements 

"'  livercd  by  the  landlord  to  the  tenant  at  the  entry  of  the 

to  the  farm,  by  means  of  which  the  tenant  was  enabled  to  stock  and 

•   It.     1  h(;  obligation  imposed  on  the  tenant  was  to  redeliver  to  the 

y<\  at  the  end  (if  the  lease  the  same  quantity  or  number  of  goods  of 

••   kmd  and  quality.     An   inventory   of  "the  steelbow  goods  was 

up  at  entry,  and  tlie  rent  for  land  and  steelbow  separately 

Whether  the  contract  of  steelbow  is  in  its  nature  one  of  locatio  or  of 
miituum  18  a  matter  about  whir.],   there  is   diversity  of   opinion.     Stair 


ill. 


STIPEND  13 

expressly  states  (i.  11.  4)  that  steelbow  goods  fall  uuder  the  contract 
of  mutiium,  and  (ii.  3.  81)qiTotes  the  eases  oi  Lady  Westmorland  (lGo8,]\lor. 
14179)  and  Dimdas  (1642,  Mor.  14780)  as  determining  that  they  do  not  pass 
by  a  disposition  of  the  lands  as  pertinents  thereof,  but  remain,  as  moveables, 
subject  to  arrestment,  and  that  they  fall  under  the  tenant's  sinfde  escheat' 
and  cannot  be  taken  from  him  until  the  tack  runs  out.  Mr.  IMore  (Stair,  i.' 
Note  ccii.)  further  states  that  steelbow  goods  were  held  so  much  the 
property  of  the  tenant  that  they  could  be  poinded  for  his  debts  {Timihull, 
1G24,  Mor.  11615),  and  that  the  claim  on  the  part  of  the  landlord  foi' 
steelbow  goods,  arising  at  the  end  of  the  lease,  was  of  a  personal  nature 
and  passed  to  his  executry  {Dundas,  supra).  Stair's  view  is  supported  by 
Bankton  (i.  355),  and  both  Erskine  (iii.  1,  18)  and  Bell  {Prin.  1264) 
describe  it  as  a  species  of  mutuum. 

Mr.  Hunter,  however  {Landlord  and  Tenant,  i.  328),  inclines  to  the 
opinion  that  the  contract  is  really  one  of  location,  involving  the  same 
power  of  administration  in  applying  the  steelbow  goods  to  the  cultivation 
of  the  land  as  is  involved  in  the  management  of  the  land  itself,  considered 
as  the  subject  of  temporary  occupation.  As  authority  for  this  view  he 
cites  the  Act  of  Sederunt,  28th  Feb.  1666,  which  directs  the  Commissaries,  in 
confirming  the  tenant's  testament,  to  deduct  the  steelbow  goods  along  witli 
other  privileged  debts  before  the  quot  is  struck ;  but,  as  Mr.  Eankine  points 
out  (Eankine  on  Leases,  p.  270),  no  argument  can  be  deduced  from  this, 
as  the  tenant's  interest  in  the  corpus  of  the  goods,  though  ownership, 
is,  on  account  of  the  eventual  burden  or  replacement,  not  an  effective 
asset. 

In  further  support  of  his  views,  Mr.  Hunter  cites  the  case  of  Butler 
(1764,  Mor.  6208),  in  which  a  tenant  having  died  bankrupt,  and  a  competition 
for  the  steelbow  goods  having  arisen  between  the  landlord  and  the  general 
creditors,  the  former  was  preferred.  Mr.  Bell,  however,  points  out  {Prin. 
1264)  that  this  decision  was  based  chiefly  on  the  principle  of  hypothec. 

Steelbow  is  now  practically  unknown,  though  Mr.  Hunter  mentions 
two  instances  from  the  West  Highlands  of  as  recent  a  date  as  1848  and 
1850.  The  usual  agreements,  however,  as  to  straw,  dung,  etc.,  in  the  last 
year  of  a  lease,  rest  on  the  principle  of  steelbow. 

[Stair,  Bk.  i.  tit.  11,  s.  4;  Bk.  ii.  tit.  3,  s.  81  ;  Bk.  iii.  tit.  8,  s.  58 ;  More's 
Notes,  ccii.;  Ersk.  Bk.  ii.  tit.  6,  s.  12;Bk.  iii.  tit.  1,  s.  18;  Bankt.  i.  355; 
Bell,  Prin.  s.  1264;  Hunter,  Landlord  and  Tenant,  i.  62,  325,  ii.  368: 
Eankine  on  Leases,  256 ;  Cosmo  Innes,  Legal  Antiquities,  245,  note.] 

Stillicide. — See  EAVESDitor. 

Stipend. — The  stipends  payable  to  the  parochial  clergy  of  the 
Church  of  Scotland  may  be  classed  as  follows,  viz. :  I.  Stipends  from 
teinds  (see  Teinds),  with  supplements  in  some  cases  from  Exchequer  (see 
Stipend  (Small))  and  other  sources,  including  special  Crown  grants  apart 
from  those  given  from  Exchequer,  II.  Stipends  in  ordinary  quoad  sacra 
parishes  where  special  endowments  have  been  provided  to  the  amount  of 
£100  with  a  manse,  or  £120  without  a  manse.  These  are  the  miuinnnu 
stipends,  but  in  some  cases  slightly  larger  stipends  have  been  provided. 
The  stipends,  and  also  sums  for  the  maintenance  of  fabrics,  must  be  secured 
to  the  satisfaction  of  the  Court  of  Teinds,  in  terms  of  sec.  8  of  the  New 
Parishes  (Scotland)  Act,  1844.  And  III.  Stipends  from  Exchequer  to  the 
amount  of  £120  each,  with  manses  and  glebes  in  the  cases  of  parliamentary 
churches.     These,  with  districts  attached,  have  now  been  all  erected  into 


,^  STirEXD  (SMAT.L) 

.  in  ^iliu.-  -I  sec.  U  of  the  above  Act.     There  are  in 
-,.  iari;-^!ie«.  with  forty-three  churches,  there  being  two 

from   teinds,  where  in  money,  are  payable  one  half  at 
the  other  half  at  Martinmas:  but  if  in  victual,  as  to  a 
■    ..re.  as  rcuuired  by  the  Teiiuls  Act,   1808,— except  in 
Is'ai-e  valued  in  monev  and  surrendered, — they  fall  to 
the  highest  fiars  prices  (see  Fiaus  Pi.-ices)  of  the  county  betwixt 
;>.  after  the  separation  of  the  crop  from  the  ground,  or 
.V.  tlie  tiars  i)rices  of  the  county  shall  be  struck  (see  Ann). 
■  •  surplus  teinds,  this  class  of  stipend  may  be  augmented 
expirv  of  twenty  years  from  the  date  of  last  augmentation  (see 
STVTIOS).     The  stipends  in  ordinary  quoad  sacra  cases  are  payable 
'v  at  Whitsundav  and  Martinnuis  by  equal  portions ;  while  those 
>  n  Kxcliequer  are  due  one  half  at  Whitsunday  (15th  May)  and 
;  at  Michaelmas  (29th  September). 
Tl>e  minister  is  provided,  at  the  expense  of  the  heritors,  with  a  decree 
■  .11  and  localitv,  to  enable  him  to  recover  his  stipend  payable 
but  the   right  to   raise   an  ordinary  action   for   stipend   is 
•rved  1)V  the*  Act  1695,  c.  27,  and  this  right  has  been  recog- 
nised by  the  Court  *of  Session.     See  cases  of  Cameron,  1869,  7  M.  565, 
and  Cochratu,  1873,  45  Jur.  314. 

Stipend   (Small).— Tliis  is  a   special  class  of  cases  for  which 

were  made  from  Exchequer  under  the  Acts  50  Geo.  ill.  c.  84,  and 

b  Geo.  IV.  c.  72.     The  amount  provided  under  the  first  Act,  passed  in  1810, 

<:i 0,000;  and  under  the  sec(md  Act,  passed  in  1824,  was  £2000.     The 

-e  was  to  supplement  stipends  so  as  to  increase  them  to  £150;  and 

where  there  was  neither  manse  nor  glebe,  the  second  Act  allowed  them  to 

l>e  augmented  to  £200.     The  whole  of  these  funds  were  early  applied  at 

"'  •   of  the  Court  of   Teinds,  on   reports  by  the  Teind  Clerk.      In 

.:.;;g  the  deficiency  the  Court,  on    18th  December    1811,  allowed 

'.  8«l.  to  be  deducted  in  all  cases  from  the  teinds  for  communion 

lis.     Ill  later  years,  where  teinds  were  discovered  in  certain  of  the 

lit  to*  meet  or  in  excess  of  the  amount  paitl  by  Exchequer, 

...  . i,  witljdrawn  by  the  Court  and  applied  to  other  cases.     The 

after  the  lapse  of  forty-six  years  in  wdiich  the  Court  has  had 

»n  to  intervene  was  that  of  Newton  on  Ayr,  where  the  minister  was 

•    ''-d  to  au  augmentation  from  local  sources  by  the  Court  of 

1897,  24  11.  GOO) ;  and,  on  the  application  of  the  Procurator 

the  Teind  Court  recalle<l  the  grant  of  £90,  made  on  17th 

.lune  1S12,  and  re-allocated  it  to  the  ministers  of  five  parishes  with  stipends 

unrlcT  £inO  (I'rtr.  Sir  John  Cheyne,  Sth  July  1898).     At  present  the  full 

amount  of  the  Exchequer  grants  is  exhausted. 

Stipciuliary   lYI  agist  rate— A   stipendiary   magistrate   is   a 
II  'iutcd  to  exercise   the  summary  jurisdiction    of   a   sheriff", 

"f  the  peace,  or  justices  of  the  peace,  but  having  a 

--.'-e  in  contradistinction  to  the  unpaid  magistracy. 

1  Mcrs  of  any  burgh,  l)y  the  455th  section  of  the  Burgh  Police 

are  empowered   to  resolve  that  a  stipendiary  magistrate 

•■  ■!  to  cfTu-iate  in  the  Police  Courts  or  Court  of  the  burgh, 

•'  1  to   fix  tlie  salary  which  may  be   paid   to   him.     The 

'  y  from  time  to  time  increase  his  salary.     The  Secretary 


STirEXDlAKY  .MACISTIIATK  15 

for  Scotland  makes  the  appointment,  i)rovitled  the  salary  iixud  is  in  his 
view  satisfactory.  The  person  to  be  appointed  must  possess  the  oualilica- 
tions  rc(iuired  for  a  slioriCl-suljstitute  in  Scotland,  which,  according  to  the 
provisions  of  40  &  41  Vict.  c.  50,  s.  4,  are  that  he  must  he  an  advocate 
or  law  agent  of  not  less  than  five  years'  standini,^  in  liis  profession. 

The  tenure  of  office  of  the  stipendiary  magistrate  is  the  same  as  that 
possessed  l)y  a  sheriff-substitute.  He  is  only  removable  from  his  olHce  for 
incompetency  or  misljehaviour,  by  the  like  process  and  by  tlie  same 
authority  as  is  provided  by  law  for  the  removal  of  a  sherilf-substitute.  A 
salaried  sheriff-substitute  is  only  removable  from  office  by  one  of  Ilrr 
Majesty's  Principal  Secretaries  of  State  for  inability  or  misbeliaviour,  upon 
a  report  by  tlic  Lord  President  of  tlie  Court  of  Session  and  tlie  Lord  Justice- 
Clerk  for  the  time  being  (40  &  41  Vict.  c.  50,  s.  5). 

Stipendiary  magistrates,  whether  appointed  before  or  after  the  passing' 
of  the  Act,  are  entitled,  out  of  the  burgh  general  assessment,  to  retiring 
allowances  for  like  reasons,  on  the  like  conditions  and  of  the  like  amounts', 
having  regard  to  their  salaries  and  periods  of  service,  as  are  provided  by 
law  in  the  case  of  sherilf-substitutes. 

By  1&2  Vict.  c.  119,  s.  6,  sheriff-substitutes  are  granted  an  annuity, 
payable  in  like  manner  as  salaries,  if  from  old  age  or  any  permanent 
intirmity  they  are  disabled  from  the  due  exercise  of  their'  office ;  such 
annuity  not  exceeding  one-third  of  the  salary  payable,  in  case  the  period 
of  service  shall  have  been  not  less  than  ten  years,  and  not  exceeding  two- 
thirds  of  such  salary  in  case  the  period  of  service  shall  have  been  not  less 
than  fifteen  years,  and  shall  not  exceed  three-fourths  of  such  salary  in 
case  the  period  of  service  shall  have  been  not  less  than  twenty  years  or 
upwards.  No  annuity  is  granted  unless  the  sheritf-substitute  has  duly 
fulfilled  the  duties  of  ins  office  during  one  of  the  periods  before  mentioned, 
and  is  from  old  age  or  permanent  infirmity  disabled  from  the  due  exercise 
of  his  office,  which  facts  must  be  ascertained  by  the  Lord  President,  tlie 
Lord  Justice-Clerk,  and  the  Lord  Advocate  for  the  time  being,  as  having 
been  established  to  their  satisfaction  by  proper  evidence. 

Stipendiary  magistrates  possess  within  the  burgh  the  same  jurisdiction, 
powers,  and  authorities  as  the  other  magistrates  of  the  burgh  acting  in  the 
Police  Court,  or  any  of  them.  By  the  Stipendiary  Magistrates  Jurisdiction 
(Scotland)  Act,  1897,  it  is  provided,  sec.  3,  "  that  every  stipendiary  magis- 
trate in  Scotland  shall,  within  the  limits  of  the  city,  burgh,  place,  or  district 
for  which  he  has  been  or  shall  be  appointed,  have  and  possess,  in  addition 
to  the  jurisdiction  conferred  upon  him  by  any  Act  now  in  force,  the 
summary  jurisdiction  at  present  exercised  by,  or  which  may  hereal'ter  be 
conferred  upon,  any  sheriff  or  any  justice  of  the  peace  or  two  justices  of 
the  peace  in  Scotland,  together  with  all  the  powers  auxiliary  to  or  connected 
with  such  summary  jurisdiction." 

By  sec.  2  it  is  provided  "that  the  expression  'summary  jurisdiction' 
means  jurisdiction  in  the  proceedings  so  far  as  the  same  are  of  a  criminal 
nature  enumerated  and  described  in  the  third  section  of  the  Summary 
Procedure  Act,  1864,  and  in  all  proceedings  of  a  like  nature  which  by  any 
Act  of  Parliament  are  directed  or  authorised  to  be  taken  summarily  or 
under  the  provisions  of  the  aforesaid  Summary  Jurisdiction  (Scotland) 
Acts." 

By  clause  4  it  is  provided  that  "  the  Clerk  of  Court,  procurator- fiscal, 
and  other  officers  of  or  acting  in  any  Court  in  which  a  stipendiary  magis- 
trate may  sit  as  judge,  and  any  constable,  shall  possess  the  same  powers, 
Jind  perform  the  same  duties,  in  reference  to  the  jurisdiction  conferred  by 


16  STirULATIO 

this  Act  as  are  respectively  possessed  or  performed  by  tliem  with  reference 
to  the  ordinary  jurisdiction  of  such  Court,  or  as  by  law  and  practice  are 
respectivflv  posse::;sed  and  performed  by  officers  of  the  Sheriff  Court,  or 
other  Court  of  summary  jurisdiction  in  Scotland,  and  all  penalties  imposed 
by  a  stipendiary  magistrate  under  the  jurisdiction  conferred  upon  him  by 
this  Act  may  be  recovered  and  applied  in  the  same  manner  as  such 
l>enalties  are  by  law  presently  applied." 

By  clause  5  it  is  provided  that  "  any  magistrate  presiding  in  a  Police 
Court  may  remit  for  trial  to  a  stipendiary  magistrate  possessing  jurisdiction 
any  person  brought  before  him  charged  with  a  crime  or  offence  ;  but  nothing 
herein  contained  shall  aftect  the  right  and  duty  of  the  stipendiary  magis- 
trate or  magistrate  sitting  in  the  Police  Court  to  remit  for  trial  to  a  higher 
Court  any  person  charged  with  a  crime  or  offence  of  a  serious  nature." 

By  clause  6  it  is  provided  that  "  nothing  contained  in  this  Act  shall 
limit  or  aflect  any  right  of  appeal  or  review,  and  where  proceedings  are 
taken  before  a  stipendiary  magistrate  in  lieu  of  justices  of  the  peace,  the 
right  of  appeal,  if  any,  to  quarter  sessions  is  hereby  reserved." 

Upon  the  death,  removal,  or  superannuation  of  a  stipendiary  magistrate, 
the  Commissioners  may  resolve  that  the  office  shall  be  discontinued,  or 
resolve  then  or  at  any  future  time  that  the  office  shall  be  continued  or 
renewed,  in  which  case  the  same  provisions  again  apply. 

The  power  to  appoint  a  stipendiary  magistrate  has  not  been  taken 
advantage  of  in  Scotland.  The  only  burgh  where  a  stipendiary  magistrate 
has  been  appointed  is  Glasgow,  and  there  since  a  vacancy  arose  through 
the  death  of  the  holder  of  the  office,  a  new  appointment  has  not  been 
made. 

Stipulatio  in  Poman  law,  was  a  form  of  contract  by  question  and 
answer,  giving  rise  to  an  obligation  vei^his  (see  Obligation  in  Eoman 
Law).  The  form  of  words  might  be  Sjwndes?  Spondeo ;  Promittis? 
Promitto ;  Dabis  ?■  Dabo ;  Facics  ?  Faciam,  or  otherwise  according  to  the 
subject  of  the  contract.  The  words  Spoiides  ?  Spondco,  were  the  most  ancient, 
pointing  back  to  the  time  when  the  contract  had  a  religious  sanction, 
and  were  so  peculiarly  Eoman  that  a  valid  obligation  could  not  be  made 
e.xcept  by  their  use  (Gains,  iii.  93, 179).  The  person  who  asked  the  question 
was  stipulator ;  the  person  who  answered,  was  2Jro7nissor.,  Two  or  more 
persons  might  be  concerned  on  either  side.  Where  there  are  several  co- 
debtors,  ;y/ii?TS  7-ci^j?-omi7^<;?u?i,  and  the  s^iftoor  puts  the  question  to  each 
and  receives  from  each  an  identical  reply,  the  debtors  are  correi,  and  ar& 
bound  siti{/uli  in  solidum  to  the  creditor.  Where  there  were  two  rei 
promittcndi,  one  might  bind  himself  unconditionally,  and  the  other  condi- 
tionally or  only  after  a  certain  day  (Inst.  iii.  16.  2).  If  the  debtor  in  a 
stipulatio  associated  with  himself  another  person,  who,  in  the  interest  of 
Mich  debtor,  gave  the  same  promise,  such  person  was  called  an  adpromissor. 
'J'he  chief  instance  of  adpromissio  was  in  fid  rjussio,ov  cautionary  obligations 
(-ee  Fii>i-;u-.s.siu).  Similarly,  there  might  be  several  co-creditors  ^j^/S-es  rei 
sfipulandi,  to  each  of  whom  the  debtor  was  bound  for  the  whole  debt,  i.e.  in 
solidum.  If  the  creditor  in  a  stijmlatio  associated  with  himself  another 
person,  who,  in  the  interest  of  such  creditor,  stipulated  from  the  debtor 
for  the  .same  act,  such  person  was  called  an  adstipidator.  Although  an 
adstipulator  was  in  form,  and  in  a  question  with  the  debtor,  a  creditor,  yet 
in  substance,  and  in  a  question  with  the  creditor,  he  was  merely  an  agent 
of  the  creditor.  Before  the  time  of  Justinian  a  prohibition  was  laid  on 
stipulations  in  which  the  money  was  not  to  be  paid  till  after  the  death  of 


STirULATIO  17 

the  stipulator,  and  this  prohibition  was  evaded  by  the  stipulator  associaim.' 
with  himself  an  adstipulator,  who,  on  the  death  of  tlie  stipulator,  could,  us 
creditor,  enforce  payment  of  the  debt  and  hand  over  the  proceeds  to  the 
heir  of  tlie  deceased  dipulator.  An  adstipulator  could  be  creditor  for  less, 
but  not  for  more  (either  in  time  or  amount),  than  liis  princi])al,  and  lie  could 
not  transmit  any  right  of  action  to  his  heir  (Gains,  iii.  100). 

A  stipulation  was  invalid  (a)  if  the  parties  were  incapable  of  contracting, 
e.g.  insane,  or  incapable  of  going  through  the  requisite  form,  e.g.  deaf  and 
dumb  persons;  (/')  if  tlie  sul)ject-matter  was  extra  commcrcium,  e."  res 
sacrm  or  res  rcligioscc;  (c)  if  the  answer  does  not  correspond  to  tlie  question, 
so  that  consensus  in  idem  was  wanting ;  (d)  if  an  impossiljle  condition  was 
adjected;  (c)  if  the  promise  was  ex  turpi  causd;  (/)  if  the  parties  stood  to 
one  another  in  the  relation  o{ p)aterfamilias  andJiliusfamUias.  In  the  last- 
mentioned  case,  the  stipulation  gave  rise  only  to  a  natural  obligation  (see 
ObliG;VTION  in  Eo:man  Law).  The  form  of  the  contract  rendered  it  possible 
only  inter  prccscntes.  A  slave  might  stipulate  for  his  master's  benefit  ex 
persond  domini,  but  could  not  bind  him  by  a  promise. 

An  informal  promise,  as  such,  was  not  actionable  according  to  the  Pioman 
law  of  contract  (see  Obligation  in  Eoman  Law);  but  by  means  of  a 
stipulatio  a  promise  could  be  raised  to  the  rank  of  a  contract,  and  so  become 
enforceable.  Common  examples  of  this  were  stipulations  for  the  pay- 
ment of  interest,  or  for  the  payment  of  a  specified  penalty.  Stipulatio  was 
also  in  common  use  for  the  purpose  of  transforming  or  novating  an  oUirjatio. 
A  novating  stipiulatio  may  have  for  its  purpose  to  efiect  a  change  in  tlie  parties 
to  the  obligation  (as  in  delegatio),  or  it  may  be  designed  to  serve  a  particular 
purpose  desired  by  the  parties,  without  involving  a  change  of  parties,  as,  for 
example,  to  render  the  obligation  more  readily  enforceable  by  action.  If  it 
was  desired  to  extinguish  any  debt  by  acccptilatio,  the  debt  must  first  be 
transformed  by  novation  into  a  debt  by  stipulatio,  and  then,  whether 
actually  paid  or  not,  it  could  be  formally  discharged  by  a  verbal  acknow- 
ledgment of  receipt  in  the  form  of  a  stipulatio  (see  AcCEniLATio).  "What 
is  called  the  stipulatio  Aquiliana  was  a  formula  by  means  of  which  all  the 
liabilities  of  one  person  to  another  could  be  converted  into  one  debt  by 
stipidatio,  and  then  be  completely  discharged  by  a  verbal  acceptilatio. 

A  slave  might  stipulate  for  his  master's  benefit  ex  persond  domini,  but 
cannot  bind  him  in  a  promise.  A  slave  owned  in  common  acquired  by 
stipulation  for  his  owners  according  to  their  respective  proprietary  interests 
in  him,  except  when  he  expressly  stipulated  in  the  name  of  one  of  them  in 
particular  (Gains,  iii.  167).  Any  kind  of  obligation  might  be  made  the  subject 
oi  ?i  stipulatio.  A  "  preposterous  "  stipulation,  i.e.  an  agreement  to  payor 
do  something  leforc  instead  of  after  the  happening  of  an  event,  was  made 
valid  by  Justinian,  the  obligation  not  being  enforceable  till  after  the  fulfil- 
ment of  the  condition  {Inst.  iii.  19.  14). 

Justinian  in  the  Institutes  (iii.  18)  divides  stipulations  into  four  classes: 
(1)  Judicicd,  arising  out  of  the  order  of  a  judge,  e.g.  cautio  de  d'olo;  (2) 
Praetorian,  arising  out  of  an  order  by  the  proBtor,  e.g.  cautio  damni  infccfi, 
security  against  a  threatened  injury  to  property ;  (3)  Conventional,  made  by 
agreement  between  the  parties  ;  (4)  Common,  which  are  in  their  nature  both 
judicial  and  praetorian,  e.g.  cautio  rem  salvamfore  p)upillo,  the  security  given 
by  a  tutor. 

The  actions  to  which  the  contract  gave  rise  were:  (1)  condictio  certi, 
available  where  the  promise  w\as  to  pay  a  definite  sum  of  money  or  to 
deliver  a  specific  thing ;  and  (2)  condictio  inccrti  or  actio  ex  stipulatu,  avail- 
able where  what  was  promised  was  inccrtum  or  indefinite. 

S.  R. — VOL.  XII.  2 


jg  STlKrES 

\Insi   iil  15-20;  />iV.45.  1;  Cod.  8.  38-44;  Gains,  iii.  92-127;  Paul, 

-        •   ■       •':  5.7-9.] 

.ATiox  IN  Roman  Law;  Acceptilatio ;  Adpromissoi;. 

Stirpes.— See  Per  capita,  Per  stirpes. 

Stockbroker.  —The  law  of  agency  applies  to  stockbroking  as  it 
does   to  auv  other  transactions  carried  out  through  special  agents.     Any 
peculiarities  in  the  application  of   that  law  depend,  not  on  any  mtrmsic 
-ice   in   this  agent   from   any  other   agents,  hut  on   the   rules   and 
.>  of  the  market  in  which  he  deals.     A  stockbroker  is  a  broker  who 
in  the  purchase  and  sale  of  stocks  and  shares  of  public  companies,  and 
in  other  public  funds.     He  does  not  requii-e  to  be  a  member  of  any  Stock 
Fxchan^e;  but  Stock   E.xchanges  are  the   only  markets   in   which  such 
iillx.pertv  is  dealt  in,  and  practically  all  the  business  of  its  sale  and  purchase 
IS  done'bv  persons  who  are  subject  to  the  rules  of  one  or  other  of  these 
a^oc-iations.    The  dinsion  of  the  members  of  a  Stock  Exchange  into  brokers 
and  jobbei-s,  the  brokers  buying  from,  and  selling  to  the  jobbers,  and  the 
jobber?  actint:  for  no  outside  client,  but  for  themselves  alone  (see  Jobber), 
is  known  only  in  London.     On  other  Exchanges  brokers  deal  with  each  other 
directly.     P.i'it  the  difference  is  of  no  practical  importance  so  far  as  legal 
relations  are  concerned,  since  it  is  a  rule  of  all  Stock  Exchanges  that  inter  se 
all  member?  are  principals  (see  also  Maxtecl,  2nd  action,  1871,  L.  E.  6  Ex. 
132,  i»er  lUackburn,  J.)     Contracts  on  the  Stock  Exchange  are  not  intended 
to  be  immediately  carried  out.     They  are  presumed  to  be  for  "  the  account," 
i.e.  the  current  account,  which  comes  to  an  end  at  the  next  settling  day.'^ 
But  they  may  be  made  for  a  subsequent  account.     Settling  days  are  fixed  by 
the  Exchange  Committee,  according  to  the  rules,  and  occur  at  short  intervals. 
Two  rules  common  to  all  these  associations  are  of  chief  importance  to  the 
public,  viz. :  (1)  that,  as  stated  above,  all  members  deal  with  each  other  as 
principal^,  not  as  agents,  and  therefore  a  broker,  although  known  to  be  acting 
as  agent  for  a  constituent,  is  personally  liable  on  the  contract ;   and  (2) 
that  in  the  case  of  the  continuation  or  carrying  over  of  a  contract,  differences 
are  payable  at  once  and  are  not  carried  to  the  following  account. 

Stock  Exchange  Eides. — The   special  importance  of  the   large  class  of 

transactions  on  the  Stock  Exchange  arises  from  the  general  rule  of  law  that 

"  by  employing  a  broker  who  acts  upon  a  particular  market,  you  authorise 

him  to  make  contracts  upon  all  such  terms  as  are  usual  upon  the  market " 

{liobinson,  1875,  L.  R.  7  E.  &  L  App.  802,  per  Cleasby,  B.,  at  p.  826).    "  Customs 

of  trade  are  tacitly  incorporated  in  the  contract,  though  not  expressed  in  it, 

pr  •  • '    !  the  ex])re?s  terms  of  the  writing  are  not  so  inconsistent  with  the 

tv.  s  to  exclude  it"  {Robinson, suina,  per  Blackburn,  J.,  at  p.  811).     So 

when  a  person  outside  the  Stock  Exchange  makes,  through  a  broker  who  is 

a  r(.f  tliat  body,  a  contract  for  the  sale  or  purchase  of  stock  or  shares, 

he  1'  i.vid  to  do  so  according  to  the  rules  of  the  Stock  Exchange  (KicJcalls, 

1875,  L  K.  7  E  &  I.  App.  530 ;  Coles,  18G8,  L.  P.  3  Ch.  3 ;  Grissell,  18G8,  L.  R.  4 

C.  P.  36).  although  the  Stock  Exchange  is  merely  a  voluntary  association, 

wh<.  .•  111!.--  nnd  regulations  bind  no  one  but  its  own  members  {Tomkins, 

1877.  3  A.  C.  213  ;  .1/arr,  1852, 14  D.  4G7  ;  Bentinch,  [1893]  2  Ch.  120,  effect 

of  "contango"  custom  on  the  broker  depositing  securities  with  bank  for 

advanee).      I'.ut  such   customs   are   only  incorporated    to   the    extent   of 

controlliM'.'  tlie  {xjrformance  of  the  contract— they  cannot  alter  its  intrinsic 

n.-ilure  (f  n,  1875,  L.  R.  7  E.  &  I.  App.  802).     "  If  a  person  employs  a 

'''"^■""   '  '"'   ■•■»"   him  upon  a  market  with  the  usages  of  which  the 


STOCKBKOKKU  19 

principal  is  unac(piaintecl,  he  gives  authority  to  the  broker  to  make 
contracts  upon  the  footing  of  such  usages,  provided  they  are  sucli  as  to 
reguhite  the  mode  of  performing  the  contracts,  and  do  not  change  their 
intrinsic  character  "  {Ruhinson,  supra,  per  Ld.  Chehiisford,  at  p.  830)°  Thus 
no  usage  of  the  market  can  be  pleaded  wliich  transforms  an  a^ent 
employed  to  buy  into  a  principal  to  sell  his  own  goods,  or  which  transhrnns 
an  agent  employed  to  sell  into  a  principal  to  buy,  for  this  is  contrary  to  the 
nature  of  the  contract  of  agency  {Rohinson,  supra\  Cunningham  1874  '■'  ]J 
83;  Maffdt,  1887,  14  R  50G ;  Starl;  1891,  2  Guthrie's  S.  C.'Cas.  40G); 
aud  no  proof  of  fraud  on  the  part  of  the  stockbroker  is  necessary 
to  set  aside  a  contract  when  the  agent  has  sold  his  own  shares  or 
stock  to  his  employer.  Moreover,  any  custom  of  the  market,  to  be 
enforceable  against  an  outsider,  must  be  reasonable,  and  it  must  not  be 
contrary  to  law.  A  usnge  by  which  a  stockbioker,  on  his  client  failing  to 
pay  differences  on  pay-day  in  the  case  of  a  continuation,  may  sell  out  and 
close  the  account,  is  reasonable  {Davis  &  Co.,  1890,  24  Q.  B.  D.  691).  But  a 
custom  by  which  one  broker,  considering  as  his  principal  only  the  person 
who  employs  him,  although  he  knows  him  to  be  acting  as  agent  for  a  client, 
may  set  off  a  debt  due  to  such  person  as  agent  against  one  due  by  him  on 
his  own  account,  is  unreasonable  {Pearson,  1878,  9  Ch.  D.  198). 

The  Banking  Companies  (Shares)  Act,  1867  (30  Vict.  c.  29),  generally 
known  as  Leeman's  Act,  by  sec.  1  provides  that  all  contracts  for  sale  and 
'purchase  of  any  shares,  stock,  or  other  interest  in  any  Joint  Stock  Banking 
Company  shall  be  null  and  void,  unless  it  sets  forth  such  shares,  stock,  or 
interest  by  the  numbers  by  which  the  same  are  distinguished  on  the  registers 
of  the  companies,  or,  where  there  is  no  such  registered  numbers,  by  the 
names  of  the  persons  in  whose  names  they  stand  in  the  books  of  the 
companies.  Every  person  who  wilfully  inserts  false  numbers  or  names  is 
declared  to  be  guilty  of  an  offence,  punishable  by  fine  or  imprisonment. 
Any  custom  to  disregard  this  Act  is  both  illegal  and  unreasonable,  and  a 
principal  will  not  be  bound  by  any  contract  entered  into  in  wliicli  it  is  not 
adhered  to,  although  it  may  be  the  custom  of  the  Stock  Exchange  to 
disregard  it  {Ncilson,  1882,  9  Q.  B.  D.  546  ;  Perry,  1885,  15  Q.  B.  D.  388 ; 
Harverson,  1885,  1  S.  L.  Ptev.  303).  But  this  Act  does  not  prevent  the 
implement  of  a  contract  entered  into  in  contravention  of  its  terms ;  and 
a  client  who  authorises  his  agent  to  contract  in  disregard  of  it,  or  who  must, 
on  account  of  his  knowledge  of  the  custom,  be  held  to  have  so  authorised, 
cannot  afterwards  repudiate  his  broker's  act  {Seymour,  1885,  14  Q.  B.  D. 
460).  It  is  the  duty  of  the  principal  when  he  becomes  aware  of  the  nullity 
of  the  contract  his  broker  has  entered  into  on  his  behalf,  to  repudiate  it  at 
once.  If  in  that  knowledge  he  continues  the  agency  and  allows  the_  broker 
to  accept  the  transfer,  he  is  bound  by  it  {Loring,  1886,  32  Ch.  D.  625). 

Customs  or  rules  of  a  market  wliich  merely  regulate  the  mode  of  per- 
forming a  contract  can  be  of  no  effect  to  decide  the  rights  of  parties  after  its 
implement.  These  rights  arise  independently  of  any  particular  market,  and 
are  in  no  respect  the  result  of  any  special  custom  or  usage  in  entering  into 
or  fulfilling  the  contract.  A  rule  of  the  Stock  Exchange  by  which  the  affairs 
of  a  defaulting  member  are  to  be  administered  by  members  of  the  Exchange 
cannot  affect  the  claims  or  rights  of  creditors  of  the  bankru].t  outside  the 
Exchange  {Tomkim,  1877,3  A.  C.  213  ;  ex  parte  Grant,  1880, 13  Ch.  D.  667). 
When  one  broker,  not  a  member  of  the  Stock  Exchange,  instructs  another 
who  is  a  member,  e.g.  in  the  case  of  a  country  broker  instructing  a  member 
of  the  London  Stock  Exchange,  to  sell  shares  belonging  to  a  client,  the 
broker   who   sells   the   shares   does   not  properly  pay  over   the   price   by 


'>0 


STOCKBKOKEK 


.  ihe  anK.uut  to  his  immediate  employer  iii  his  account  {CrossUy, 
1    (Ml    VU^   even  akhoiu'h   it  is  averred    that  such  accounting  is 
.  .  lau    •  ;  tl!'  the  custom  li  the  Stock  Exchange  iFcarsor,^  1878,  9 

'•^.1,  \tT  The  broker  who  sells  ought  to  pay  over  the  principal  s  money, 
:  ed  in  cash,  payment  by  a  cheque  which  is  cashed  being  of  course 
:u  to  pavuient  in  cash  {Crosdcy,  supra).     The  decision  m  Crossley  i^ 
uiR.n  the  i.rivitv  of  contract  created  between  the  principal  and  the 
•It   dulv  ^mmx^\iti\.     But  no   such   privity  of   contract   is   created 
when  ihe  employing  broker  assumes  towards  the  broker  through  whom  he 
~   liis   commission   the  position   of  a   principal,   not   ot   an   agent 
:,.'  his  authority  {Mackenzie  &  Aitl-en,  1886,  13  R.  494).     The  rule 
lo  stockbrokers  as  to  other  agents,  that  a  broker  cannot,  m  full 
knowled-e  of  the  facts,  retain  money  due  to  the  client  of  another  broker 
■     •  if  debt  due  by  such  other  broker  {Matthcus,  1874,  1  E.  1224). 
.,,  .v.rr's  Ohlijation.—A  stockbroker  is  not  bound  to  accept  every  order  and 
execuKj'it ;  but  if  he  does  enter  into  a  contract  of  agency,  he  is  bound  to  use 
reasonable  efforts  to  carry  out  his  undertaking  {Neihon,  1882,  9  Q.  B.  D.  546). 
What  may  be  a  reasonable  time  for  executing  his  commission  will  be  a 
.paestion  of  circumstances,  depending  in  large  measure  on  whether  there  is  at 
ihe  time  a  market  for  the  commodities  in  which  he  is  instructed  to  deal.  _  A 
client  instructed  his  broker  on  14th  October  to  buy  certain  shares  for  him. 
On  loth  October  the  broker  informed  his  client  that  he  had  done  so.     But 
the  .shares   transferred  were  not,  as  matter  of  fact,  purchased   until    6th 
November.     It  was  held  that  the  client  was  not  bound  to  accept  them,  as 
thcv  had  not  been  bought  in  accordance  with  the  authority  given  {Blade, 
■    "":•.,  15   D.  646).     The  broker  must   also   make   a   binding   contract  on 
his  principal's  behalf  {Xcihon,  supra),  and  in  accordance  with  the  usual 
terms  of  such  contracts.     But  this  does  not  mean  that  he  guarantees  the 
solvency  of  the  other  contracting  party.     He  is  not  even  bound  to  inquire 
as  to  the  credit  of  a  transferee  and  his  ability  to  indemnify  the  transferor 
for  future  liabilities  in  respect  of  the  shares  transferred.     Nor  is  it  part  of 
•'■'■  duty  of  the  seller's  broker  to  see  to  the  registration  of  the  transfer  :  his 
e  is  exhausted  when  he  has  delivered  the  transfer  to  the  purchaser's 
broker  and  received  the  price   {Marr,  1852,  14  D.  467).     A  stockbroker 
•    have  orders   from   different   clients  to   buy   quantities  of   the    same 
k   or  shares,  and   he   may   require   to    buy   them    in   many   lots    at 
•  .:ying  prices;    but   he   must   allocate   the   stock    or   shares   to   specific 
instructions  as  they  are  purchased.     If  he  lumps   them  all  together  and 
each  client  an  average  price,  he  transforms  himself  from  a  broker 
II  principal,  and  the  result  is   the  same  if  he  does  this  not  in  the 
„inal  barg.iins  but  in  making  a  continuation  {Maffdt,  1887,  14  R.  506). 
l-.iilure  to   fulfil  his   obligation  will  render  the  broker  liable  in  damages 
'  1898]  1  Q.  B.  426),  but  only  for  those  damages  which  are  directly 
sent  oil   hi.s   default.     A  broker,  instructed   to   buy,  sold   his   own 
J  -   ,    :  •- y  to  liis  client,  and  the  client  kept  it  up  and  then  sold  it  at  great 
loss,  and   claimed   the  dilTerence   between   the   price   paid   and   the   sum 
1.     It  was  held  that  he  ought  not,  on  discovering  the  truth,  to  have 
'  ,  but  to  have  claimed  rescission  of  the  contract,  and  that  the 
^    --      -     ••'''•-^»  he  was  entitled  were  only  the  difference  between  what 
he  iwid  and  what  he  could  have  got  for  a  resale  on  the  same  day,  plus 
C'inuuission  and  incidental  expenses  {Wadddl,  1879,  4  Q.  B.  D.  678).     In 
a  broker,  who  had  failed  to  effect  a  binding  contract  for  the 
,v '     •    •'■•■•■,  ^'  ^^'^  found   liable  to  pay  as  damages  the  price  which  his 
client  would   have  got  if  the  contract   had   been  properly   carried   out 


STOCK  BKOKK 11  o) 

{Ncilson,  1882,  9  Q.  B.  D.  54G).  In  this  Ciisc  the  client  also  claimed  fur  the 
consequences  of  remaining  a  member  of  the  company,  but  his  counsel 
withdrew  this  part  of  the  claim  during  the  case. 

Contract  Note. — When  a  stockbroker  has  made  a  contract  on  behalf  of 
his  principal,  he  renders  to  liis  constituent  a  contract  note  containing  the 
particulars  of  the  bargain  he  has  made.  Failure  to  do  so  when  the  stock  or 
security  is  of  the  value  of  £5  or  upwards,  or  sending  a  contract  note  un- 
stamped which  ought  to  be  stamped,  renders  tlie  broker  liable  to  a  penalty 
of  £20 ;  and  he  is  deprived  of  any  right  to  charge  commission  on  the  sale  oV 
purchase  of  stock,  etc.,  referred  to  in  any  contract  note  which  is  not  duly 
stamped  (Stamp  Act,  1891,  54  &  55  Vict.  c.  o9,  ss.  52,  53).  But  this  does  not 
affect  the  validity  of  the  contract  of  agency  between  the  parties,  and  failure 
to  send  a  contract  note,  which  is  merely  an  advice  note,  will  not  relieve  the 
client  from  his  obligation  to  pay  commission  and  to  repay  to  the  broker 
money  paid  out  for  him  {Lcaroyd,  [1894]  1  Q.  B.  114). 

Settling. — Stock  or  shares  may  pass  through  many  hands  before  settling 
day  arrives.  When  that  time  comes,  the  names  of  sellers  and  purchasers 
pass  from  hand  to  hand  until  the  ultimate  vendor  and  vendee  are  brought 
together.  When  that  is  done,  it  is  customary  for  the  buyer  to  prepare  the 
transfer.  Privity  of  contract  is  established  between  the  transferor  and 
transferee  {Hodgldnson,  1868,  L.  R.  6  Eq.  49G ;  Hmckins,  1868,  L.  11.  6  Kip 
505) ;  and  on  acceptance  of  the  transfer  and  payment  of  the  price,  inter- 
mediate parties  are  released,  and  are  no  longer  liable  in  anv  way  on  the 
contract  IColes,  1868,  L.  E.  4  Ch.  3  ;  GrisseU,  1868,  L.  li.  4  C.  P.  36  ■  Maxtcd, 
2nd  action,  1871,  L.  E.  6  Ex.  132  ;  Boicring,  1871,  L.  E.  6  Q.  B.  309  ;  Loring, 
1886,  32  Ch.  D.  625).  The  obligation  of  a  jobber  towards  the  vendor  is 
either  to  take  the  shares  himself  or  to  give  the  name  of  an  unol)jectionable 
person  willing  or  bound  by  contract  to  take  them  {Allen,  1870,  L.  E.  5  (,>.  B. 
478;  Maxted,  2nd  action,  supra;  NicJcalls,  1875,  7  E.  &  I.  Ap.  530),  AVhen 
he  has  done  the  latter,  he  cannot  be  made  liable  to  indemnify  ihe  vendor  for 
future  claims,  e.g.  for  calls  which  he  is  required  to  pay  owing  to  his  name 
remaining  on  the  register  {Coles,  supra;  GrisseU,  supra;  Maxted,  1st  action, 
1869,  L.  E.  4  Ex.  81 ;  2nd  ^ctiou,  supra),  unless  lie  has  guaranteed  registration 
or  undertaken  an  additional  obligation  which  renders  him  so  liable  {Cruse, 
1869,  L.  E.  4  Ch.  441).  The  purchaser  takes  all  benefit  which  may  accrue 
from  the  ownership  of  the  shares  after  the  date  of  ])urchase,and  he  must  also 
take  all  the  risk  their  ownership  may  carry  with  it.  He  must  therefore 
indemnify  the  seller  from  any  liability  arising  therefrom  {Evans,  1867,  L.  E. 
5  Eq.  9;  cf.  Faine,  1868,  L.  E.  3  Ch.  388;  Davis,  1869,  L.  E.  4  Ex.  373). 
and  he  cannot  escape  this  burden  by  taking  the  transfer  in  the  name  of 
another  person.  Such  person  will  be  considered  a  trustee  for  the  real 
purchaser,  and  the  transferor  will  not  lose  his  indemnity  by  the  nominal 
transferee  being  a  man  of  straw  {Castellan,  1870,  L.  E.  10  E([.  47;  Brown, 
1873,  L.  E.  8  Ch.  939).  If  a  contract  made  for  the  next  settling  day  is  not 
then  carried  out,  the  broker  has  no  implied  authority  to  continue.  The  niei  e 
purchase  does  not  entitle  the  buyer  nor  bind  the  seller  to  agree  that  there 
shall  be  a  carry-over;  and  the  broker  must  have  special  authority  to  do  so 
{Neuion,  1884,  11  E.  554;  Maxted,  1st  action,  1889,  L.  E.  4  Ex.  81). 

Broker s  Rights.~li  i\\Q  \)Y\\\Q,\])ix\  does  not  implement  the  contract  his 
broker  has  made  on  his  behalf,  the  rules  of  the  Stock  Exchange,  which  lay 
upon  its  members  an  unusual  liability,  confer  on  them  peculiar  privileges. 
As  a  member  of  the  Stock  Exchange  the  broker  is  the  only  person  towards 
whom  his  fellow-members  look  for  implement.  The  first  duty  of  the  i-rincipal 
is  therefore  to  indemnify  his  agent  for  all  reasonable  obligations  undertaken 


oo 


;TOrrAGE  JX  TRANSITU 


f  /r/.«,m  issf)  3-''  Ch  D.  625),  and  not  contrary  to  instruc- 

on  h»«.a.7.f  "[g(^^7'§  %^'^4;    n  a  transfer  of  shares  in  a  company  is 

''"'^ -^?;  ;.l     «nk-s     U.e  CouA  order  otherwise,   hut   is   not   absolutely 

"  "      ■    1    he  ^u  tl   ser's  broker  has,  in  accordance  with  Stock  Exchange 

■      -  accepted  the  transfer  aud  paid  the  price,  his  client  is  bound  to  repay 

wSanv  decision  of  tlie  Court  as  to  the  aduu.sion  of  the  transfer 
,  ';.    WhUchcad,  18G7,  L.  E.  2  C.  P.  228;  see  also  Buderman,  1867, 

1  _  C  r    "04)      Tliis  rif^ht  of  indemnity  is  all  the  more  necessary 

when  the'liahihty  is  incurred  owing  to  the  misrepresentation  or  con- 
cealment of  the  principal.  A  principal  instructed  his  l^roker  to  sell 
certain  particular  shares,  but  failed  to  disclose  the  material  fact  that  the 
s'lares  were  on  the  colonial  list  and  not  on  the  home  list,  shares  on  the 
colonial  list  not  being  saleable.  In  consequence  of  this  concealment  the 
broker  had  to  go  into  the  market  and  buy  shares  on  the  home  list  to  tuihl 
the  contract  he  had  made  ;  and  the  principal  was  held  bound  to  relieve  the 
broker  (.l/i((Av«c/V,  1879,  6  11.  1329).  When  a  broker  has  purchased  stock 
or  shares  for  a  client,  and  either  become  personally  liable  for  the  price  or 
has  actually  paid  it,  he  may,  on  the  client's  insolvency  or  death,  or  on  it 

laing  in  any  other  way  manifest  that  he  cannot  be  depended  upon  for 
J  ■,viiient°of  the  price,  sell  out  and  close  the  account  {Lacey  (Scrimgcours 
cl  mil).  1873,  L.  i:.  8  Ch.  921 ;  Zacey  {Croivleys  claim),  1874,  L.  R  18  Eq. 
182;  Drnmmond,  1852,  14  D.  611).  Insolvency  in  this  matter  means 
inability  to  pay  ordinary  commercial  debts  {Drummond,  siqira;  Laccy 
(Croirln/s  claim),  supra).  And  this  power  may  be  exercised  by  the  broker 
on  failure  by  his  client  to  pay  diflerences  at  once  in  the  case  of  a  carry- 
over {Laccy  (Crowley's  claim),  supm;  Davis  &  Co.,  1890,  24  Q.  B.  D.  691). 
If  the  broker  has  been  induced  to  accept  the  agency  and  make  contracts 
for  his  principal  by  the  latter's  misrepresentation  of  his  position,  he  may, 
on  becoming  aware  of  the  facts,  sell  his  client's  stock  in  his  hands  and  close 
the  account  (Eisk,  1881,  8  II.  729).  But  a  principal  is  liable  only  for  results 
consequent  directly  from  his  own  defections;  he  cannot  be  made  liable  to 
indeniin"fv  the  broker  for  the  consequences  of  his  own  default  {Duncan,  1873, 
L  11.  8  Ex.  242 ;  Ellis,  [1898]  1  Q.  B.  426).  If  his  failure  to  pay  differences 
at  settling  day  result  in  his  broker's  subsequent  bankruptcy,  and  according 
to  the  rules  of  the  Stock  Exchange  the  defaulter's  accounts  are  all  closed, 
the  principal  will  not  be  rendered  liable  for  differences  as  at  the  date  of 
' '    iiig  the  accounts,  that  event  being  due  to  the  broker's  default  {Duncan, 

■I  ;  and  see  Ellis,  supra,  per  A.  L.  Smith,  L.  J.,  p.  438).  If  the  broker 
b'l.omes  a  defaulter  and  has  all  his  accounts  closed  before  settling  day,  his 

tituent  may  repudiate  the  agency.     If,  on  the  other  hand,  he  elects  to 

y  the  closing  of  the  accounts  and  accept  the  prices  in  order  to  hold  for 

';n'  day,  he  becomes  liable  for  the  amount  due  at  the  dale  of  closing 

•s  (Hnrtas,  1889,  22  Q.  B.  D.  254).     If  the  broker,  before  settling 

• .  wrongfully  sell  what  he  has  bought  for  his  principal  for  delivery  and 

•it  on  settling  day,  the  principal  cannot  be  made  liable  to  indemnify 

\i*-v  n.r  diderences  ]iaiil  by  him  {Ellis,  supra). 

|r.r<Klliur.^t  on  the  Hloch  Excliairyc] 

BnoKEu;    rii.vuD;   Gaming    and    Betting;    Lien;   Negotiable 

.^^tCLUITItS  ;   rniNCIPAL  AND  AgENT. 

stoppage  in  transitu, — The  right  of  stoppage  m  ^rawsiYjt  is 

the  right  of  the  unpaid  seller  of  goods,  on  the  insolvency  of  the  buyer,  to 

1  of  them  so  long  as  they  are  in  course  of  transit,  and  to 

:     ....  ;... .,.  ,.iM,l  payment  or  tender  of  the  price  (56  &  57  A'ict.  c.  71,  ss.  39 

and44;  cf.Iiell,  Co7/i.  i.  223V 


STOrPAGE  IN  TRANSITU  03 

An  older  rule  of  Scots  law  allowed  the  seller,  on  the  buyer  hecominf^ 

insolvent  within  a  short  time — ultimately  restricted  to  three  days afit-r 

delivery,  to  recover  possession  of  the  goods,  on  the  ground  of  presumed 
fraud  {rrincc  v.  Fallat,  1G80,  Mor.  4932;  Inglis  v.  Royal  Rank  (Cave's  ca&n), 
1736,  Mor.  493G ;  Bell,  Com.  i.  225).  The  modern  doctrine  of  steppage  //; 
transitu,  which  superseded  this,  was  introduced  from  English  law,  into  which 
it  had  been  adopted  from  the  general  law  merchant,  on  grounds  of  equity 
(Gibson  v.  Carruthcrs,  1841,  8  M.  &  W.  33G,  per  Ld.  Abinger,  for  history  of 
the  doctrine).  It  was  first  applied  in  a  Scots  case  l)y  the  House  of  Lords  in 
1790  (Allan,  Stcuart,  &  Co.  v.  Stein,  1788,  Mor.  4949;  snh  nom.  Jaffmj  v. 
Allan,  Stcuart,  &  Co.,  1790,  3  Pat.  191).  Many  of  the  earlier  Scots  cases 
are  confused  by  the  influence  of  the  older  rule. 

In  effect,  the  rule  extends  the  unpaid  seller's  lien  on  the  goods  for  their 
price.  The  right  of  stoppage  arises  only  when  the  seller  has  parted  with 
the  possession  of  the  goods,  and  thereby  lost  his  lien.  It  differs  from  tlie 
lien,  in  depending  on  the  buyer's  insolvency.  Both  rights  imply  that  the 
property  has  passed  to  the  buyer.  Until  then,  stoppage  is  unnecessary, 
because  the  goods  are  still  the  seller's  own  at  common  law,  and  because  by 
statute,  since  the  Sale  of  Goods  Act,  1893,  "where  the  property  in  goods 
has  not  passed  to  the  buyer,  the  unpaid  seller  has,  in  addition  to  his  other 
remedies,  a  right  of  withholding  delivery  similar  to  and  coextensive  with 
his  rights  of  lien  and  stoppage  in  transitu  wdiere  the  property  has  passed 
to  the  buyer"  (56  &  57  Vict.  c.  71,  s.  39  (2);  cf.  Blach,  1867,  6  M.  136, 
per  Ld.  Pres.  Inglis,  at  p.  140;  Frascr,  1868,  L.  E.  7  Ecp  64,  per  Piomilly, 
M.  E.,  at  p.  70  ;  Benjamin,  Sale,  853). 

Conditions. — The  rules  of  stoppage  in  transitu  have  been  codified  by  the 
Act  just  mentioned  (56  &  57  Vict.  c.  71,  ss.  39  and  44-48).  The  conditions 
of  the  exercise  of  the  right  are:  (1)  The  buyer  must  be  insolvent;  (2)  the 
seller  must  be  unpaid ;  (3)  the  goods  must  be  in  course  of  transit. 

1.  Insolvent  Buyer. — The  buyer  is  insolvent  for  this  purpose  when  he 
"  either  has  ceased  to  pay  his  debts  in  the  ordinary  course  of  business,  or 
cannot  pay  his  debts  as  they  become  due,  whether  he  has  committed  an  act 
of  bankruptcy  or  not,  and  whether  he  has  become  a  notour  bankruytt  or 
not"  (s.  62  (3);  Bell,  Com.  i.  242  ;  The  Tigress,  1863,  32  L.  J.  Ad.  97,  at 
p.  101 ;  Schotsmans,  1865,  L.  E.  1  Eq.  349,  per  Eomilly,  M.  E.,  at  p.  360 ; 
revd.,  on  another  point,  1867,  L.  E.  2  Ch.  332).  It  has  been  held  sufficient 
that  the  buyer  is  insolvent  before  the  end  of  the  transit,  although  not  so 
when  notice  of  stoppage  is  given  (The  Constantia,  1807,  6  Eob.  A.  321, 
per  Ld.  Stowell,  326  ;  Virtue,  1814,4  Camp.  31 ;  Dixon  v.  Yates,  1833,  5  B. 
&  Ad.  313).  The  seller  has  been  said  to  be  liable  to  indemnify  the  buyer 
if  he  stops  when  the  latter  is  not  insolvent  (The  Constantia,  1S07,  6  Eob.  A. 
321,  at  p.  326). 

2.  Unpaid  Seller.— The  term  "  seller,"  in  the  sense  of  this  rule, "  includes 
any  person  who  is  in  the  position  of  a  seller,  as,  for  instance,  an  agent  of 
the  seller  to  whom  the  bill  of  lading  has  been  indorsed,  or  a  consignor  or 
agent  who  has  himself  paid,  or  is  directly  responsible  for,  the  price" 
(s.  38  (2) ;  Morison,  1824,  2  Bing.  260 ;  Adamson,  Howie,  cO  Co.,  1868, 
6  M.  347  ;  Bell,  Com.  i.  245).  The  right  has  been  held^to  belong  to  a 
principal  consigning  goods  to  a  factor  for  sale  (Kinloch,  1790,  .">  T.  E.  119, 
783) ;  to  a  person  consigning  goods  for  sale  on  a  joint  account  with  tlie 
consignee  (Xewsom,  1805,  6  East,  17);  an  agent  consigning  to  a  foreign 
principal  goods  which  he  has  purchased  on  his  own  credit,  the  relation 
between  the  parties  being  that  of  buyer  and  seller  (Fcisc,  1802,  3  East,  93, 
per  Lawrence,  J.,  at  p.  101 ;  Ireland,  1872,  L.  E.  5  II.  L.  395,  per  Blackburn, 


04  STOPPAGE  IX  TEAXSITU 

I    at  I,  409  •  ex  varu  J  1S76,  L.  P..  2  Ch.  D.  278,  per  Hellish,  L  J., 

844).     The  right  is  not  excluded  by  the  fact  that  the 

nlvau  interest  under  a  contract  to  deliver  the  goods  (Jenkins, 

ls44    -  Mhu  &■  G   GTS);   or  that  he  is  a  partner  of  the  consignee  (ex 

'  '•      '    ^    ~"  L.  P.  11  Ch.  D.  68).     The  right,  however,  arises  from 

-In"  the  character  of  a  seller,  and  not  from  his  having 

1  ':  :  a  l.cu  ou 'the  good°s  (Sweet,  1800,  1  East,  4).     Nor  apparently  does^  it 

■ng  to  a  mere  cautioner  for  the   price   (Siffken,  1805,  G   East,  371; 

LoHSon,  1842, 4  D.  1452).  .     ,  •        •     •     i  .       • 

An  a^ent  of  the  seller,  authorised  to  act  for  his  principal,  may  stop  m 
the  name  of  the  latter  (Whitehead,  1842,  9  M.  &  W.  518,  per  Parke,  B., 
"      I.     This  is  not  expressly  authorised  by  the  statute,  but  was  previously 

■<ed  as  eflectual,  and  the  statute  provides  that  the  rules  relating  to 
d  and  agent  shall  continue  to  apply  to  contracts  for  the  sale  of 

.s.  GI  ('!)).  In  the  absence,  however,  of  antecedent  authority,  a 
-     sequent   ratitication   by  the   principal  does   not   validate   the   agent's 

■e  unless  made  before  the  goods  actually  reach  the  buyer's  possession 
w  <•  I'i'jress,  180:^,  32  L.  J.  Ad.  97;  Morison,  1824,  2  Bing.  260;  Bird, 
18:.0,  4  Ex.  786 ;  Hatchings,  1863,  1  Moo.  P.  C.  N".  S.  243). 

The  seller  is  "  unpaid,"  "  (a)  when  the  whole  of  the  price  has  not  been 
paid  or  tendered  "  (s.  38  (1) ;  Hodgson,  1797,  7  T.  E.  440) ;  or  "  (h)  when  a  bill 
of  exdiange  or  other  negotiable  instrument  has  been  received  as  conditional 
im'ment,  and  the  euuditiun  on  which  it  was  received  has  not  been  fulfilled 
by'  reason  of  the  dishonour  of  the  instrument  or  otherwise "  (ih.).  Thus 
the  right  is  not  excluded  by  the  seller  holding  bills  accepted  by  the  buyer 
(Fi:i.<^,  1802,  3  East,  93 ;  Dixon,  1833,  5  B.  &  Ad.  313 ;  Edicards,  1837, 

2  M.  &  W.  375),  even  though  these  have  not  matured,  and  have  been 
discounted  (Am/ocA,  1790,  3  T.  P.  119,  at  122,  783;  Patten,  1816,  5  M.  &  S. 
350;  Gunn,  1875,  L.  R  10  Ch.  491,  per  Mellish,  L.  J.,  501 ;  but  see  Bunncy, 
1833,  4  B.  &  Ad.  568).  It  is  otherwise  where  bills  have  been  received  by 
the  seller  in  absolute  payment,  and  not  conditionally  on  their  being  met 
when  due,  e.g.  wliere  bills  are  taken  in  preference  to  money  (see  cases 
collected,  Benjamin,  Sale,  734).  A  seller  holding  goods  belonging  to  the 
buyer  has  been  held  entitled  to  stop  even  while  the  balance  of  accounting 
^  •  ■  ;i  them  was  uncertain  (Woods,  1825,  7  D.  &  E.  126  ;  see  also  Patten, 
.  .  ,  ■  M.  &  S.  350;  contrast  Vertue,  1814,4  Camp.  31 ;  and  see  Benjamin 
on  tlie  last  case,  Sale,  849-50). 

Where   the    contract  and   the  price  are   apportionable,  the   right   of 
.re  is  excluded  as  regards  a  portion  of  the  goods  for  wliich  payment 

■ .'--n  made  (Merchant-  Banking  Co.,  1877,  L.  E.  5  Ch.  D.  205;  cL  ex 

jHirte  Chalmers,  1873,  L.  E.  8  Ch.  App.  289). 

3.  Duration  of  Transit. — The  goods  must  be  in  course  of   transit,  i.e. 

"iu  ih-  ly  of  some  third  person  intermediate  between  the  seller  who 

ha«  i«i;.. ..  .,,Lh,  and  the  buyer  who  has  not  yet  acquired,  actual  possession" 

(jicr  1x1.  (.'ninworth  in  Gibson  v.  Carridhers,  1841,  8  M.  &  W.  328,  at  p.  336). 

The  tran.sit  nuy  be  of  any  kind,  by  land  or  water.     It  is  not  necessary  that 

'I'l  'je  in  motion,  provided  they  are  in  some  place  of  deposit 

■  .  ..  .lb  their  transmission.     Nor  is  it  necessary  that  they  should  be 

1  the  hand.s  of  tlie  i.eison  to  whom  the  seller  intrusted  them  for 

;.-•,  provided  they  are  in  the  hands  of  a  carrier  who  holds  them  as  such 

/  V.  Clark,  1888,  L.  E.  20  Q.  B.  D.  615,  at  619 ;  Lyons  v.  Hoffnung, 

1    V   ">' App.  Ca.  391).  ^  -^       ^ 

I  .-n.ls  wli.'n  Dip  croods  pass  into  the  actual  possession  of  the 


STOPrAGE  IN  TRANSITU  o 


:;o 


buyer,  or  his  constructive  possession  througli  an  agent  whose  duty  it  is  to 
receive  them  on  his  behalf.  The  possession  by  a  trustee  in  bankruptcy  is 
equivalent  to  that  of  the  buyer  himself  {IJllis,  1789,  3  T.  E.  464). 

"Goods  are  deemed  to  be  in  course  of  transit  from  the  time  when  tbcy 
are  delivered  to  a  carrier  by  land  or  water,  or  dther  Ijailee  or  custodier  for 
the  purpose  of  transmission  to  the  buyer,  until  the  Ijuyer,  or  his  agent  in 
that  behalf,  takes  delivery  of  them  from  such  carrier  or  otlier  jjailee  or 
custodier"  (s.  45  (1)).  The  difficulty  is  generally  to  determine  wliethcr  the 
transit  has  ended,  and  this  in  most  cases  is  a  question  of  fact  and  intention 
(Schoismans,  18G7,  L.  E.  2  Ch.  3P.2,  per  Ld.  Chelmsford,  337;  Marhant 
Banking  Co.,  1877,  L.  R  5  Ch.  D.  205,  per  Jessel,  M.  R,  219). 

The  transit  ends  with  delivery  of  the  goods,  at  the  place  agreed  on,  into 
the  hands  of  persons  who  are  to  hold  them  for  the  Ijuyer  and  sultject  to 
his  orders,  e.g.  in  a  warehouse  where  goods  are  kept  for  him,  or  one  com- 
monly used  by  him  as  his  own  {Scott,  1803,  3  B.  &  R  469;  Rov:c,  1817,  8 
Taun.  83;  James,  1837,2  M.  &  W.  623,  per  Rarke,  B.,  633;  Dodson,  1842, 
4  ]\Ian.  &  G.  1080 ;  cf.  Smith,  Leading  Cases,  727,  and  cases  there).  The 
delivery  may  be  in  a  warehouse  which  belongs  to  the  carrier  (Eoice,  siq^ra) 
or  even  to  the  seller,  if  it  is  clear,  e.g.  from  the  payment  of  rent,  that  he 
holds  for  the  buyer  {Hurry,  1808,  1  Camp.  452).  Mere  arrival  at  the  place 
agreed  on  does  not  end  the  transit.  Actual  possession  must  be  taken  l)y  or 
for  the  buyer  {Cmwshay,  1823,  1  B.  &  C.  181  ;  Tucker,  1828,  4  Bing.  516 ; 
Fraser,  1808,  R  E.  7  E(|.  64;  ex  ixirte  Barrow,  1877,  R  E.  6  Ch.  l).  783; 
Kemp  V.  Fcdk,  1882,  7  App.  Ca.  573,  per  Ld.  Fitzgerald,  588;  cf.  ex  2)artc 
Miles,  1885,  R  E.  15  Q.  B.  D.  39,  per  Ld.  Esher,  M.  R,  43).  And  it  must 
be  taken  for  him  as  owner,  and  not  for  some  purpose  such  as  the  temporary 
protection  of  the  seller's  rights  {James,  1837,  2  M.  &  "W.  623;  Ilutehings, 
1803,  9  R  T.  K  S.  125 ;  Booker  &  Co.,  1870,  9  M.  314). 

Similarly,  the  transit  is  ended  by  the  carrier  becoming  an  agent  for  the 
buyer,  for  the  purpose  not  of  transmitting  but  of  keeping  the  goods.  Thus, 
"  if  after  the  arrival  of  the  goods  at  the  appointed  destination,  the  carrier 
.  .  .  acknowledges  to  the  buyer  or  his  agent  that  he  holds  the  goods  on 
his  behalf  and  continues  in  possession  of  them  as  bailee  or  custodier  for 
the  buyer,  or  his  agent,  the  transit  is  at  an  end,  and  it  is  immaterial  that 
a  further  destination  for  the  goods  may  have  been  indicated  by  the  buyer" 
(s.  45  (3)).  To  produce  this  result  a  new  and  distinct  agreement  is  rctpiired 
( Whitehead,  1842,  9  M.  &  W.  518,  per  Parke,  B.,  at'  535 ;  Bolton,  1866. 
R  E.  1  C.  P.  431 ;  ex  parte  Gouda,  1872,  20  W.  E.  981 ;  ex  j^cirte  Barroic, 
1877,  R  E.  6  Ch.  D.  783;  ex  parte  Cooper,  1879,  R  E.  11  Ch.  P.  ^^). 
Mere  intention  on  the  part  of  the  carrier  {Edivards,  1837,  2  ]\I.  &  "\V.  375  ; 
James,  1837,  ih.  623),  or  mere  demand  by  the  l)uver,  is  insufficient  {Jackson, 
1839,  5  ]',ing.  N.  C.  508;  Coventry,  1808,  R  E.'6  Eq.  44;  Krmi>  v.  Fall, 
1882,  7  App.  Ca.  573,  at  584).  The  agreement  may,  however,  be  inferred^ 
from  a  course  of  dealing,  as  where  tlie  carrier  has  been  in  the  habit  o( 
storing  goods  for  the  buyer,  and  holding  them  subject  to  his  orders  {ircnt- 
u-orth,  1842,  10  M.  &  W.  436;  Allan,  1832,  2  C.  &  J.  218;  Four,  1817, 
8  Taun.  83  ;  see  Blaek,  1828,  6  S.  896— a  decision  which  can  hardly  be 
supported).  This  change  in  the  relations  of  the  i)arties  is  not  incompatible 
with  the  subsistence  of  the  carrier's  lien  for  freight  {Allan,  supra:  Kemp  v. 
Falk,  supra,  at  584).  Such  acts  as  marking  or  "sampling  the  goods,  thougli 
with  intent  to  take  possession,  probaljly  do  not  amount  to  constructive 
possession  by  the  carrier  as  the  buyer's  agent  "  unless  accomi>anied  with 
such  circumstances  as  to  denote  that  the  carrier  was  intended  to  keei\  and 
assented  to  keeji,  the  goods  in  the  nature  of  an  agent  for  custody"  {11  kite- 


or.  STorrACxE  IX  transitu 


20 


•    ,  ;  1  >4-  0  M  ,<:  W  518,  i>er  Parke,  11,  535  ;  Foster  v.  Frampton,  1 826,  G  B. 

.V  Cr  1  ut"  ; :'  Kills  v.  Hunt,  1789,  3  T.  E.  4G-4 ;  Cooper,  1865,  3  H.  &  C.  7l>2) 

Tlie  transit  iloes  not.  as  a  rule,  end  before  the  destination  appointed 

has  heen  reached,  or  until  such  time  as  may  have  been  agreed  on  for  its 

:i  {,'x  jHirtc  Watson,  1877,  L.  K.  5  Ch.  D.  35;  Coates  v.  Bailton, 

.-..AC  422,  per  Barley,  J.,  at  425,  and  cases  there ;  of.  Kendal,  1883, 

\\Q.  K  D.  35G.'at  3G7  and  369;  M'Lcod  v.  Harrison,  1880,  8  E.  227). 

•'  If."  however,  "  the  buyer  or  his  agent  in  that  behalf  obtains  delivery  of  the 

'"    ■    •"  re  tiieir  arrival  at  the  appointed  destination,  the  transit  is  at  an 

^^.  -.:.  (2));  Kendal,  sujyra;  Bcthell,  1887,  19  Q.  B.  D.  553,  per  Cave, 

it  5G1).     It  api)ears,  tlierefore,  that  the  buyer  may  end  the  transit  by 

.ing  possession  at  any  place  on  wliich  he  and  the  carrier   may  have 

■  ed  (Z.  &  N.-W.  By.  Co.,  1861,  7  H.  &  N.  400).     The  carrier's  consent 

\x..uld  seem  to  be  neccssarv  (Whiteheeid,  1842,  9  M.  &  W.  518,  per  Parke, 

B..  534  ;  but  see  P.enjamin,'878-9  ;  cf.  Bird  v.  Broum,  1850,  4  Ex.  786  ;  Zitt, 

1816.  7  Tauu.  169 ;  Zocschinan,  1815,  4  Camp.  181.     See  also  sec.  61  (2)). 

I  )elivery  to  the  buyer's  servant,  e.g.  to  the  master  of  a  ship  belonging 

'  "      is  delivery  to  the  buyer  himself,  and  so  ends  the  transit.     In  such 

..     .....  tlie  seller  cau  preserve  his  right  by  taking   the  bills  of   lading 

so  as  to  make  the  goods  deliverable  to  his  order,  or  otherwise  to  indicate 

that  the  master  is  to  be  the  buyer's  agent  for  carriage  only,  and  not  for 

•'     receipt  of  the  goods  (Van  Ca^teel,  1848,  2  Ex.  691 ;  Tiumer,  1851,  6  Ex. 

.  i.; ;  see  Schotsmans,  1867,  L.  E.  2  Ch.  332).     The  mere  fact,  however,  that 

tlie  carrier  is  named  or  employed  by  the  buyer  does  not  make  him  the 

a^ent  of  the  latter  so  as  to  exclude  stoppage ;  and  this  is  so  even  where 

the  ship  has  been  expressly   sent  by  the   Ijuyer    to   convey   the   goods 

(lienjamin,   854,  and  cases  there;    Merchant    Banking    Co.,   1877,   L.  E. 

."•  Ch.  D.  205;  Schotsmans,  supra;   Van  Casteel,  supra;  Bethcll,  1887,  L.  E. 

19  Q.  B.  D.  553;  1888,  L.  E.  20  Q.  B.  D.  615;  cf.  Cowasjee,  1845,  5  Moo. 

P.  C.  165;   M'Lcod,  1880,  8  E.  227;   ex  parte   Bosevear  China  Clay  Co., 

1879.  11  Ch.  D.  560,  at  508  and  571  ;  Berndtson,  1867,  L.  E.  4  Eq.  481, 

per  LI.  Hatherley,  at  490).     And  "  where  goods  are  delivered  to  a  sliip 

chartered  by  the  buyer,  it  is  a  question  depending  on  the  circumstances 

of  the  particular  case,  whether  they  are  in  the  possession  of  the  master 

■rrier,  or  as  agent  to  the  buyer"  (s.  45  (5)).     The  question  is  one 

...nation,  and  dejiends  chiefly  on  the  nature  of  the  charter-party.     If 

it  amounts  to  a  "  demise  "  of  the  ship,  so  that  the  buyer  has  complete 

•rol   and   the   master   is   liis   servant,  the   transit   usually   ends   witli 

•  ivery  on  board.     If  the  buyer  has  hired  only  the  use  of  the  vessel — 

...  .1...  ,.^  .hisive  use— the  transit  ends  with  delivery  at  the  end  of  the 

s    a    contrary   intention    clearly   appears    (Benjamin,    850; 

.//.-,  1803,  3  East,  381,  at  396  ;  Foider,  1  East,  522;  Berndtson,  1867, 

L  l;.  4  E<i.  481 ;  c: parte  Bosevear  China  Clay  Co.,  1879,  L.  E.  11  Ch.  D.  560  ; 

r.n.-u    .......    ^    J.   20  Q.  ]>.  D.  015-  g^^  ^^^^  jj^^^^^,^  IgQ-^  jj^^^^^^  ^jgg  . 

'.  Hume,  G91 ;  Kri.nh,  1807,  Hume,  693). 

A  similar  test  has  generally  been  applied  in  cases  where  the  destination 

"h  is  to  be  reached  by  more  tlian  one  stage,  or  where  they  are 

M.  M..,,,-,i  to  an  agent  for  the  purpose  of  being  forwarded  to  the  buyer. 

Hie  qucKtion  often  ari.ses  whetlit-r  tlie  further  transmission  is  a  part  of 

tlie  <Ti-inal  transit  as  between  seller  and  buyer,  or  is  a  new  journey  with 

l\  ***-'  '^V^''^'''  ""  ^''^cern.     The  following  statement  seems  still  to 

•  the  loarln.^r  rule  of  law:   "Where  the  transit  is  a  transit  which 

.-n  f..n...,i  either  by  the  terms  of  the  contract,  or  by  the  directions 

inc  pu:  ;    to  the  vendor,  the  right  of  stoppage  in  transitu  exists; 


STOrrAGE  IN  TRANSITU  L'7 

but  if  the  goods  are  not  in  the  hands  of  the  carrier  by  reason  either 
of  the  terms  of  the  contract  or  of  tlic  directions  of  the  purcliaser  to  the 
vendor,  but  are  in  transitu  afterwards  in  consequence  of  fresh  directions 
given  by  tlic  purchaser  for  a  new  transit,  tlien  such  transit  is  no  part  of 
the  original  transit,  and  the  right  to  stop  is  gone.  So  also,  if  tlie 
purchaser  gives  orders  that  the  goods  shall  be  sent  to  a  particular  place, 
there  to  be  kept  till  he  gives  fresh  orders  as  to  their  destination  to  a  new 
carrier,  the  original  transit  is  at  an  end  when  they  have  reached  that  i)lac(', 
and  any  further  transit  is  a  frcsli  and  independent  transit"  {Iktlull,  1.S8S, 
L.  It.  20  Q.  B.  D.  G15,  per  Ld.  Esher,  M.  W.,  at  G17;  see  also  Coates,  1827, 
6  B.  &  C.  422,  at  427 ;  Rodger,  1869,  L.  R  2  P.  C.  393 ;  ex  parte  Watson, 
1877,  5  Ch.  D.  35,  discussed  in  ex  j)nrtc  Miles,  1885,  L.  II.  15  Q.  B.  D.  39, 
at  46-47;  Lyons  v.  Hoffnuiig,  1890,  15  App.  Ca.  391;  Llxon,  1804, 
5  East,  175;  Rowc,  1817,  8  Taun.  83;  Valpy  v.  Gihson,  1847,  4  C.  B.  837; 
ex  parte  Gihhcs,  1875,  L.  E.  1  Ch.  D.  101 ;  ex  parte  Barrow,  1881,  L.  R. 
G  Ch.  D.  783 ;  Kendal  v.  Marshall,  1883,  L.  II.  11  Q.  B.  D.  356,  per  Bowen, 
L.  J.,  369  ;  Morton,  1850,  20  D.  3G2  ;  Cuwdcnhcath  Coal  Co.,  1895,  22  B.  682  ; 
Wright,  1871,  9  ]\I.  516).  It  is  immaterial  whether  the  destination 
is  communicated  at  the  time  of  the  contract  for  the  sale,  or  is  indicated 
later,  but  before  shipment  {ex  parte  Roscrcar  China  Clay  Co.,  1879,  L.  B. 
11  Ch.  D.  560,  per  Brett,  L.  J.,  at  p.  569). 

Wrongful  refusal  by  the  carrier  to  deliver  does  not  prolong  the  transit. 
"  Where  the  carrier  .  .  .  wrongfully  refuses  to  deliver  the  goods  to  the 
buyer  or  his  agent  in  that  behalf,  the  transit  is  deemed  to  be  at  an 
end"  (s.  45  (6);  BohflingJc,  1803,  3  East,  381,  at  394:  Cowasjee,  1845, 
5  Moo.  P.  C.  165,  at  175  ;  Bird  v.  Broum,  1850,  4  Ex.  786,  at  797). 

"  Where  part  delivery  of  the  goods  has  been  made  to  the  buyer,  or 
his  agent  in  that  behalf,  the  remainder  of  the  goods  may  be  stopped 
in  transitu,  unless  such  part  delivery  has  been  made  under  such  circum- 
stances as  to  show  an  agreement  to  give  up  possession  of  the  whole  of 
the  goods "  (s.  45  (7) ;  cf.  sec.  42  as  to  lien).  The  question  is  therefore 
one  of  intention,  and  the  presumption  seems  to  be  against  actual  delivery 
of  part  operating  as  constructive  delivery  of  the  whole,  especiallv  where 
the  goods  are  clearly  divisible  {Melrose,  1851,  13  D.  880,  14  D.  268; 
€x  parte  Cooper,  1879,  L.  E.  11  Ch.  D.  68,  and  earlier  cases  discussed 
there;  Kemp  v.  Falk,  1882,  L.  E.  7  App.  Ca.  573,  per  Ld.  Blackburn, 
at  586 ;  cf.  Bolton,  1866,  L.  E.  1  C.  P.  431,  at  440 ;  ex  parte  Gihhcs,  1875, 
L.  E.  1  Ch.  D.  101,  at  109).  It  has  been  suggested  that  where  the  goods 
form  an  integral  whole,  such  as  a  piece  of  machinery,  the  delivery  of  an 
essential  part  may  exclude  stoppage  of  what  remains  {ex  parte  Cooper, 
supra,  per  Cotton,  L.  J.,  75 ;  cf.  Girdicood,  1827,  5  S.  507).  An  agreement 
to  give  up  possession  of  the  whole  is  less  easily  inferred  where  the  freiglit 
has  not  been  paid,  since  the  carrier  is  not  readily  supposed  to  have 
al)andoned  his  lien  by  parting  with  the  goods  {ex  imrte  Cooper,  supra ; 
Collins,  1804,  Mor.  14223). 

"  If  the  goods  are  rejected  by  the  buyer,  and  the  carrier  .  .  .  continues 
in  possession  of  them,  tlie  transit  is  not  deemed  to  be  at  an  end,  even  if  the 
seller  has  refused  to  receive  them  back"  (s.  45  (4):  Bolton,  1866,  L  E. 
1  C.  P.  431).  This  provision  seems  to  embody  the  view  taken  in  England, 
where  rejection  by  the  seller  has  l)een  regarded  as  jiart  of  the  doctrine 
of  stoppage  in  transitu.  In  Scotland,  hitherto,  a  distinction  has  been 
drawn,  and,  apart  from  stoppage,  the  buyer's  duty,  on  finding  linnself 
unable  to  pay  for  the  goods,  was  to  reject  them,  or  give  notice  to  the 
seller  and  retain  them  only  for  custody  {Drah-,  1807,  Hume,  691 ;  ct  Broini, 


2S  STOPPAGE  IX  TRANSITU 

islo  Hume,  709;  InjUs,  1841',  4  D.  478;  Booker  &  Co.,  1870,  9  M.  314; 

see'"      '•■    '  •    '  •     ''-y, -'93). 

L  has  ouce  terminated,  it  does  not  begin  again  on  the 
■  for  any  purpose  into  the  hands  of  the  vendor  {Vcdpy  v, 

"  it>47,  4  C.  B.  837). 

•   ■     -»?  KxEKCisiXG  THE  EiGHT. — "  The  unpaid  seller  may  exercise 
!  \         ,    .    .  .ppage  in  transit n  by  taking  actual  possession  of  the  goods,  or 

•liT  notice  of  his  claim  to  the  carrier  or  other  bailee  or  custodier  in 
whose  ion  tlie  goods  are.     Such  notice  may  be  given  either  to  the 

ai  acLual  possession  of  the  goods  or  to  liis  principal "  (s.  46  (1)). 

^   .ial  furm  of  notice  seems  to  be  required.     An  interdict  against  the 

:ier  dcHvcring  used  to  be  common  in  Scotland,  and  is  still  resorted  to 

(Ucll,  Com.  i.  248;  Stoppcl,  1850,  13  D.  61,  per  Ld.  Pres.  Boyle,  at  p.  68; 

•'  1858,  20  I).  302;  cf.  Booker  cO  Co.,  1870,  9  M.  314).     But  interdict 

,v_i;w.-L  the  purchaser  receiving  delivery  was  probably,  even  before  the 

A<--t,  insuthi'ient,  without  notice  to  the  carrier  (Booker  &  Co.,  siqwa,  per 

Ld.  Ardmillan  at  321. 

An   informal    notice,   e.g.   a   mere   verbal  intimation,  has    been   held 

,,...t;  .:  ,,jj.  (^Jiyhe)-(son  V.  More,  1801,  Mor.  App.  "  Sale,"  Xo.  3) ;  and  so  also  has 

,  aid  fur  the  bills  of  lading  from  the  shipowner,  who  happened  to  be  in 

lx)5session  of  them  (ex  parte  Watson,  1877,  5  Ch.  D.  35).     But  some  form  of 

notice  is  necessary,  asserting  the  intention  to  exercise  the  right  (Bell,  i.  250  ; 

.1842,  4  D.  1452,  per  Ld.  J.-Cl.  Hope,  1457).     In  spite  of  some 

■  :■  views  to  the  contrary,  tlie  mere  fact  of  the  buyer's  insolvency  does 

not  operate  a  stopi)age  (see,  e.g.,  Bell,  Com.  i.  248 ;  Schurmans  c&  Sons,  1828, 
G  S.  1  HO ;  Allan,  Steuart,  &  Co.,  3  Pat.  191,  at  196).  This  view  seems  to  be 
clearly  implied  in  the  Act,  and  has  long  been  settled  law  in  England. 

The  notice  is  usually  given  to  the  person  in  actual  possession  of  the 
gwds  (Litt,  1816,  7  Taun.  169;  Whitehead,  1842,  9  M.  &  W.  518; 
Bdhcll,  1887,  L.  Pt.  19  Q.  B.  D.  553 ;  1888,  L.  Pt.  20  Q.  B.  D.  615).  If 
given  to  the  principal,  "  the  notice,  to  be  effectual,  must  be  given  at  such 
•' '"d  under  such  circumstances  that  the  principal,  hy  the  exercise  of 

djk-  <liligence,  may  communicate  it  to  his  servant  or  agent  in  time  to 
prevent  a  delivery  to  the  buyer  "  (s.  46  (1) ;  Whitehead,  supra,  per  Parke,  B., 
534).  It  was  formerly  held  to  be  necessary  that  the  notice  should  actually 
reach  the  ix-rson  in  possession  (  Whitehead,  supra  ;  Kemp  v.  Fcdk,  1882,  L.  II. 
7  App.  Ca.  573 ;  and  see  as  to  duty  of  principal  to  transmit,  per  Ld.  Bram- 
well.^at  10  Cii.  D.  455,  and  Ld.  Blackburn,  at  7  App.  Ca.  585). 

Notice  to  the  consignee  to  hold  the  jyroceecls  of  the  goods  for  the  seller 
i.s  not  an  effectual  mode  of  stopping  (Phcljys,  Stokes,  &  Co.,  1885,  L.  P.  29 
Lli.  I).  813), 

Effect  of  Stoppage  /x   Tj?.iys/TU.— "When  notice  of  stoppage  in 

fran^Uu  w  given  by  the  seller  to  the  carrier,  or  other  bailee  or  custodier  in 

:  of  tlie  goods,  he  must  redeliver  the  goods  to,  or  according  to  the 

■■■  ini".'n  'tu""  ^'''^^'■'^'"  ^^-  '^^'  (-)'  '^^"^  Tigress,  1863,  32  L.  J.  Adm.  97,  at 
pp.  I'JI--)-  The  effect,  therefore,  is  not  only  to  countermand  delivery,  but 
i^)  entitle  the  seller  to  resume  possession,  and,  having  done  so,  to  retain 
jt  until  ^p:iy,ncnt  or  tender  of  the  price  (s.  44;  cf.  ^^o;?^;c^,  1850, 13  D.  61, 

'  J'"^'J^'  ^^^)- .  His  riglit  is  unaffected  by  delivery  of  the  goods  to- 
m»o  ■  'i«i  -"'I  -i'  '^'^^^^^  ^^^'  h'  mistake,  after  notice  of  stoppage  has  been 
given,     ihc  right,  however,  is  a  right  against  the  goods  themselves,  what- 

'Klition  may  be,  and  does  not  entitle  the  seller  to  sums  obtained 
••inr-e  policy  for  injury  done  to  them  during  the  transit 
■      L  P  :]  cii.  583^  ° 


STOITAGE  AV  TIlAysiTU 


29 


The  exercise  c.f  the  riglit  of  stopi)age  does  not,  in  general  rescind  the 
contract  {Stoppcl,  1850,  13  D.  61 ;  Adamson,  Iloivie,  &  Co.,  1808  G  M  347 
at  p.  354).    The  question  was  formerly  much  discussed,  and  some  of  the  earlier 
cases  m  hoth  England  and  Scotland  proceed  on  the  negative  view  (see  Smith 
Leading  Cases,  i.  p.  720).     Now,  snhject  to  the  excepti(jiis  below    "a  con- 


the  price  had  not  been  paid  within  the  period  of  credit,  where  such  ])erio(l 
was  fixed.  By  statute,  "where  the  seller  expressly  reserves  a  ri<'lit  cf 
resale  in  case  the  buyer  should  make  default,  and  on  the  buyer's  nTaking 
default,  resells  the  goods,  the  original  contract  of  sale  is  thereby  rescindecl, 
but  without  prejudice  to  any  claim  tlie  seller  may  have  for  damages"  (s.  48 
(4)).  Further,  "  where  the  goods  are  of  a  perishable  nature,  or"where  the 
unpaid  seller  gives  notice  to  the  buyer  of  his  intention  to  resell,  and  the 
buyer  does  not  within  a  reasonable  time  pay  or  tender  the  price,  the  unpaid 
seller  may  resell  the  goods,  and  recover  from  the  original  buyer  dama^'es 
for  any  loss  occasioned  by  his  breach  of  contract"  («.  48  (3) ;  Par/c,  ISGG,  L.'^l!. 
1  P.  0.  127,  at  p.  145  ;  ex  parte  Staplcton,  1879,  10  Ch.  Div.  586).  A 
reasonable  time  here,  as  throughout  the  Act,  is  a  question  of  fact  (s.  56). 
The  purchaser  from  an  unpaid  seller  who  has  exercised  his  right  of  stoppaf^e 
in  transitu  and  resold  the  goods,  acquires  a  good  title  to  them  as  a<"-ain^t 
the  original  purchaser  (s.  48  (2)). 

The  vendor's  right  is  subject  to  the  carrier's  lien  for  charges  in  respect 
of  the  particular  goods,  e.g.  freight,  but  not  to  claims  which  the  carrier  may 
have  against  the  buyer  merely  as  owner  of  these  goods,  which  do  not  arise 
out  of  the  contract  for  their  carriage,  e.g.  claims  in  respect  of  other  c-oods 
(Oppenhcim,  1802,  3  B.  &  P.  42 ;  Bichardson  v.  Goss,  1802,  3  B.  &  1'. 
119).  Nor  is  it  subject  to  diligence  gone  against  the  goods  by  the  buyer's 
creditors  during  the  transit  {Smith  v.  Goss,  1808, 1  Camp.  282  ;  Keisk  1807 
Hume,  693 ;  Dunlop,  22  Feb.  1814,  F.  C). 

Exclusion  of  the  PiIght  of  Stoppage. — The  right  is  one  which  arises 
"  by  implication  of  law,"  and  accordingly  "  it  may  be  negatived  or  varied 
by  express  agreement,  or  by  the  course  of  dealing  between  the  parties,  or 
by  usage,  if  the  usage  be  such  as  to  bind  both  parties  to  the  contract " 
(s.  55).  Thus  a  seller,  by  agreeing,  while  the  goods  were  in  transitu,  to 
rank  for  their  price  in  a  composition  arrangement  by  the  buyer,  was  held 
to  have  waived  his  right  to  stop  (Nichols,  1831,  5  C.  &  P.  179). 

The  right  of  the  unpaid  seller  is  a  right  against  the  goods  themselve.s, 
and  in  general  is  unaffected  by  any  dealings  between  the  insol\-ent  buyer 
and  persons  deriving  right  from  him.  "  Subject  to  the  provisions  of  this 
Act,  the  unpaid  seller's  right  of  .  .  .  stoppage  in  transitu  is  not  affected  by 
any  sale  or  other  disposition  of  the  goods  which  the  buyer  may  have  made, 
^mless  the  seller  has  assented  thereto"  (s.  47;  Kemp  v.  Falh,  1880,  L.  P. 
14  Ch.  D.  446;  1882,  7  App.  Ca.  573,  per  Ld.  Selborne,  578,  and  Ld. 
Blackburn,  582  ;  cf.  Smitli  v.  Goss,  1808, 1  Camp.  282.  See  Carver,  Carriage 
hij  Sea,  536  sqq.,  for  a  discussion  of  this  subject  prior  to  the  Act). 

This  rule  suffers  exception  in  the  case  of  the  indorsement  and  transfer 
of  documents  of  title  to  the  goods,  e.g.  a  bill  of  lading.  Such  a  transfer 
operates  symbolical  delivery  of  the  goods  themselves,  and  this,  according  to 
the  intention  of  the  parties,  may  either  pass  to  the  transferee  the  absolute 
property  in  the  goods,  or  give  him  a  right  of  securitv  over  them  (Bell,  Com. 
i.  214,  M'Laren's  note;  Saunders  v.  M'Lean,  1883,' L.  P.  11  Q.  B.  D.  327, 
j)er  Bo  wen,  L.  J.,  341 ;  Scivell  v.  BurdicJc,  1884,  L.  P.  10  App.  Ca.  74).     See 


30 


;TOrrAGE  IX  niAXSITU 


T  ••  Wliere  a  document  of  title  to  goodb  has  Leen  lawfully 

V  i..-.<ou  as  buyer  or  owner  of  the  goods,  and  that  person 

to  a  i»ersuu  who  takes  the  document  in  good  faith 

-  vahiable  consideration,  then,  if  such  last-mentioned  transfer  was  by 

uTiv   of  sale    the   imiviid   seller's   ri-ht   of   .  .  .  stoppage   m   transiht   i^ 

.7   -    .     -  J  if  micli  last-mentioned  transfer  was  by  way  of  pledge  or  other 

1  value,  the  unpaid  seller's  right  of  .  .  .  stoppage  m  transitu 

.•au  oniv  be  exercised  subject  to  the  rights  of  the  transferee  "  (s.  47).     In 

the  former  case    the  provision  embodies  the  rule  of  Lidcharroio  v.  Mason 

(1794  Smith  IaoiUiuj  Cases,  i.  674).     In  the  latter,  the  right  of  the  seller 

remaiijs    but  subject  to  a  charge  in  favour  of   the   transferee.     A\heu, 

liowever,  that  charge  has   been   paid   ofl;   the   seller  who   has   exercised 

liis  ri'dit  of  stoppage  stands  in  the  same  position  as  if  no  such  transfer 

had   rKH?n   made   (in   re   Wesizinthus,   1833,   5   B.    &   Ad.  817;   Spaldmc/, 

1843    6  Beav.  376;  Kemp  v.  Fall;  1880,  L.  11.  U  Ch.  D.  446;  1882,  7 

Aui).'Ca.  573  ;  cf.  ex  parte  Golding,  Davis,  &  Co.,  1880,  13  Ch.  D.  628). 

Thus,  where  tiie  bill  of  lading  has  been  transferred  in  security,  the  seller 
mav  still  stop  the  goods  on  payment  of  the  debt  so  secured,  and  his  right 
■  ■'  •■;s  to  the  etlect  of  entithng  him  to  any  surplus  of  the  proceeds  after 
,  in«'  the  creditor  to  whom  the  security  has  been  granted  {in  re  Westzin- 
th  us,  sj/prtf ;  Spaldimj,  supra).  "Whether  the  same  principle  applies  in  the  case 
of  a  sub-sale,  so  as  to  entitle  the  original  seller  to  recover  a  balance  of  the  price 
due  by  the  sub-])urchaser,  is  an  unsettled  question  {ex  parte  Goldiwj,  Davis, 
tC-  Co.,  1880, 13  Ch.  D.  628  ;  Kemp  v.  Falk,  svpra ;  cf.  Benjamin,  Sale,  893  sqq.). 
The  creditor  secured  by  the  transfer  of  a  bill  of  lading  and  holding  other 
securities  for  his  debt,  is  in  Scotland  a  catholic  creditor,  and  as  such  is 
bound,  in  realising  his  securities,  to  respect  the  rights  of  the  unpaid  seller 
who  has  stopped  in  transitu  (cf.  ex  2Mrte  Alston,  1868,  L.  R.  4  Ch.  168; 
see  Bell,  Cum.  ii.  418)  ;  and  where  the  bill  of  lading  was  transferred  in  security 
of  a  specitic  debt,  he  is  not  at  liberty  to  retain  the  goods,  in  a  question  with 
the  seller,  for  a  general  balance  due  to  him  by  the  purchaser  {Spalding, 
nujyra). 

A  "  document  of  title  "  in  the  above  provision  has  the  same  meaning  as 
in  the  FactorB  Acts  (52  &  53  Vict.  c.  45,  s.  1  (4)),  and  includes  dock  war- 
rants, delivery-orders,  etc.  See  Factoks  Acts  and  Documents  of  Title. 
Tlie  provision  in  the  Sale  of  Goods  Act  practically  re-enacts  sec.  10  of  the 
F.ict'.rs  Act,  1889  (extended  to  Scotland  by  53  &  54  Vict.  c.  40),  and  the 
result  is,  in  effect,  to  put  "  documents  of  title  "  as  there  defined  on  the  same 
footing  a«  bills  of  lading. 

To  exclude  either  in  whole  or  in  part  the  right  of  stoppage,  the  transfer 
mtuit  Ijc  made  by  a  person  to  whom  the  document  of  title  has  been  lawfully 
Iransferred,  and  made  in  good  faith  for  valualjle  consideration.  A  person 
willi  no  title  to  the  goods  can  create  no  right  which  is  effectual  against  that 
of  the  seller  (Dmmr/t/,  1868,  L.  R.  3  C.  P.  190 ;  Coventry,  1867,  L.  E.  4  Eq. 
493).  A  thing  is  done  in  good  faith  "  when  it  is  in  fact  done  honestly,. 
whether  it  be  done  negligently  or  not"  (s.  62  (2);  Pease,  1863,  L.  E.  1  P.  C. 
219),  It  is  not  enough,  to  prevent  the  exclusion  of  the  right  of  stoppage,  that 
tb'  '      '-'  knows  that  the  goods  have  not  been  paid  for  {Cumming,  1808, 

9  i..  ,.  ..  .;  iydomons,  1788,  2  T.  E.  674).  It  is  otherwise  if  he  is  also 
aware  of  the  buyer's  insolvency  {Cumming  v.  Broicn,  supra  ;  see  also  National 
Hank  V.  Aforris,  [1892]  App.  Ca.  287). 

Ii:  -■  ■  .nd  an  indorsement  of  a  bill  of  lading  to  a  creditor  in  security 
of  ap:.-,.  ...bt  maybe  reducible,  as  a  fraudulent  preference,  at  common 
law,  and  under  the  Act  1696,  c.  5  {Stoppel,   1850,  13  D.  61;  Adamson, 


STRAIGHTENING  OF  MAKCIIES  31 

Hojcic,  cC-  Co.,  18G8,  G  M.  347).  The  rule  is  aijparently  diirerent  in 
England.  To  entitle  the  seller  to  reduce,  he  must  show  that  he  exercised 
his  right  of  st()]»i)age  before  possession  was  taken  hy  the  huyer  or  anyone 
in  his  riglit  under  the  bill  of  lading,  and  he  must  prove  fraud  on  the  part  of 
the  indorser  and  indorsee  {Adamsoti,  Howie  &  Co.,  supra. 

[Bell,  Com.  M'Laren's  ed.,  i.  223  sqq.\  Pdackburn,  SoJr,  2nd  ed.,  311; 
Benjamin,  Sale,  4th  ed.,  841;  Abbott,  Shipjnnfj,  13th  ed.,  GGO ;  Carver! 
Carriage  hy  Sea,  2nd  ed.,507  ;  Smith,  LeaiHnu  Cases,  10th  ed.,719 ;  Scrutlon' 
Charte7'- Parties,  3rd  ed.,  138  ;  Chalmers,  Sale  of  Goods  Act,  78;  IJrown,  S(d'r 
of  Goods  Act,  2^1 ;  Goudy,  Banh-ivptcy,  2nd  ed.,  287.] 

Stouthrief.— According  to  Hume,  this  is  a  generic  term  for 
"  every  sort  of  masterful  theft  or  depredation  "  (Hume,  i.  104).  The  presence 
of  persons  in  custody  of  the  property  is  essential  for  the  constitution  of  this 
offence.  Housebreaking,  where  there  is  nobody  in  the  house,  or  where  the 
inmates  are  asleep  or  unaware  of  the  presence  of  the  thieves,  is  not  stouthrief. 
It  is  doubtful  whether  there  is  any  real  difference  between  stouthrief  and 
robbery,  and  the  former  term,  though  the  older  of  the  two,  is  now  never 
used.     This  matter  is  discussed  under  the  article  Eobbeky. 

Straightening  of  Marches.— By  the  Act  lGG9,c.  17,  "anent 

inclosing  of  ground"  (ratified  by  the  Act  1G85,  c.  39), it  is  provided:  "That 
whensoever  any  person  intends  to  inclose  by  a  dike  or  ditch  upon  the  march 
betwixt  his  lands  and  the  lands  belonging  to  other  heritors  contiguous 
thereunto,  it  shall  be  leisom  to  him  to  rerpiire  the  next  sheriffs  or  bailifls 
of  regalities,  stew^arts  of  stew'artries,  justices  of  peace  or  other  judges 
ordinar,  to  visit  the  marches  along  which  the  said  dike  or  ditch  is  to  be 
drawn,  who  are  hereby  authorised  when  the  said  marches  are  uneven  or 
otherwise  incapable  of  ditch  or  dike,  to  adjudge  such  parts  of  the  one  or  the 
other  heritor's  ground  as  occasion  the  inconveniency  betwixt  them,  from 
the  one  heritor  in  favour  of  the  other,  so  as  may  be  least  to  the  prejudice  of 
either  party,  and  the  dike  or  ditch  to  be  made  to  be  in  all  time  thereafter 
the  common  march  betwixt  them ;  and  the  parts  so  adjudged  re&pcciivc 
from  the  one  to  the  other  being  estimat  to  the  just  avail  and  compensed 
2Jro  tanto,  to  decern  what  remains  uncompensed  of  the  price  to  the  party  to 
whom  the. same  is  wanting;  and  it  is  hereby  declared  that  the  parts  thus 
adjudged  hinc  inde  shall  remain  and  abide  with  the  lands  or  tennandries  to 
which  they  are  respective  adjudged,  as  parts  and  pendicles  thereof  in  all  time 


comnig;." 


This  statute  has  been  of  great  use;  but  the  reported  cases  are  few,  as  it 
has  never  been  definitely  decided  whether  tiie  judgment  of  the  Sheriff  was 
subject  to  review  on  the  merits  (see  opinion  of  Ld.  Eutherfurd  Clark,  E.  of 
Kintore,  13  R.  997).  The  following  points  have,  however,  lieen  decided,  viz. : 
It  is  competent  to  the  Sheriff  to  lay  down  a  longer  line  of  march  than 
tlie  subsisting  one,  if  in  his  judgment  it  is  more  convenient  for  fencing 
{Kintore,  cit).  The  procedure  laitl  down  in  the  Act  directing  the  Sheriff  tt> 
visit  the  march  is  imperative,  and  cannot  be  dispensed  with  even  by  the 
consent  of  parties  to  a  remit  to  a  man  of  skill,  although  the  Sheriff  is 
personally  acquainted  with  the  locality  {Ld.  Advocate  v.  Sinclair,  11  ^I. 
137).  It  is  no  bar  to  carrying  out  the  Act  that  one  or  both  of  the 
contiguous  lands  are  entailed;  but  the  lands  added  to  the  cntaileil  lands  by 
excaml)ion  fall  under  the  fetters  of  the  existing  entail,  and  money  awarded  as 
compensation  for  entailed  lands  must  be  tailzied  or  employed  onland(/.Vn;jw//, 
1702,  Alor.  10477).     The  terms  of  the  Act  were  not  exceeded  by  adjudging 


30  STEAW 

f  1  .  1  ti,vr.P  .in.!  1  Inlf  acres  in  extent  from  one  heritor  to  another 
a  piece  of  land  t  no.  an    a  h.Ut  acie  ^^^^  ^^  ^       ^^^^^.^^.^  ^^^  ^.^^ 

t^^^^v  7^'^  ;  aia^^n  U^thi  Act  of  1669,  c.  17,  only  apph.s  where  the 
'  mutual      This  seems  reasonable,  but  the  context  shows  that  the 

Court  1.1  that  case  were  in  fact  referring  to  another  Act  (see  Ersk.  i.  4.  3, 
and  ii.  C.  4,  Ld.  Ivory's  Notes).     See  Makciies. 

Straw  —The  matter  of  the  consumption  of  the  fodder  and  straw  on 
1  farm  is  eenerally  matter  of  stipulation  between  landlord  and  tenant.  In 
llie  absence  of  anv  stipulation,  the  rights  of  the  tenant  m  the  matter  are 
limited  by  established  rule.     See  Dung  ;  Steelbow  ;  Chop. 

Strays.— See  Waifs  and  Strays. 

Streets.— See  Koads  and  Bridges  (voL  x.  p.  374). 

Subinfeudation.— One  of  the  chief  characteristics  of  the  feudal 
Bvstem   of  laud  tenure,  as  it  has   been   developed  in  Scotland,  is  that  it 
presents  to  us  a  "svstem  of  vassalage  progressively  subordinate,  the  number 
of  inferior  feus  being  without  any  defined  limit "  (Menzies,  519).     The  king 
i>^  the  ultimate  superior  of  all  persons  holding  land  on  a  feudal  tenure,  but 
between  him  and  the  lowest  vassal  there  may  be  an  indefinite  number  of 
intermediate  superiors,  for  it  has  always  been  competent  in  Scotland  for  a 
vassal    unless  specially  prohibited  by  the  terms  of   his  grant,  to  feu  the 
whole'or  part  of  his  lands  to  others,  to  be  held  by  them  of  him  as  their 
superior.     It  is  right  to  state,  however,  that  subinfeudation  may  have  been 
prohibited  in  Scotland  by  a  statute  of  Eobert  i.,  1325,  c.  24,  similar  in  its 
terms  to  the  English  statute  Quia  Emptorcs,  1290,  which  put  a  stop  to  the 
practice  of  subiu'feudation  in  that  country,  but  its  authenticity  is  very  doubt- 
ful, and  it  is  certain  that  it  was  never  observed  (Duff,  143  ;  Menzies,  609  ; 
lieil,  Led.  682).     Prior  to  1874  it  was  competent  for  a  superior,  who  desired 
to  prevent  his  vassal  sub-feuing  the  lands,  to  make  it  a  condition  of  the 
grant  that  he  should  have  no  power  to  sub-feu  them  {CampMl,  1828,  6  S. 
G79).     Such  a  clause,  unless  fenced  with  an  irritancy,  does  not  appear  to 
have  prevented  the  vassal  granting  a  sub-feu  which  would  be  valid  during 
his  life,  but  on  his  death  his  superior  might  refuse  to  give  his  successor  an 
entry,  and  so  the  lands  being  in  non-entry,  the  superior  might  by  obtaining 
decree  of  declarator  of  non-entry  destroy  the  sub-vassal's  right  (Bell,  Com.  i. 
29 ;  Bell,  Pr.  s.  806).     It  did  not  prevent  the  vassal  granting  a  disposi- 
tion with  au  a  vie  xel  de  me  holding  {Colquhoun,  1867, 5  M.  773).    Prohibitions 
iust  subinfeudation   made   prior   to    the  commencement   of    the    Con- 
.  ..ancing  Act,  1874  (37  &  38  Vict.  c.  94),  will  still  be  given  effect  to, 
but  any  made  subsequent  to  that  date  are  invalid,  for  it  is  provided  by  sec. 
22  of  that  Act  that  all  conditions  made  after  its  commencement,  "  to  the 
«!r<'ct  that  it  shall  not  be  lawful  to  the  proprietor  of  lands  to  sub-feu  the 
-aiiie  to  be  holden  of   himself  as  immediate  lawful  superior  thereof  .  .  . 
shall,  with  all  irritant  clauses  applicable  thereto,  be  null  and  void  and  not 
capable  of  Ixjing  enforced." 

The  effect  of  a  vassid  transferring  his  lauds  on  a  de  me  holding  is  to 
'i.iiv.-v  the  dominium  utile  to  the  grantee  and  to  leave  the  dominium 
III  in  the  granter.  A  new  feudal  dependaucy  is  thus  created,  with  the 
j^rauter  as  superior  and  the  grantee  as  vassal.  The  creation  of  this  new 
f(«  makes  no  diiference  in  the  relationship  of  the  granter  to  his  superior. 
IT- i'^  Hlill  his  vassal,  liable  in  all  the  prestations,  and  subject  to  all  the 


SUBINFEUDATION  ..., 

conditions  of  the  grant,  and  in  the  event  of  his  not  fulliUiii^'  thuni  the 
superior's  remedies  for  enforcing  them  are  unimpaired.     In  cousecpience  thi' 
position  of  sub-feuars,  who  derive  their  right  from  the  vassal  and  not  from 
his  superior,  between  whom  and  tlie  sub-vassals  no  direct  relationship  exists 
was  formerly  very  precarious.     In  the   event  of   tlieir  author  losing  hi.s 
right  to  the  lands  through  incurring  any  of  the  casualties  which  involved 
either  a  permanent  forfeiture  of  the  feu,  or  gave  his  superior  a  temporary 
right  to  the  rents,  their  rights  perished  with  his,  either  permanently  or 
temporarily,  as  the  case  might  be.     Confirmation  of  the  sub-feu  by  the  over- 
superior  might,  however,  be  obtained.     This  had  the  effect  of  protectin<r 
the  sub-vassal  against  such  casualties  as  involved  forfeiture  of  the  leu,  by 
substituting  him  for  his  author,  as  the  vassal  of  the  over-superior,  in  the 
event  of  forfeiture  being  incurred,  but  it  afforded  him  no  protection  aoainst 
such  casualties  as  involved  merely  a  temporary  right  to  the  rents  (Stair 
ii.  3.  28  ;  Ersk.  ii.  7.  9  ;  Menzies,  609  and  635  ;  Bell,  s.  736).     In  modern  times 
the  position  of  a  sub-feuar  has  been  improved  by  the  abolition  of  theancieiit 
casualties,  but  it  is  still  somewhat  disadvantageous.     It  has  been  decided 
that  if  a  feu  is  irritated  oh  non  sola  turn  canoneni,  any  sub-feus  which  have 
been  granted  by  the  vassal  will  also  be  annulled  {Sandcman,  1883,  10  ]; 
614;  rev.  1885,  12  E.  H.  L.  67,  10  App.  Cases,  553;  Casse/s,  1885,  12  L'. 
722).     The  sub-feuar,  however,  can  always  obviate  this  result  by  purgin"- 
the  irritancy  at  any  time  before  registration  of  the  extract  decree  in  the 
register   of   sasines.     Sub-feus  will  not  be  annulled  by  irritancy   oh   non 
solutum  canonem  if  they  have  been  confirmed  or  consented  to  by  the  over- 
superior  {Knight,  1846,  8  D.  991 ;  Sandeman,  supra).     Again,  a  superior 
has  a  real  security  over  every  portion  of  the  land  feued  out  by  him,  for  pay- 
ment of  his  feu-duty.     He  is  tlierefore  not  bound  to  take  cognisance  of 
any  divisions  of  the  subject  which  may  have  been  made  by  his  vassal,  but 
may  proceed  to  attach  any  part  of  it  in  order  to  secure  payment  of  the 
whole  feu-duty  ;  but  a  sub-vassal  who  has  had  to  pay  more  than  his  share 
has  a  right  of  relief  against  the  other  owners  of  the  feu.     "  There  are,"  said 
Ld.  Pres.  Inglis  in  Sandcman,  supra,  "  some  principles  of  the  feudal  law,  as 
applicable  to  the  rights  of  superior  and  vassal,  that  are  now  incontrovertible. 
Theie  is  no  doubt,  for  instance,  that  notwithstanding  the  granting  of   a 
feu-right,  the  superior  remains  dominus  of  his  estate,  and  therefore,  being 
creditor  in  an  obligation  for  payment  out  of  it  of  a  sum  of  money,  which  is 
a  dehitum  fundi,  he  has  right  to  attach  any  portion  of  the  estate  by  any 
real  diligence,  and,  in  particular,  by  an  action  of  poinding  of  the  ground." 
"  A  sub-vassal  must  certainly  sulDmit  to  have  his  estate  carried  off  by  real 
diligence  "(5/rti'r,  1682,  2  B.  Sup.  13;  Creditors  of  Eifcmouth,  1757,  5  B. 
Sup.  556  ;    Wcmyss,  1836, 14  S.  233  ;  Little  Gilmovr,  1839, 1  D.  403  ;  Knight, 
supra;  Nisbet,  1876,  3  E.  781  ;  Sandcman,  siipra).     The  superior,  of  course, 
loses  his  right  to  come  on  any  sub-vassal  for  the  whole  feu-duty  if  he  has 
consented  to  an  allocation  of  the  duty.     His  consent  is  generally  given 
either  in  the  original  grant,  or  by  a  memorandum  in  the  form  of  Schedule  I) 
of  the  Conveyancing  Act,  1874 ;  less  frequently  by  his  concurring  in  the 
disposition  by  the  vassal,  to  the  effect  of  allowing  the  allocation,  or  by  a 
charter   of    novodamus.      It    has    been    decided    that   a    superior   cannot 
raise  a  personal  action  against  a  sub-vassal  for  the  recovery  of  the  whole 
feu-duty  due  by  his  own  vassal,  if  the  amount  of  sub-feu  duty  is  less  than 
the  original  feu-duty,  but  he  may  bring  one  limited  to  the  amount  of  the 
sub-feu  duty,  or  possibly,  if  the  sub-feu  duty  is  elusory,  or  very  small  m  pro- 
portion to  the  size  of  the  feu,  one  limited  to  the  amount  of  the  original 
feu-duty  which  corresponds  to  the  extent  of  the  sub-fou  {Hy^Up,  ISo:'.,  I 


S.  E.— VOL.  XII. 


:j4  Sl'HOHNATlOX  OF  I'EIIJUKY 

M  535;  Mur,pns  of  T,c.Mdc's  Trs.,  1880,  7  II.  620 ;  Sandcman,  1881,  8 
R-90)  Trier  10  1874,  it  seems  to  have  been  doubttul  whcllier  proprietors 
of  iauaheia  biu-age  coiiUl  grant  feus,  and  the  better  opinion  seems  to  be 
llmt  they  could  not  (Hell,  Pr.  s.  480),  but  sec.  25  of  the  Conveyancing 
Act,  1874,  places  iheni  in  all  respects  in  the  same  position  as  those  holding 
bjr  feudal  tenure. 

Subornation  of  Perjury— See  Pekjuky  (vol.  ix.  p.  257). 

Subrogation— This  right  arises  in  connection  with  contracts  of 
ii.-  oi  7'i"l'«-i'\-     '^'''6  contract  is  treated  as  one  of  indemnity,  and 

lb.  cr  as  a  surety  who  is  entitled  to  all  the  remedies  of  the  assured, 

and  to  stand  in  his  place.  "As  between  the  underwriter  and  the  assured, 
the  underwriter  is  entitled  to  the  advantage  of  every  right  of  the  assured, 
whether  such  right  consists  in  contract,  fullilled  or  unfultilled,  or  in  remedy 
for  tort  c  ipable  of  being  insisted  on  or  already  insisted  on,  or  in  any  other 
right,  whether  by  way  of  condition  or  otherwise,  legal  or  equitable,  which 
can  be  or  has  been  exercised,  or  has  accrued,  and  whether  such  right  could 
or  could  not  be  enforced  by  the  insurer  in  name  of  the  assured,  by  the 
u-xercise  or  acquiring  of  which  right  or  condition  the  loss  against  which 
the  assured  is  insured,  can  be  or  has  been  diminished"  (per  Ld.  Esher, 
CasteUain,  1883,  L  E.  11  Q.  B.  D.  380,  388).  Consequently,  where  an 
insurance  company  pays  for  the  destruction  of  the  insured  property 
caused  by  the  negligence  of  a  third  party,  the  insurance  company  may 
use  the  name  of  the  insured  and  sue  the  wrong-doer  for  damages  (May 
on  Insurance,  s.  454).  And  where  the  insured  proceeds,  in  the  first  place, 
against  the  insurance  company  and,  after  obtaining  payment  of  the  full 
auKJunt  of  his  loss,  recovers  an  additional  sum  from  a  third  party,  he  holds 
that  sum  as  trustee  for  the  insurer,  and  must  communicate  the  benefit 
to  him  (CadcUain,  sujjra;  Darrell,  1880,  L.  li.  5  Q.  B.  D.  5G0 ;  and  see 
C"  '/I    Hallway,   1892,    19  R.    G08,  and   North   British  &  Mercantile 

A{y.>i'i<tn'c  Co.,  1877,  L.  II.  5  Ch.  D.  569).  It  follows  from  the  nature  of 
tlie  riglit  that  the  insurer  can  only  operate  through,  or  by  using  the  name 
of,  tlie  a.ssured,  as  there  is  no  privity  of  contract  between  the  insurer  and 
a  third  f>arty  liable  to  the  insured  as  a  wrong-doer,  or  liable  under  another 
contract  (Simpsoti,  1877,  L.  R.  3  App.  Ca.  279). 

Subrogation  applies,  however,  only  in  contracts  of  indemnity.  It  has 
no  place  in  accident  and  life  insurance,  which  are  not  contracts  of 
indemnity,  and  the  insured,  or  his  representatives,  can  recover  damages 
from  the  wrong-doer  who  has  caused  the  injury,  as  well  as  the  full  amount 
of  the  insurance  from  the  insurer. 

[porter  <m  Im^nriincc.'] 

Subscription  of  Deeds.— See  Deeds  (Execution  of). 

Substitute;  Substitution.— Theperson  to  whom  any  subject, 
henUible  or  movealjle,  is  destined  first  in  the  order  of  succession  under  a  testa- 
menUiry  deed  f.r  settlement  is  called  the  institute.  A  person  who  is  to  take 
til"  ■  '  ■  • -t  in  the  event  of  the  institute  not  being  alive  at  the  date  when  the 
Ht.  u  oj-ens  is   called  a  conditional  institute.     But  a  person  who  is 

aj.iKiinted  to  take  the  property  after  the  institute  has  taken  the  property, 
and  died  in  the  possession  of  it,  is  called  a  substitute.  We  are  here  concerned 
w:'i  '1  1  •  of  tliese  only,  but  for  the  sake  of  clearness  it  is  necessary  to 
*''    .  nit  ions  of  tb<-  former  two  in  mind,  as  many  points  in  regard 


SUBSTITUTE;  SUBSTITUTION  35 

to  siil)stitutes  can  be  made  clear  only  by  the  contrast  willi  conditional 
institutes.  Where  a  proprietor  during  his  life  settles  an  estate  on  liinisclf, 
whom  failing  on  a  series  of  heirs,  he  is  himself  the  institute,  and  the  heirH 
called  after  him  take  as  substitutes.  In  this  case  there  is  no  room  for 
conditional  institutes,  and  there  is  no  such  thing  as  conditional  suljstitution. 
There  are  so  many  distinctions  between  substitution  in  heritage  and 
substitution  in  moveables  that,  for  convenience,  we  shall  treat  the  two 
branches  separately. 

1.  Suhstitiitioii  ill  Hcritafjc. — Onenotabledistinction  l»etwcen  a  conditional 
institute  and  a  substitute  in  heritage  is  that  the  former  takes  as  a  disjionee, 
directly  under  the  deed,  while  the  latter  must  serve  himself  as  lieir  of 
provision  or  obtain  a  writ  of  dare  constat  from  the  superior  (M'Laren, 
Wills  and  Succession,  p.  4G8).  Nor  is  this  a  purely  formal  distinction,  Init 
one  which  may  ultimately  affect  the  property  in  the  subject.  For  if  a 
person  takes  as  disponee,  a  personal  right  vests  in  him  at  once,  so  that  he 
may  dispose  of  the  property  by  deed  although  he  die  without  making  his 
right  real.  But  if  he  succeed  as  heir,  no  right  of  any  kind  vests  in  him 
without  service ;  and  if  he  die  without  having  expede  service,  his  deeds 
cannot  afCect  the  property  (Fotjo,  4  D.  lOG?.,  see  per  Ld.  Moncreifl",  at  p. 
1103).  In  general,  in  the  case  of  a  destination  of  heritable  property,  there 
is  a  presum])tion  in  favour  of  substitution,  which  includes  the  lesser  right 
of  conditional  institution.  An  heir  substitute  called  as  such  in  the  destina- 
tion is,  so  long  as  the  property  has  not  vested  in  someone  called  Itefore 
him,  potentially  a  conditional  institute.  In  the  most  recent  case  in  whicli 
this  cpiestion  was  raised  Ld.  Kinnear  said:  "Mrs.  Geddes  is  quite  clearly _a 
conditional  institute,  and  the  condition  upon  which  her  right  is  to  arise  is 
the  death  of  all  the  younger  children  of  [Mrs.  Sandys]  before  attaining 
twenty-five.  All  the  heirs  following  her  are  substitutes  to  her,  or,  as  in 
the  case  of  all  substitutions,  conditionally  instituted  in  her  place  "  {Sandi/s, 
25  R  261,  at  p.  275  ;  Tristram,  22  R  121,  per  Ld.  Kinnear,  p.  1 28  ;  Graiirs 
Trs.,  24  D.  1211;  Fogo,  4  D.  1063;  Colquhoun,  9  S.  911).  This  i.rinciple 
applies  equally  to  destinations  in  which  the  institute  is  called  by  name  and 
those  in  which  he  is  called  by  description  {Hutchison,  11  M.  229).  As  an 
instance  of  a  case  in  which  it  was  held  that  there  was  no  sul)Stitution  (and 
therefore  no  room  for  the  application  of  this  doctrine),  reference  may  be 
made  to  Groat,  21  K.  961. 

When  heritage  is  left  to  a  line  of  heirs  in  succession,  not  protected  by 
the  fetters  of  an  entail  or  otherwise,  the  substitutes,  after  the  property  has 
once  vested  in  an  institute,  have  no  more  than  a  sjks  succession  is  (q.r.). 
That  is  to  say,  the  person  in  possession  may  defeat  the  substitution  by 
selling  or  gratuitously  disposing  of  the  sul)ject  in  his  lifetime,  or  by  tlispos- 
ing  of  it  testamentarily  (Ersk.  iii.  8.  44 ;  Grcig,  6  W.  &  S.  406 ;  Mine,  7  D. 
845).  It  was  for  long  contended  that  a  general  testamentary  disposition  did 
not  defeat  a  particular  substitution,  and  this  is  in  general  true  where  the 
general  deed  and  the  particular  substitution  are  both  granted  by  the  same 
person.  "  In  such  a  case  both  the  instrumentsi  express  the  mind  and  will 
of  the  same  person— the  one  as  to  a  particular  i»art,  the  other  as  to  the 
generality  of  his  estate.  .  .  .  There  was  nothing,  therefore,  inconsistent  or 
unreasonalde  in  reading  or  construing  two  such  instruments  togelher,  and 
treating  the  general  as  subordinate  to  and  exclusive  of  the  particular  inten- 
tion—the effect  of  which  was  to  make  the  general  words  residuary  in  their 
operation,  as  they  would  have  been  if  the  particular  disposition  ''="1  '•^<^" 
found  in  the  same  instrument"  (per  E.  Selborne  in  Ca»i/>hiil,,  h.  (H-  1^) 
100  ;    JFcbstcr's  Trs.,  4  R  101  ;  Ghndomvyn,  11  M.  (H.  L.)  33  ;  Farqnharson, 


36  SUBSTITUTE ;  SUBSTITUTION 

C  Pat.  7--*;.  llui  it  is  otherwise  when  the  substitution  has  been  madfe 
not  by  'the  grauter  of  the  general  disposition  but  by  his  author.  In  that 
case,  u^lt^ss  the  contrary  be  shown  to  be  his  intention,  a  general  settlement 
by  one  hoUling  under  a  destination  will  evacuate  the  future  substitutions  in 
.'  '  •  •  •;!^i).  "Xo  reason  can  be  suggested  why  a  testator  should  be 
:;erallv  to  liave  more  regard  for  heirs-sulistitute  not  of  his  own 
;  ^  than  for  his  own  heir-at-law  "  (per  E.  Selborne  in  CamjjhcU,  7  E. 

(H.  L.A0O;  Watsons  Trs.,  21  E.  451 ;  Gray,  5  E.  820;  Thorns,  6  M.  704;  Baine, 
7  D.  845 ;  Liitch,  3  AV.  &  S.  UQ).  In  the  later  case  of  Philip  (13  E.  329)  a 
property  bought  subsequent  to  the  execution  of  a  general  disposition  in 
favour  of  his  wife  "and  her  assignees,  whom  failing  his  whole  children,"  by 
a  testator  who  took  the  title  in  favour  of  himself  "  and  his  heu-s  and 
■t's  whomsoever,"  was  held  carried  by  tlie  general  disposition.  But 
iu  i.u-  a.s  in  all  other  matters  relating  to  the  construction  of  testaments,  the 
true  criterion  is  the  intention  of  the  granter  {Gray,  5  E.  820 ;  Ramsay,  1  I). 
83,  j)er  Ld.  FuUerton,  Ordinary). 

Where  the  subject  conveyed  is  mixed  succession,  i.e.  partly  heritable 
and  partly  moveable,  the  presumption  is  that  conditional  institution,  not 
suVistitutiou,  was  meant;  and,  consequently,  w'hen  an  institute  once  takes 
the  subject,  those  mentioned  after  him  lose  all  interest  in  the  subject 
though  lie  should  die  intestate  {Henderson,  20  D.  473 ;  Allan,  7  D.  908 ; 
(ircuj,  6  W.  I't  S.  406).  But  here  also  the  intention  of  the  testator 
prevails. 

The  description  of  a  suljstitute  or  series  of  substitutes  must  be  clear 
and  unmistakable.  If  expressed  so  widely  as  to  be  unrecognisable 
in  law,  the  destination  will  be  of  no  avail  {M'Gillivray,  24  D.  759). 
For  the  construction  to  be  placed  on  particular  words  of  substitu- 
tion, and  the  extent  to  which  these  may  be  controlled  by  context,  see 
Heiks. 

2.  Substitution  in  Moveables. — Differing  from  the  case  of  heritable 
destination,  the  presumption  in  destination  of  moveables  is,  in  the  absence 
of  a  clear  expression  of  intention,  in  favour  of  conditional  institution  rather 
than  substitution  (per  Ld.  J.-Cl.  Inglis  in  Sutherland,  4  M.  105  ;  Fijffe  3  D. 
1205 ;  Denholm,  1726,  Mor.  6346 ;  Greig,  6  W.  &  S.  406  ;  Tait,  15  S.  1273). 
But  when  a  substitution  is  clearly  expressed,  it,  as  the  greater  right, 
includes  conditional  institution,  just  as  in  tlie  case  of  heritage  {Aitchison, 
9  S.  454;  Henderson,  3  D.  548  ;  Maclean's  Trs.,  16  E.  1095;  Neville,  23  E. 
351 ;  Sandys,  25  E.  261). 

A  person  taking  under  a  destination  of  moveables  may  defeat  the  hope 
of  succession  (see  Spes  successionis)  of  those  substituted  to  himself  in 
the  destinaticjn,  either  gratuitously  or  onerously  {M'JJowall,  9  D.  1284; 
MClymmt'i  Exors.,  22  E.  411 ;  Bell's  Exor.,  24  E.  1120,  per  Ld.  Moncreiff, 
p.  1127).  In  the  case  of  moveables,  no  formal  step  is  necessary  to  defeat 
the  substitution.  A  change  of  the  investments  is  sufficient  to  have  this 
efTcHl  {yrihvaH,  9  D.  1284).  And  a  substitution  may  be  evacuated  simply 
by  the  amount  of  the  bequest  being  paid  over  to  the  institute  and  mixed 
with  her  own  funds  {Buchanan's  Trs.,  6  M.  536,  per  Ld.  Pres.  Inglis,  at  p.  539). 
(Jf  course  n  f.rrtiori  a  general  disposition  or  settlement  will  evacuate  a 
Bul.Hiiiution  (Buchanan's  Trs.,  cit.).  But  where  the  legacy  is  earmarked, 
and  the  legatee  does  not  alter  the  investment  or  otherwise  mix  it  with  her 
own  funds,  the  sulistitution  will  not  be  evacuated  without  an  express 
Mf^riarat.on   of   intention,   as   by   a   general    settlement   {MDowall,  9   D. 

Protected    destinations,  under    which   the    sul^stitution   may   not    be 


SUCCESSION 


evacuulcJ  gratuitously,  are  soiuotimes  made  in  marriage  contractK  :iml 
mutual  settlements.  These  destinations  are  protected  as  they  rest  on 
contract,  and  the  (|ucsti(iii  to  lie  decided  in  such  cases  is  wliat  was  the 
contract.  In  the  ordinary  case  the  contract,  wliile  prohihiting  gratuitous 
alienations,  does  not  strike  at  onerous  deeds  {Murray,  22  Jl.  927;  Smidu/i, 


testamentary  provisions  in  the  case  of  Lady  J/rt.s,s?/  (11  M.  173),  which  was 
followed  in  Gihsons  Trs.  (4  1\.  1038).  But  the  later  cases  of  Iluunion  (5  J;. 
154)  and  Ncwall's  Trs.  (25  R.  117G),  somewhat  impair  the  autljority  of 
Lady   Massy s    case.      But    see    further,   ItEVOCATiON ;    Succession;    antl 

Vesting. 

Succession. — The  law  of  succession  is  that  hranch  of  the  law 
which  deals  with  the  transmission  of  rights  npon  the  death  of  the  person  in 
whom  they  exist.  Apart  from  certain  restrictions  imposed  by  the  legal 
relations  of  husband  and  wife,  and  parent  and  child,  the  owner,  if  of  full  age 
and  not  subject  to  legal  incapacity,  is  given  l)y  the  law  such  control  over 
his  property  that  he  can  not  only  use  it  during  his  lifetime,  but  fix  what 
is  to  be  done  with  it  when  he  has  ceased  to  be  capable  of  holding  any 
right. 

According  to  the  institutional  writers,  succession  is  governed  by  the  will 
of  the  owner,  either  express  or  implied :  for  in  the  event  of  his  dying  with- 
out any  express  direction  competently  given,  his  property  is  divided  among 
his  relations  on  such  principles  as  it  is  presumed  he  would  have  adopted  had 
he  made  express  provision.  A  simple  destination  has  this  etiect,  that  the 
order  of  succession  pointed  out  is  to  be  observed  so  long  as  no  alteration  is 
made  by  any  of  the  heirs  succeeding  to  the  estate ;  but  the  heir  in  posses- 
sion may  alienate  the  lands  or  alter  the  order  of  succession  (Sandford  on 
Entails,  p.  44). 

A  man's  successors  are  therefore  found  either  by  certain  rules  clearly 
established  by  the  common  law  or  by  statute ;  or  they  are  those  whom  lie 
has  himself  appointed  directly  or  indirectly ;  directly  if  he  appoints  them 
by  his  own  deed,  indirectly  if  he  allows  an  order  of  succession  imposed 
by  some  predecessor  to  stand  unaltered,  or  allows  some  substitute  to 
appoint. 

The  case  of  entails  of  land  at  one  time  would  have  afforded  an  exception 
to  this  statement,  but  the  facilities  which  the  Legislature  has  introduced  for 
securing  disentails  seem  to  have  made  the  pro})Osition  of  universal 
application. 

Succession  may  accordingly  be  divided  into  succession  prorisioyic  Icyis, 
or  intestate  succession;  and  succession ^?'ormo?zc  liominis,  or  testate  succes- 
sion. 

It  is  convenient  to  notice  here  that  mere  words  of  exheredation  will 
not  exclude  the  legal  heir.  In  order  to  exclude  him,  the  rights  that  would 
have  gone  to  him  must  be  given  to  someone  else.  This  is  well  settled  in 
the  case  of  heritage  (Stoddarf,  1734,  Elch.  r.  "Succession,"  No.  1;  Bos-f, 
1770,  Mor.  5019;  affd.  1771,  2  Pat.  254;  yiy/o//,  1742,  Mor.  14935;  Blai-k- 
wood,  1833,  11  S.  443;  Sinclair,  1840,  2  I).  694);  and  though  in  Bnzly, 
1739,  Mor.  059 1,  it  was  held  that  a  testamentary  nominatinn  of  executors, 
accompanied  by  words  excluding  the  next  of  kin,  gave  the  executors  a 
beneficial  interest,  it  is  said  by  Ld.  ^M'Laren  that  there  is  no  authority  that 
establishes  that  the  interest  of  a  child  in  his  father's  succession  can  be 


38 


SUCCESSION 


takeu  awav  by  worils  of  mere  exclusion,  whether  in  a  testament  or  in  a 

7.V.     -     ,  ..=..',:  M.  1114).  ^     . 

As  a  succession  opens  only  upon  a  death— leavnig  out  of  view  at 
present  the  case  of  a  forfeiture  under  an  entail,— and  as  a  right  to  succeed 
{■  "  uj)on  surviviince,  one  of  the  first  questions  to  be  considered  under 
liu-  iH-aa  of  succession  is  that  of  the  presumption  of  life. 

In  this  article  questions  afiecting  the  law  of  succession  are  treated  under 
the  follow  in<'  iieads : — 


Pr- •iuuof  Life,  p.  3vS. 

D.  1  Ix'tween  Heritage  and  Move- 

able-, i>.  40. 
Conversion,  p.  42. 
Intestate  Succession  in  Heritage,  p.  44. 

Terce,  p.  49. 

Cuiitcsy,  p.  50. 

AjiiKirent  Heir,  p.  50. 

S<.Tvice,  p.  53. 

CI"  re  co)istat,  p.  55. 

Adjudioatiun  upon  Trust  Bond,  p.  5G. 

Passive  Titles  iu  Heritage,  p.  57. 
Testate  Succession  in  Heritage,  j).  59. 

Institution  and  Sulistitution,  p.  60. 

Meaning  of  "  Heir,"  p.  01. 

Clause  of  Return,  p.  64. 

Entail,  p.  65. 

Will  of  Heritage,  p.  68. 

Conjunct  Foes,  p.  70. 

Marriage-Contract  Provisions,  p.  71. 

Lea.se  and  Crofters  Act,  p.  73. 
Intt-'.^tate  Moveable  Succession,  p.  74. 

Ixgitim,  p.  78. 

Jus  rdicUf,  p.  81. 

Division  of  Husband's  Proiiert^',  p.  82. 

<  "ollation,  p.  85. 
Testate  Succession  in  Moveables,  p.  87. 

Forms  necessary  iu  Wills,  p.  91. 


Revocation  of  Wills,  p.  94. 

Mutual  Wills,  p.  96. 

Marriage  Contracts,  p.  97. 

Rules  for  Interpreting  W^ills,  p.  98. 

Powers  of  Appointment,  p.  101. 

Donatio  mortis  causa,  p.  103. 

Approbate  and  Rej^robate,  p.  104. 

Conditio  si  sine  liheris,  p.  107. 

Legacies,  p.  108. 

General  Words  in  Wills,  p.  112. 

Errors  of  Description,  etc.,  p.  113. 

Per  capita  and  Per  stirpes,  p.  117. 

Precatory  Trusts,  p.  118. 

l)oul)le  Legacies,  p.  118. 

Payment  of  Debts  and  Legacies,  p.  119. 

Interest  payalde  on  Legacies,  p.  121. 

Conditions  in  Legacies,  j).  121. 

Satisfaction,  p.  122. 

Vesting  of  Legacv,  p.  123. 

Resulting  Trust,'p.  125. 

Succession  to  Shares  in  Ships,  and  under 
Shipping  Acts,  p.  126. 
Liability  of  Estate  for  Debt,  p.  127. 
Relief  between  Heir  and  Executor,  p.  129. 
Executor,  -p.  130. 
Yitious  Intromission,  p.  133. 
International  Law,  p.  134. 
Sale  of  Spes  successionis,  ]>.  136. 


PllESUMrTION    OF   LiFE. 

At  common  law  a  person  is  presumed,  in  the  absence  of  contrary  proof, 
t^)  have  lived  to  the  extreme  period  of  human  life,  and  that  is  held  to 
be  the  end  of  one  hundred  years.  The  presumption  ceases  entirely 
at  the  end  of  one  hundred  years.  The  presumi)tion  of  life  is  stronger 
or  weaker  during  that  century  according  as  more  or  less  of  the  period  has 
elapsed,  and  according  as  more  or  less  time  has  elapsed  since  the  party 
wa.s  lieard  of  (Carstairs,  1734,  Mor.  11633;  Bruce,  1871,  10  M.  130). 
Thi.s  presumjdion  may  be  overcome,  but  the  onus  of  proving  a  death 
lies  on  the  jtersou  who  avers  it.  In  all  such  cases,  presumptions,  proofs, 
imd  inferences  ivoin  the  particular  circumstances  rule  the  decision  (Bell, 
Prin.  1G40).  The  evidence  requisite  to  satisfy  the  Court  varies  with 
the  circumstances  of  each  case  {M'Zay,  1876,  3  li.  1124;  Bruce,  1871, 
10  M.  130).  It  will  be  more  easy  to  prove  death  when  the  person 
who.se  life  IS  in  riuestion  was  engaged  in  a  perilous  mode  of  life,  or  lived  in 
an  unh.;althy  district  {Fnirkolme,  1858,  20  1).  813 ;  Eliind:s  Trs.,  1878,  5  E 


SUCCESSION 


".O 


of  coarse,  an  important  element;   the  mere  age  of   the   per.suu  whu   has 
disappeared  has  not  been  considered  of  great  importance. 

In    numerous    cases    the   successor    has   been   put   in  possession    on 
finding  caution  to  repay  if  necessary,  he  having  proved  long  altsoncc  and 
silence  {Garland,  1841,  4  D.   1 ;   Stirlinrj,  1847,  9  1).   92o ;  Fclics,  1825 
4  S.  149 ;  Hyslop,  1830,  8  S.  919 ;  Chambers,  1849,  11  D.  1359). 

The  difficulty  of  dealing  with  cases  of  disappearance  led  to  the  passing 
of  the  Presumption  of  Life  Limitation  Acts.  The  first  of  these  was  pa.'^sed 
in  1881  (44  &  45  Vict.  c.  47),  on  tiie  i)reamble  that  great  hardshijis  liave 
arisen  from  the  want  of  any  limitation  to  the  presumption  of  hfe  as 
regards  persons  who  have  been  absent  from  Scotland,  or  have  disapi)eared 
for  long  periods  of  years,  and  it  introduced  a  presumption  "  in  all  cases 
where  a  person  has  left  Scotland,  or  has  disappeared,  and  where  no 
presumption  arises  from  the  facts  that  he  died  at  any  definite  date,"  tliat 
death  took  place  seven  years  after  disappearance  {Craig,  1882,  19  S.  L.  If. 
358),  and  laid  down  various  rules.  Tliese  provisions  were  superseded  by  the 
Act  of  1891  (54  &  55  Vict.  c.  29),  wliieli  is  now  the  regulating  statute.  It 
provides  (s.  3)  that,  in  case  any  person  has  disappeared  and  has  not  been 
heard  of  for  seven  years,  the  Court  may,  on  the  application  of  any  person 
entitled  to  succeed  to  any  estate  upon  the  death  of  the  absentee,  or  entitled 
to  any  estate  the  transmission  of  which  to  the  petitioner  depends  upon  the 
death  of  the  absentee,  find  that  he  has  disappeared  and  the  date  at  wliicli 
he  was  last  known  to  be  alive.  The  Court  may  find  that  he  died  at  some 
specified  date  within  seven  years  of  his  disappearance,  or,  if  tliere  is 
nothing  to  justify  such  a  finding,  he  is  to  be  presumed  to  have  died 
exactly  seven  years  after  the  date  at  whicli  he  was  last  known  to  be 
alive. 

Any  number  of  persons  may  be  joint  applicants  (9),  and  it  is  competent 
to  the  person  who  presented  the  petition,  or  to  any  other  person  entitled  to 
succeed  to  any  estate  on  the  death  of  the  person  who  has  disap])eared,  or 
entitled  to  any  estate  the  transmission  of  wliich,  or  the  disburdening  of 
which  from  a  liferent  depended  upon  such  death,  to  proceed  as  if  the 
absentee  had  actually  died  on  the  date  so  fixed  by  the  Court. 

The  Act  of  1881,  it  was  decided,  did  not  apply  to  the  case  of  one  who 
had  never  been  in  Scotland  {Piainham,  1881,  9  \\.  207). 

If  the  absent  person  returns  within  tliirteen  years  of  his  estate  being 
taken  possession  of  by  his  successors,  he  is  entitled  to  receive  it  back,  or 
the  price  or  value  of  it,  from  the  person  who  has  become  entitled  to  it,  or 
anyone  acquiring  it  from  him  by  a  gratuitous  title,  free  of  any  burdens 
that  did  not  affect  it  at  the  date  of  the  judgment  of  the  Court,  but  subject 
to  a  claim  for  meliorations.  In  no  case  is  he  entitled  to  demaml  any 
income  accrued  before  the  demand. 

If  a  title  has  been  made  up  by  registration  in  a  public  register  for 
thirteen  years,  or,  in  the  case  of  estate  the  title  to  which  does  not  admit  of 
registration,  if  possession  has  been  had  for  thirteen  years,  the  riglit  of  the 
absent  person  to  recover  ceases. 

The  Act  applies  to  all  property,  heritable  and  moveable,  real  and 
personal,  and  any  right  or  interest"  therein  of  any  description:  but  it 
does  not  apply  to  policies  of  assurance  on  lives. 

Where  the  total  value  of  the  estate  in  Scotland  docs  not  exceed 
£500,  the  petition  may  be  brought  in  the  Sheritl  Court  of  the  county 
where  the  greater  part  of  the  estate  is  situated,  othcrwit^e  it  must  be 
brought  in  the  Court  of  Session. 

For  cases  under  this  and  the   former  Act,  see  Bainham,  1881,  9  h. 


,•0  srccESsiox 

I'u:.  Cra.,,  166-2, 'J  l^-  -1-^;    iruluuiusuu,  1886,  14  E.  220;  Miuii/,  1887, 

i:.  K.  2o2"  ,      •  t,  , 

In  the  case  of  persons  perishing  in  a  common  calamity,  where  there 

is   uo    proof  that  one   of   them   survived    the   other,  our   law  recognises 

no   presumptions  such  as   obtained   in    the   TiOman    law,   by   wliieli    the 

•    -i  of  survivance  may  be  settled.     It  lies  with  the  person  making 

iiuent   to   prove   it;   if  neither    can  be   proved   to    have  survived 

the  otluT,  then  rights  depending  upon  such  survivance  will  be  held  not  to 
be  i-  -tl.     A  testator  bequeathed  personal  estate  to  A.  in  the  event  of 

liis  \\;ic  'iwng  in  his  lifetime.  They  were  drowned  together.  It  was  lield 
that  the  onus  of  proving  the  death  of  the  wife  in  the  husband's  lifetime 
was  upon  A. ;  that  it  was  necessary  to  produce  positive  evidence  in  order 
to  enable  the  Court  to  pronounce  in  favour  of  the  survivorship ;  that  no 
such  evidence  being  produced,  the  next  of  kin  were  entitled  {Wing,  1860, 
8  H.  of  L  183). 

Heritable  and  Moveable. 

As  there  is  a  far-reaching  distinction  drawn  in  the  law  of  Scotland 
between  heritage  and  moveables,  it  is  important,  before  stating  the  rules 
of  succession,  to  give  a  general  statement  of  the  manner  in  which  this 
distinction  is  appUed.  In  intestate  succession  the  rule  is,  that  things  and 
rights  considered  heritable  go  to  the  heir,  moveables  go  to  the  executor. 
In  testate  succession  the  importance  of  the  distinction  has  been  con- 
siderably moditied  by  comparatively  recent  legislation,  but  it  is  still 
marked. 

The  question  whether  a  subject  or  fund  is  heritable  or  moveable  may 
have  its  answer  fixed  in  one  or  other  of  the  three  ways : 

1.  It  may  be  by  nature  immoveable  or  moveable. 

2.  It  may  be  connected  with  or  accessory  to  some  subject  which  is  by 

nature  heritable  or  moveable. 

3.  It  may  have  its  character  fixed  by  destination  of  the  owner. 
Cui'porial  Suhjccts. — Corporeal  sul)j'ects  are  heritaljle  by  nature  if  they 

are  incapable  of  being  moved.  Thus  lands,  houses,  mines,  minerals  in  situ, 
are  heritable ;  whatever  is  capable  of  being  moved  from  place  to  place  with- 
out injury  or  change  of  nature  is  by  nature  moveable  (Stair,  ii.  1.  2  ;  Ersk. 
ii.  2.  4,  7;  B.  P.  1472).  Corporeal  subjects  in  tlieir  own  nature  moveable 
may  Ijeconie  heritable  \>y  accession.  When  a  subject  has  been  so  annexed  to 
land  that  it  cannot  be  removed  without  destruction  or  change  of  nature  or 
of  use  in  one  or  in  the  other  subject,  it  becomes  heritable  by  accession. 
This  is  the  case  with  buildings,  fixtures  in  houses,  mills,  machines  erected 
on  a  spot  to  which  they  are  by  their  own  weight  innnoveably  fixed.  "  Where 
a  certain  amount  of  fixture  coincides  with  any  of  the  following  elements: — 
(1)_  where  the  article  is  essential  or  material  to  the  enjoyment  of  the 
fruits  or  the  use  of  the  heritable  subject :  (2)  if  there  be  a  special  adaptation 
in  the  construction  of  the  article  itself  to  the  uses  or  improvement  of  the 
iMTiUbh'  property  to  which  it  is  attached,  which  it  would  not  possess  if 
placed  elsewhere;  (3)  express  declaration  by  the  owner  of  an  intention 
that  the  article  should  be  annexed  to  the  real  estate"  (Ld.  Moncreiff 
in  Dovnll,  1874,  1  IJ.  HSO).  "On  the  other  hand,  I  think  it  is  also 
certain  that,  where  the  circumstances  clearly  indicate  that  the  ol)ject  of  the 
annexation  wa^  not  the  benefit  of  the  real  estate,  and  that  the  owner  had 
iKMnt^jntion  of  attadinig  them  thereto,  the  articles,  if  moveable  in  their 
IV-  ••-•  remain  so.  Trees  and  natural  fruits  not  requiring  cultivation  are 
'  "  so  long  as  attached  to  the  soil.     Hav   of   the   second   crop   is 


SUCCESSION  41 

heritable  in  succession  {Dalri/mple,  1744.  Mor.  5422;  J/7y</,  179G,  ^lor. 
544G).  Industrial  fruits  are,  however,  moveable.  These  include  growing 
crops,  and  trees  grown  in  a  nursery  for  sale  (see  ]>ajhic,  18:^.7,  IG  S.  2:'.2). 
Greenhouses  and  iron  fences  liave  l>een  held  to  l)e  heritable  {Tod's  Trs., 
1872,  10  M.  422);  similarly,  underground  railways  and  steam-eiigincH 
resting  on  foimdations,  and  machinery  {Dixon,  1843,  5  D.  775, 1845,  4  Pjell's 
App.  286;  BrancVs  Trs.,  1878,  5  R  607;  1876,  3  II.  (H.  L.)  16). 
Tilings  l)ccomc  heritable  l»y  destination,  either  wlien  tliere  is  a  nianifchiL 
purpose  to  operate  such  connection  of  thcni  with  tlie  pro])er  heritage  as 
would  make  them  heritable  by  accession,  or  where  there  is  a  destination 
impressed  upon  them  by  appropriate  words.  jNIaterials  ]ire[iared  for  the 
construction  of  a  house  are  held  heritable  {Mcllocli,  18G7,  5  M.  335  ;  Huhson, 
1861,  23  1).  429),  as  also  is  dung  on  a  farm  {licicVs  Errs.,  1800,  17  K. 
579).  So  where  money  is  required  to  complete  a  Iniilding  contracted 
for  at  the  death  of  the  deceased  and  not  fully  paid,  the  money  comes 
out  of  the  moveable  estate,  but  the  building  goes  to  the  heir.  Subjects 
wliich  are  ixirtcs  soli  l)econie  moveable  by  severance  {Avdcrson,  1844, 
6  D.  1315).  Books,  jewels,  and  furniture  may  be  made  heritable  in 
succession  (Stair,  iii.  5.  6 ;  Ersk.  iii.  8.  17 ;  Sandys,  1897,  25  E.  261  ; 
see  Kinncar,  1875,  2  R.  765;  Baillie,  1859,  21  D.  838;  Vcitch,  180S, 
Mor.  App.  "Service  and  Confirmation,"  No.  4;  Marq.  of  JJidc,  1880, 
8  11.  191).     Heirship  moveables  were  heritable  dcstinationc. 

Incorporeal  Iiit/hts. — Eights  to  land  and  debts  secured  upon  land  are 
heritable ;  as  are  titles  of  honour,  and  offices  to  continue  after  the  grantee's 
life  (Ersk.  ii.  2.  6).  Eights  bearing  a  tract  of  future  time,  such  as  life- 
rents and  annuities  which  give  a  periodical  right  without  having  relation 
to  a  capital  sum  or  principal,  are  heritable  (but  see  /////,  1872,  11  M.  247  ; 
Ecid,  1878,  5  E.  630).  Bonds  having  a  clause  of  infeftment  were  heritable ; 
but  if  by  a  clause  in  the  bond  the  infeftment  was  suspended,  the  debt  was 
moveable  (Ersk.  ii.  2.  5  ;  Hadaway,  1830,  8  S.  800).  Heritable  securities, 
whether  by  heritable  bond,  or  by  disposition  in  security,  or  liy  real  burden, 
were  heritable ;  but  this  was  changed  by  sec.  117  of  the  Titles  to  I^ind 
Act  of  1868  (31  &  32  A^ict.  c.  101).  Under  that  Act,  sec.  3,  "heritable 
securities"  includes  all  heritable  bonds,  bonds  and  dispositions  in  security, 
bonds  of  annual  rent,  bonds  of  annuity,  securities  under  sec.  7  of  19  & 
20  Vict.  c.  91,  and  all  deeds  and  conveyances  vchatsoever,  legal  as  wellas 
voluntary,  which  may  be  used  for  the  purpose  of  constituting  or  completing 
or  transmitting  a  security  over  lands,  or  over  the  rents  and  profits  thereof, 
as  well  as  such  lands  themselves,  and  the  rents  and  profits  thereof,  and  the 
sums,  principal,  interest,  and  penalties,  secured  by  such  securities,  but  does 
not  include  ground-annuals  or  absolute  dispositions  qualified  by  back- 
l)onds.  By  sec.  30  of  the  Conveyancing  Act,  1874  (37  &  38  Vict.  c.  94), 
the  provisions  of  sec.  117  of  the  1868  Act  are  applied  to  real  burdens  upon 
land,  still  excluding  ground-annuals. 

By  said  sec.  117,  such  securities  are  made  moveable  as  far  as  regards  the 
succession  of  the  creditor,  unless  executors  are  expressly  excluded.  1'hcy 
continue  heritable  quoad  fiscnm,  and  as  regards  all  rights  of  courtesy 
and  terce  competent  to  the  husband  or  wife  of  the  creditor  :  and  tlicv  do 
not  go  to  increase  the  jus  rclida:  or  the  legitim  fund  (see  Huyhcs  Trs., 
1890,  18  E.  299).  But  wdiere  trustees  were  directed  to  hold,  api»ly.  ]>!iv. 
and  convey  a  residue  for  behoof  of  their  children,  with  a  power  to  sell 
heritage  and  call  up  investments,  and  one  of  the  children,  a  son,  dice)  wlicn 
there  was  a  heritable  bond  which  had  belonge.l  to  the  testatrix  still 
undivided,  it  was  held  that  his  right  was  a  moveable  Jus  nrditi,  and  was 


42  SUCCESSION 

•  "        ,1891,  IS  E.  387).     The  provisions  of  the 

,  t,  ^,.. . ,     .  ,..  wpeiiing  ou  or  after  the  31st  December  1868 

Trs.,  1889,  17  H.  218;  Broiim.  1870,  8  M.  439).     Express 

bv  the  exchision  of  executors  in  a  personal  bond  makes  the 

(Ei-sk.  ii.  2.  12;  Act  1661,  c.  32).     Suras  directed  to  be  laid 

:  bv  trustees  are  heritable  (see    White,  1860,  22  D.  1335; 

,4:  i).  605  ;  Romanes,  1865,  3  M.  348).     In  order  to  give  the 

t  to  a  direction  of  this  sort  of  making  it  heritable  destinatione,  there 

:   Ite  an  actual  destination   one  way  or   the  other  of  the  fee  of  the 

J  '  -       -ii  (Ld.  Justice-Clerk   in  Carfrae).     In  our  early  law  bonds 

L, _....,:  _-t  were  held  to  be  quasi  fcuda,  hwi  the  debt  was  moveable 

before  tlie  term  of  payment,  or  where  interest  was  not  payable  till  the 
term  of  payment  of  the  bond.  By  1661,  c  32,  these  bonds  are  declared 
1  .        'le  as  to  succession  though   still   heritable  quoad  the  fisk  and  j'v.s 

A  lease  is  heritable,  and  the  tenant's  heir-at-law  succeeds  although 
there  be  no  express  destination  to  heirs ;  but  a  loan  on  an  assignation  of  a 
le:i.<e  was  held  moveable  {Stroyan,  1890,  17  E.  1170).  Things  in  their 
nature  heriUible  may  become  moveable,  as  part  of  a  nnivcrsitas,  which  is 
regarded  as  moveable ;  where  land  or  any  heritable  interest  therein  has 
become  partnership  property,  it  is,  unless  the  contrary  intention  appears, 
treated,  as  between  the  partners  (including  the  representatives  of  a 
'!■  1  partner),  and  also  as  between  the  heirs  of  a  deceased  partner  and 

h,  uturs  or  administrators,  as  personal  and  moveable  and  not  as  real  or 

heritable  estate  (53  &  54  Vict.  c.  39,  s.  22).  Plights  of  action  (except 
real  actions  in  reference  to  heritable  estate),  patents,  and  copyrights  are 
moveable  {Advocate-General,  1848,  10  D.  969  ;  5  &  0  Vict.  c.  45,  s.  25). 
Shares  in  a  company  are  movealjle,  even  thougli  the  company  hold 
lieritage  (8  &  9  Vict.  c.  17,  s.  7  ;  25  &  26  Vict.  c.  89,  s.  22).  Where 
lands  are  voluntarily  sold  or  are  surrendered  under  the  Lands  Clauses  Acts, 
the  price  is  moveable  {Heron,  1856,  18  D.  917  ;  Steicart,  1895,  32  S.  L.  R. 
299 :  Mae/arlane,  1895,  22  H.  405).  But  this  was  not  the  case  where  the 
sale  was  by  an  apparent  heir.  Where  a  bargain  has  been  completed  for 
the  sale  of  the  deceased's  estate,  the  price  is  moveable  {Chiesley,  1704, 
-Mor.  55:U).  Trade  marks  and  trade  names  are  moveable.  Goodwill  may 
l»e  heritable  or  moveable,  according  to  circumstances  {Hiujlies,  1892,  19 
It.  840  ;  liain,  1878,  5  E.  416  ;  Donald,  1893,  21  E.  246).  Arrears  of  the 
annual  returns  of  debts  and  funds,  themselves  heritable,  are  moveable,  being 
considered  as  cash  in  bonis  (Ersk.  ii.  9.  64). 

An  assignee's  right  to  a  spes  suceessionis  of  heritable  property  is  herit- 
able thougli  merely  a  Jus  crcditi  {Thain,  1891,  18  E.  1196). 

Conversion. 
All  iiiipeitant  question  in  practice  is  that  which  determines  whether 
ri...  ,,.-l,t  ,,f  a  beneficiary  interested  in  a  trust  is  heritable  or  moveable  in 


'>n. 


try,  or  to  u.se  money  in  acquiring  a  heritable  subject  for  him,  the 


1 1  trustees  have  l)een  directed  to  hand  over  a  heritable  sul)ject  to  a 
'  try,  or  to  u.se  mo 

»•-•.'  ...  him  is  heritable. 

Ijiit  if  the  heritable  estate  is  disponed  to  trustees,  and  they  arc  directed 
U)  sell  It  and  pay  over  the  proceeds,  the  right  in  a  beneficiary  is  a  moveable 

\"!",  r        ?  .1  ^^  ^'^^  ^^'"^  ^^'^^^^'^  ^^^^^^  ^s  merely  a  power  to  sell,  if  the 

V'  """"•■    ■•    •  ■     *■ -tatcr   is   clear   that    a  sale  is  to  take  place   {Baird, 

'•   ■  ■•   •"'■'  Trs.,   1877,  5  E.  128;  Kippcns  Trs.,   1889,  16  E. 


SUCCESSION  43 

668).     The  following  rules  were  laid  down  in  Aitkcn,  188:5,  10  W.  1007,  at 
p.  1108  :— 

(1)  Where  there  is  a  direction  to  sell,  the  directimi  will  ojtoriite  as  an 
immediate  conversion  of  heritable  property  into  niDveahle,  whether  the 
property  is  sold  or  not  {^Buchanan,  1862,  4  Maeip  374). 

(2)  If  there  is  no  direction  to  sell,  hut  a  mere  power  or  discretion 


(3)  If  a  sale  be  not  necessary,  the  right  remains  heritable,  so  long  as  the 
discretion  is  not  exercised  by  the  trustees. 

Constructive  conversion,  being  a  testamentary  act,  cannot  afTcct  tlie 
rights  of  children,  widows,  and  husbands  {Lashky,  1804,  4  I'at.  581).  If 
there  is  an  express  direction  to  sell,  the  conversion  takes  place  as  soon  as 
the  direction  becomes  binding  on  the  trustees.  If  there  is  only  a  power  to 
sell,  it  is  said  not  to  be  settled  whether  the  conversion  dates  a  mortc,  or 
from  the  time  when  the  sale  is  seen  to  be  necessary,  or  from  the  actual 
date  of  the  sale. 

In  questions  between  the  heir  and  executor  of  the  testator  himself  with 
regard  to  subjects  falling  under  a  power  of  sale  or  a  directioh  to  sell,  there 
is  no  room  for  conversion  unless  the  persons  to  be  benefited  are  pointed 
out  by  the  deed  {Jjell,  Frin.  1493).  In  the  case  of  a  person  dying  intestate, 
it  is  not  competent  to  lead  evidence  of  his  intention  to  convert  {Ramsay, 
1887,  15  E.  25).  A  direction  by  a  testator  will  not  affect  the  legal 
rights  of  the  heir  and  executor  unless  the  succession  is  given  to  someone 

gIsg. 

Thus  where  a  truster  directed  trustees  (1)  to  pay  debts,  (2)  to  deliver  to 
his  wife  furniture  and  personal  effects,  (3)  "  as  soon  after  my  death  as 
l^ossible  to  realise  the  remainder  of  my  said  estate  and  effects, and  i>ay  over 
the  net  proceeds  thereof  in  such  manner  as  I  may  direct " ;  and  when  the 
purposes  of  the  trust  were  fulfilled,  tlie  moveable  estate  was  exhausted  and 
the  heritage  remained  unsold,  it  was  held  that  the  direction  to  realise  the 
estate  must  be  held  to  have  been  carried  out,  and  that  the  balance  fell  to 
l)e  divided  in  the  proportions  in  which  the  fund  had  been  derived  (Covan, 
1887,  14  II.  670;  Gardner,  1857,  20  D.  105;  Stewart,  1860,  22  ]).  646). 
"It  being  clear  that  the  heritable  property  was  only  held  as  an  invest- 
ment, that  the  direction  appears  to  contemplate  payment  in  money,  that 
there  is  a  considerable  number  of  beneficiaries,  and  that  the  bequest  is  a 
bequest  of  residue,  everything  seems  to  lead  to  the  result  that  there  was 
conversion  here  "  (Ld.  Moncreillin  L'aird,  1880,  8  IJ.  235).  A  direction  to 
"  realise  and  convert  into  casli "  at  a  period  of  division  does  not  operate 
conversion  prior  to  that  period  {Tho7nas,18C^S,7  M.  114;  Couan,  supra  ; 
Logan's  Trs.,  1896,  23  R.  848).  If  a  trust  purpose  fad,  «.r  if  there  is 
something  left  unprovided  for,  land  will  go  to  the  heir-at-law,  money  to  the 


executors. 


The  rule  of  law  is  clearly  established,  that  to  disinherit  the  heir  or  to 
defeat  the  executor  it  is  necessary  not  only  so  to  deal  with  the  estate  as  to 
effect  conversion,  but  to   give   it   to  some   other   person  {Coicaii    supra  ; 


may 
Assignee,  1841 


44  SUCCESSION 

No  act  of  mere  adiniuistration  by  trustees  or  curators  will  affect  the 
p^... .?....;,, n  (.lA)m-n</,  1856,  18  1).  128G;  Anstruthcr,  1842,13  D.  p.  454 ; 
y,  Trs.,  1897,  24  E.  p.  9G5). 

Care  must  be  taken  uot  to  confound  the  succession  of  the  person  who 
leaves  the  trust  estate,  and  the  succession  to  the  lieir  himself;  for  although 
he  I'C  the  party  who  succeeds  to  the  heritable  estate  whicli  belonged  to  his 
aiKcstor,  even  although  subsequent  to  his  death  it  be  converted  into  money 
by  the  testator's  directions,  yet  as  what  he  is  entitled  to  demand  is  the 
price,  it  might  be  lield  that  were  he  to  die  before  receiving  payment,  his 
claim  for  the  price  would  be  included  in  his  moveable  succession  (Gardner, 
1857,  20  D.  at  p.  110). 

Intestate  Succession  in  Hekitage. 

The  distinguisliing  features  of  the  descent  of  heritage  in  the  law  of 
Scotland  are  found  in  primogeniture,  by  which  one  out  of  the  kindred  of 
the  deceased  is  chosen  to  take  his  place,  and  in  the  preference  of  males  to 
females  in  the  same  degree  of  relationship.  The  character  of  heir  of  every 
class,  whether  of  heritable  or  moveal)le  estate,  is  based  on  a  right  of 
succession  to  the  deceased  in  respect  of  the  right  of  blood,  and  does  not 
invoh'e  in  any  sense  or  degree  a  Jus  crcditi. 

Trimogeniture  is  the  rule  of  the  feudal  law  by  which  the  eldest  son  or 
his  descendant  is  preferred  to  the  yonnger  ones.  By  a  similar  rule,  where 
a  succession  opens  to  collateral  kindred,  the  heritage  goes  to  one  person 
among  them,  though  not  necessarily  the  eldest. 

Tlie  estate  or  property  of  a  person  deceased  is  called  his  hccreditas,  and 
by  the  early  law  both  heritage  and  moveables  remained  in  hccreditate 
jacaxic  of  the  deceased  luitil  they  were  taken  out  in  the  one  case  by  service 
or  some  equivalent  (except  in  the  case  of  certain  heritable  rights  which 
vested  without  service) ;  in  the  case  of  moveables,  by  confirmation.  This, 
however,  is  no  longer  the  law ;  and  in  the  case  of  heritage,  by  the  9th  section 
of  the  Conveyancing  Act  of  1874  (37  &  38  Vict.  c.  94)  a  personal  right  to 
any  interest  in  land,  whether  in  fee  or  in  security,  and  whether  beneficial 
or  in  trust,  or  any  real  burden  on  land,  descendible  to  heirs,  vests  in  the 
heir  entitled  to  succeed  thereto  immediately  upon  the  death  of  the 
ancestor. 

In  (.rder  to  be  capable  of  succeeding  to  heritage  cd)  intcstato,  a  person 
must  liave  been  conceived  before  the  opening  of  the  succession,  and  born 
ahve;  he  must  be  legitimate  from  his  birtli  or  have  been  legitimated,  and 
he  must  be  of  uncorrupted  blood.  An  exception  to  the  rule  as  to  legiti- 
macy of  birtli  is  tliat  a  l)astard  can  succeed  to  his  own  descendants.^ 

i here  are  three  lines  of  consanguinity:  the  descending,  the  ascending, 
and  tlie  collateral.  The  iirst  two  are  called  lineal,  in  contradistinction  to 
the  third,  because  in  them  there  is  a  direct  line  of  descent  from  a  common 
ancestor. 

^  I.mcal  descent  includes  all  the  issue  of  the  person  from  whom  descent 
IS  traced,  each  generation  forming  a  degree. 

Lineal  ascent  starts  with  the  fathel-  of  the  deceased,  and  proceeds  in  a 
uirect  line  as  far  as  evidence  will  reach. 

O.llatcral  kin.lred  trace  descent  from  an  ancestor  common  to  them  and 
the  d.-feased,  but  not  from  each  other. 

I'-rsons  are  connected  by  the  full  blood  who  are  themselves,  or  trace 
meir  relationship  through,  brothers  or  sisters  born  of  the  same  father  and 

(Kl(Vnr'r\uZ  ^"I'ft  he"'-!''^''^'  ^^'^  successiou  of  the  person  wliom  lie  has  murdered 


SUCCESSION  45 

mother,  that  is  to  say,  brothers  or  sisters  geriuan.  The  half  blood  consan- 
guinean  are,  or  are  connected  through,  brothers  or  sisters  born  of  the  same 
father  by  different  mothers. 

Brothers  and  sisters  uterine  have  the  same  mother  but  a  dillt-reja 
father.  There  is  at  common  law  no  right  of  succession  between  tlie  con- 
sanguinean  and  the  uterine,  nor  can  the  mother  or  relations  throiudi  her 
ever  succeed  to  her  child,  in  heritage,  on  intestacy. 

Descent,  in  cases  of  intestacy,  is  traced  from  the  person  last  vested  in 
the  lands  or  other  heritable  estate.  The  heir  is  to  be  sought,  first,  ani<iii<»' 
the  lawful  issue  of  the  deceased,  males  succeeding  before  females,  and  the 
eldest  son  and  his  issue,  subject  to  the  same  rules  of  descent,  excluding  the 
younger  children ;  you  take,  next,  the  next  younger  son  and  his  issue ;  and  so 
on  till  the  sons  and  their  issue  are  exhausted.  Failing  sons,  the  dau'diters 
succeed  as  heirs-portioners,  dividing  the  estate  equally  anions  them.  If 
one  of  the  daughters  has  predeceased  leaving  issue,  her  issue  succeed  to  her 
share  in  the  same  order ;  that  is  to  say,  sons  excluding  dau<diters,  and 
taking  in  the  order  of  their  seniority,  and  the  daughters,  should  they 
succeed,  dividing  the  share  equally  among  them. 

Failing  issue,  the  heir  will  be  found  among  the  brothers  of  the  deceased, 
or  hi^isters  will  take  equally  among  them,  subject  as  before  to  representa- 
tion. By  a  rule  which  makes  heritage  descend,  the  immediate  younger 
brother  of  the  deceased  is  his  heir;  if  there  is  no  younger  brother,  nor  any 
descendant  of  a  younger  brother,  the  immediate  elder  brother  is  the  heir. 
The  full  blood,  whether  male  or  female,  must  be  exhausted  before  the  half 
blood  comes  in.  After  brothers  by  the  full  blood,  or  their  issue,  sisters- 
german  take  as  heirs-portioners.  Then  the  half  blood  consanguinean  comes 
in  in  the  same  order ;  if  they  are  younger  than  the  deceased,  the  oldest 
brother  first,  and  so  on  ;  if  older,  then  the  youngest  first. 

Eelations  through  the  mother  of  the  deceased  are  never  called,  nor  are 
relations  through  the  wife  of  any  ancestor  or  other  agnate,  and  it  makes  no 
difference  that  the  estate  came  from  the  mother.  Thus  if  a  woman  has 
two  sons  who  are  half-brothers,  and  the  eldest  succeed  to  her  as  her  heir, 
upon  his  death  the  estate  will  pass  to  his  heir,  who  may  be  a  distant 
relative  through  his  father  {Alexander,  1696,  Mor.  14873). 

Even  the  Crown,  as  ultimus  lucres,  will  take  in  preference  to  the  brother 
uterine. 

On  the  failure  of  the  issue  of  the  deceased,  and  of  his  brothers  and 
sisters  and  their  issue,  the  succession  mounts  to  the  father,  who  is  thus 
postponed  to  his  own  descendants.  Ld.  Stair  says  this  is  because  fees 
proceed  for  the  most  part  from  the  father,  and  the  paternal  affection  is  pre- 
sumed to  be  equally  strong  towards  all  his  issue.  Failing  the  father  of  the 
deceased,  the  father's  brothers  and  sisters  are  similarly  preferred  to  their 
father,  and  the  succession  goes  to  them  in  the  same  way  as  it  would  have 
done  to  brothers  and  sisters  of  the  deceased,  males  always  excluding  females^ 
the  whole  blood  the  half  blood,  in  the  same  degree,  and  females  succeeding 
as  heirs-portioners. 

Next  comes  the  grandfather,  the  father's  father,  and  if  he  be  dead,  liis 
lirothers  and  sisters  or  their  issue,  always  subject  to  the  same  rules ;  and  so 
upwards,  the  brothers  and  sisters  of  a  nearer  ascendant  and  their  issue  always 
coming  in  before  a  more  remote  ascendant. 

Failing  all  the  relations  of  the  deceased  through  his  father,  the  Crown 
comes  in  as  ultimus  hccrcs. 

Though  a  mother  cannot  succeed  to  her  children,  they  succeed  to  her 
estate  according  to  the  rules  above  stated. 


46  SUCCESSION 

The  full  MiK.a  excliules  the  half  blood  only  \Yhen  in  the  same  degree  of 

■   n  to  the  deceased:  thus  while  a  full  sister  will  exclude  a  half 

■e  half  brother  comes  before  the  father,  or  the  father's  collateral 

V  tlie  full  blood.     All  the  children  of  the  deceased  are  of  course 

1  to  him,  no  matter  of  how  many  marriages  they  may  be  the 


>~ue. 


I* -ENTATiox. liv  representation  one  succeeds  not  from  any  title  iu 

Vii>  rsou,  but  in  tlie  place  of  and  as  representing  some  of  his  deceased 

iidau'us  (Ei-sk.  iii.  8.  11).     Thus  a  grandchild  by  an  elder  son  excludes  a 

r  son ;  succeeding  not  in  his  own  right  but  in  that  of  his  father. 

•trine  applies  both  in  the  line  of  descent  and  in  the  collateral  line,  a 

•       .  .J  heir  and  his  issue  to  the  most  remote  descendant  always  excluding 

that  ix).ssible  heir's  brothers  and  sisters.     A  child  represents  his  mother  as 

Wfll  a.s  his  father. 

These  rules  tix  the  identity  of  the  heir  in  heritage  of  the  person  last 
vested  in  the  heritable  estate.^  The  terms  "heir-at-law,"  "heir  of  line," 
••  heirs  general,"  "  heirs  whomsoever,"  are  practically  synonymous. 

An  abstract  of  the  order  of  succession  may  be  stated  thus : — 

Df.scexda.\ts — 

1.  The  eldest  sou  of  the  deceased  succeeds  to  the  exclusion  of  all  other 

children — 

(a)  The  eldest  son  of  the  eldest  son  and  his  issue. 

(i)  The  second  son  of  the  eldest  son  and  his  issue. 

(f)  The  daughters  of  the  eldest  son,  as  heirs-portioners ;  the 

issue  of  such  as  predecease  taking  tlieir  mother's  place 

under  the  same  rules. 

2.  The  second  son  of  the  intestate — 

{a)  The  eldest  son  of  the  second  son  and  his  issue. 
{h)  The  second  son  of  the  second  son  and  his  issue. 
((•)  The  second  son's  daughters,  as  heirs-portioners. 
And  .so  on  till  the  sons  of  the  intestate  and  all  their  descendants  are 

exhausted. 
The  daughters  of  the  intestate,  as  heirs-portioners.     Should  any  of  the 
daughters  have  predeceased, — there  being  no  son  nor  issue  of  a 
son  alive, — her  is.sue  take  her  share,  sons  in  their  order ;  failing 
sons,  the  daughters  equally  among  them. 

Coll  A  terals — 

Tiie  immediate  younger  brother  of  the  intestate — 

Tlie  issue  of  such  younger  brother  in  the  same  order  as  above. 
The  next  younger  brother,  and  so  on  till  the  youngest  is  reached. 
The  immediate  elder  brother  witli  his  issue,  following  the  same  rules, 

and  .so  on  till  the  eldest  brother  is  reached. 
The  sisters,  as  heirs-]»ortioncrs,  and  their  issue. 
The  eldest  brother  consanguineau  and  his  issue,  if  the  half  brothers 

are  of  a  later  family :  if  of  an  earlier  family,  the  youngest  comes 

tirst,  and  so  upwards  through  the  brothers. 
The  sisters  consanguineau  and  their  issue,  as  heirs-portioners. 

Ascendants — 

The  father  of  the  deceased. 

Collaterals  of  the  father,  in  the  same  order  and  subject  to  the  same 
rules  a«  were  applied  to  the  collaterals  of  the  deceased. 


SUCCESSION 


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^3  SUCCESSION 

Tl»e  .Taudfather— the  father's  father— grandfather's  brothers  and  sisters 
and  their  issue  iu  the  same  way.  The  process  goes  on  as  long  as  relation- 
ship t'"-"''  'li  the  father  can  be  traced. 

1  the  Crown  comes  in  as  ultimus  hccres. 

In  the  Hue  of  ascent  no  female  can  form  a  connecting  link,  though 
■  ■  through  a  female  to  her  descendants. 

-in  the  case  uf  successions  which  opened  before  the  1st  of 
1874,  it  is  necessary  to  distinguish  between  the  heir  in  heritage 
and  the  heir  in  conquest.  The  Conveyancing  Act  of  1874  (37  &  38  Vict. 
e,  94,  s.  37)  abolishes  the  distinction  between  fees  of  lieritage  and  fees  of 
conquest,  and  enacts  that  in  all  successions  opening  since  that  date  fees  of 
conquest  are  to  descend  to  the  same  persons,  in  the  same  manner,  and 
subject  to  the  same  rules  as  fees  of  heritage. 

Previous  to  that  date  the  distinction  became  operative  in  the  case  where 
a  man  died  leavuig  his  heir  to  he  sought  among  two  or  more  brothers  or 
uncle-s  or  their  issue,  some  of  the  brothers  being  younger  and  some  older 
than  the  deceased ;  or  in  the  case  of  the  more  remote  collateral  line,  the 
father's  brothei-s  being  one  older  and  the  other  younger  than  the  father. 
It  could  not  arise  in  tlie  case  of  the  succession  going  to  sisters,  for  they 
<livided  the  estate  among  them. 

While  heritage  descended  to  the  younger  brother,  conquest  ascended  to 
the  inmiediately  older  brother.  AVhen  the  deceased  was  the  youngest 
brother,  the  immediate  elder  brother  was  heir  both  of  line  and  of  conquest. 

Tlie  conquest  included  new  fees,  as  opposed  to  old  fees,  which  formed 
tlie  heritage. 

An  old  fee  is  that  to  which  one  succeeds  as  heir  of  an  ancestor  ;  a  new 
fee  comes  not  by  succession,  but  by  purchase,  donation,  excambion,  or  some 
other  singular  title.  Conquest  ascended  but  once  ;  in  the  person  of  the  heir 
of  conquest  it  became  lieritage.  There  was  no  room  for  the  distinction  if 
while  the  holder  of  the  property  had  taken  it  as  a  disponee,  he  was  heir 
entitled  to  succeed  to  it. 

All  rights  that  required  or  were  capable  of  seisin  might  be  conquest ; 
but  teinds,  leases,  pensions,  and  rights  bearing  a  tract  of  future  time  w^ere 
not  confiuest,  but  lieritage. 

In  order  that  conquest  should  become  heritage,  it  was  necessary  that  it 
should  Ijc  vested  in  the  heir  of  conc^uest  ])y  titles  made  up  in  his  person ; 
otherwise  it  remained  in  hcvrcditate  jaccntc  of  the  acquirer,  and  went  to  his 
ne.xt  heir  of  conquest. 

In  conquest,  as  in  heritage,  representation  operated,  the  full  blood 
excluded  the  half  blood,  and  males  excluded  females  in  the  same  degree. 

HKni.s-i'ouTiONEits. — As  has  lieen  already  seen,  when  a  succession  opens 
to  feniiilcs  who  are  in  the  same  rank  in  the  order  of  succession,  they  take 
e^pially  among  them  as  heirs-portioners.  They  are  not  joint-proprietors,, 
but  part-owners,  holding  shares  while  the  subject  is  undivided  ;  but  each 
liaa  a  title  to  her  own  part  or  share,  which  she  may  burden  or  alienate 
by  her  own  act.  Tlie  right  of  representation  applies  so  that  the  heir  or 
heirs  of  one  who  would  have  been  an  heir-portioner  had  she  survived  the 
d.-funct,  tiikes  in  her  place,  dividing  her  share  or  succeeding  to  it  under 
the  rules  alroa«ly  laid  down. 

The  eldest  of  a  number  of  sisters  and  the  heir  of  her  Injdy  have  certain 
privileges  above  the  others,  liights  whicdi  arc  indivisible  go  to  her ;  slie 
enjoys  titles  of  dignity  when  they  descend  to  females;  the  principal 
inaiision-hous(!  goes  to  her,  and  in  the  division  of  the  estate  she  is  entitled 
to  the  pnvi„,n  HI  which  the  mnnsiou-lionse  stands;  but  tliis  claim  does  not 


SUCCESSION  49 

extend  to  ordinary  d\velliiii;-hoiiscs,  wlictlier  in  Idsvii  (jr  cduuirv,  IjuI  only 
to  a  mansiun-house.  Ah  the  custody  of  the  title  deeds  of  an  eslate  cannot 
be  divided,  the  eldest  sister  has  the  keeping  of  them ;  but  she  is  obliged  to 
give  transumpts  to  any  of  the  other  sisters  that  may  have  occasion  for 
thoui,  she  herself  bearing  an  equal  share  in  the  expense.  Sujteriorities 
yielding  sustantial  feu-duties  are  divided,  but  the  eldest  heir-jiortioner  is 
entitled  to  a  blench  superiority  as  a  proxijmum  (M'A\-i(/hf,  184.j,  G  D.  128). 
Any  heir-portioner  may  insist  on  having  the  succession  divided  by  the 
Sheriff  and  a  jury,  under  a  brieve  of  division  retourable  to  Chancery.  Tlie 
eldest  can  take  the  share  next  the  mansion-house ;  the  others  cast  lots  for 
their  choice. 

Before  leaving  the  subject  of  intestate  heritable  succession,  two  legal 
burdens  fall  to  be  noticed  which  ai'iect  the  heritable  estate  of  married 
persons  who  die  survived  by  a  spouse.  The  first  of  these  is  terce  ;  the 
other  courtesy. 

Tekce. 

The  widow  of  one  who  dies  infeft,  as  of  fee  in  heritaljle  estate,  is 
entitled  to  a  liferent  of  a  third  part  of  the  heritable  estate,  if  she  has  not 
accepted  of  a  conventional  provision.  At  common  law,  to  entitle  a  widow 
to  terce  the  marriage  must  have  subsisted  for  a  year  and  a  day,  or  resulted 
in  the  birth  of  a  living  child;  but  this  condition  was  abolished  by  18  Vict, 
c.  23,  ss.  2-7  (the  Moveable  Succession  Act,  1855).  Terce  is  only  due 
provided  she  has  not,  in  the  full  and  fair  knowledge  of  her  right,  accepted  a 
conventional  provision,  or  in  accepting  such  provision  has  reserved  her 
rights  to  terce  (1G81,  c.  10).  It  is  due  from  all  heritable  subjects  and 
right  in  which  the  husband  was  infeft  at  the  time  of  his  death,  unless  he 
held  them  in  trust,  and  that  irrespective  of  the  tenure  (24  &  25  Vict.  c.  8G, 
s.  12).  The  husband's  infeftment  is  the  measure  and  security  of  the 
rights.  Whatever  burdens  affect  the  husband's  infeftment,  affect  the 
terce,  and  no  burden  which  does  not  constitute  a  real  burden  on  the 
lands  affects  it. 

It  is  not  due  from  leases,  or  heritable  estate  possessed  on  a  personal 
title;  nor  from  superiorities  and  feu-duties  {Nisbctt,  1835,  13  S.  517):  nor 
from  teinds,  unless  feudalised;  nor  from  rights  of  reversion,  miiierals,  or 
patronage,  though  the  widow  has  right  to  coal  for  lier  own  use.  Neither  is 
it  due  from  personal  bonds ;  nor  from  lands  vested  in  trustees  whose  right 
did  not  flow  from  the  husband,  and  who  could  not  by  him  be  compelled  to 
denude  (Fraser,ii.  1093)  ;  nor  from  reversions  of  wadsets  {MacdowjaU,  180U 
Mor.  App.  voce  "Terce,"  No.  2) ;  nor  from  the  mansion-house  {Moncrciff,  1 GG7, 
Alor.  15733). 

The  right  to  terce  is  excluded — 

1.  By  express  discharge— but  a  gift  inter  virum  ct  iixorciii_  may  be  re- 
called— or  by  acquiescence  and  taciturnity  {Priiujlcs  Exrs.,  1870,  8  M.  G22). 

2.  By  the  inter  vivos  deeds  of  the  "husband,  if  followed  by  mfeft- 
ment.  .    . 

3.  By  the  widow's  acceptance  of  a  conventional  provision,  unless  it  is 
stipulated  that  she  is  to  have  both  (Act  1G81,  c.  10 ;  Jankouska,  1791,  Mor. 
6457  ;  Boss,  1797,  Mor.  4G31). 

4.  By  conviction  of  the  husband  fur  high  treason. 

Where  an  entail  contains  a  clause  excluding  terce,  it  is  not  due  from 
the  entailed  lands  (Flay  Neivton,  1870,  8  M.  (H.  L.)  6G).  Though  the  widuw 
has  substantial  rights  in  the  terce  without  service,  it  is  not  clear  tliat  the 
rights  vest  in  her,  so  as  to  be  assignable  or  to  pass  to  her  executor,  till  she 

S.  E.  — VOL.  XII. 


-^  SUCCESSION 

has  served  to  the  terce.     Till  she  has  done  this,  she  has  no  active  title  ;  but 

■    rieil,  the  service  draws  back  to  the  husband's  death.     A  decree 

iii'i^  (.f  the  widow's  ri^ht  has  been  held  etjuivalent  to  service  (i-'m, 

i   Mt.r.  10115;  J/'/</W/,  1820,  4  S.  485;  but  see  Prwglcs  Kits.,  1870, 

8  M.  022).     The   authorities   on  the   point   are   conflicting.     By   statute 

*  '..'cVv,  if  the  woman  is  holden  and  reputed  as  a  lawful  wife  during  the 

of  the'  deceased,  she  has  right  to  terce.     Kenning  to  the  terce  is  a 

lularv  I'rocess  dividing  the  estate  between  the  heir  and  the  widow,  and 

.  i\^^  her  liferent  iufeftment  as  to  her  third. 

A  brieve  of  service  and  cognition  may  be  removed  to  the  Court  of 

Ses.sion    by  appeal  at  any   time   before   trial.      It  has   been   questioned 

if   this   is  competent   after   trial.      The    heir-at-law    is   not    entitled    to 

a  sist  of  the  service  on  the  ground  that  he  means  to  raise  a  declarator 

against  the  widow's  right  (Craik,  1891,  19  E.  339).     When  the  lands  are 

afreaily  subject  to  terce,  in  the  person  of  the  widow  of  a  former  proprietor, 

onlv  the  lesser  terce  is  due,  that  is,  a  third  of  what  remains.     Similarly,  a 

third  terce  may  be  due.     On  the  death  of  the  first  tercer,  the  right  of  the 

second  is  enlarged  (Fraser,  ii.  1100  ;  Stair,  ii.  6.  16,  ii.  6.  12  ;  Ersk.  ii.  9.  47, 

ii.  9.  44). 

COUKTESY. 

Courtesy  is  the  right  of  the  surviving  husband  of  an  heiress  when 
the  marriage  has  resulted  in  the  birth  of  a  viable  child  who  is  or  would 
have  been  her  heir,  or  has  legitimated  an  heir,  to  a  liferent  of  such 
heritage,  inlierited  by  her,  as  she  was  infeft  in  at  the  date  of  her 
death  (Stair,  ii.  0.  19  ;  Ersk.  ii.  9.  52  ;  Clinton,  1869,  8  M.  370).  Although 
the  wife's  infeftment  should  be  reducible  for  want  of  form,  this  will  not 
di.sappoint  the  husband  in  a  question  with  the  heir  {Hamilton,  1716, 
Mor.  3117).  If  the  wife  leaves  a  child  by  a  former  marriage  who  is  her 
heir,  no  courtesy  is  due  {Darleith,  1702,  Mor.  3113;  Fraser,  ii.  1122; 
Bell,  Prill.  1000).  It  is  not  due  out  of  lands  acquired  by  the  wife  by 
singular  title  {Lauson,  1709,  Mor.  3114;  Kniyht,  1786,  Mor.  8815;  Watts, 
1885,  13  R.  218),  unless  she  was  alioquin  successura  (see  Ld.  Pres.  Inglis 
in  Watts).  If  the  husband  is  the  father  of  an  heir-portioner  who  succeeds 
along  with  half  sisters  by  another  marriage,  he  has  only  courtesy  out  of  the 
share  of  his  own  daugliter  (]\Iore,  Notes,  219).  The  riglit  attaches  to 
entailed  property  unless  excluded  by  the  entail  {Clinton,\^Q^,  8  M.  370), 
to  lieritable  bonds  (s.  117,  31  &  32  Vict.  c.  101)  and  feu-duties,  but  not  to 
ca.'^ualties  nor  lands  vested  in  trustees  for  behoof  of  tlie  wife  {Clinton,  supra). 
Ii  is  sul)Jectto  the  interest  on  the  wife's  debts,  witli  relief  to  the  husband 
against  her  other  property  {Montcith,  1717,  Mor.  3117).  The  riglit  vests  by 
survivance  and  needs  no  service ;  rents  not  levied  do  not  vest  in  him,  or 
transmit  to  his  successors  (Ersk.  ii.  9.  55  ;  M'Aulay,  1636,  Mor.  3112).  It 
i.s  excluded  Ijy  the  husband's  express  discharge,  but  not  Ijy  a  conventional 
provision  not  declared  to  be  in  Heu  of  it  {Primrose,  1771,  Mor.  App.  v. 
"  Courtesy,"  No.  1 ).  It  is  also  excluded  by  the  wife's  inter  vivos  deeds 
followed  by  infeftment.  All  questions  about  courtesy  depend  entirely  on 
artificial  rules  fixed  liy  authority,  and  it  is  inexpedient  in  such  cases  to 
attempt  any  exposition  of  legal  principles.  Courtesy  is  governed  bv  rules, 
of  which  several  rest  on  little  better  footing  than  that  it  has  been  so  fixed. 

Apparent  Heir. 

Under  the  law  as  it  was  before  the  1st  of  October   1874,  mere  sur- 
vivance of  his  ancestor  gave  the  heir  no  completed  right  to  the  heritable 


SUCCESSION  51 

estate.  Until  he  was  declared  heir,  tlie  succession  did  not  vest  in  liini  • 
and  if  ho  died  without  taking  tlie  proper  proceedings,  the  succession' 
passed  not  to  his  heir  but  to  whomsoever  at  the  date  of  his  death  was  heir 
to  the  ancestor.  During  the  period  when  he  liad  not  made  up  his  title 
he  was  known  as  the  apparent  heir.  Making  up  titles  subjected  him 
in  serious  responsibility,  seeing  that  lie  was  considered  eadnn  persona  cinn 
dej'itndo,  and  represented  him  not  only  actively,  in  his  rigjits,  but  also 
passively  in  his  obligations. 

Certain  rights  vested  in  him  without  service.  These  wx-re :  'J'itlcs  of 
honour  and  dignity  (Ersk.  iii.  8.  77);  udal  lands  {Beatton,  18.32,  10  S.  200) ; 
leases  {J^oyd,  1671,  Mor.  14375)  (see  the  Statute  20  &  21  Vict.  c.  20,  s.  8^ 
as  to  long  leases) ;  corporeal  moveables  made  heritable  dcstinatione  (  Veitch, 
1808,  Mor.  "  Service  and  Confirmation,"  App.  No.  4) ;  rights  wliich  were 
heritable  as  running  a  course  of  future  time. 

He  might  without  making  up  a  title  continue  his  ancestor's  posBcesion 
(Ersk.  iii.  8.  58;  Boss,  1770,  Mor.  5019),  and  enter  into  possession  of  the 
lands,  and  levy  rents  and  interest.  He  could  not,  however,  remove  tenants 
deriving  right  from  the  deceased.  To  an  effectual  removing,  infeftment 
before  decree  was  indispensable  (/S'co^i!,  1832,  10  S.  284;  Macintosh,  1854, 
17  D.  99 ;  Mackenzie,  1853,  16  D.  158).  His  right  to  the  rents  vested  ipso 
jure,  and  his  executor  was  entitled  to  arrears  due  at  his  death  ( Wemyss, 
1864,  2  M.  461).  The  apparent  heir  was  entitled  to  challenge  deeds 
ex  capite  lecti  {Grahamc,  1779,  Mor.  3180).  He  might  bring  his  ancestor's 
estate  to  judicial  sale,  although  the  estate  was  not  bankrupt  (1695,  c.  24), 
no  third  party  having  an  interest  to  object.  And  he  continued  the 
ancestor's  possession  for  the  purpose  of  obtaining  a  prescriptive  title. 

In  consequence  of  the  9th  section  of  the  Conveyancing  Act,  1874, 
possession  on  apparency  is  no  longer  known  to  the  law  {M'Adani,  1879, 
6  E.  1256). 

Jus  DELIBERANDI. — The  apparent  heir  was  allowed  twelve  months  and 
a  day  as  a  competent  time  to  deliberate  whether  he  would  enter  or  not, 
during  which  period  he  could  not  be  sued  in  any  action  or  charged  to  enter  ; 
after  the  year,  he  had  still  forty  days  on  being  charged  under  1540,  c.  106, 
and  1621,  c.  27.  By  practice  he  coidd  be  charged  to  enter  within  the  year, 
though  he  was  protected  from  any  suit  till  the  year  ran  out.  By  behaving 
as  heir  he  lost  this  privilege. 

The  year  ran  from  the  death  of  the  ancestor,  or  from  the  birth  of  a 
posthumous  heir,  or  from  the  death  of  an  intermediate  heir  who  died  in 
apparency.  The  period  was  reduced  to  six  months  by  21  &  22  Vict.  c.  76, 
s.  27,  and  23  &  24  Vict.  c.  143,  s.  16.  The  jus  deliberandi  was  lost  by 
service,  or  by  passive  representation  ;  and  it  did  not  interrupt  an  action  of 
judicial  sale  brought  against  the  ancestor. 

The  apparent  heir  had  also  the  right  to  demand  exhibition  of  all  deeds 
and  obligations  relative  to  the  predecessor's  lands  and  estate,  and  all  debts 
due  by  him.  This  he  might  raise  any  time  before  service.  He  seems  not 
to  have  been  entitled  to  delivery  of  the  ancestor's  title  deeds  without  a 
general  service  {Smith,  1871,  10  M.  211).  A  list  of  the  deeds  he  could  call 
for  will  be  found  in  Bell,  rrin.  s.  1689.  Now,  by  the  Conveyancing  Act, 
1874  (37  &  38  Vict.  c.  94,  s.  12),  an  heir  is  not  lialde  for  the  debts  of  his 
ancestor  beyond  the  value  of  the  estate  to  which  he  succeeds.  If  an  lieir 
renounces  the  succession,  the  creditors  of  the  ancestor  have  the  same  rights 
against  the  estate,  as  upon  a  renunciation  according  to  the  law  l>efore  the 
commencement  of  the  Act.  Where  an  heir  has  l)efore  renunciation  mtro- 
mitted  with  the  ancestor's  estate,  he  is  liable  for  the  ancestor's  debts  to  the 


52  SUCCESSION 

extent  of  such  iutromission,  aud  uo  further.  This  put  him  iu  a  similar 
position  to  an  heir  who  had  entered  cum  hcneficio  inventarii  under  1695,  c.  24, 
or  who  had  served  with  a  specification  under  the  Acts  for  the  service  of 

heirs.  i     ■  ■,  .  . 

Sec.  9  of  the  Conveyancing  Act  runs  as  follows  : — "  A  personal  right  to 

every  estate  in  land  descendible  to  heirs  shall,  without  service  or  other 

1  '   ic,  vest  or  be  held  to  have  vested  in  the  heir  entitled  to  succeed 

i.„  .,.  .,  bv  his  survivance  of  the  person  to  whom  he  is  entitled  to  succeed, 

whether  such  person  shall  have  died  before  or  after  the  commencement  of 

this  Act ;  aud  such  personal  right  shall,  subject  to  the  provisions  of  this  Act, 

be  of  tlie  like  nature  and  be  attended  with  the  like  consequences,  and  be 

transmissible  in  the  same  manner,  as  a  personal  right  to  land  under  an 

unfeudalised  conveyance  according  to  the  existing  law  and  practice." 

This  assiuulated  heritable  to  moveable  succession  as  far  as  the  acquisition 
of  a  vested  interest  went.  The  heir  may  now  dispose  of  the  estate  either 
inter  invos  or  mortis  causa.  His  creditors  can  attach  it.  This  section 
supei-sedes  the  Act  1695,  c.  24;  but  the  Act  1661,  c.  24,  which  gives  a 
preference  to  the  ancestor's  creditors,  is  left  untouched.  The  completion  of 
a  feudal  title  in  the  case  where  the  heir  did  not  make  up  his  title  is 
provided  for  in  sec.  10. 

It  is  still  desirable,  for  many  reasons,  that  an  heir  should  make  his 
right  real  by  completing  a  title  without  delay. 

Under  1695,  c.  24,  an  heir  could  be  served  ciiin  heneficio  inventarii,  and 
80  limit  his  responsibility ;  and  under  the  Service  of  Heirs  Act,  1847 
(10  &  11  Vict.  c.  47,  s.  25),  re-enacted  in  1868  by  the  Consolidation  Act 
(31  &  32  Vict.  c.  101,  s.  49),  a  general  service  might  be  applied  for  with  a 
specification ;  by  means  of  which  liability  beyond  the  value  of  the  estate 
was  avoided.  This  procedure  is  still  competent,  though  it  is  now 
unnecessary. 

If  an  apparent  heir  was  cited  by  a  creditor  of  his  ancestor  to  pay  a 
debt  of  his,  and  offered  any  peremptory  defence  against  the  debt,  he  incurred 
a  limited  passive  title  {Lundy,  1713,  Mor.  12064).  He  also  incurred  this 
if  he  was  charged  to  enter  heir,  and  did  not  renounce  (Ersk.  rHn.  iii.  8.  44, 
iii.  8.  93;  Ilichan,  1832,  11  S.  237). 

We  have  seen  that  but  few  of  the  riglits  of  an  ancestor  vested  in  an 
lieir  until  he  entered.  Certain  riglits,  however,  did  vest  in  him  by  mere 
survivance. 

Honours  and  dignities  \QQijure  sanrjuinis  (Ersk.  iii.  8.  77). 

The  sovereign  makes  up  no  title  to  Crown  lands,  nor  the  prince  to 
principality  lands. 

Leases  vest  in  the  heir  without  either  service  or  possession  {Boyd,  1671, 
Mor.  14375;  Camphell,  1739,  Mor.  14375;  Vcitch,  25  May  1808,  E.  C). 
In  order,  liowever,  to  make  up  a  title  to  a  long  lease  registered  under 
20  &  21  Vict.  c.  26,  the  Eegistration  of  Leases  Act,  1857,  service  is 
necessary  (s.  8). 

Heirship  moveables  were  vested  l)y  possession. 

•MovL-altles  wliich  were  liy  settlement  made  heritable,  as  books  and 
pictures  destinated  to  pass  along  with  an  entailed  estate,  do  not  require  a 
service  to  vest  them,  but  are  vested  by  possession.  A  service  is,  however, 
compotont  f(.r  vesting  such  sul)JL'cts  (  FciVc/i,  25  May  1808,  F.  C). 

I  dal  lands  in  Orkney  and  Shetland  were  said  to  vest  in  the  heir  by 
survivance. 

Kights  wiiicli  were  herital)le,  as  inferring  a  tract  of  future  time,  vested 
without  service. 


SUCCESSION  53 

DEATIinED. 

"Our  most  aiieieut  law  from  a  jealousy  of  tlie  weakness  of  inaukin.l 
while  under  sickness,  and  of  tlie  importunity  of  friends,  enacts  that  all 
deeds  affecting  heritage,  if  they  be  granted  to  the  prejudice  of  the  heir 
by  a  person  upon  deathbed  are  inellectual"  (Ersk.  ii'i.  8.  95;  Stair,  i. 
12.  34;  1  Bell's  Com.  84).  The  rule  was  extended  to  guard  wives  aixi 
children  against  the  defeat  of  their  legal  provisions,  and  to  i)rotcct  minors 
in  the  nomination  of  curators,  or  of  tutors  against  exemption  fi-om  Ihc 
usual  responsibility. 

The  Act  34  &  35  Vict.  c.  81  provides  that  no  deed,  instrument,  or 
writing  made  by  any  person  dying  after  IGth  August  1871  sliall  be  liable  to 
challenge  or  reduction,  ex  cctpitc  kdi,  that  is  on  the  ground  of  deathbed. 
The  principle  is  therefore  now  of  comparatively  little  importance,  but  it 
may  still  aflect  deeds  granted  by  persons  dying  liefore  that  date'  (Gray 
1872,  10  M.  854;  Thain,  1891,  18  \l  1196;  see  Hay,  1890,  18  W.  244"! 
see  Deathbed). 

Heiksiiip  Moveables. 

The  heir  of  line  of  a  prelate  baron  or  burgess  was  until  31st  July 
1808,  when  the  right  was  abolished  by  the  Consolidation  Act  of  tha"^t 
year  (31  &  32  Vict.  c.  101,  s.  IGO),  entitled  to  the  best  of  certain  move- 
ables "from  the  presumed  intention  of  the  deceased  that  his  principal 
dwelling  house,  and  the  farm  which  he  kept  in  his  own  natural  possession 
for  the  use  of  his  family,  might  go  to  the  heir  not  quite  dismantled 
by  the  executors"  (Ersk.  iii.  8.  17;  Stair,  v.  7.  9 ;  Bell,  I'rin.  1903). 
Only  the  heir  of  a  baron  prelate  or  burgess  had  this  right.  Any  feudal 
proprietor  who  dies  vest  and  seised  in  lands,  houses  or  annual  rents  forth 
of  land  was  a  baron ;  a  burgess  was  either  one  iufeft  in  burgage  or  a 
trading  burgess. 

Tlie  heir  might  claim  them  although  the  land  was  settled  on  anotlier, 
but  if  he  did  not  claim  them  they  went  to  the  executor.  A  right  to  them 
vested  by  possession  without  service ;  if  not  taken  possession  of  they  went 
to  the  heir  of  the  person  first  deceasing. 

Erskine  says  that  the  eldest  heir-portioner  was  alone  entitled  to  this 
privilege,  but  Bell  says  that  heirs-portioners  divided  the  heirship  moveables 
{Cntkkshank,  1801,  M.  H.  P.  App.  2).  The  moveal)les  subject  to  tliis  right 
were  those  appropriated  to  the  person,  and  "inright  and  outright  plenish- 
ing," ])ut  not  fungibles  or  farm  stock  raised  for  sale. 

Service. 

Before  the  passing  of  the  Conveyancing  Act,  a  general  service  was 
the  appropriate  mode  of  vesting  in  the  heir  heritable  rights,  otlier  than 
those  first  mentioned,  which  the  ancestor  possessed  on  a  personal  title, 
or  which  did  not  require  seisin.  Special  service,  or  an  acknowlctlgment 
from  the  feudal  superior  called  a  clarc  constat,  was  the  appropriate  way 
of  vesting  estate  in  which  the  ancestor  died  infeft. 

Service  is  a  judicial  proceeding  for  establishing  the  opening  of  the 
succession,  the  acceptance  of  the  lia-rcditas  by  the  heir,  ami  the  special 
character  in  wiiich  lie  takes.  It  is  either  special  or  general.  General 
service  establishes  the  general  title  of  heir  without  application  to  any 
particular  subject ;  special  service,  his  specific  right  to  enter  and  be  infeft 
in  the  feudal  right  of  subjects  in  which  the  ancestor  died  infeft. 

Formerly,  service  proceeded  by  an  inquest  of  a  jury  following  upon  a 
brieve  issued  from  Chancery,  but  since  1847  it  has  proceeded  by  petition  to 


54  8UCCESSI0X 

tbe  Sheriir  of  a  countv  or  of  Chancery,  aud  is  now  regulated  by  the  pro- 
N    •  ■     of  the  Acts  of  ISGS  and  1874 

••  t"  the  Service  of  Heirs  Act  of  1847,  a  special  service  implied  a 
jjeiv  vice  in  the  same  character ;  but  from  the  passing  of  that  Act  no 

ial  service  implied  a  general  service,  except  as  to  the  particular  lands 
'    !i  the  service. 

1 ...  ...alter  of  the  service  of  heirs  is  dealt  with  in  the  Consolidation  Act 

of  1>J6S,  in  sees.  27-58  inclusive.  This  Act  not  only  supersedes  but 
s  the  old  forms,  enacting  (s.  27)  that  from  the  31st  of  December 
1  ^o.>  11  .'^hall  not  be  competent  to  issue  brieves  from  Chancery  for  the  ser- 
vice of  lieirs,  or  for  any  person  to  obtain  himself  served  heir  by  virtue  of 
anv  such  brieve,  or  otherwi.se  than  according  to  the  provisions  of  the  Act ; 
that  is  to  say,  by  petition  to  the  Sherill'  of  the  county,  either  of  the  domicile 
of  the  decejised,  or,  in  the  case  of  special  service,  to  the  Sheriff  of  the 
county  in  which  the  lands  lie,  or  to  the  Sheriff  of  Chancery. 

c;knki;.\l  .Seuvice. — The  petition  for  general  service  sets  forth  the  death 
of  the  ancestor,  and  its  date,  and  that  he  had  his  ordinary  or  principal 
domicile  in  a  particular  county  or  furth  of  Scotland,  as  the  case  may  be.  If 
the  deceased  died  upwards  of  ten  years  prior  to  the  date  of  presenting 
the  petition,  it  is  not  necessary  to  set  forth  or  prove  the  domicile  (s.  34). 

2.  The  petitioner's  relationship  to  the  deceased,  and  that  he  is  the 
nearest  and  lawful  heir-in-general  of  the  deceased ;  and  the  Sheriff  is  asked 
to  serve  the  petitioner. 

Should  he  refuse  to  do  so,  there  is  an  appeal  to  the  Court  of  Session. 
The  Court  of  Session  Act  of  1868  is  to  apply  to  appeals  and  reductions, 
and  it  is  competent  to  appeal  against  judgments  of  the  Court  of  Session  to 
the  House  of  Lords  in  tlie  same  way  as  appeals  are  taken  in  ordinary  civil 
causes. 

On  the  Sheriff  pronouncing  decree,  the  petition  and  decree  are  trans- 
mitted to  the  office  of  the  Director  of  Chancery  to  be  recorded.  An  extract 
of  the  record  constitutes  the  title  of  service. 

The  heir's  title  to  heritable  rights  not  requiring  infeftment  was  thus 
completed,  as  were  his  riglits  to  lands  held  by  his  ancestor  on  personal  title. 
It  also  gives  the  heir  a  title  to  reduce  infeftments  prejudicial  to  his  right 
{Horn,  174G,  Mor.  16117;  Carmichael,  15  Nov.  1810,  F.  C). 

No  oi.jtosition  is  allowed  in  a  general  service,  unless  by  one  having  a 
comiKiting  claim  in  the  character  alleged  {Forlcs,  3  July  1810,  F.  C. ; 
Corhranc,  28  June  1821,  F.  C. ;  Aitchison,  1829,  7  S.  558),  or  on  the  ground 
that  the  succession  is  not  open. 

The  service  may  be  reduced  within  the  period  of  the  vicennial  pre- 
scription. 

It  i.s  not  competent  to  serve  a  second  time  to  a  deceased  person  until 

the  first  service  be  reduced  {Cochrane,  1828,  6  S.  751 ;  1830,  4  W.  &  S.  128  ; 

lui,  1844,  6  p.  370  ;  Macara,  1848,  10  D.  707  ;   Wilson,  1851, 13  D.  636). 

100;»,  c.  24,  an  heir  could  serve  rawi  hcncjicio  inrc7iiarii,  and  xmdcr 

y  foriiiH  of  service  he  could  serve  witli  a  specification,  and  so  limit 

hiH  re.si>on8ibdity ;  but  this  procedure  has  been  superseded  by  the  complete 

protection  given  by  the  1874  Act. 

Mt  causa  cofjnita  will  not  su]iport  a  plea  of  res  judicata  where 

:i  no  contradictor  {Fullon,  1895,  22  It.  823). 

j     '-IAL    Seuvick.— Special     service    is    the    judicial    proceeding    for 

e.ui.li..lm.g  the  heir's  right  to  heritable  estate  in  which  the  ancestor  died 

imctt      J  ,0  ]K'titi..n  sets  forth,  as  nearly  as  may  be  in  the  form  of  Schedule 

^i  01  Llie  Act  of  18G8,  the  death  of  the  ancestor  last  vest  and  seised  in  the 


SUCCESSION  55 

lands,  with  a  specificaliou  of  the  lands  and  heritages,  and  that  the  petitioner 

is  the  nearest  lawful  heir. 

A  title  is  made  up  by  registration  of  the  extract  deeree. 

By  sec.  4G  a  decree  of  special  service  has  the  operation  and  elVect  (jf  a 
disposition  from  tlie  deceased  to  the  heir  and  his  assignees.  At  connnon 
law  a  decree  of  special  service  fell,  unless  it  was  followed  by  sasine.  Th(! 
Service  of  Heirs  Act,  1847,  provided  that,  for  the  purpose  of  completing 
tlic  feudal  title  of  an  heir  who  liad  obtained  a  decree  of  s])ecial  service, — but 
his  only, — such  decree  should  be  eipiivalent  to  a  disjtosition.  \\\  Morcton's 
7Vs.,  1854,  IG  D.  1108,  it  was  held  that  this  did  not  give  the  lieir  any 
transmissible  right  before  infeftment.  The  section  of  the  1SG8  Act 
expressly  confers  a  transmissible  right.  Except,  however,  as  regards 
tlie  question  of  making  up  a  feudal  title,  the  matter  is  of  little  import- 
ance, since  sec.  9  of  the  Conveyancing  Act  of  1874  causes  a  personal 
right  to  tlie  ancestor's  lands  to  vest  in  the  heir  by  mere  survivanec. 
A  special  service  implies  a  general  one,  as  far  as  regards  the  lands  con- 
tained in  it  (s.  47).  Formerly,  it  inferred  a  general  service,  with  all  its  con- 
sequences, but  tliis  was  altered  by  sec.  23  of  the  Act  of  1847.  Tliis  also  is 
now  unimportant,  since  sec.  12  of  the  Conveyancing  Act  provides  that  an 
heir  shall  in  no  case  be  liable  for  the  debts  of  his  ancestor  beyond  the 
value  of  the  estate  to  which  he  succeeds. 

By  sec.  48  a  petitioner  for  special  service  may  combine  with  his 
petition  one  for  general  service. 

By  sec.  31  of  the  Conveyancing  Act  a  general  service  to  an  ancestor 
who  died  infeft  in  lands  is  made  equivalent,  as  far  as  making  up  titles  is 
concerned,  to  a  mortis  causa  general  disposition. 

An  heir  of  provision  under  a  destination  in  a  heritable  bond,  may  still 
complete  his  title  by  service  {Hare,  1889,  17  K.  105). 

The  petition  for  special  service  may  be  opposed  by  competing  claimants, 
and  also  by  disponees  of  the  ancestor,  if  infeft,  but  not  if  uninfeft  {Suttij^, 
1733,  Mor.  14457;  Douglas,  17G1,  Mor.  14457).  As  long  as  tlie  service 
stands,  no  other  person  can  be  served  in  the  same  character  {Cochrane,  1830, 
4  W.  &  S.  128).  But  a  special  service  by  A.  does  not  exclude  a  general 
service  by  B.,  seeing  that  the  special  service  no  longer  implies  a  full  general 
service  (Alontg.  Bell,  1113). 

By  sec.  11  of  the  Conveyancing  Act  it  is  provided  that  it  shall  be 
no  objection  to  any  precept  or  writ  from  Chancery,  or  of  dare  constat,  or 
to  any  decree  of  service,  whether  general  or  special,  that  the  character  in 
which  an  heir  is  entitled  to  succeed  is  erroneously  stated  therein,  provided 
such  heir  was  in  truth  entitled  to  succeed  as  heir  to  the  lands  specified. 

Sec.  13. — The  right  of  any  person  to  an  estate  in  land  by  succession  as 
heir,  acquired  after  the  commencement  of  this  Act,  may,  at  any  time 
within  twenty  years  of  his  infeftment  as  heir  and  his  entering  into  pos- 
session of  such  estate,  but  not  thereafter,  be  challenged  by  anyone  who 
would  have  been  entitled  to  challenge  the  decree  of  service  of  such  person 
had  he  expede  a  service  according  to  the  practice  existing  ]irior  to  this  Act ; 
and  in  the  absence  of  evidence  to  the  contrary,  the  date  of  his  infeftment 
shall,  for  the  purpose  of  this  limitation,  be  assumed  to  be  the  date  of  enter- 
ing into  possession ;  and  sucli  challenge  may  be  made  by  an  action_  to 
negative  or  set  aside  the  alleged  right  of  succession,  or  to  reduce  any  title 
expede  in  virtue  of  such  alleged  right. 

Clap.e  constat.— An  heir  could  and  can  also  be  entered  by  i-recept, 
or  now  by  writ  of  dare  constat,  by  which  the  superior  acknowledges  the 
heir  to  be  entitled  to  the  lauds  described  in  the  writ.     If  the  superior  is 


jie  SUCCESSION 

infeft,  the  litie  is  at  once  ^^ood  ;  ii  uoi,  it  will  become  effectual  bv  accretion 
uj^,.  '.T...  ..ii>erior's  infeftment  {Dicksoii,  1801,  Mor.  App.  "  Tailzie,"  No.  7). 
A  li  cannot  be  so  eutered  (Crichton's  Cr.,  1798,  Mor.  15115).     The 

heir  must  at  the  time  be  the  immediate  heir  either  at  law  or  bj^  destina- 
tion    "      ■  ■    1752,  Mor.  144G5). 

■]  .  |.,  .  pt  or  writ  used  to  fall  by  the  death  of  either  granter  or 
-'iMiiice,  and  could  not  be  assigned,  but  by  sec.  103  it  is  effectual  during 
the  life  of  the  grantee. 

It  was  and  is  a  title  only  to  the  lands  contained  in  it,  and  did  not  imply 
passive  representation  beyond  the  value  of  the  sultjects  {Farmer,  1683,  JMor. 
14003);  but  the  heir  so  entering  was  liable  under  the  Statute  1695,  c.  24, 
for  the  debts  of  an  apparent  heir  three  years  in  possession  (Broicn,  1852, 
14  D.  1041).  A  title  made  up  Ijy  dcwe  constat  is  not  within  the  protection 
of  the  vicennial  prescription. 

Hasp  and  Staple. — In  burgage  property  a  similar  entry  W"as  by  hasp 
and  staple.  In  this  proceeding  the  bailie  cognosced  a  person  heir  upon 
evidence  led  before  himself,  and  infefted  him  in  the  subject  by  the  symbol 
of  the  hasp  and  staple  of  the  door.  It  is  now  superseded  by  entry  by 
service  or  by  writ  of  dare  constat  (31  &  32  Yict.  c.  101,  ss.  27,  102). 

Adjudication  upox  a  Trust  Bond. — This  mode  of  entry  was  used 
chiefly  as  a  tentative  title  on  the  part  of  an  heir  w^ho  wished  to  challenge 
an  adverse  right,  and  yet  was  unwilling  to  incur  passive  lial)ility.  The  heir 
granted  a  bond  to  a  friend  for  a  sum  above  the  value  of  the  estate.  The 
holder  charged  the  heir  to  enter,  and  on  his  refusal  adjudged  the  estate. 
He  then  challenged  the  adverse  deed,  and  if  successful  conveyed  the  bond 
and  adjudication  to  the  heir  (Ersk.  iii.  8.  72).  At  first  it  was  held  to 
infer  no  passive  representation;  afterwards,  by  Statute  1695,  c.  24,  it  was 
made  to  infer  liability,  if  intromission  followed  {Rntherfurd,  1830,  9  S.  3 ; 
DniUop,  1824,  2  Sh.  App.  115  ;  Hejjhurn,  1781,  Mor.  14487  ;  Bcveridge,  1793, 
Mor.  5296).^  It  was  not  competent  for  an  heir  to  make  up  a  tentative  title 
by  means  of  an  absolute  disposition  of  the  lands  and  adjudication  following 
thereon  {Dunlop,  1824,  2  Sh.  App.  115 ;  see  also  Lord  Moncreiff  in  Iluthcr- 
fitrd,  supra).  Contrary  to  the  general  rule,  that  where  the  rights  of  the 
debtor  and  creditor  concur,  the  debt  is  extinguished  confnsione,  the  adjudi- 
cation on  trust  bond,  even  wlien  conveyed  by  the  trustee  to  the  truster 
making  him  both  debtor  and  creditor,  is  not  only  an  active  title  to  the 
eflect  of  enabling  the  heir  to  challenge  competing  rights  to  the  lands,  but 
It  IS  a  valid  feudal  title  which  transmits  to  his  own  heirs  (Hcvlvrn, 
supra). 

Statute  106],  r.  24.— By  the  Statute  1661,  c.  24,  it  is  provided  that  no 
right  or  di.sposition  made  by  the  ap])arent  heir,  so  far  as  may  prejudcrc  his 
predecessor's  creditors,  shall  be  valid  unless  made  and  granted  a  full  year 
after  the  ancestor's  death  (Boyd,  1851,  13  D.  1302). 

The  statute  has  been  held' to  apply  to— 
J    ^- 'iJJ^^'':'»^'cyanccs  made  by  the  heir,  whether  entered  or  not  (Mags,  of 
^yr.  1/80,  Mor.  3135).  -^     "^ 

/A.  ^'^'Ton^'i  ""<^'"'^"''  ^eeds  to  third  parties  not  creditors  of  the  heir 
(/a/on,  183y,  13  S.  509). 

Whilr-   the    estate    may    be    conveyed    to    the    ancestor's    creditors, 

\7a\     .>    ..  'J^''^^^^^  be  given  (Ersk.  iii.  8.  102 ;  Christie,  1839,  1  I).  745  ; 

c,(  IL"         \     \^'    ^'^'•'•«^^^'^'    1842,    4    D.    774).       Only    the   creditors 

h.t   Wv'"r  ;'l  h''A.^^^"   "'g^'^   «f  challenge,   and   it   is   not   necessary 

the  heir  <iil'gencc  within  three  years  to  exclude  the  creditors  of 


SUCCERSTON  57 

The  statute  goes  on  to  say  :  "  the  creditors  of  the  <lefunct  bIuiH  be  ]ire- 
ferred  to  the  creditors  of  the  appearand  heir  in  time  cuujinK,  providing  that 
the  defunct's  creditors  do  diligence  against  the  appearand  heir  and  the  real 
estate  belonging  to  the  defunct  within  the  space  of  three  years  after  the 
defunct's  deatii." 

Tiiis  part  of  the  statute  applies  as  between  the  credit<jrs  of  an  institute 
and  those  of  a  substitute  {Bruce,  1831,  9  S.  GOo).  Tiie  rule  applies  to  all 
heritage  {M'Kay,  178;!,  Mor.  3137).  Doing  diligence  means  coni]»leting  the 
diligence  (Stair,  ii.  12.  29;  Ersk.  iii.  8.  \{)l  {  Mcnzics,  1841,  4  \).  257). 
A  judicial  sale  at  the  instance  of  the  heir  will  secure  the  preference  of 
the  creditors  of  the  ancestor  {Irvine,  1748,  Mor.  52G4;  M'Lachlan,  182G, 
4  S.  712;  1829,  3  W.  &  S.  449).  Sequestration  is  also  suflicient  if  the 
ancestor's  creditors  have  proved  their  debts  within  the  three  years 
{Jriachlan,  supra;  19  &  20  Vict.  c.  79,  102-107;  c.  91,  4).  If  the 
creditor  should  be  delayed  by  litigation  with  the  heir  or  other  creditors, 
his  preference  would  not  be  forfeited  {Bcdlendcn,  1G85,  ]\Ior.  3127). 

Statute  1695,  c.  24. — Under  the  Act  1695,  c.  24,  now  superseded  by 
the  provisions  of  the  1874  Act  (37  &  38  Vict.  c.  94,  s.  10),  which  makes  a 
personal  title  vest  in  the  heir  by  survivance,  it  was  provided  that  every 
person  passing  over  his  immediate  ancestor  who  had  held  the  estate  on 
apparency  for  three  years,  and  serving  heir  or  succeeding  liy  adjudication 
u])on  his  own  bond  to  the  last  person  infeft,  should  be  liable  for  the  debts 
and  deeds  of  the  person  interjected,  the  measure  of  his  liability  being  the 
value  of  the  succession  {Smith,  1854,  16  D.  727).  This  did  not  extend^  to 
the  gratuitous  deeds  of  the  intermediate  heir  {ChjdcscMe,  1726,  Mor.  1274), 
nor  to  the  case  of  a  naked  fiar  {Bogle,  1745,  Mor.  9748);  so  long  as_  he 
continued  to  possess  upon  apparency,  he  was  not  liable  {Sinclair,  1736, 
Mor.  9810  ;  Grant,  1754,  Mor.  9819  ;  1755,  1  Pat.  605):  nor  to  the  case  of 
an  heir  infeft  in  the  ancestor's  lifetime  {Arniston,  1685,  2  ]'>r.  Sup.  92). 
The  last  heir  had  a  right  of  relief  against  the  representatives  of  the  deceased 
wlio  had  possessed  on  apparency  {Adamson,  1832,  11  S.  40 ;  Eusscll,  18.i2, 
15  D.  192;  TciT/lor,  1854,  16  D.  885;  OfiilvT/,  16  Dec.  1817,  F.  C).  A 
reasonable  provision  for  wife  or  children  has  been  held  to  be  onerous  in 
the  sense  of  this  statute  {Russell,  siqna;  Orr,  1871,  9  M.  500). 

Passive  Titles  in  Heritage. 

Gestio  peo  ilerede. — This  is  the  name  given  to  a  passive  title  incurred 
by  an  heir  who,  either  personally  or  by  others  on  his  Ijehalf,  used  after  the 
deatli  of  the  ancestor  any  rights  in  the  lands  or  other  heritable  subjects  to 
which  he  might  have  compfeted  an  active  title  by  service.  It  was  implied 
from  buying  the  estate  otherwise  than  at  a  public  sale ;  by  taking  possession 
of  heirship  moveables ;  or  by  intromitting  with  the  ancestor's  pai)ers  in  a 
charter  chest  (Stair,  iii.  6.  6,  16;  Ersk.  iii.  8.  83:  Ellis,  1670,  .Mor.  9068; 
Scott,  1821,  1  S.  33 ;  Fergusson,  1829,  7  S.  580).  Mere  examination  of  title 
deeds  did  not  involve  it. 

It  was  avoided — 

1.  By  any  right  in  a  third  party  taking  the  estate  out  of  the  ancestors 
person. 

2.  By  any  singular  title  in  the  heir  {Grant,  1676,  Mor.  9763). 

3.  By  adjudication  during  the  ancestor's  life  {M'Ncill,  1759,  :Mor. 
9752). 

4.  By  the  insignificance  of  the  intromission  and  tlie  absence  of  fiau.l 
{Jeffrey,  1791,  Bell's  Oct.  Ca.  482  ;  Penman,  1775,  Mor.  9836). 

"it   was  not   incurred  if   the   heir   made   up  a  title  at  the  request  of 


58  SUCCESSIOX 

ct'  '       -    of   the   aiiLL'siur,  lu   save   expense   (Gordon,   1789,  Mor.    9733). 
T;...     ...ls  no  If i\<tiu  where  the  succession  was  not  open,  or  if  the  introuiittcr 

was  not  the  apparent  heir  (Irvitie,  1626,  Mor.  9649;  Cunninghame,  1629, 
Mor.  9GG4),  or  where  the  act  done  was  ineffectual  (Jamieson,  1670,  1 
Br.  Sup.  620  ;  Middldoii,  1682,  Mor.  9651),  nor  where  the  intromission 
(...mI.j  k..  •"^•rihoil  to  some  other  title  than  the  assumption  of  the  succession 
(  ;,  .     'L',  Hume, 436).    Assuming  a  hereditary  honour  or  a  hereditary 

ottice  was  not  gestio  {Semple,  1622,  Mor.  9706 ;  JBoicer,  1682,  2  Br.  Sup.  18), 
nor  was  making  up  a  title  for  the  mere  purj)Ose  of  disponing  a  trust  estate 
{Ayton,  1784,  Mor.  9732).  It  was  not  inferred  from  a  general  service, 
if  nothing  was  taken  by  it  {Fife,  1828,  6  S.  698 ;  Mackenzie,  1834,  13  S.  31). 
It  Wiis  inferreil,  without  actual  intromission,  by  the  heirs  conveying  to  a 
third  i»arty  subjects  to  which  he  might  have  made  up  a  title,  or  granting 
discharges  of  rents  or  debts  to  wdiich  he  might  have  succeeded,  or  con- 
senting to  discharges  (Gordon,  1785-1787,  3  Pat.  61);  but  not  from  the 
heir's  bare  renunciation  of  the  succession. 

Pa.tiCEPTIO       H/EREUITATIS        TITULO       LUCEATIVO        POST        CONTEACTUM 

KEiiiTL'M. — This  passive  title  was  incurred  by  the  heir  if  he  accepted 
a  gratuitous  riglit  from  the  ancestor  to  any  part  of  the  estate  to  which  he 
might  have  succeeded  as  heir.  If  the  right  was  onerous  there  was  no 
passive  title,  but  the  heir  was  put  to  prove  onerosity.  He  was  not  liable 
for  any  debts  contracted  after  he  entered  into  possession  under  the 
conveyance,  unless  they  were  made  burdens  upon  it.  To  be  liable,  the 
party  must  have  been  heir  cdioquin  succcssionis ;  but  if  he  died  before 
the  maker  of  the  conveyance,  the  responsibility  transmitted  to  his  heirs 
(Er.sk.  iii.  8.  90-92;  Smeiton,  1639,  Mor.  9774;  Scott,  1665,  Mor.  9775; 
Jfrndcrson,  1717,  Mor.  9784).  All  the  equitable  results  of  this  doctrine  are 
attainable  on  the  ground  of  fraud  at  common  law,  or  on  the  rule  of 
conjunct  and  confident  set  up  by  1621,  c.  18. 

Pleading  a  peremptory  defence  in  an  action  brought  against  an  heir 
imports  a  passive  title  as  to  that  debt  (Ersk.  iii.  8.  93 ;  Grieve,  1871, 
9  M.  582 ;  Kirkpatridc,  1838,  16  S.  608 ;  affd.  1841,  2  Hob.  475). 

A  charge  to  enter  heir  unanswered,  or  a  summons  in  an  action  of 
constitution,  infers  a  passive  title,  but  it  is  limited  to  the  particular  occasion 
(Ersk.  iiL  8.  93;  Bell,  Prin.  1925;  Montgomeric,  1841,  4  D.  332). 

Heiutadle  Succession:  Effect  of  Birth  of  nearer  Heir. 
Though  in  tailzied  succession  the  birth  of  a  nearer  heir  divests  a  more 
remote  heir  (/»V?/^c,  1677,  Mor.  14880;  Stewart,  1859,  22  D.  72;  Mount- 
stcicart,  1707,  Mor.  14903),  the  rule  in  intestate  succession  is  different. 

.  \^''•^•'^  '-'<^*'^"  decided  that  when  a  father  has  completed  a  title  as  heir  to 
hi.s  child,  the  sub-sequent  Ijirth  of  a  child,  who  if  he  had  been  born  or  in 
ulcro  at  the  tune  of  the  brother's  death  would  have  excluded  the  father,  does 
not  displace  the  father's  riglit  (Grant,  1859,  22  D.  53  ;  Stair,  iii.  5.  50 ; 
i>ankt.  Ill  ;,.  55;  Bell's  Prin.  1642;  Ersk.  iii.  8.  76).  A  child  in  ntcro  is 
not  regard.'d  as  m  existence  under  the  Entail  Statutes.  Accordingly,  the 
birth  of  a  nearer  lieir  before  the  instrument  of  disentail  was  recorded  was 
not  all(,wed  to  mlorrui.t  tlie  disentail  (Douglas,  1885,  1  2  W.  916).  This  was 
an  ()iii<:-r  llousf,-  decision. 

Ileir-apparent "  is  a  term  used  in  the  Entail  Acts  to  describe  a  substitute 
Hiio,  If  he  survives  the  heir  of  entail  in  possession,  nmst  succeed ;  that  is  to 
Ra>.wl,r..s.,.iHwition  in  the  destination  is  such  that  no  nearer  heir  than  he 
mT'v  V^-t'''^''''''  l^efore  the  death  of  the  heir  in  possession  (Forles, 


SUCCKSSir)N  50 


Testate  Succession  in  Hkiutace. 


]iy  the  coiiimon  law  of  Scotland  licritablo  estate  was  not  transniisKililc 
by  will  or  testament.  The  most  clearly  expressed  will  was  inelVcctual  to 
transmit  heritage,  nor  did  it  impose  an  obligation  upon  the  heir  to 
implement  (Boss,  4  July  1809,  F.  C. ;  Montgomery,  1795,  liell's  Fol.  Ca. 
203  ;  Kirlqmtrich,  1873, 11  M.  551 ;  1874,  1  M  (II.  L.)  37).  In  all  heritable 
succession  the  rules  of  legal  descent  were  followed  unless  there  was  a 
disposition  to  some  one  who  took  as  disponee,  or  the  heritage  was  all'ecled 
by  a  deed  with  substitutions.  But  a  marriage  contract,  though  ccjiitaining 
only  words  of  provision  and  not  of  disposition,  will  by  force  of  the  obliga- 
tion be  eifectual  (Ersk.  iii.  8.  20 ;  Bcid,  1838,  10  S.  3G3). 

As  will  be  noticed  later,  this  was  altered  by  the  Consolidation  Act  of 
18G8,  but  prior  to  31st  December  1868  a  proprietor  could  not  dispose  of 
Scottish  heritage  by  will,  even  though  the  instrument  was  executed  in  a 
country  where  real  estate  was  disposable  by  will.  In  order  to  alter  the 
legal  succession  he  must  have  used  dc  i^ra^Mnii  dispositive  words,  the  word 
"dispone"  being  essential,  either  disponing  the  subject  to  himself,  whom 
failing  to  the  person  whom  he  wished  to  favour ;  or  giving  it  directly  to 
the  object  of  the  gift,  reserving  his  own  liferent;  or  disponing  and 
conveying  the  subject  to  another,  reserving  a  power  to  alter.  The  deed 
might  either  be  delivered,  or  it  might  be  retained  in  the  custody  of  the 
granter,  provided  it  bore  a  clause  declaring  it  elfectual,  though  not 
delivered,  at  his  death. 

"  A  mortis  causa  deed  remaining  undelivered  in  the  hands  of  the  granter 
produces  no  change  on  the  title  of  the  property  conveyed.  The  granter 
being  infeft,  remains  the  undivested  proprietor  in  fee,  and  the  usual  clause 
in  such  deeds,  reserving  the  granter's  liferent,  is  intended  only  to  provide 
for  the  contingency  of  the  deed  being  delivered  during  his  life.  The  other 
usual  clause,  dispensing  with  delivery  of  the  deed,  though  found  undelivered 
in  the  granter's  repositories  after  his  death,  makes  it  a  delivered  deed, 
or  gives  it  the  effect  of  a  delivered  deed  immediately  upon  his  death. 
Though  therefore  the  disposition  is  in  form  a  conveyance  de  prccscnd,  as 
every  conveyance  of  heritage  must  be  still,  if  it  remains  undelivered,  it  is 
ambulatory,  revocable,  and  absolutely  inoperative  as  much  as  a  testament 
nominating  an  executor,  till  the  granter's  death  gives  it  the  efVcct  of  a 
delivered  deed"  (Ld.  Pres.  Inglis  in  Hutchison,  1872,  11  M.  229). 

Mere  words  of  disinherison  were  quite  inoperative  {Blackwood,  1833, 
11  S.  443  ;  Sutherland's  Trs.,  1893,  20  E.  925).  The  common  method  of 
settling  heritage  was  by  disposition,  contract  of  marriage,  or  procurator}' 
of  resignation  (Ersk.  iii.  8.  21).  Charters  by  progress  are  now  abolished, 
and  the  other  two  are  now  the  usual  means  employed.  The  power,  says 
Erskine,  of  regulating  succession  by  the  express  will  of  the  owner  is  so 
unlimited  that  every  owner  of  a  land  estate  or  other  heritable  subject,  il  he 
be  not  restrained  by  a  former  entail  or  destination,  may  settle  JV^^J«'^J''^  ''" 
extraneous  heirs,  to  tlie  exclusion  even  of  his  own  issue  (Ersk.  iii.  8.  29). 

It  did  not  invalidate  a  deed  as  a  conveyance  of  heritage  that  it  was 
in  the  form  of  a  testament,  provided  words  of  dispositum  were  used 
(Dour/las,  1733,  Uov.  15940  ;  Welsh,  28  dune  1809,  F.  C.).  Even  although 
it  had  neither  ju'ccept  nor  ]n-ocuratory,  it  founded  an  action  again.'^t  the 
heir  of  line  to  make  up  titles,  and  make  over  the  estate  to  the  disponee 
favoured  by  his  ancestor. 

A  destination  in  a  charter  from  a  superior  will  regulate  the  succossion 
of  the  lands  until  it  is  altered ;  or  trustees  may  be  directed  to  execute  a 


60  SUCCESSION 

.\ince  of  lieriuible  estate  to  heirs  in  succession ;  and  generally,  with 
.  ,...a  to  heritable  subjects,  all  deeds  containing  substitution  will  be 
operative  until  altered,  unless  where,  from  the  special  nature  of  the 
right  or  conception  of  the  clause,  conditional  institution  is  pointed  at 
(Ersk.  iii.  8.  44). 

\  "I  1,..;,^  \)y  destination  may  be  called  heirs  of  tailzie,  from  tailler  to  cut, 
Im  iineal  succession  is  cut  oil"  in  their  favour.     It  is  well  fixed  that 

where  a  purchaser  takes  a  title  to  heritable  property  containing  a  special 
destination,  he  is  held  bv  acceptance  of  the  deed  to  make  the  destination 
his  own  (Fanjuharson,  1883,  lU  i:.  p.  1253;  Faterson,  1897,  24  E.  p.  499). 

lN'.snTUTio.v  AND  SUBSTITUTION. — The  institute  in  a  settlement  is  the 
j)erson  to  whom  the  grant  is  made.  Thus,  in  a  disposition  to  A.  and  his 
heirs.  A,  is  the  institute — he  is  not  an  heir  but  a  disponee;  so  in  a 
disj)osition  to  the  heirs  of  A.,  A.'s  heir  is  institute. 

A  couilitiunal  institute  is  he  who  is  made  disponee  upon  some  condition 
in  the  event  of  the  failure  of  A.  to  take.  He  also  is  a  disponee  and  not 
an  heir. 

A  substitute  is  commonly  pointed  out  by  the  words  "whom  failing,"  or 
"  then  to,"  or  "  and  to."  Substitution  always  implies  conditional  institution 
in  the  same  character  in  the  event  of  the  institute  or  all  the  previous 
substitutes  not  living  to  take.  But  if  an  institute  takes  and  then  dies,  the 
property  goes  not  to  the  heirs-at-law  of  the  institute,  but  to  the  person 
j)ointed  out  in  the  clause  of  substitution,  who  is  known  as  the  heir  of 
provision,  heir  facto  not  leje. 

In  construing  the  words  "  whom  failing,"  the  nature  of  the  right  to 
wjiich  the  failure  applies  must  be  considered.  In  a  fee-simple  destination 
the  rigiit  fails  only  by  death.  In  an  entail  the  failure  may  take  place  in 
twenty  different  ways,  according  to  the  conditions  of  the  deed  of  entail. 
In  a  lease  the  words  are  not  to  be  interpreted  as  if  they  occurred  in  a 
destination  of  property  (luglis  in  Macalister,  1859,  21  D.  at  p.  565). 

In  the  case  of  lieritaLle  estate  a  destination  will  be  restricted  so  as 
to  infer  only  conditional  institution  and  not  substitution,  only  on  clear 
evidence  of  intention. 

The  dispositive  words  are  applied  provisionally  to  tlie  substitutes  or  to 
those  who  come  in  by  a  power  of  nomination  as  directly  as  to  the  institute. 

According  to  Lord  M'Laren  the  destination  must  be  to  persons  named, 
or  to^a  series  of  heirs  selected  from  among  the  lieirs  pointed  out  by  the  law. 

The  selection  must  be  from  the  class  of  heirs  who  would  succeed  by 
oi)eration  of  law  to  the  individual  disponees.  This  excludes  from  the 
aitc;,'ory  of  heritalile  destinations  grants  to  heirs  in  a  line  of  descent 
distinct  from  that  of  the  legal  order  of  succession,  e.g.  to  those  connected 
in  the  niaternal  line.  Such  a  destination  would  not  exclude  the  heir-at-law 
of  llie  first  y)erson  to  take. 

2.  A  simple  grant  to  A.  and  his  heirs  means  to  A.  and  the  heirs  pointed 
out  by  the  law  of  intestate  succession. 

A  dispftsition  to  A.  is  the  same  in  legal  meaning  and  effect  as  a  dis- 
position to  A.  and  his  heirs.  The  omission  of  the  words  "and  his  heirs" 
docs  not  detract  from  the  deed.  Nothing  is  added  by  inserting  them. 
It  f<»lh)\vH  that  the  will  of  the  disponer  ceases  to  operate  when  his 
dispo.sjtion  is  feudalised  (Mauhrmj,  1895,  22  R.  801;  Zcny,  18G0,  22  D. 
1272;  Muojrerjor,  1864,  3  M.  148). 

"  The  brocard,  hares  hocrcdis  mei  est  hccres  mcus,  has  never  been  recognised 
in  our  system  in  any  other  sense,  or  to  any  other  extent  than  this,  that 
where  ri-hts  of  a  iKMihal  character  (as  heritable  or  movealde)  are  rendered 


SUCCESSION  CI 

heritable  destinatione,  e.g.  a  bond  secluding  executor.s,  the  Pidiject  roniiiins 
in  its  provisional  character  heritalile  until  the  heritable  deslinaliuu  iH 
altered  by  someone  having  the  right  of  creditor  in  the  instrument;  and 
everyone  who  takes  \\\^  the  succession  to  this  debt  as  heir  is,  in  a  certain 
impro[)er  sense,  said  to  take  it  up  under  the  destination,  and  so  as  ha-ns 
harcdis  to  be  the  heir  of  the  original  creditor,  who,  by  the  t(!rms  in  which 
he  took  his  bond,  made  that  heritable  quoad  succession  which  sua  natnra 
was  moveable"  (Inglis,  quoted  in  Monlray,  at  p.  810). 

Where  the  grantor  of  a  deed  dispones  heritage  to  himself  and  to  a  series 
of  substitutes,  the  lirst  substitute  on  the  death  of  the  institute  takes  up  IIk; 
estate  by  service  {Young's  Trs.,  18G7,  5  M.  1101;  Main,  1880,  7  li.  G88). 
The  same  is  the  rule  when  tliere  has  been  delivery,  and  the  estate  has 
passed  to  the  institute  (IlaT/,  1758,  M.  14:369  ;  see  JJlrnic,  1893,  20  K.  481). 
In  the  case  of  mortis  causa  deeds  if  the  institute  survives  the  granter,  he 
takes  as  disponee.  Where  the  institute  predeceases  the  granter,  the  first  of 
the  substitutes  also  takes  as  disponee  {Colquhoun,  1828,  7  S.  200 ;  F<i<i(>, 
1840,  2  D.  651,  4  D.  1063).  And  the  same  rule  applies  to  a  dis]»osition  to 
the  granter's  heirs  whom  failing  to  other  heirs  (IfHtchison,  1872, 11  'M.  229). 
In  l)onds  of  provision  in  favour  of  children,  a  substitution  is  more  strictly 
ol)served  than  in  the  case  of  legacies  (Montg.  Bell,  992).  The  substitution 
of  two  children  to  each  other  operates  more  than  a  mere  destination 
{Boughcads,  1794,  Mor.  6403;  Macrcadic,  1752,  j\Ior.  4402).  A  bond  of 
provision  is  usually  vacated  by  the  predecease  of  the  grantee  even  if  it  be 
granted  in  favour  of  heirs  and  assignees,  because  they  are  granted  in 
implement  of  the  natural  ol)ligation  incumbent  upon  a  parent  (  Wood,  1789, 
]\Ior.  13043;  Eusscll,  1769,  Mor.  6372;  see  Findlay,  1875,  2  E.  909). 

Meaning  of  the  Word  "Heir." — Heirs  in  a  destination  is  a  technical 
expression  including  all  those  who  are  heirs  by  law  ;  namely,  heirs  of  line, 
heirs  of  conquest,  and  heirs  of  investiture  (Bell,  Prin.  1695).  "Heir  of 
line  "  in  a  destination  may  sometimes  mean  the  heir  of  com[\\c?,t  {Broun, 
1855,  17  D.  759  ;  Miller,  1833,  7  W.  &  S.  1  ;  BoUson,  1859,  21  D.  905 ; 
Boyd,  1774,  Mor.  3070  ;  see  Conquest,  Heir  of).  Heir  of  line  is  synonym- 
ous with  heir-at-law,  heir  general,  heir  whatsoever  (Stair,  iii.  5.  10).  A 
destination  to  A.  includes  the  heirs  of  A. ;  but  a  destination  to  A.,  followed 
by  an  immediate  substitution  of  B.,  will  exclude  the  heirs  of  A.  except  in 
the  case  of  gifts  from  parents  to  children,  or  where  there  is  a  manifest 
intention  that  the  heirs  of  A.  should  come  in  (Montg.  Bell,  p.  585).  The 
heirs  of  the  body  of  A.  are  the  heirs  in  direct  line  tracing  descent  from  A. 

The  expression  "heir-male"  applies  only  to  males  connected  with  the 
person  named  by  males,  exclusive  of  females,  and  also  of  males  connected 
by  females.  A  destination  to  the  eldest  daugliter  or  heir-female  means  to 
the  heir-female  {Lyon,  1739,  5  Br.  Sup.  663  ;''Sandford,  p.  64).  "To  A.  l:. 
and  the  heirs-male  of  his  body,  and  the  heirs  whatsoever  of  the  bodies  of 
the  said  heirs-male" — each  stirps  takes  before  the  next  (ZorZ7/a;V,  1837, 
15  S.  376;  1840,  2  D.  377;  1842,  1  Bell's  A])p.  202).  "To  the  heirs-male 
procreated  of  the  marriage  between  A.  and  B.,  and  the  heirs-male  of  their 
bodies  respectively,  whom  failing  to  the  heirs  whatsoever  of  the  bodies  of 
such  heirs-male  respectively"  {Forhcs,  1873,  11  :\r.  (H.  L.)44;  Arhvthnott, 
1869,  7  M.  371).  To  the'  heirs-female  of  the  body  of  A.  B.,  and  the 
heirs-male  of  the  body  of  the  eldest  heir-female  (or  of  the  said  heir- 
female  successive)  {Johnstone,  1839,  2  1).  73;  Eglinton,  1842,  4  D.  425). 
To  A.  B.  and  his  heirs-male,  v:hom  fading  to  their  heirs-female.  This  is 
distinguished  from  Loci-hart's  case  (Sandfoixl,  p.  66).  Heir-male  of  lino 
means  the  heir-male,  excluding  the  heir  of  compiest  (5'/;ic/(n'/-,  17GG,  Mor. 


62  SUCCESSION 

14044  ;  1707,  2  liell's  111.  o'oij).  Heirs  of  a  marriage  means  the  issue  of 
the  marriau'e' iu  their  order.  Heir-female  means  the  nearest  surviving 
heir  of  line  on  the  failure  of  heirs-male.  They  need  not  he  the  heirs  of 
th.'  !:i<t  la-ir-male  at  all  (Dalrymph,  1739,  Elfh.  "Prov.  to  H."  2 ;  Johnstone, 
1  1».  7.'.).     Ileir-male  of  the  hody  of  A.  means  a  descendant  of  A. 

,  d  with  him  exclusively  by  males.     The  use  of  the  words  heirs 

wuu-aver  enlarges  the  destination  to  the  hcirs-at-law,  and  thereafter 
the  K*"-al  onler  is  followed.  A  destination  to  "  own  nearest  of  kindred  " 
means'^the  nearest  next  of  kin  according  to  the  rules  of  heritable  succession, 
and  Girries  the  ]>roi»erty  to  an  individual  (Colloir's  2Vs.,  1866,  4  M.  465 ; 
Connelly  1867,  5  M.  079).  In  looking  for  an  lieir  of  provision  it  is  important 
to  bear  in  mind  that  it  is  the  heir  of  the  head  of  the  stirps,  and  not  the 
heir  of  the  last  proprietor  that  is  to  be  sought.  Accordingly,  the  rule, 
paicrna  patci-nis,  matcnia  maternis,  is  applicable  (see  Macgregor,  1864,  3  M. 
148).  It  is  said  to  be  an  open  question  whether  the  succession  of  heirs- 
feniale  general  is  to  be  deduced  from  the  nominatim  disponee,  or  from 
the  heir-female  last  seised  in  the  estate  (M'Laren,  p.  452).  Where  a 
father,  in  a  daughter's  marriage  contract,  conveyed  lands  to  himself  in 
liferent  allenarly,  and  to  his  daughter  and  the  heirs  of  her  body,  or  her 
assignees  or  disponees,  whom  all  failing  to  the  nearest  heirs  whomsoever 
of  the  father,  upon  the  death  of  the  daughter  childless  it  was  decided 
that  the  father's  survivance  made  the  destination  to  his  heirs  ineffectual, 
and  that  the  succession  devolved  on  him — the  destination  being  exhausted 
(Todd,  1874,  1  E.  1203).  The  fee  cannot  be  in  pendente,  Sind  the  father 
has  no  heir  till  he  dies;  though  in  CamphcWs  Trs.,  1891,  18  E.  at  p.  1004, 
one  of  the  judges  said :  "  I  should  indeed  be  prepared,  if  necessary,  to  go 
further,  and  hold  that  under  the  destination  of  the  most  formal  conveyance 
to  the  heirs-male  of  the  body  of  A.  I>.  (A.  ]>.  liimself  Ijeing  clearly  excluded), 
his  sons  would  take,  although  A.  B.  should  himself  happen  to  be  in  life 
when  the  succession  opened,  and  that  his  survivance  would  not  be  either  a 
hindrance  to  its  opening  or  favourable  in  any  way  to  heirs  subsequently 
called." 

A  substitution  of  an  individual  named  after  the  heirs  of  another  takes 
effect  only  when  the  whole  line  of  descent  of  the  institute  is  exhausted 
(BaiUie,  1706,  Mor.  14941 ;  1770,  2  Pat.  243).  When  the  intention  of  the 
maker  is  clear  and  unambiguous,  it  must  govern  the  decision,  and  be 
held  to  interpret  any  phrase  of  doubtful  meaning  (Sandford,  p.  49). 
Where  a  substitute  is  called  by  a  description  which  points  out  the  heir's 
place  in  the  family,  as  the  eldest  son,  or  second  son,  the  time  to  which 
reference  is  had  is  not  the  date  of  the  making  of  the  deed,  but  the 
date  at  which  the  succession  opens  {FiOxhurqhe  case,  1807,  Mor.  App. 
•'  Tailzie,"  No.  13  ;  1810,  5  Pat.  320  ;  Shepherd,  1838,  3  S.  &  M'L.  255).  ]3ut 
in  this  matter  the  intention  of  the  maker  of  the  deed  gives  the  rule. 
Techni(uil  words  in  a  destination,  when  consistently  used,  are  to  be  taken 
with  tlieir  technical  meaning.  "  In  construing  a  deed  in  which  there  is  a 
(jucstion  as  to  the  true  intent  of  the  author  of  that  deed,  you  are  to 
adlicre  to  that  as  the  intent  which  is  the  2^''^^}^  facie  obvious  meaning 
of  those  words,  unless  you  are,  by  fair  reasoning,  by  strong  argument, 
by  that  which  amounts  to  necessary  im])lication  or  declaration  plain, 
driven  out  of  the  obvious  meaning,  and  unless  you  can  satisfy  yourself, 
that  the  author  of  the  deed  did  not  intend  that  such  should  be  taken 
U»  Imj  the  meaning  of  the  words  he  has  used  "  (Ker,  1810,  5  Pat.  320,  at 
p.  444).  The  dispositive  clause  is  the  ruling  clause,  and  its  effect  is  not 
to  be  controlled  by  inferences  from  the  narrative  or  from  collateral  writings 


SUCCESSION  (;3 

{Forrester,  182G,  4  S.  824;  Grahame,  1S25,  1  W.  &  S.  ;553  •  Cavn,h,ll 
1770,  Mor.  14949 ;  //rt^,  1788,  Mor.  2315 ;  1789,  3  Tut.  142 ;  Mkirk,  174o'. 
INIor.  5015,  1  Cr.  St.  &  raton,  271).  If  llie  (lisi>ositive  clause  is  iim- 
liinuous,  the  exccutivo  clauses  luiiy  be  used  to  rx|»laiii  it  {Sullicrlaml,  ISUI 
Mor.  App.  "  Tailzie,"  No.  8  ;  HaUiday,  1802,  4  I'at.  340).  A  destination  t.i 
A.  and  liis  heirs  whomsoever  will  not  l>y  mere  im])lication  he  conlincd 
to  the  heirs  of  the  body  of  A.  {Ikullic,  1700-70,  Mor.  M!)41,  149-14- 
Murraii,  1774,  l\Ior.  14952;  t^utlic,  19  Jan.  1809,  F.  C.  ;  llichanhon,  I82l' 
1  S.  105  ;  1824,  2  Sh.  A])p.  149  ;  Gordon,  1800,  4  M.  501).  Ihit  when-  th.-rJ 
is  a  destination  to  A.  and  his  heirs  whomsoever,  and  it  is  expressly  stilted 
that  the  substitution  is  to  take  elTect  on  the  death  of  A.  without  iK.«ue, 
the  substitute  and  not  the  heir  whomsoever  will  take  {Tinnoch,  20  Nov 
1817,  F.  C. ;  Moodic,  1829,  7  S.  743;  Hunter,  1839,  2  D.  10:  M'Kuan 
1865,  3  M.  779;  Barstow,  1808,  6  M.  (11.  L.)  147).  "If  a  destination 
be  made  to  A.,  his  heirs  and  assignees  whatsoever,  there  is  no  room  for 
further  disposition,  because  the  whole  property  and  right  of  owner.shii»  are 
comprised  in  and  exhausted  by  the  first  disposition,  which,  in  the  hyjto- 
tbesis  of  law,  will  never  come  to  an  end.  In  such  a  case  nothing  remains 
to  form  the  subject  of  ulterior  ownership.  But  a  complete  disposition 
of  this  nature  may  be  followed  by  a  conditional  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  tlie 
anterior  disposition,  and  give  birth  to  a  new  or  suljstitutionary  gift. 
The  condition  when  purified  puts  an  end  to  the  first  disposition,  and 
introduces  the  second  (Ld.  Westbury  in  Barstow).  The  expression  "  heii- 
male"  has  been  sometimes  read  as  if  it  w\as  heir-male  of  the  body. 
"  That  canon  of  construction  may  be  stated  as  follows :  Where  an  estate 
is  settled  by  a  destination  in  favour  of  a  disponee  or  substitute  by 
name  and  his  heirs-male,  and  there  follows  in  immediate  sequence  a 
substitution  or  a  series  of  substitutions  to  other  members  of  the  family, 
tlien  if  the  effect  of  the  primary  destination  would  be  to  carry  the 
estate  so  as  to  defeat  the  right  of  succession  of  the  other  mendjers  of 
the  family  immediately  substituted,  '  heirs-male '  is  to  be  read  as  '  heirs- 
male  of  the  body'"  {Ker,  1810,  5  Pat.  320;  Braid,  1800,  22  D.  433; 
CamiMl,  1838,  16  S.  1004;  Council,  1867,  5  M.  379).  "Unless  there  be 
some  rule  of  law  which  says  that  the  author  of  a  deed  shall  not  tell 
you  by  the  deed  itself  that  by  'heirs-male'  he  means  'heirs- male  of 
the  body,'  the  opinion  of  the  Court  of  Session  is  right"  (Ld.  Eldon  in  Kcr, 
p.  460).  Heirs  whatsoever  has  similarly  been  interpreted  as  heirs  of 
the  body.  This  was  held  to  be  a  case  of  "necessary  implication"  {Karl  of 
Northcsk,  1882,  10  E.  77).  Wherever  the  effect  of  the  primary  destination 
to  heirs-male  is  to  l)ring  in  immediate  collateral  relatives  preferably  to 
remoter  substitutes,  the  term  "heir-male"  receives  its  natural  meaning 
{Hay,  1788,  Mor.  2315  ;  1789,  3  Pat.  142  ;  Ld.  Eldon  in  Kcr,  5  Pat.  431-4:;8). 
Aid  may  sometimes  be  had  from  the  context  {Mowat,  1823,  2  S.  180; 
Siointon,  1862,  24  D.  278).  When  the  destination  is  couched  in  iKjpular 
language,  somewhat  greater  latitude  is  allowed.  But  evidence  of  inten- 
tion is  always  to  be  found  within  the  deed.  (Heir-female  and  daughter.) 
{Lyon,  1739,  5  Br.  Sup.  663;  Leslie,  1774,  6  Pat.  792 ;  J/rtr//«,  1853.  15  D. 
950;  Essex  ICerr,  1812,  5  Pat.  579.)  A  power  to  someone  to  name  heirs 
may  be  introduced  as  a  branch  of  a  substitution.  When  the  power  is  duly 
exercised,  the  heirs  so  named  become  members  of  the  destination  (>7<-jmr/, 
1820,  2  W.  &  S.  369;  1831,  5  W.  &  S.  515;  Strathnwrc,  IS.\~,  15  S.  449; 
atfd.  1840,  1  Ptob.  189). 


64  SUCCESSIOX 

Clai'se  ok  Kktl  i:.n. — A  clause  of  return  is  a  clause  providing  that  the 
subject  shall  return  to  the  grauter  and  his  heirs.  Generally  it  is  a  mere 
substitution  <^Ei>k.  iii.  S.  45;  Clydesdale,  1726,  Mor.  4343,  Kob.  App.  564). 

1.  If  the  conveyance  or  grant  be  onerous,  fulfilling  a  legal  obligation,  a 

~e  of  return  is'  considered  gratuitous,  without  any  just  consideration, 
lu.i  may  he  defeated  gratuitously. 

L».  If  the  ''rant  is  gratuitous  without  any  antecedent  obligation,  a  clause 
of  return  is  held  to  be  a  condition  of  the  grant,  so  that  the  grant  must  be 
taken  and  held  stcundum  forman  doni,  and  cannot  be  defeated  by  any 
gratuitous  grant  of  the  donee. 

3.  If  the  clause  of  return  be  not  in  favour  of  the  granter  himself,  but 
to  a  third  party,  it  is  held  to  be  gratuitous  in  his  person,  without  any  due 
consideration  given  by  him  for  it,  and  of  course  is  defeasible  by  the  grantee 
or  substitute. 

4.  If  the  clause  of  return,  even  in  a  gratuitous  grant,  does  not  im- 
mediately follow  the  grant  to  the  grantee  antl  his  heirs,  but  there  are  other 
substitutes  prior  to  the  clause  of  return,  it  may  be  defeated  gratuitously  by 
the  grantee  or  his  heirs,  as  the  substitutes  have  no  sufficient  Jus  crcditi  to 
prevent  the  alienation,  and  of  course  the  granter  and  his  heirs  have  no 
right,  as  theu'  interest  has  been  by  his  own  act  still  further  postponed  (Ld. 
Medwyn  in  Mackay,  1835,  13  S.  246;  see  Douglas,  1717,  Mor.  4343;  John- 
ston, 1804,  Mor.  15112). 

Effect  of  General  Disposition  on  Destination. — When   a  person 
dies     leaving    a    general     disposition,    the     question     sometimes     arises 
wiiether   this  evacuates  existing  destinations.     When   he   himself  made 
the  destination,  whether  the   date   of   the   general   settlement  is   earlier 
or  later  than  that  which  contains  the  special  destination,  it  will  not  be 
evacuated   {Camphcll,  1878,  G  R.  310;    1880,   7  E.  (H.  L.)    100;    Thorns, 
1868,6  M.  704;   JraZAw,  1878,  5  E.  965;  Lanys  Trs.,  1885,  12  E.  1265; 
JFcbstei-'s  Trs.,  1876,  4  E.  101).     But   where   the   maker   of  the   general 
settlement  has  himself  succeeded  as  a  sul)stitute,  it  is  thought  that  the 
general    settlement    will    prevail    {Camjjlell,    1878,    6  E.    310;     Thorns, 
supra).     In  order  to  keep   a   special   destination   out   of  the  embrace  of 
a  general  settlement,  it  is  the  duty  of  the  litigant  who  says  that  the  special 
destination  has  not  been  defeated,  to  show  to  the  satisfaction  of  the  Court, 
either  by  the  terms  of  the  testator's  settlement  or  by  other  documents  to 
which  it  is  legally  competent  to  refer,  that  it  was  not  the  intention  of  the 
testator  to  disturb  the  standing  investiture  {Hamilton,  1894,  21  E.  (H.  L.)  35  ; 
]V(dkcr,   1895,  23  E.  347).     Parole   evidence   is   not  admitted,  but   real 
evidence  is  {Glendomvyn,  1873,  11  M.  (H.  L.)  33;  Brydon's  Cur.  Bon.,  1898, 
25  R.  708).     "The  relation  which  the  granter  of  the  deed  bears  to  the 
estate  in  question,  the  condition  of  the  parties  interested  in  the  previous 
settlement  of  tiie  estate,  and  their  relation  to  the  granter  of  the  deed  ;  the 
HKxle  in  which  the  granter  of  the  deed  has  dealt  with  the  estate  which  is 
said  to  be  conveyed  in  other  deeds  and  transactions  regarding  that  estate, 
and  also  the  way  in  which  he  has  dealt  with  his  succession  generally,  if  the 
general  disiKjsition  is  a  disposition  intended  to  settle  the  affairs  of  the 
truster,"  are  fair  elements  for  consideration  in  dealing  with  the  question  of 
intention  (r/m.y,  1878,  5  E.  820,  p.  824).     In  tlie  case  of  a  destination  with 
substitution,  the  destination  regulates  the  succession  until  it  is  altered. 
It  may  be  altered  by  the  person  in  possession  at  his  pleasure,  unless  he  is 
fettered  by  an  entail. 

When  two  distinct  titles  to  the  same  property  coexist  in  the  same 
ixjrson.  he  may  ascribe  his  possession  to  either  as  he  pleases  {Ld.  Advocate, 


srccEssiox  r- 

V.  Balfour,  18G0,  23  D.  147).  AVliere  one  who  is  l.eii-;iL-l;i\v  or  heir  of  u 
prior  investiture  has  a  personal  right  in  a  disposition  of  tlie  hinds  con- 
taining a  (hrtereiit  destination,  and  makes  n])  his  title  as  heir  rather 
tlian  as  disponeo,  no  one  can  prevent  liini,  hut  the  personal  title  will 
regulate  tlie  succession  {Gray,  175U,  ]\Ior.  lOSO:!;  Durham  180''  M  ]  r>"(j  • 
1811,  5  Pat.  482;  Cjilvy,  isiJT,  15  8.  1027;  l!oss,  Lcakuuj  Casrs,  vofii' 
577,  596);  see  under  Double  Titles.  When  he  ohtains  a  new  investiture 
witli  a  different  destination,  the  destination  is  evacuated  (Hankie  12 
December  1811,  F.  C. ;  Molle,  13  Decendier  1811,  F.  C).  The  heir  in 
possession  can  evacuate  by  making  a  new  settlement.  "The  act  of 
alienation  necessarily  extinguishes  or  transfers  every  right  that  was  in  the 
granter,  and  puts  an  end  to  the  destination"  {Edgar,  1736,  Mor.  3089- 
1742,  1  Pat.  334).  Consolidation  of  a  base  fee,  under  a  special  destina- 
tion, with  a  superiority  evacuates  the  destination  {Patdson,  1868,  6  M. 
(H.  L.)  147),  but  does  not  make  the  lands  subject  to  a  destination  contained 
in  the  title  to  the  superiority  {id.). 

The  word  "  heir,"  or  "  heir  whatsoever,"  is  not  to  be  construed  as  heir 
of  the  former  investiture,  in  spite  of  the  statement  in  Erskine,  iii  8  47 
{Brodir,  1749,  5  Bro.  Sup.  406;  Hose,  1784,  Mor.  14955;  'uMollr  13 
December  1811,  F.  C;  1816,  6  Pat.  168  ;  but  see  Baillle,  1766,  Mor.  14941). 
When  there  is  a  settlement  on  a  particular  line  of  heirs,  and  accessory 
subjects  are  purchased  with  a  destination  general  in  its  terms,  this  will  he 
interpreted  to  mean  the  heirs  to  wlioni  the  principal  subject  is  destined 
{Greenock,  1736,  Mor.  5612;  Duke  of  Eorhurgke,  1823,  2  8.  141  ;  Ld.  Cowan, 
in  MGregor,  1864,  3  M.  p.  168).  Where  in  a  marriage  contract  there  is  a 
destination  to  heirs  and  bairns,  the  heritage  goes  to  the  eldest  son 
{Fairscrvicc,  1789,  Mor.  2317;  Boivic,  23  Fe])ruary  1809,  F.  C;  Duncan,  0 
February  1813,  F.  C),  unless  a  contrary  intention  is  disclosed  ( irHson.'^,  1769, 
Mor.  12845).  If  moveables  are  so  destined,  the  children  take  equally;  and 
if  lands  are  destined  to  the  children  of  a  marriage,  the  result  is  the  same 
{Waddell,  1828,  6  S.  999).  A  settleiuent  on  bairns  or  children  inqilies  a 
power  of  distribution  in  the  father;  failing  the  exercise  of  it,  the  divisimi 
is  equally  among  them  {Lamond,  1776,  Mor.  12991 ;  Hcrrics,  1806,  Hunu-, 
528) ;  but  without  reserved  power  he  cannot  limit  the  right  of  a  child  to 
a  liferent  {Moir's  Trs.,  1871,  9  M.  848). 

Entail. 

Heirs  Ijy  destination,  though  tliey  may  all  be  called  heirs  of  tailzie, 
are  usually  distinguished  into  heirs  of  tailzie  or  entail  and  heirs  of 
provision.  The  latter  designation  is  usually  given  to  heirs  pointed  out  in 
marriage  contracts,  bonds  of  provision,  or  other  deeds  containing  clauses  of 
substitution;  the  term  heir  of  entail  is  chiefly  used  in  connection  with 
the  settlement  of  land  upon  a  series  of  heirs  under  the  prohibitions  against 
altering  the  order  of  succession,  contracting  debt,  and  alienating  the 
property,  fenced  l)y  irritant  and  resolutive  clauses,  or  their  equivalent, 
which  constitutes  a  strict  entail. 

Where  there  is  nothing  but  a  destination  in  which  heirs  called  to  the 
succession  are  sul)stituted  to  one  another,  each  on  ol)taining  the  ])ri'perty  i.s 
an  absolute  fiar,  and  can  alter  the  order  of  succession  at  his  jileasure,  cither 
for  onerous  causes  or  gratuitously. 

A  deed  containing  an  appointment  of  heirs,  with  clauses  prohibiting  the 
heir  from  altering  the  order  of  succession,  and  from  alienating  or  hurdenuig 
the  estate,  or  from  doing  some  of  these  acts,  was  called  a  destin''  "  'viih 
prohibitions.     These  used  to  be  etlectual  to  prevent  the  heir  in   ,  -i<»n 

S.  E. — VOL.  XII.  •' 


(j6  SUCCESSION 

from  doing  any  gratuitous  act  in  contravention.     A  deed  prohibiting  the 
uheniliun  of  the  succession   was  efleetual  inter  haredcs  at  cuinnion  law. 

j;.  •'<  •' <tions  inter  handts  the  only  mode  of  restricting  a  fiar  in  the 

p.  f  his  estate  is  to  use  the  fetters  of  a  strict  entail  {D.  of  Hamilton, 

7  M    139;  aflll.  1870,  8  M.  (H.  L.)  48:    Cathcart,  1830,  8  S.  497; 

;.  ;i    :.  W    c^-  S.  315:  Lindseij,  18G3,  2  M.  249;  18G7,  5  M.  (H.  L.)  12; 

,;      '     •.  1838,  16  S.   12G1;   Cochrane,  1848,  11  D.  908;    18r)0,  7    Bell's 

A,,         '■ 
'  An   entail    with  simple  prohibitions  would   not   be  sustained   to   any 

effect,  for  the  Act  provides  that  where  an  entail  is  ineffectual  as  to  one 

of  the  cardinal  i>roliibitions,  then  the  entail  is  liold  to  be  defective  as  to  all 

tlie  prohibitions,  and  the  entail  becomes  null  and  void  without  any  action 

of  declarator. 

1.  Trior  to  the  Entail  Amendment  Act,  an  entail  was  effectual  for  all 
purposL'S  when  it  contained  prohil)itive,  irritant,  and  resolutive  clauses,  and 
a  prohiljitiou  to  alter  the  order  of  succession. 

2.  If  there  was  no  prohibition  to  alter  the  succession,  there  was  no 
entail. 

3.  An  entail  could  only  be  defeated  by  doing  some  act  not  fcn-ltidden. 

4.  A  prohibition  to  alter  the  succession  was  1»inding  inter  hccrcdes 
( MLiren,  i.  498). 

Tlie  re([uisites  of  a  strict  entail  were  laid  down  in  the  Act  1685,  c.  22, 
which  gave  etticacy  to  strict  entails,  and  declared  it  lawful  to  tailzie  lands 
and  estates,  and  to  burden  the  heirs  with  such  conditions  as  the  entailer 
shoidd  think  tit. 

There  must  be — 

1.  A  right  of  property  in  the  maker  of  the  entail. 

2.  A  destination  clearly  expressed. 

3.  Such  conditions  as  shall  guard  against  the  accidental  disappointment 
of  the  entailer's  intentions. 

4.  The  three  prohibitions. 

The  right  of  property  mav  be  real  or  merely  personal  {Livingstone,  1762, 
Mor.  15418;  Paniton,  1843,  2  Bell's  App.  214;  Ear!  of  Fife,  1861,  23  D. 
657  :  1862,  24  D.  936  ;  1863, 1  M.  (H.  L.)  19). 

A  right  of  reversion  may  be  entailed,  or  di  pro  indiviso  share  in  a  herit- 
able estate  (M'Mii/an,  1834,  7  W.  &  S.  441 ;  Chiskolm,  1864,  3  M.  202 ; 
Huicdcn,  1869,  7  M.  (H.  L.)  110).  But  heritable  securities  cannot  be  en- 
tailed;  the  first  heir-substitute  takes  in  fee-simple  (I)athie,  1841  3  D.  610). 
An  entail,  binding  inter  hairdes,  may  be  made  of  heritable  rights  incap- 
able of  being  feudalised,  such  as  leases  (Mauk,  4  March  1829,  F.  C; 
DfdhovMc,  1782,  Mor.  10963).  ]\roveables  cannot  be  entailed  (Kinncar, 
1877.  4  K.  705;  Baillic,  1859,  21  D.  838). 

1.  The  destination  must  Ije  clear  and  intelligible— the  question  is,  what 
JH  the  meaning  of  the  maker  of  the  entail  in  the  words  he  has  employed  ? 

2.  The  succession  must  be  given  to  some  line  of  heirs  different  from  the 
legil  order  of  succession. 

3.  The  succession  must  be  witliout  division. 

4.  The  heirs  must  either  Ite  named  or  form  a  recognised  category  of 
descent  fn.m  someone  named,  or  from  the  maker  of  the  entail. 

A  destmation  to  A.  and  his  lawful  heirs  for  ever  gives  A.  an  estate  in 
feG-8imple  (Aou/,  1860,  22  1).  1272;  Maccjregor,   1864,  3  M.  148).     "An 

■'!  which  descends  according  to  the  succession  appointed  by  law 
<-:^iunot  be  made  subject  to  the  fetters  of  an  entail;  in  other  words,  a 
con\.-v:M.,.,.  on  which  such  a  destination  follows  is  nothinrr  more  than  a 


SUCCESSION  ,;7 

conveyance  to  a  single  iiulividiuir'  (Ld.  llutlierfuid  ("laik  in  Moubraijs  Trs 
1895,  22  ]{.  808).  Where  in  an  entail  there  is  a  deslination  to  the  K^'al 
heirs  either  of  a  substitnte  or  of  the  maker  of  the  entail,  the  estate  \h  fee- 
simple  in  the  person  of  the  last  substitute  {Leslie,  1710,  Mor.  lo3o8-  Colmll 
1843,  5  D.  801 ;  rrimrose,  1854,  10  I).  498;  Stair,  iv.  18.  8;  Ersk.  iii.  8.  32)! 
The  heir-substitute  becomes  fee-simple  proprietor  without  any  judicijii 
procedure  (38  &  39  Vict.  c.  01 ;  Act  1875,  s.  13).  Once  the  estate  comes 
to  heirs-portioners  and  there  is  division,  the  entail  is  at  an  entl  (  VacdonaUl 
1842,  5  J).  ;;72;  Farqahar,  1838,  1  D.  121);  but  it  is  the  heirs-portioners 
who  take  it,  and  not  the  preceding  substitute  {Marc,  1837  15  S  ^.81  • 
1838,  3  S.  &  M'L.  237;  see  Imjlis,  1894,  22  It.  200;  1895  22  i:.'(II.  L.j 
51 ;  Schanl-,  1895,  22  E.  845).  The  contingency  of  the  succession  devolving 
upon  heirs-portioners  then  in  being  may  be  met  by  giving  separate  estates 
to  those  persons  by  name  {}[arc,  1837,  15  S.  581 ;  1838,  3  S.  &  M'L  237- 
Craiij,  1839, 1  D.  545  ;  but  see  ^aiids,  1844,  0  D.  305).  Ld.  M'Liren  ai^serts 
as  a  general  proposition,  that  the  only  kind  of  destination  capable  of  sup- 
porting an  entail  is  one  to  a  series  of  persons  named,  with  or  without 
substitutions  to  heirs  of  a  determinate  class ;  that  is  to  say,  in  a  known 
order  of  relationship  diifereiit  from  the  legal  order  of  succession,  but  con- 
stituting a  recognisable  group  of  heirs  {MacGillivrai/,  1802,  24  L.  759). 
One  claiming  to  exclude  the  heir-at-law  "must  be  able  to  found  on 
something  plain  and  tangible  and  known  to  the  law." 

For  a  discussion  of  the  forms  and  requisites  of  a  deed  of  entail,  reference 
must  be  made  to  that  title  (see  Entail). 

An  entail  without  registration  is  effectual  against  the  heir  of  the  granter, 
or  against  the  institute  who  accepts  of  it ;  and  any  of  the  substitutes  may 
enforce  registration  of  it. 

It  may  be  pointed  out  that  an  heir  of  entail  has  full  power  over  the 
entailed  estate,  except  in  so  far  as  the  fetters  expressly  bind  him ; 
and  though  in  construing  an  ordinary  testamentary  deed  the  Court  will 
endeavour  to  the  utmost  to  discover  the  intention  of  the  maker  of 
the  deed,  and  will  give  effect  to  it,  in  regard  to  the  fetters  of  an  entail 
the  very  opposite  is  the  rule:  the  most  plain  and  obvious  intention  of 
the  maker  will  be  allowed  no  weight  if  the  words  employed  can  be 
so  interpreted  as  to  leave  the  heir  of  entail  free. 

To  propel  the  succession  is  not  a  breach  of  the  prohibitions  {Crai>fie, 
4  December  1817,  F.  C. ;  Fadiclck,  1874,  1  li.  097;  Ourdon's  Crs.,  1749, 
Mor.  15384).  If  an  expression  in  the  fetters  of  an  entail  admits  of  two 
meanings,  both  equally  technical,  grammatical,  and  intelligible,  that  con- 
struction must  be  adopted  which  destroys  the  entail,  rather  than  that 
which  supports  it  (Ld.  Campbell  in  Lumsdcn,  1843,  2  Bells  App.  ]».  114; 
Ersk.  iii.  8.  29;  Stair,  ii.  3.  58;  1  Bell's  Com.  44).  But  this  rule  of  strict 
interpretation  is  not  acted  upon  in  construing  directions  to  trustees  to  make 
an  entail  {Stirlinri,  1838,  1  D.  130).  Where  trustees  were  directed  to 
make  a  strict  entail,  and  failed  to  do  so,  the  institute  was  held  not  entitled 
to  take  advantage  of  their  mistake  {Oclitcrlony,  1877,  4  B.  587;  Uraltam, 
1853,  15  D.  558;  1855,  2  Mac(i.  295).  But  the  trustees  may  not 
introduce  limitations  or  call  heirs  witliout  being  instructed  to  do  so 
{Cumiiufs  Tr.,  1832,  10  S.  804;  Scton,  1854,  10  D.  058;  Camphirs  Tra., 
1838,  10  S.  1004).  The  effect  of  contravention  under  the  Statute  1085  is 
"  the  next  heir  of  tailzie  may  immediately  on  contravention  pursue 
declarators  thereof,  and  serve  heir  to  him  who  died  last  infeft  in  the  fee 
and  did  not  contravene,  without  necessity  any  way  to  represent  the 
contravener." 


CS  SUCCESSION 

"■'  ■   next   heir  must  declare  the  irritancy,  and,  if   necessary,  obtain 

•■  -'  ..f   the   offending   deed    {Fullarton,   1825,    1    W.    &   S.   410; 

5  Hell's  Ai»p.  165;  Brcadalbane,  1877,  4  R  667).     Unless  it 

be  otherwise  specially  provided,  contravention  only  affects  the  contravener 

,        ■  ,,  1749.  Mor. '15384;  Bontwe,  1837,  15  S.  711;  1840,  1  Eob.  347). 

jj,,  ^j.  f V  niav  be  purged  by  performance  or  by  revocation,  at  any  time 

l>efore  ■  is  pVououuced  (Ross,  1766,  Mor.  7289 ;  Ahernethie,  1837,  15  S. 

1167;  1840,  1  Kob.  434;  Maclcay,  1798,  Mor.  11171).  After  the  death 
of  an'  heir  who  had  contravened  by  granting  long  leases,  the  power  of 
••■•■•"••  was  not  allowed  to  the  tenants  {Hislop,  1821, 1  Sh.  App.  G4  ;  Earl 
,  2  February  1821,  F.  C).  Any  substitute  heir  may  raise 
a  declarator  of  contravention  without  calling  intermediate  heirs  {Simpson, 
1697,  Mor.  15353;  Irvine,  1723,  Mor.  15369;  Dundas,  1774,  Mor.  15430). 
But  if  the  heir  of  the  body  of  the  contravener  is  also  deprived,  he  has  no 
interest,  and  may  not  sue  {Gilmour,  1801,  Mor.  App.  "Tailzie,"  Xo.  9). 
"NNTiere  descendants  are  not  mentioned,  the  succession  is  merely  propelled 
to  the  next  heir. 

The  i>enal  cou.se4uences  of  contravention  cannot  be  enforced  after  the 
death  of  the  contravener  {Maclcay,  1798,  Mor.  11171;  Turners,  1807, 
Mor.  App.  "T."  No.  16 ;  Mordaunt,  9  Mar.  1819,  F.  C).  Deeds  of  contra- 
vention ai-e  eHectual  until  reduced,  but  they  may  be  reduced  even  after  the 
death  of  the  contravener  (J/o?r?rt?oi^,  siqjra;  Agnew,  23  June  1813,  F.  C). 
Acts  of  ordinary  administration  done  before  contravention  remain  valid. 
The  Entail  Amendment  Act,  sec.  40,  saves  from  the  effect  of  irritancy  the 
purchasers  or  creditors  under  deeds  granted  before  execution  of  the 
us  of  declarator  of  forfeiture,  provided  such  deeds  were  validly 
giai;.--d  in  consistency  with  the  provisions  of  the  entail. 

Wlieu  trustees  are  directed  to  make  an  entail,  it  is  their  duty  to  make 
a  valid  and  effectual  entail. 

In  construing  testamentary  directions  for  making  an  entail,  the  Court 
is  not  tied  down  to  the  strict  or  malignant  rules  of  construction  which  are 
applied  to  entails  once  they  are  executed. 

An  express  trust  to  make  a  valid  entail  will  not  be  impaired  by  a 
sixjcific  direction  to  insert  clauses  which,  taken  alone,  would  be  inadequate 
for  that  purpose. 

When  a  testator  confers  no  power  to  make  an  entail,  and  the  trustees 
are  directed  to  carry  out  the  intention  of  the  truster  by  a  definite  method, 
they  must  conform  their  action  exactly  to  the  instructions  given  {Sandys, 
1897,  25  U.  201  ;  Cuminf/'s  Trs.,  1832,  10  S.  804;  Duthie,  1841,  3  D.  616; 
Camnrni'^  Trs.,  1860,  23  D.  167;  Leny,  1860,  22  D.  1272;  Macyreyor,  1864, 
o  ^1.  14o). 

Will  of  Hekitage. 

The  law  which  declared  that  no  conveyance  of  lands  could  be  given 
l.y  way  of  bequest  has  been  changed  by  sec.  20  of  the  Consolidation  Act 
of  1HG8,  which  enacts :  "  From  and  after  the  commencement  of  this  Act 
It  Bhall  be  competent  to  any  owner  of  lauds  to  settle  the  succession 
to  the  fiaine,  in  the  event  of  his  death,  not  only  by  conveyances  de 
jmrMntx,  ac-conhng  to  the  existing  law  and  practice,  but  likewise  by 
U»\.siUMtnUiry  or  mortis  causa  deeds  or  writings,  and  no  testamentary  or 
I  or  writing  purporting  to  convey  or  bequeath  lands  which 
•■•!i  granted  by  any  person  alive  at  the  commencement  of 
n,««»  f  /i!'-  a",  y}}'''  granted  by  any  person  after  the  commence- 
ment of  thm  Act.  shall   be  held   to   bo   invalid    as   a   settlement   of  the 


SUCCESSION  G9 

lands  to  wliicli  such  deed  or  writing  applies,  on  the  ground  that  the 
grantor  has  not  used  with  reference  to  such  lands,  tlie  word  'dispone,'  or 
other  word  or  words  importing  a  conveyance  dr  prccscnti;  and  wliere 
such  deed  or  writing  shall  not  be  expressed  in  the  terms  required  by  Iho 
existing  law  or  practice  for  the  conveyance  of  lands,  but  shall  contain 
witli  reference  to  such  lands,  any  word  or  words  which  would,  if  used 
in  a  will  or  testament  with  reference  to  moveables,  be  sullicient  to 
confer  upon  the  executor  of  the  granter  or  upon  the  grantee  or  legatee 
of  such  moveables,  a  right  to  claim  and  receive  the  same,  such  deed  or 
writing,  if  duly  executed  in  the  manner  required  or  permitted  in  the 
case  of  any  testamentary  writing  by  the  law  of  Scotland,  shall  be 
deemed  and  taken  to  be  equivalent  to  a  general  disposition  of  such 
lands  within  the  meaning  of  the  19th  section  hereof  by  the  granter  (jf 
such  deed  or  writing  in  favour  of  the  grantee  thereof,  or  of  the 
legatee  of  such  lands,  and  shall  be  held  to  create,  and  shall  create,  in 
favour  of  such  grantee  or  legatee  an  ol)ligation  upon  the  successors  of  the 
granter  of  such  deed  or  writing,  to  make  up  titles  in  their  own  persons  to 
such  lands,  and  to  convey  the  same  to  such  grantee  or  legatee ;  and  it  shall 
be  competent  to  such  grantee  or  legatee  to  complete  his  title  to  such  lands 
in  the  same  manner  and  to  the  same  effect  as  if  such  deed  or  writing  had 
been  sucli  a  general  disposition  of  such  lands  in  favour  of  such  grantee  or 
legatee,  and  that  either  by  notarial  instrument  or  in  any  other  manner 
competent  to  a  general  disponee :  Provided  always  that  nothing  herein 
contained  sliall  be  held  to  confer  any  right  to  such  lands  on  the  successors 
of  any  such  grantee  or  legatee  who  shall  predecease  the  granter,  unless  the 
deed  or  writing  shall  be  so  expressed  as  to  give  them  such  right  in  the 
event  of  the  predecease  of  such  grantee  or  legatee." 

There  is  no  rule  that  any  particular  form  of  words  is  necessary  to  convey 
heritage.  The  residuary  clause  will  do  it  if  the  tenor  and  contents  of  the 
will  show  that  the  testator  so  intended  ( Wallaces  Exrs.,  1895,  23  E.  142). 
If  the  deed,  taken  as  a  whole,  clearly  imports  an  intention  to  make  a  con- 
veyance of  heritage,  that  is  enough  (M'Lcod's  Tr.,  1883,  10  E.  1056 ;  Cain])- 
hell,  1887,  15  E.  103);  but  the  mere  nomination  of  an  executor  will  not 
carry  heritage  (Gremf,  1893,  20  E,  404).  It  is  no  longer  a  question  of 
technicality,  but  of  common  construction,  whether  heritage  was  intended  to 
be  conveyed  or  not  {Harchjs  Trs.,  1871,  9  M.  736  ;  Pitcairn,  1870,  8  M. 
604 ;  see  also  Eelmoml,  1873,  11  M.  348  ;  RohVs  Trs.,  1872,  10  ]\r.  G92  ; 
Studd,  1883,  10  E.  (H.  L.)  53  ;  Oag's  Curator,  1885, 12  E.  1162  ;  Ahn's  Trs., 
1880,  8  E.  294;  Ford's  Trs.,  1884,  11  E.  1129;  Farquheirson,  1883,  10  E. 
1253  ;  Feirquhar,  1875,  3  E.  71  ;  Forsi/th,  1887,  15  E.  172). 

Destinations  in  Conveyances. — Destinations  inserted  in  conveyances 
and  bonds  at  the  request  of  a  purchaser  may  be  considered  as  testamentary 
instruments  inasmuch  as  they  regulate  the  succession,  but  are  revocable 
until  delivered  to  the  person  favoured.  In  Balvaird,  5  Decemljer  1816, 
F.  C,  a  purchaser  took  a  disposition  in  favour  of  a  third  party,  but  kept 
it  in  his  possession,  and  neither  delivered  it  to  the  third  party  nor  caused 
infeftment  to  bo  taken  upon  it.  He  died  leaving  a  general  settlement.  It 
was  held  that  the  property  went  to  the  disponee  under  the  general  settle- 
ment {Hill,  1755,  Mor.  11580).  They  may  be  irrevocable  where  the  father 
takes  a  title  to  himself  as  trustee  for  his  children  (Gilpin,  1869,  7  ^I.  807). 
In  the  case  of  a  disposition  taken,  at  the  request  of  a  purchaser,  to  Inmself 
in  liferent  allenarly  and  his  heirs  whomsoever  in  fee,  the  purchaser  is  only 
a  liferenter,  and  the  fee  is  not  carried  l>y  his  testamentary  deeds.  It 
is  well  fixed  that  when  a  purchaser  takes  a  title   to  heritable  property 


70  SUCCESS  lOX 

containing  a  special  tlestiimliun.he  is  held  by  acceptance  of  tliedeed  to  make 
the  destin'ation  liis  own  (Ld.  Justice-Clerk  in  Farquharson,  188:.!,  10  11.  p.  1257). 

CoNyuNCT  Fees. 

Conjunct  fees  are  granted  («)  to  strangers  ;  {h)  to  husband  and  wife ; 
(c)  to  father  and  children.  In  construing  destinations,  effect  is  to  be  given 
to  the  intention  exi)ressed  in  the  deed,  but  technical  terms  receive  their 
teclmical  meaning. 

Strangers. — "  To  A.  and  B.  in  conjunct  fee  and  liferent  and  their  heirs  "  : 
tlie  two  are  equal  fiars  while  l)oth  live,  the  survivor  has  the  liferent  of  the 
whole,  the  fee  divides  equally  between  the  heirs  of  both  (Ersk.  iii.  8.  35). 
"  To  A.  &  B.  jointlv  and  their  heirs  "  :  they  are  independent  proprietors  of  one 
half  share  pro  indiviso  (ih. ;  Dickson,  1821, 1  S.  113  ;  1823,  2  S.  462).       "  To 

A.  and  B.  jointly  and  the  longest  liver  and  their  heirs  " :  here,  though  the 
several  shares  belonging  to  the  conjunct  fiars  are  attachable  Ijy  creditors,  on 
the  death  of  one  of  them  the  survivor  has  the  fee  of  the  whole  {Bissdt, 
1799,  Mor.  App.  "  Deathbed,"  No.  2).  "  To  A.  and  B.  and  the  heirs  of  A." : 
gives  B.  merely  a  liferent  {Baillie,  23  February  1809,  F.  C).     "  To  A.  and 

B.  jointly,  and  to  B.,  if  he  shall  survive,  and  his  heirs  "  :  if  B.  predecease, 
the  fee  divides  between  A.  and  the  heirs  of  B.  If  B.  survives,  he  takes  the 
whole,  subject  to  the  debts  and  deeds  of  A.  "  To  A.  and  B.  and  the  longest 
liver  of  them  in  liferent,  for  their  liferent  use  allenarly,  and  to  the  said 
A.  and  his  heirs  and  assignees  in  fee  " :  A.'s  heirs  are  the  fiars ;  the  longest 
Uver  of  the  two  has  a  liferent  of  the  whole.  To  A.  and  15.  equally  in  life- 
rent, and  to  A.  and  his  heirs  in  fee,"  will  give  V>.  only  a  liferent  of  one  half 
—the  liferent  of  the  other  half  and  the  fee  of  the  whole  will  belong  to  A. 
and  his  heirs. 

Husland  and  Wifc.—T\m  law  will  hold  the  person  from  or  through 
whom  the  lands  subject  to  the  destination  came,  to  be  the  fiar,  unless  the 
lands  came  from  the  wife,  and  are  meant  as  toclier ;  or  the  deeds  show  that 
the  parties  intended  otherwise  (Patcrson,  1780,  Mor.  4212  ;  Muirhead,  1824, 
2  S.  017).  The  general  presumption  is  that  the  fee  is  in  the  husband  as  the 
dignior  i)crsona.  "  To  A.  and  B.  in  conjunct  fee  "  ;  "  in  conjunct  fee  and  life- 
rent " ;_  "  To  A.  and  B.  and  their  heirs  "  :  in  all  these  cases  the  husband  is  fiar ; 
the  wife  has  only  a  liferent.  Tlic  heirs  have  only  a  spes  successionis, 
though  when  the  destination  occurs  in  an  antenuptial  contract,  the  heirs  of 
the  marriage  caimot  be  gratuitously  de]irived  of  their  succession.  "Their 
heirs"  means  the  heirs  of  the  husband  (Ei'sk.  iii.  8.  3G  ;  Forrester,  1835,1  S. 
&  M'L.  p.  458  ;  Johnston,  16G7,  Mor.  4199).  Tiie  person  from  whom  the 
right  Howed  is  fiar  (Creditors  of  Farneslaiv,  1705,  Mor.  4223 ;  Muirhead, 
1824,  2  S.  G17 ;  ^fylcs,  1857,  19  D.  408  ;  Brough,  1887,  14  R.  858).  Where 
power  of  dispo.sal  is  given  to  one  spouse  in  duhio  the  fee  is  in  that  one 
{Earl  of  Dunfermline,  1G76,  I\Ior.  2941 ;  Fead,  1709,  Mor.  4240).  Exclusion 
of  the  husband's  creditors  gives  the  fee  to  the  wife  ( Young,  1835,  14  S.  85). 
1  hat  spouse  is  fiar  whose  heirs  are  most  favoured  in  the  destination,  i.e. 
c''^*-lTr^"^  ■'^f'^^r  the  issue  of  the  marriage  {Cranston,  1GG7,  Mor.  4227  ; 
i^mith  Cuningltame,  1SG9,  7  M.  G89).  Whpre  the  conveyance  is  to  spouses 
an(i  the  survivor  and  their  heirs,  the  fee  will  belong  to  tlie  survivor  (Ersk. 
1.1.  H  ..G  ;  M'Gjrgor,  1831,  9  S.  675  ;  1835,  1  S.&'M'L.  441).  But  where  it 
wah  h>  t he  wifc'  t.)  tlie  spouses  in  conjunct  fee  and  liferent,  and  the  survivor 
ami  the  heirs  of  the  marriage,  the  fee  was  in  the  husl)and  (Keilson,  1732,  1 
Cr.  &  St.  App.  6.. ;  Maclrllar,  184t),  3  I).  172).     A  destination  to  spouses 

n'-njunr-t  fee  an.lthc  survivor  was  held  to  give  them  equal  rights,  with 

benefit  uf  survivurshntn/v/Z/vr  1«Q^  90 -p  'iin\     t'i  •„  4.-      1  j. 

^ioiiii. ,  "  "i/,n,  ioao,  Zo  It.  d47).     lliis  presumption  has  not 


SUCCESSION  71 

tlie  same  strength  in  the  matter  of  niuveahles  {IJart'dnw,  W.Yl,  Mi.r.  4222; 
Brpon,  1893,  20  R  \)'S^).  Where  tlie  property  came  from  the  wife  and  was 
destined  to  the  spouses  in  conjunct  fee  and  liferent,  for  their  liferent  use 
allcnarly  and  to  the  children  of  the  marriage  in  fee,  the  wil'e  was  fiar  {llcid, 
1827,  G  S.  198).  AVliere  spouses  have  a  joint  liferent,  the  riglit  of  tlie  wife 
is  in  abeyance  during  the  continuance  of  the  marriage,  hut  cannot  be 
defeated  by  the  husband  {Thorn,  1852,  14  I).  861).  A  conveyance  in 
conjunct  liferent  may  g\\Q  a  fee  where  an  aljsolute  power  of  disposal  is 
reserved. 

Destinaliuns  to  I\ircnts  and  Children. — It  is  generally  presumed  to  be 
the  intention  of  parties  that  the  fee  shall  be  or  remain  with  the  parent. 

"  To  the  father  in  liferent  and  the  heirs  of  his  body  in  fee  "  :  the  father  is 
tiar,  the  children  merely  heirs  of  provision  {Frog's  Crs.,  1735,  Mor.  42G2 ; 
Kennedy,  1825,  3  S.  554).  This  applies  to  both  heritage  and  moveables. 
But  by  the  use  of  taxative  words,  such  as  "  allenarly,"  the  i)arent's  right  is 
restricted  to  a  liferent,  in  which  case  a  beneficial  right  as  disponee  vests 
in  each  child  at  birth  {Douglas,  1870,  8  M.  374).  Where  the  children  are 
called  nominatim,  the  })arent  has  merely  a  liferent  {M'Intosh,  28  Jan.  1812, 
F.  C).  Where  the  father  has  a  liferent  and  powder  of  disposal,  he  is  fiar 
{Porterfiehl,  1779,  Mor.  4277;  Cumminij,  175G,  Mor.  42G8 ;  BaUlie,  23  Feb. 
1809,  F.  C.) ;  but  a  reserved  liferent,  with  full  power  to  borrow,  is  not  a  fee 
{Boustead,  1879,  7  Pt.  139).  If  the  destination  is  to  the  parent  in  liferent, 
and  to  a  child  nominatim,  and  other  children  to  be  born,  the  fee  is  in  the 
child  named,  for  himself  and  those  to  be  born  {M'Goican,  18G2,  1  M.  141  ; 
Dykes,  3  June  1813,  F.  C).  A  special  trust  for  behoof  of  the  children  will 
defeat  the  father's  claim.  The  rule  is  not  to  be  applied  to  the  case  of  dis- 
positions by  married  persons  to  one  another  in  liferent  and  to  their  children 
in  fee,  especially  if  proper  mortis  causa  and  testamentary  conveyances 
{Fraser,  1707,  Mor.  4259 ;  Mackcllar,  1840,  3  D.  172). 

MARrJAGE  COXTHACT. 

Where  a  settlement  is  made  by  marriage  contract,  the  heir  is  in  a 
difierent  position  from  that  which  he  would  hold  if  the  destination  was 
contained  in  an  ordinary  disposition.  The  marriage  contract  is  con- 
sidered in  law  a  highly  onerous  transaction.  Accordingly,  where  the 
destination  in  a  marriage  contract  is  to  heirs  of  the  marriage,  or  to  sons, 
or  to  sons  in  their  order,  or  to  heirs-portioners,  or  where  the  father  is 
bound  at  a  certain  time  to  take  investiture  in  these  terms,  the  right  of 
the  children  is  a  spcs  successionis  in  ohligatione.  Tlie  riglit  of  an  heir  or 
child  of  the  marriage  is  not  that  of  an  heir  but  of  a  proper  creditor,  and 
requires  or  required  no  service  (Ersk.  iii.  8.  73;  Ogilcy,  16  Dec. 
1817,  F.  C;  Gordons  Trs.,  1821,  1  S.  185);  but  where  the  father  had 
invested  the  money,  or  settled  a  stipulated  sum  on  the  heirs  of  the  marriage, 
service  was  necessary;  for  the  obligation  in  the  marriage  contract  being 
fulfilled,  the  children  had  only  a  spcs  successionis  {Anderson,  1747,  Mor. 
12868;  Cameron,  1784,  Mor.' 12879).  Heirs  of  a  marriage  are  more 
favourably  regarded  than  heirs  substituted  in  a  simple  destination;  which 
last,  if  gratuitous,  gives  only  the  hope  of  succession,  and  may  be  altered 
by  the  maker  or  any  of  'fehe  members  who  succeed  before  the  substitute; 
whereas  marriage  contracts  are  onerous  deeds.  The  heir  of  a  marriage  has 
therefore  a  mixture  of  two  distinct  characters  in  him.  He  is  not  only  heir 
but  quodanimodo  creditor;  for  the  father. is  laid  under  an  implied  oliligation 
not  to  defeat  these  provisions  by  any  gratuitous  deed  {Graham,  1743,  Mor. 
13010).     "  They  are  creditors  among  heirs,  but  they  are  only  heirs  among 


72  SUCCESSIOX 


(1  s  oi  liiL-u  lather"  (,Ld.  C'orehouse  in  Browning,  1837,  lo  S.  990). 

'J  ...  caimut  revoke  or  alter  the  provisions,  or  defeat  them  1)y  any 

r.  as  deed,  but  they  have  uo  proper  claim  as  his  creditors  until  his 

death ;  uor  can  they  then  compete  with  creditors ;  but  they  have  something 
in  ordinary  .y«  s/zrcfsszo??/.*;,  because  their  father  cannot  gratuit- 
.  w  ..  .1  tlieir  right  {GoiJdanl,  1844,  G  D.  1018).     It  is  only  in  favour 

.iO  lieirs  of  the  marriage  that  the  father  is  under  restraint;  the  substi- 
tutes wlio  come  after  him  in  the  destination  are  mere  substitutes,  whose 
c  •ion  may  be  defeated  gratuitously  (Bell's  Led.  i.  249).      Once  the 

lj<..i  -u-  ceeds,  lie  is  under  no  restraint  {Uckl,  1827,  G  S.  198  ;  Edgar,  17oG, 
Mor.  4.';25) ;  and  a  destination  may  be  clianged  by  the  spouses  if  there  is 
no  issue  of  the  marriage  (Davidson,  1870,  8  M.  807).  The  father  may 
encroach  upon  the  heir's  expectations  l)y  settling  a  reasonable  jointure  upon 
a  second  wife,  or  liy  making  a  provision  for  children  of  a  second  marriage,  if 
he  has  no  other  fund  from  which  to  provide  for  them  (Guthrie,  184G,  9  D.  124  ; 
Jlarvie,  1847,  9  D.  1420;  WUson's  Trs.,  1856,  18  D.  1096  ;  Claiming,  1858, 
20  D.  1280;  Wedkinshavfs  Trs.,  1872,  10  M.  763;  GrcenoaJc,  1870,8  M. 
3SG;  Arthur,  1870,  8  M.  928);  but  these  must  be  suitable  to  his  circum- 
stances (i>V«<r<*,  1761,  Mor.  13036).  Incase  the  father  afterwards  acquires 
a  further  fund,  this  will  be  liable  to  the  heir  in  relief  (Henderson,  1730, 
Mor.  12928).  As  the  settlement  can  be  pleaded  only  by  the  heir  of  the 
mirriage,  and  the  father  can  during  his  lifetime  voluntarily  convey  the 
estate  to  the  heir,  calling  what  heir-substitutes  he  likes :  this  will  be  imple- 
ment of  the  obligation  in  the  marriage  contract  even  if  the  heir-expectant 
predeceases  the  father,  and  is  never  truly  his  heir  (Trail,  1737,  Mor.  12985  ; 
Monro,  1760,  5  Bro.  Sup.  880;  Fothcringham,  1797,  Mor.  12991;  M'Doncdd, 
1877,  4  E.  271).  Accordingly,  the  heir-expectant  can  discharge  (Eoiitlcdge, 
19  May  1812,  F.  C. ;  Majcndie,  10  Dec.  1819,  F.  C. ;  1820,  2  Bligh,  692  ;  but 
see  Macdoiudd,  [1893]  App.  Ca.  642,  reversing  19  IJ.  567;  M'Laren  on 
Wdls,  i.  426).  One  cannot  with  any  propriety  be  called  heir  wiiile  the 
ancestor  to  whom  he  ought  to  be  heir  is  alive  (Maconochic,  1780,  Mor. 
13040). 

"  I  understand  tlie  rule  of  the  law  to  be,  that  under  such  marriage 
contracts  the  children  have  a  jus  crediti,  giving  them  such  a  right  against 
the  creditors  of  their  father,  if  the  provision  is  so  conceived  as  that  there 
was  or  might  be  a  direct  interest  accruing  to  them  in  the  lifetime  of  the 
fatlier.  As,  for  example,  if  the  provision  is  made  payable  on  the  marriage 
or  majority  of  the  child,  though  such  event  should  happen  in  the  lifetime 
of  the  father  ;  or  if  the  provision  is  declared  to  bear  interest  from  any  such 
term  which  might  be  in  his  lifetime;  or  if  it  is  declared  to  be  payable  at 
the  dissolution  of  the  marriage,  or  to  bear  interest  from  and  after  that 
event,  whicli  may  liappen  Ijy  the  wife's  predecease. 

"  2.  But,  on  the  other  hand,  that,  if  the  provision  is  so  conceived  that  the 
principal  is  not  payable  until  after  the  father's  death,  and  does  not  bear 
interest  from  any  earlier  term,  and  where  no  actual  benefit  or  interest  can 
be  claimed  or  taken  in  his  lifetime,  there  is  no  jus  crediti  vested  in  the 
children  as  against  onerous  creditors.  In  respect  of  the  father  and  his 
In-ir.s,  they  are  no  doubt  creditors;  but  in  respect  of  his  creditors,  they  are 
iiMTcly  heirs,  having  no  more  than  a  spcs  successionis  (but  see  Gordon,  1833, 
1 1  S.  3G8).  ^ 

"  3.  I  understand  it  also  to  be  a  fixed  rule,  that  '  it  lias  no  effect  in  con- 
femiig  a  jus  crediti  on  the  children,  that,  instead  of  the  husband  being 
suuply  bound  to  pay  a  sum  to  the  cliildren,  he  engages  to  provide  and 
secure  a  sum  so  payable.' 


SUCCESSION  73 

"  4.  But  if  lie  actually  lends  out  the  money,  or  constitutes  a  trust,  or 
grants  lieritaMe  security  to  the  wife,  or  any  other  person  in  name  of  the 
children,  witli  absolute  warrandice,  it  constitutes  a  fee  in  the  children, 
which  will  prevail  against  onerous  creditors"  {Goddanl,  1.S44,  G  1). 
p.  1023). 

The  right  of  the  heir  of  the  marriage  under  a  marriage  contract  destina- 
tion of  heritable  estate  is  of  the  same  nature  as  that  of  the  children  in 
relation  to  provisions  of  moveable  funds.  Uidess  the  father  binils  himself 
to  infcft  his  son  at  a  period  which  may  happen  in  his  own  lifetime,  the 
right  of  the  son  is  postponed  to  that  of  creditors,  and  only  bars  gratuitous 
alienation  {Cunyvghame,  1804,  Mor.  13029;  Spcirs,  1778,  Mor.  1302G; 
Macncil,  1826,  4  S.  393).  The  father  may  sell  the  estate,  and  in  this  case 
the  son  may  at  his  death  rank  as  a  posti)oned  creditor  for  the  price  as  a 
surrogatum  {Cunninghame,  20  Dec.  1810,  F.  C. ;  Earl  of  Wcmyss,  1818, 
0  Tat.  390).  The  onerosity  of  the  provision  arises  from  the  obligation  in 
the  marriage  contracts. 

This  all  assumes  that  the  father  was  solvent  at  the  time  of  granting  tlie 
provisions,  unless  the  right  is  secured  by  a  trust  conveyance  (Morrice,  1840, 
8  D.  918  ;  Wood,  1850,  12  D.  963).  Where  the  father\vas  insolvent  at  the 
date  of  an  antenuptial  contract,  })rovisions  to  children  will  only  be  sus- 
tained as  against  creditors  in  so  far  as  a  moderate  amount  {BaUantynr, 
7  Feb.  1814,  F.  (J. ;  Blackburn,  29  May  1816,  F.  C. ;  Watson,  1874,  1  It. 
882).  In  considering  whether  a  preference  has  been  secured  by  giving 
real  security,  the  material  question  is  whether  the  granter  was  solvent 
when  he  made  the  conveyance,  and  so  gave  the  children  security  (ffcrrioi, 
Farquhar,  cO  Co.,  1838,  16  S.  948).  The  father  may  grant  rational  pro- 
visions to  wife  and  younger  children,  if  he  has  no  other  funds  available 
for  the  purpose  (Miller,  1822,  1  Sh.  App.  308  ;  Ouchferlony,  1752,  Mor. 
13013) ;  and  similarly  for  a  second  marriage  {Haldanc,  1885,  13  R.  179).  A 
provision  to  younger  children  out  of  the  heir's  inheritance  must  be  given  in 
the  f<n'm  of  a  burden  upon  the  estate,  and  not  as  part  of  it  {Dykes,  9  Feb. 
1811,  F.  C).  Later  cases  have  l)een  unfavourable  to  the  power  of  the 
father  to  provide  for  second  families  {BcU's  Trs.,  1846,  9  D.  124;  Wilson's 
Trs.,  1856,  18  I).  1096  ;  Rarcic,  1847,  9  I).  1420  ;  Ciimmincj,  1858,  20  D. 
1280).  The  heir  of  a  marriage  is  ascertained  at  the  dissolution  of  the 
marriage  {Maule,  1876,  3  Pt.  831).  A  destination  to  a  parent  in  liferent 
allenarly  and  his  heir  in  fee  cannot  be  evacuated  by  the  father  and  the 
eldest  son,  for  the  eldest  son  may  not  live  to  become  his  father's  heir 
{Ferguson,  1875,  2  E.  627).  Provisions  to  children  in  postnuptial  contracts 
confer  no  jus  crcditi  imless  there  was  delivery  of  the  deed,  and  the 
parent  was  solvent  when  the  provision  was  granted. 

Conditions  in  Settlements  of  Land. — Settlements  of  land,  like 
settlements  of  moveables,  are  subject  to  the  implied  conditions,  si  testator 
sine  Ubcris  decesscrit  and  si  institutus  sine  lihcris  dcccsserit.  These  are 
treated  under  moveable  succession.  Express  conditions,  if  clear,  intelligible, 
and  lawful,  receive  their  effect  {Bell,  1785).  Impossible  conditions  are 
held  2^^'o  non  scriptis.  Unlawful  conditions,  or  those  which  arc  contra 
bonos  mores,  are  held  impossible  (Bell,  1785). 

See  conditions  in  Legacies  and  in  ]\roYEABLE  Succession. 

Lease:  Ckofteus  Act. 
Lease. — A  lease  of  lands  is  heritable  and  descends  to  the  heir.     Heirs 
succeed  thouc;h  not  expressly  called  (Ersk.  ii.  2.  6  ;  Tailfcr^  1811,  Hunie, 
857).     The  right  vests  without  any  service  (Stair,  iii.  5.  4;  Ersk.  iii.  8.  7,  : 


74  SUCCESSIOX 

.^ott,  17r4.  M'.i.  14376).  la  the  absence  of  special  destination,  it  is  the 
iK'ir-ai-l.iw  wlio  sucoeeils. 

A  K-a-se,  even  if  it  excludes  assignees,  may  be  propelled  to  the  lieir 

(///  iVaO,  Mor.  10409;  Craivford,  1778,  5  B.  S.   620).     The  amplest 

■  .iisapiKiintiiii:;  tlie  heir  is  conferred  on  the  tenant  \vhen  the  lease  is 

_     :.le. 

If  the  lea.se  is  not  assignable,  the  legal  line  of  succession  may  be  altered 
by  destination,  or  by  betpiest  under  statutory  authority. 

By  .-ieo.  29  of  the  Agricultural  Holdings  Act,  4G  &  47  Vict.  c.  62,  a  tenant 
way,  by  will  or  other  testamentary  writing,  beipieath  his  lease  to  any 
pei-son,  subject  to  certain  provisions  set  forth  in  the  Act. 

If  tiie  legatee  does  not  accept  the  bequest,  or  if  the  bequest  is  declared 
to  be  null  and  void,  the  lease  descends  to  the  heir  of  the  tenant  in  the  same 
manner  as  if  the  betpiest  had  not  been  made. 

In  order  to  come  under  the  Act,  the  holding  must  l)e  either  wholly  agri- 
cultural or  wholly  pastoral,  or  in  part  agricultural  ami  as  to  the  residue 
]iu?;t<»ral,  or  in  whole  or  in  part  cultivated  as  a  market  garden.  The  Act 
ilut'S  not  apply  to  the  case  of  a  holding  let  to  the  tenant  during  liis  con- 
tinuance in  any  office,  appointment,  or  employment  of  the  landlord  (s.  35). 

The  Ilutlierfurd  Act,  11  &  12  Vict.  c.  36,  s.  49,  enacts  that  if  a  lease, 
dated  on  or  after  1st  August  1848,  is  held  directly  or  through  trustees  by  a 
party  uf  full  age  and  born  after  its  date,  he  shall  not  l)e  affected  by  con- 
ilitions  or  limitations  of  entail,  or  intended  to  regulate  the  succession,  or  to 
restrict  his  enjoyment,  in  favour  of  any  future  heir.  The  heir  may 
accordingly  alter  the  destination. 

Tlie  heir  in  a  lease,  excluding  assignees,  takes  in  the  character  of  con- 
uitional  nistitute  or  substitute  in  the  destination,  and  is  not  lial)!e  for  his 
ancestor's  debts  even  to  the  extent  of  the  interest  which  he  takes  (Bain, 
1896,  2:'.  IX.  528). 

CuoKTEK.s  Act.— Under  sec.  16  of  the  Crofters  Holdings  Act,  1886, 
49  «S:  50  Vict.  c.  29,  a  crofter  may,  by  will  or  other  testamentary  writing,  be- 
(jueatli  his  right  t<3  his  holding  to  one  person,  being  a  member  of  the  same 
family, — that  is  to  say,  his  wife  or  any  person  who,  failing  nearer  heirs, 
w(»uld  succeed  to  him  in  case  of  intestacy, — subject  to  certain  provisions  as  to 
intimation  to  the  landlord,  and  ol)jections  l)y  him.  Otherwise  the  right  to 
the  holding  descends  to  the  heir  of  the  crofter.  Under  this  section  a  be- 
quest to  a  niece,  an  agnate,  was  held  good  (M'Zean,  1891,  18  II.  885);  but 
a  bequest  to  a  nephew  of  the  crofter's  mother  was  held  bad  (Mackenzie, 
1894,  21  ]{.  427). 

Aliens. 

Ajiens  were  formerly  incapable  of  holding  heritage;  but  by  sec.  2  of 
the  Naturalisation  Act,  33  Vict.  c.  14,  it  is  enacLed  that  real  and  personal 
proi»erty  of  every  description  may  be  taken,  ac(iuired,  held,  and  disposed  of 
by  an  alien  in  the  same  manner  in  all  respects  as  by  a  natural-born  British 
subject;  ami  a  title  to  real  and  personal  property  of  every  descrii)tiou  may 
be  derived  through,  from,  or  in  succession  to  an  alien  in  the  same  manner 
in  all  respects  as  through,  from,  or  in  successicm  to  a  natural-born  British 
subject. 

Succession  ix  :Moveables  on  Intestacy. 

"  Moveable  subjects  are,  upon  the  death  of  the  owner,  whether  dying 
tcfjtntc  or  intestate,  put  uinler  the  administration  of  persons  authorised  by 
tlie  law  to  execute  either  the  actual  or  tlie  presumed  will  of  the  deceased, 
who  arc  therefore  styled  executors;  and  hence  the  subject  of  moveable 


SUCCESSION  75 

succession  is  callcil  executry.  Lut  tlie  appellation  of  executors  is  some- 
times capplied  designativH  to  those  who  are  barely  entitled  to  the  movealjle 
succession  of  the  deceased  ah  intestato,  and  have  a  right  to  claim  the  otiice 
of  executors  if  they  think  proper.  Thus  bonds  are  commmily  taken 
payable  to  the  creditor,  his  heirs  and  executors"  (Eisk.  iii.  9.  1).  See 
Grays  Trs.,  1895,  23  R  199. 

There  is  great  diversity  among  the  rules  which  have  l)een  adojited  in 
diflerent  countries  for  reckoning  proximity  of  kindred.  The  rules  of  the 
civil  law,  of  the  canon  law,  of  the  English  law,  and  of  the  Scotch  law  diller 
from  each  other  in  many  respects.  Antl  in  the  Scotch  law  there  are 
different  rules  applical)le  to  marriage  and  to  succession ;  and  those  which 
are  applicable  to  succession  differ  according  as  the  sulijects  of  the  succession 
are  herital)le  or  moveable.  I'ropinquity  is  distinguished  by  its  dilferent 
lines  and  measured  by  degrees. 

The  succession  to  the  moveable  estate  gr^ss  by  the  common  law  to  the 
next  of  kin  of  the  deceased,  who  take  as  a  class,  dividing  the  moveables 
among  them.  There  is  therefore — and  in  this  moveaUe  is  distinguished 
from  heritable  succession — no  right  of  primogeniture,  no  representation,  at 
common  law  (though  a  right  of  representation  within  certain  degrees  has 
been  introduced  by  statute),  and  no  exclusion  of  females  by  males.  As  in 
heritage  so  in  moveables,  the  kinship  considered  is  that  of  consanguinity ; 
only  those  who  are  related  to  the  intestate  through  his  father  are  called  to 
succeed  to  him — with  the  single  exception  that  by  statute  the  mother  and 
brothers  and  sisters  of  the  half  blood  uterine  have  certain  rights  under  the 
Movealile  Succession  Act.  Though  property  comes  through  the  mother,  it 
never  at  common  law  goes  back  to  her  or  through  her. 

lielationship  is  divided  into  the  three  lines  or  orders :  the  descending, 
the  ascending,  the  collateral.  Each  generation  or  filiation  forms  a  step  of 
degree,  e.g.  a  son  is  one  degree  removed  from  his  father,  a  grandson  two 
degrees  from  his  grandfather.  Cousins  german,  Ijeing  grandchildren  of  a 
common  ancestor,  may  conveniently  be  considered  as  having  four  degrees 
between  them ;  an  uncle  and  his  nephew  as  having  three. 

The  nearness  or  remoteness  of  kinship  may  therefore  be  founds 

1.  In  the  line  of  descent,  by  counting  the  numlier  of  generations  from 
the  intestate. 

2.  In  the  line  of  ascent,  by  counting  the  generations  upwards  from  the 
intestate. 

3.  In  the  collateral  line,  the  members  of  which  are  either  collaterals  of 
the  intestate,  or  their  descendants,  or  collaterals  of  some  ancestor  of  the 
intestate  or  their  descendants,  proximity  may  be  calculated  by  counting 
up  to  the  nearest  common  ancestor,  and  down  to  his  nearest  common 
descendant.  It  must  he  borne  in  mind  that  at  common  law  the  descend- 
ants of  an  ancestor  of  the  intestate  always  come  in  before  that  ancestor. 
Brothers  or  sisters  of  the  intestate,  and  their  descendants,  exclude 
his  father;  uncles  or  aunts  and  cousins,  the  grandfather.  Accordingly,  in 
counting  towards  collaterals,  the  steps  which  touch  the  common  ancestor 
may  be  disregarded.  The  half  blood  collaterals  of  a  nearer  ancestor,  though 
excluded  by  the  full  blood  and  its  descendants,  themselves  exclude  the  full 
blood  connected  thr(High  a  more  remote  ancestor;  that  is  to  say,  brothers 
and  sisters  consanguinean  will  exclude  an  uncle  of  the  full  blood. 

At  common  law,  then,  the  rule  was  that  the  free  moveable  estate 
divided  among  the  nearest  in  kin  —  a  child  in.  utcro  being  considered 
already  born— at  the  death,  the  full  blood  excluding  the  half  l.lood  m  the 
same  line,  and  neither  the  mother  nor  maternal  relations  succeeding.     There 


7G  SUCCESSIOX 

is,  of  course,  no  lialf  blood  in  the  direct  line.  The  succession  went  first  to 
descendants,  then  to  collaterals,  then  to  their  descendants,  each  generation 
excluding'  the  more  remote;  then  to  the  father  ;  next  to  his  collaterals,  and 
to  their  descendants ;  next  to  the  grandfather,  and  next  to  his  collaterals,  to 
the  most  remote  degree  to  wliich  evidence  will  reach.  The  existence  of  one 
]K'!-son  of  a  nearer  degree  excludes  all  those  who  are  more  remote  in  the 
[.i'.'le  of  succession;  that  is  to  say,  apart  from  statutory  alteration. 

Important  changes  were  introduced  by  the  Intestate  ^Moveable  Succession 
Act,  1855,  18  Vict.  c.  23,  which  introduced  within  certain  limits  the  rule  of 
representation,  altered  the  rights  of  the  father,  and  conferred  a  right  of 
succession  in  certain  events  upon  the  mother  and  upon  brothers  and  sisters 
uterine  and  their  descendants. 

By  sec.  1  when  any  person,  who  had  he  survived  the  intestate  would 
have  been  among  his  next  of  kin,  shall  have  predeceased,  the  lawful  child 
or  children  of  such  person  slv-U  come  in  his  place,  and  their  issue  in  the 
event  of  their  predecease  shall  come  in  tlieir  place,  and  shall  respectively 
have  right  to  the  share  of  the  moveable  estate  of  the  intestate  to  which 
their  parent  or  ancestor  would  have  been  entitled  had  he  survived  the 
intestate.  Xo  representation  is  admitted  after  the  descendants  of  brothers 
and  sisters.  The  right  of  reju'esentation  in  moveables  thus  introduced  is 
accordingly  more  restricted  than  that  which  prevails  in  heritable  succession 
(Ormiston,  1862,  1  M.  10).  It  has  been  decided  that  this  right  of 
representation  does  not  affect  the  rule  that  when  next  of  kin  succeed,  they 
take  pr  ccqnta,  and  not  pc?'  stirpes.  Thus  where  two  families  of  nephews 
and  nieces  are  the  next  of  kin,  they  take  in  their  own  right,  and  not  as 
representing  their  parents,  and  the  division  is  per  capita  (Turner,  1869, 
8  M.  222).  The  rule  of  the  Act  is  accordingly  only  applicable  where  one 
or  more  who  would  have  been  among  the  next  of  kin  have  died  before  the 
intestate,  and  others  in  the  same  degree  have  survived. 

By  sec.  3  it  is  provided  that  where  any  person  dying  intestate  shall 
predecease  his  father  witliout  leaving  issue,  his  father  shall  have  right  to 
one  half  of  his  moveable  estate  in  preference  to  brothers  and  sisters  and 
their  descendants.  Sec.  4  enacts  that  where  the  intestate  dies  without  leav- 
ing issue,  predeceased  by  his  father,  the  mother  shall  have  right  to  one  third 
of  the  moveable  estate  in  preference  to  brothers  and  sisters  or  other  next 
of  kin.  r>ysec.  8,  where  an  intestate  dies  without  leaving  issue,  predeceased 
by  both  father  and  mother,  and  leaving  no  brother  or  sister  german  or 
consanguinean,  nor  any  descendant  of  such  brother  or  sister,  but  leaving 
Itrothers  or  sisters  uterine,  or  a  descendant  or  descendants  of  a  brother  or 
sister  uterine,  these  have  right  to  one  half  of  the  moveable  estate,  the  other 
half  going  to  the  next  of  kin. 

By  tlie  interpretation  clause,  the  words  "intestate  succession"  mean 
and  include  succession  in  cases  of  partial  as  well  as  of  total  intestacy; 
"  mtestate "  means  and  includes  every  person  deceased  who  has  left 
undi.'^ljo.sed  of  by  will  the  whole  or  any  portion  of  the  moveable  estate 
on  which  he  might,  if  not  subject  to  incapacity,  have  tested.  "  Moveable 
estate"  means  and  includes  the  whole  free  moveable  estate  on  which  the 
deceased,  if  not  subject  to  incapacity,  might  have  tested,  undisposed  of  by 
wdl,  and  any  portion  thereof  so  undisposed  of. 

Caduciaky  Kioiit.s  of  tiik  CiiOWN.— On  the  failure  of  next  of  kin,  the 
Crown  takes  tlie  moveable  estate  as  well  as  the  herital)le  ;  qi(od  mdlius  est 
Jit  dummi  rrr,is  {Finnic,  1836,  15  S.  165).  The  Crown  usually  appoints  a 
donatory.  The  liability  for  the  debts  of  tlie  deceased  is  in  that  case 
limited  to  the  value  of  the  estate  (Ersk.  iii.  10.  4). 


SUCCESSION 


77 


Okdeu  of  Succession. — The  following  tables  give  the  order  of  succession 
iu  moveables,  first,  at  common  law,  and,  second,  under  the  statute.  It  must 
be  kei)t  in  view  that  the  heir  cannot  claim  as  one  of  the  next  of  kin  unless 
he  collates  the  heritage. 

On  the  death  of  the  proprietor  of  moveable  estate  intestate,  before 
1855,  the  following  was  the  order  of  succession : — 

1.  The  children  took  equally  among  them. 

2.  The  graudciiildrcn. 

3.  The  great-grandchildren,  and  so  on  I  ill  the  line  of  descent  is 
exhausted,  the  members  of  each  degree  taking  "per  cajnta,  and  surviving 
children  excluding  grandchildren  ;  surviving  grandchildren  excluding  great- 
grandchildren. 

4.  The  brothers  and  sisters  of  the  deceased  equally  among  them,  tlie 
survivors  taking  the  whole  estate. 

5.  Nephews  and  nieces,  and  after  them  their  descendants. 

6.  Brothers  and  sisters  consanguinean. 

7.  Nephews  and  nieces  the  children  of  brothers  or  sisters  consanguinean, 
and  after  them  their  descendants. 

8.  The  father  of  the  intestate. 

9.  Uncles  and  aunts,  full  brothers  and  sisters  of  the  father ;  after 
them  their  descendants,  each  generation  being  exhausted  before  the  next 
is  reached. 

10.  Half  brothers  and  half  sisters  consanguinean  of  the  father,  and 
their  descendants  in  the  same  way. 

11.  The  grandfather,  the  father's  father. 

12.  His  collaterals,  in  the  same  order  and  subject  to  similar  rules  to 
those  stated  in  9  and  10. 

Table  of  intestate  succession  in  moveables  under  the  Statute  18  Vict, 
c.  23  :— 

1.  The  children  and  the  descendants  of  any  child  that  may  have  pre- 
deceased per  stirpes. 

2.  If  no  child  survives,  the  grandchildren  and  the  descendants  of 
deceased  grandchildren  divide  the  estate  per  stirpes. 

If  there  are  none  but  children,  or  none  but  grandchildren,  or  none  but 
great-grandchildren,  the  division  will  be  p)er  cajnta. 

3.  The  line  of  descent  being  exhausted,  the  brothers  and  sisters  take 
one  half,  the  father  takes  the  other.  The  half  share  to  be  taken  by  the 
brothers  and  sisters  will,  in  the  event  of  their  predecease,  go  to  their 
descendants,  subject  to  representation.  If  there  are  no  brothers  or  sisters 
and  no  descendants  of  brothers  or  sisters,  the  father  will  take  the  whole. 
Failing  the  father,  the  mother  takes  one  third,  the  next  of  kin  the  other 
two  thirds.  Failing  brothers  and  sisters  german  and  consanguinean,  and 
father  and  mother  being  both  dead,  brothers  and  sisters  uterine  and  their 
descendants  take  one  half  the  moveable  estate,  the  other  half  going  to  the 
next  of  kin. 

The  moveable  estate  of  a  married  person  is  subject,  on  the  death  of  that 
person,  to  claims  on  behalf  of  the  surviving  spouse,  and  also  on  behalf  of  the 
children.  Those  on  the  estate  of  the  husband  are  of  old  date  in  the  law  of 
Scotland,  and  are  known  as  the  Jus  relictcc,  and  ler/itim;  those  on  the  move- 
able estate  of  the  wife  were  introduced  by  the  INIarried  "Women's  Property 
Act  of  1881. 

The  amount  of  a  married  person's  estate  which  is  sultject  to  his  or  her 
testamentary  deeds,  or  which  is  distriluited  as  intestate  successiou,  depends 
upon  whether  or  not  there  are  children  or  a  relict. 


73  SUCCESSION 

If  cUiklreu  and  a  spouse  survive,  one  third  will  go  to  the  children  as 
. /     Witiui,  one  third  to  the  surviving  spouse  as  Jus  rclidce  or  rclidi;  and  the 
^     remaining  tiiird  is  the  dead's  part,  which,  if  undisposed  of  by  the  acts  or 
deeds  of  The  deceased,  falls  to  be  divided  according  to  the  rules  stated. 

If  there  are  children  but  no  surviving  spouse,  or  a  surviving  spouse 
but  n.i  children,  the  division  is  bipartite,  one  half  being  the  share  of  the 
relict  or  children,  as  the  case  may  be,  the  other  half  the  dead's  part. 

Legiti.m. 

Lecritiin  (bairn's  part  of  gear  or  portion  natural)  is  a  share  in  the  father's 
free  executry  estate  vesting  i^j'soyurc  in  a  child  on  its  survivance :  a  share 
of  the  actual  amount  which  the  executor  ought  to  realise.  As  it  does  not 
include  heritage,  improvement  expenditure  on  an  e'ntailed  estate  does  not  fall 
within  the  legitim  fund  {Kintore,  1885,  12  E.  1213).  Children  claiming 
le^'itim  stand  in  the  position  of  creditors  of  the  executor,  though  they 
cannot  compete  with  stranger  creditors ;  for  if  the  executry  funds  are 
insufficient  to  do  more  than  pay  the  debts  of  the  deceased,  there  is  no 
lec'itim  fund  {Earl  of  Dalhousie,  1868,  6  M.  G59).  A  child  accordingly  was 
nut  bound  to  suffer  a  diminution  of  his  legitim  through  money  Ijeiug  lost 
iu  the  hands  of  the  executor.  Personal  bonds  are  moveable  as  regards 
legitim,  though  heritable  as  regards  jus  relictcB  and  jus  mariti  (1G61, 
c.  32).  It  is  sometimes  called  a  right  of  succession ;  but  at  least  it  is  a 
burden  laid  upon  the  executor  or  general  disponee  of  a  person  who  dies 
domiciled  in  Scotland  leaving  legitimate  children  {Moatcitli,  1882,  9  E. 
982;  Fisher,  1840,  2  D.  1121;  1843,  2  Bell's  App.  63).  It  expires 
with  the  predecease  of  the  children,  and  does  not  transmit  to  their 
representatives. 

If  the  wife  survives  the  husband,  the  legitim  fund  is  one  third  of  the 
moveable  estate,  with  certain  exceptions.  If  there  be  no  widow,  it  is 
one  half  (Ersk.  iii.  9.  17 ;  Johnston,  1814,  Hume,  290).  All  the  father's 
children  of  whatever  marriage,  including  legitimated  and  posthumous 
children,  are  entitled  to  share,  unless  they  have  renounced  or  been  foris- 
familiated (Stair,  iii.  8.  45 ;  Ersk.  iii.  9.  23).  The  eldest  son  cannot  claim  a 
share  if  he  inherits  heritage,  unless  he  collates  (Brcadalhanc,  1836,  14  S. 
309;  1836,  2  S.  &  M'L.  377);  but  where  the  heir  in  heritage  is  the 
only  child  left  with  a  claim  for  legitim,  then,  whether  the  father  was 
testate  or  intestate,  he  can  claim  legitim  without  collating,  i.e.  taking 
heritage  does  not  exclude  the  heir  {Trotter,  1681,  Mor.  2375  :  Justice,  1737, 
Mor.  8166 ;  Hoivden,  1821,  1  S.  18).  If  the  right  of  a  child  is  excluded  or 
discharged  during  the  father's  lifetime,  his  share  goes  to  increase  the  legitim 
fund  (Pmimurc,  1856,  18  D.  703 ;  Hog,  1791,  Mor.  8193).  A  child  taking 
benefit  from  a  settlement  is  entitled  to  found  upon  his  claim  to  legitim  in 
order  to  reduce  the  share  to  be  taken  by  a  child  renouncing  the  settlement 
(Fisher,  1841,  3  D.  1181 ;  1843,  2  Bell's  App.  63).  The  legitim  fund 
may  bo  diminished  by  every  deed  of  the  father's  dealing  with  his 
moveable  estate  inter  vivos ;  though  before  the  abolition  of  tlie  law  of  death- 
bed he  could  only  affect  it  in  liege  poustie  {Wilson's  Trs.,  1886,  18  D.  1096; 
Millie,  1803,  Mor.  8215;  1807,  5  Pat.  160). 

liefore  mariiage  a  man  is  the  free  and  uncontrolled  proprietor  of  his 
wiiole  disposaljle  means  and  fortune.  He  is  at  liberty  to  enter  into 
any  obligation  he  chooses  as  to  such  property,  and  most  certainly  he 
is  in  a  condition  to  contract  effectually  in  favour  of  an  intended  wife 
any  obligation  lie  thinks  proper  over  the  whole  property  which  may  then 
or  at  any  future   time  be   at   his  disposal.      Such  obligation  is  a  proper 


SUCCESSION  70 

debt,  and  a  debt  therefore  under  an  onerous  contract  antecedent  tu 
marriage,  which  must  be  fulfilled  before  any  claims  to  childien  can  arise 
{Fisher's  Trs.,  1844,  7  D.  129).  The  deed  by  which  it  is  to  be  diminished 
must  not  be  fraudule^itly  contrived  to  reduce  the  legitim  fund  without 
touching  the  father's  own  riglit  (Hog,  1804,  4  Pat.  581 ;  Buchanan,  1876, 
3  K.  556).  And  legitim  cannot  be  defeated  by  a  mortis  causa  deed,  or  Ijy 
one  which  does  not  absolutely  divest  the  father  {Millie,  1803,  Mor.  8215  : 
1807,  5  Pat.  160;  Wilsons  Trs.,  sujira;  Nicolson's  Assignee,  1841,  3  D.  675); 
but  it  may  be  by  an  irrevocable  deed  inter  vivos  though  the  term  of  payment 
is  after^tti^'granter's  death,  and  though  a  liferent  is  reserved  (Ei'sk.  iii. 
9.  16;  Collie,  1851,  13  D.  506  ;  Zatvrie,  1816,  Hume,  291 ;  Bousteacl,  1879^ 
7  P.  139).  If  a  father  is  to  make  a  settlement  inter  vivos,  it  must  be  quite 
clear,  in  order  to  have  the  effect  of  preventing  children  from  claiming  their 
legal  rights,  that  he  deprives  himself  of  all  power  of  dealing  with  the  funds 
{Little,  1856,  18  D.  701).  The  legitim  fund  may  be  diminished  by  rational 
provisions  for  a  wife  {Balmain,  1721,  Mor.  8199  ;  Zcnvrie,  1816,  Hume,  291). 
No  deed  of  settlement  by  the  father  can  regulate  the  succession  to  the 
legitim  {Allan,  1762,  Mor.  8209  ;  Christie,  1681,  Mor.  8197  :  Morton,  11  Feb. 
1813,  r.  C). 

Legitim  may  be  discharged  before  the  father's  death,  in  which  case  the 
discharge  operates  as  the  child's  death  would  have  done  ;  that  is  to  say,  it 
increases  the  share  of  the  other  children,  or,  if  there  are  no  other  children, 
makes  the  division  bipartite  into  dead's  part  and  jus  relietcc;  or  converts 
the  whole  into  dead's  part  {Henderson,  1728,  Mor.  8187;  Hog,  svpra; 
BreaclaJbanc,  supra) ;  or  it  may  be  satisfied  after  the  father's  death ; 
and  in  that  case  the  legitim  set  free  goes  to  benefit  the  fund  burdened  with 
the  payment  in  lieu  of  legitim  {Fisher,  1840,  2  D.  1121 ;  1841,  3  D.  1181  ; 
1843,  2  Bell's  App.  63 ;  Campbell's  Trs.,  1862,  24  D.  1321 ;  Panmure,  1856, 
18  D.  703;  Nisbct's  Trs.,  1868,  6  M.  567;  Davidsons  Trs.,  1871,  9  M.  995; 
Montcith,  1882,  9  P.  982). 

Legitim  is  discharged  or  satisfied : — 

1.  By  express  discharge  (^Y.sAcr,  1840,  2  D.  1121;  Clark,  1835,  13  S. 
236;  Breadalhane,  1836,  2  S.  &  M'L.  377 ;  Trcvelyan,  1873,  11  M.  516; 
Rait,  1892,  19  P.  687). 

2.  By  acceptance  of  a  provision  having  the  condition  annexed  that 
acceptance  shall  discharge  legitim  {Beg,  1737,  Mor.  12851 ;  McLaren,  1869, 
8  M.  106  ;  Metcfarlane's^Trs.,  1882,  9  P.  1138). 

3.  By  acceptance  of  a  special  provision  under  a  general  settlement  dealing 
with  the  father's  whole  moveable  estate  {Brcadalbane's  Trs.,  1840,  2  I).  731 ; 
Panmure,  1856,  18  D.  703;  Keith's  Trs.,  1857,  19  D.  1040);  but  not  if  the 
settlement  deals  only  with  part  of  the  father's  estate  {Collier,  1833,  11  S. 
i)12;   White,  1861,  24  D.  38). 

4.  By  a  reasonable  provision  made  for  the  cliild  in  an  antenuptial 
marriage  contract,  accompanied  by  an  exclusion  of  ligitim.  The  provision 
need  not  be  substantial  {Maitland,  1843,  6  D.  244:  Ersk.  iii.  9.  23;  Home, 
1757,  5  Br.  Sup.  330;  see  Kintore,  1884,  11  P.  1013). 

"Where  a  father  became  bound  in  his  son's  marriage  contract  to  leave  to 
the  son's  marriage  contract  trustees  one  third  of  his  moveable  estate,  this 
was  held  not  to  exclude  a  claim  for  legitim  {Bait,  1892,  19  P.  687). 

Legitim  cannot  be  excluded  by  postnuptial  contract  without  the  assent 
of  the  child  {Johnston,  1825,  4  S.  234).  "Where  acceptance  of  provision  is 
to  bar  legitim,  the  child  must  have  been  informed  of  the  facts  material  to 
his  election  ;  and  where  election  has  taken  ])lace,  funds  set  free  are  used  to 
compensate  those  whose  interests  have  sull'ered  by  the  election  {Dij.ons, 


so  SUCCESSION 

1833,  G  W.  a:  S.  4;U  ;  Snodi/'s  Trs.,  1883,  10  E.  599;  Kintorc,  1884,  11  E. 
lOlS"  1886, 13  Pi.  (H.  L.)  93).  If  by  antenuptial  contract  the  whole  move- 
able estiite  is  settled,  there  is  no  fund  from  which  legitim  can  be  taken 
(FisJicr's  Trs.,  1844,  7  D.  129).  The  legitim  fund  may  be  lessened  by  a  just 
and  reasonable  addition  to  the  widow's  conventional  provision  {Laicrie, 
ISIG,  Hume,  291 ;  L'almain,  1721,  Mor.  8199).  To  marry  and  leave  the 
fatlie'r's  house  is  not  forisfamiliation  (Eor/,  1792,  3  Pat.  247) ;  nor  to  give  a 
child  a  provision  as  her  portion  (Breadalhanc,  1836,  2  S.  &  jM'L.  377  ; 
Keith's  7'rs.,  1857,  19  I).  1040);  nor  is  a  claim  for  legitim  excluded  by  the 
fact  that  a  large  provision  has  been  given  to  the  child  {Howdcn,  1821,  1 

^-  18). 

CoUcUio  honorum  inter  libcros. — A  child  claiming  legitim  must  bring  into 

account  advances  made  to  him  by  the  parent  for  the  purpose  of  setting 

him  up  in  trade,  or  for  a  settlement  in  the  world,  or  for  a  marriage  portion 

(Xishd's  Trs.,  1868, 6  M.  567  ;  Xay,  1844, 16  Sc.  Jur.  550  ;  Nicolsons  Assignee, 

1841,  3  D.  675;  Douglas,  1876,  4  E.  105);  but  advances  for  aliment  or 

educatiou,  or  on  loan,  will  not  be  imputed  to  the  legitim  {Skinner,  1775,  Mor. 

8172;   Wchstcr,  1859,21  D.  915);  nor  advances  made  from  the  heritable 

estate  (Stair,  iii.  8.  46;  Ersk.  iii.  9.  25;  Buccleiich,  1677,  Mor.   2369;  Mar- 

sJiall,  1829,  8  S.  110).     A  father  may  always,  in  making  advances,  reserve 

the  child's  right  to  legitim,  or  declare  that  it  shall  remain  a  l\airn  in  the 

house  (Stair,  iii.  8.  45;  Ersk.  iii.  9.  25;  Corsan,  1631,  Mor.  2367;  Skinner, 

1775,  Mor.  8172).     It  is  only  when  the  child  demands  a  share  of  the  legitim 

that  he  is  obliged  to  collate ;  and  that  only  in  the  interest  of  other  children 

entitled  to  legitim  {Trevelyan,  1873,  11  M.  516  ;  Montcith,  1882,  9  E.  982). 

Where  the  advance  is  made  mortis  causa,  there  is  no  collation. 

Collatio  honorum  inter  liberos  is  an  equitable  rule  borrowed  with  much 
modification  from  the  Eoman  law  for  the  purpose  of  preserving  equality  in 
the  distribution  of  legitim,  and  it  arises  inter  liheros  alone  (Ersk.  iii.  9.  25  ; 
Brcadalhanc,  1836,  2  S.  &  M'L.  377;  Hog,  1804,4  Pat.  581;  Kcitlis  Trs., 
1857,  19  I).  1040  ;  Montcith,  1882, 9  E.  982 ;  CoUins,  1898,  35  S.  L.  E.  641 ; 
Xishd's  Trs.,  1868,  6  M.  567,  not  followed).  When  a  child  accepts  conven- 
tional i)rovisions,  he  discharges  his  claim  to  legitim  :  he  does  not  assign  it ; 
he  merely  withdraws  the  restraint  which,  as  a  child,  he  possessed  over  the 
testamentary  power  of  his  father. 

The  plea  of  collation  inter  liberos  can  only  be  maintained  bv  one  entitled 
to  a  share  of  legitim  {Collins,  1898,  35  S.  L.  E.  641). 

A  right  to  legitim  is  to  be  measured  by  the  actual  value  of  the  moveable 
estate  left  by  the  father  at  his  death  (J/'J/j^rm^/,  1852,  14  D.  1048;  Gil- 
christ, 1889,  16  E.  1118).  The  w^idow's  aliment  does  not  come  before  it 
where  she  has  a  liferent  of  the  whole  estate  under  a  will  {Morrison,  1888, 16  E. 
247) ;  l)ut  in  the  ordinary  case  the  widow's  alimony  comes  off  the  whole 
executry  {De  Blonay,  1863,  1  M.  1147).  Interest  used  to  be  allowed  at  the 
rate  of  5  per  cent,  wlien  the  executor  delayed  to  pav  without  reason 
{M'Murray,  1852,  14  D.  1048  ;  Bishofs  Trs.,  1894,  21  E."'728),  even  when 
the  money  was  not  earning  it;  but  in  the  last  case,  Boss,  1896,  23  E.  802, 
interest  at  the  rate  of  4  per  cent,  was  allowed ;  see  Grant,  1898,  25  E.  948. 

Where  part  of  a  father's  estate  was  a  bond  heritable  quoad  Jus  relictce, 
.  but  raoveal)lc  rjvoad  legitim,  one  half  the  bond  fell  into  the  legitim  fund 
{Davsons  Trs.,  1890,  23  E.  1006). 

Married  Women's  Property  Ad,  1881,  44  cfc45  Vict.  c.  21,  s.  7.— This  sec- 
ti<ui  enacts  that  after  the  passing  of  the  Act  the  children  of  any  woman  who 
may  die  domiciled  in  Scotland  shall  have  the  same  riglit  of  legitim  in  regard  to 
her  niDvcablr'  estate  wlnV-li  tliey  have  according  to  the  law  and  practice  of  Scot- 


SUCCESSION  81 

land  ill  regard  to  the  moveable  estate  of  their  deceased  father,  subject 
always  to  tlie  same  rules  of  law  in  relation  tu  the  character  and  extent 
of  the  saidriglit,  and  to  the  exclusion,  discliarge,  and  satisfaction  thereof,  as 
the  case  may  be.  (See  Bell,  1897,  25  W.  .jIO,  which  decided  tliat  until  a 
liferent  imposed  by  antenuptial  contract  was  satislied,  tlie  children  could 
not  enforce  payment  of  legitim  from  their  mother's  estate.) 

As  heritable  securities  are  by  the  Act  18G8  excluded  from  tlie  legitim 
fund  (.'M  &  'i'2  Vict.  c.  101,  s.  117),  so  debts  due  secured  by  hcritabh,' 
security  cannot  be  deducted  from  the  legitim  fund  (Fraser,  ii.  98G). 
Personal  bonds  are  moveable  quoad  legithn  (IGGl,  c.  32).  Mortgages  in  Eng- 
land, being  moveable  by  the  law  of  that  country,  go  to  increase  lef'itim 
{Brcadalbanes  Trs.,  1843,  15  Sc.  Jur.  389;  Montcith,  1882,  9  1{  98'' •  ^Nev- 
lands,  1832,  11  S.  65). 

A  JUS  crediti  to  a  share  of  a  trust  estate  which  consisted  of  a  heritable 
bond  was  subject  to  a  claim  for  legitim  {Gillicjan,  1891,  18  E.  387).  Sums 
expended  under  the  Entail  Act,  1875,  may  Ije  bequeathed,  but  they  are  not 
included  in  the  legitim  fund  (Kiniore,  1885,  12  R  1213). 

Jus  RELICTS. 

The  widow  is  entitled  in  the  absence  of  convention  to  jus  relictce.  This 
is  generally  regarded  as  her  share  of  the  goods  in  communion,  and,  like 
legitim,  vests  on  the  death  of  the  husband,  and  is  a  claim  of  debt  against  his 
executor  (Inglis,  1879,  7  M.  435;  MIntyre,  1865,  3  M.  1074).  "It  is  not 
an  inheritance  and  the  widow  is  not  an  heir.  Both  jus  relictce  and  legitim 
are  claims  upon  the  whole  free  executry,  though  a  husband  and  father  may 
so  administer  his  estate  as  to  defeat  the  claim,  e.(j.  by  investing  in  heritage  " 
(Muirhead,  1867,  6  M.  95).  If  there  are  no  children  taking  legitim,  the  ji's 
relictce  is  one  half  of  the  moveable  estate  of  the  husband.  If  there  are 
children  entitled  to  legitim,  it  is  one  third.  Until  the  law  was  altered  in 
1855,  when  the  wife  predeceased  without  children  one  half  of  the  goods  in 
communion  went  to  her  successors  or  was  carried  by  her  will ;  if  she  left 
children,  the  division  was  into  three  shares,  the  husband  retaining  two  of 
tliem — one  as  administrator  for  his  children,  the  other  for  himself.  He  was 
accountable  to  the  children  for  the  mother's  share,  and  liable  for  interest, 
setting  off  their  aliment  against  it  (Steele's  Trs.,  1830,  8  S.  926;  Menzies, 
1839,  1  1).  601).  Sec.  6  of  the  Intestate  Moveable  Succession  Act  provides 
that  when  a  wife  shall  predecease  her  husband,  her  representatives  shall  have 
no  right  to  any  share  of  the  goods  in  communion,  nor  shall  any  legacy  or 
bequest  or  testamentary  disposition  thereof  by  the  wife  affect  or  attach  to 
tlie  said  goods  or  any  portion  thereof. 

The  husband  cannot  encroach  upon  this  right  by  mortis  causa  deed 
(Ersk.  iii.  9.  15).  Jus  relictcB  may  be  renounced,  and  that  even  in  a  post- 
nuptial contract,  provided  it  be  onerous  and  irrevocable  (Keith's  Trs.,  1857, 
19  D.  1040;  Johnstone,  1843,  5  D.  1297),  if  the  words  of  the  deed  are  broad 
enough  to  embrace  it  (Miller,  1776,  Mor.  6456).  Jus  relictw  is  a  right  so 
favoured  by  the  law  that  it  will  not  be  held  discharged  by  impUcation 
(Ersk.  iii.  9.  16  ;  Tod,  1770,  Mor.  6451).  It  may  be  satisfied  by  acceptance  y/ 
of  a  provision  under  a  settlement  disposing  of  the  whole  moveable  estate 
(Caithness'  Trs.,  1877,  4  E.  937;  Dunloj^  1865,  3  M.  (H.  L.)  46;  Thomson, 
1849, 12  D.  276  ;  Durrani  Steuart's  Trs.,  1891,  18  E.  1114) ;  or  by  acceptance  ^ 
of  a  testamentary  provision  expressly  in  lieu  of  it,  or  part  of  a  total  settle- 
ment (Echrard,  1888,  15  E.  (H.  L.)  33  ;  Keith's  Trs.,  supra;  CampMVs  Trs., 
18G2,  24  I).  1321).  Acceptance  of  a  liferent  of  the  husband's  whole  estate 
excludes  it  (Ersk.  iii.  3.  30;  Young,  1664,  Mor.  6447:  Edward,  1888,  15  E.    \j 

'  S.  E. — VOL.  XII.  6 


82  SUCCESSIOX 

(H  L)  33 ;  Thomson,  1849,  12  D.  276).  Her  consent  may  be  given  by  sub- 
scribing a  testamentary  deed  of  the  husband,  unrevoked  at  his  death 
(Jv/tHsUmc,  1843,  5  D.  1297 ;  Dunlop,  1865,  3  M.  (H.  L.)  46 ;  Echmrd,  supra). 

Where  there  is  no  antenuptial  contract  and  the  husband  makes  a 
voluntarv  provision  in  favour  of  his  widow  as  in  full  of  her  legal  claims,  she 
is  put  toiler  election;  and  in  the  event  of  her  death  before  she  has  had  an 
t.pportunitv  of  making  her  choice,  the  right  of  election  passes  to  her  repre-  . 
sentatives.'  On  the  other  hand,  if  the  wife  has  during  the  subsistence  of  / 
the  marriage  consented  to  accept  the  provision  in  substitution  for  her  legal  ^ 
i-hiims,  she  may  retract  her  consent  as  a  donatio  inter  virum  ct  uxorem,  but 
her  riglit  of  revocation  is  strictly  personal.  If  there  is  a  marriage  contract, 
and  the  wife's  right  io  jus  relida^  is  not  discharged,  she  takes  both  it  and 
tlie  conventional  provisions;  but  this  is  a  qucestio  voluntatis  {Machinnon, 
1763,  Mor.  6451  ;  Tod,  1770,  ]\Ior.  6451).  The  widow  may  be  relieved 
against  an  express  or  implied  discharge  of  her  legal  riglits  ou  showing  that 
she  was  ignorant  of  them  {Ross,  1843,  5  D.  483 ;  Hope,  1833,  12  S.  222 ; 
Bell,  1801,  Hume,  486).  It  affects  the  husband's  moveable  estate,  but 
personal  bonds  bearing  interest  are  excluded  under  1661,  c.  32  {Muirhead, 
1867,  6  M.  95),  and  heritable  bonds  under  the  1868  Act,  s.  117. 

AVhere  in  knowledge  of  her  legal  rights  she  accepts  a  provision  in  lieu 
of  jus  relictce,  her  claim  is  barred ;  but  if  from  ignorance  of  her  rights  or  of 
the  true  state  of  affairs  she  takes  some  step  which  in  ordinary  circumstances 
would  infer  that  her  right  was  given  up,  she  will  not  be  foreclosed  {Logan, 

1869,  7  S.  L.  E.  40;  M'Fadijcn,  1882,  10  R  285;  Donaldson,  1880,  13  E. 
967).  Mere  delay  will  not  bar  her  claim  {MacTcenzic,  1873,  11  M.  681 ; 
Daicsons  Trs.,  1896,  23  E.  1006;  Bruce's  7'rs.,  1898,  25  E.  796;  Stnvart, 
1898,  25  E.  965).  Where  a  husband's  estate  fell  into  partial  intestacy, 
the  widow  was  held  entitled  to  terce  and  jus  relictce  out  of  it  without 
forfeiting  her  testamentary  provisions,  though  these  were  declared  to  be 
in  full  of  them  {Hamilton's  Trs.,  1898,  35  S.  L.  E.  702).  Her  claiming 
terce  and  jus  relictce  may  accelerate  a  period  of  division  {Alexanders  Trs., 

1870,  8  M.  414).  There  is  no  collatio  lonorum  between  the  children  and 
the  widow  {Trevelyan,  1873,  11  M.  516).  "There  is  no  rule  analogous  to 
that  of  collatio  inter  liberos  applicable  to  widows"  (Fraser,  ii.  1067; 
Boss,  1627,  Mor.  2366);  nor  does  the  heir  collate  with  the  relict  {Trotter, 
1681,  ^lor.  2375).  Discharge  of  jus  relictoR  in  the  lifetime  of  the 
husband  operates  like  the  wife's  death  (Ersk.  iii.  9.  20 ;  Johnston,  1814, 
Hume,  290;  Nisbet,  1726,  Mor.  8181).  Discharge  after  death  benefits  the 
Imsband's  dead's  part  {Fisher,  1843,  2  Bell's  App.  63:  Henderson,  1728, 
Mor.  8187 ;  CamjybeU's  Trs.,  1862,  24  D.  1321). 

Jus  relicti. — By  sec.  6  of  the  Married  Women's  Property  Act,  1881,  44  & 
45  Vict.  c.  21,  a  similar  right  is  given  to  husbands  in  the  estates  of  their  pre- 
deceasing wives  {Foe,  1882, 10  E.  356  ;  1883, 10  E.  (H.  L.)  73  ;  Fotheringham's 
Trs.,  1889,  16  E.  873;  Simons'  Trs.,  1890,  18  E.135;  Buntine,  1894,  21  E. 
714).  In  dealing  with  this  right  a  distinction  has  been  made  between  the 
termination  of  a  marriage  by  death,  and  that  by  divorce  {Eddinciton,  1895, 
22  E.  430). 

Divisiox  OF  Husband's  Peopehty  ox  his  Death.— The  fund  that  falls 
to  be  divided  is  the  free  moveal)le  property  of  the  husband  which  was  his 
at  his  death,  under  deduction  of  his  debts.  Some  debts  come  off  the  whole 
executry,  some  only  off  the  dead's  part.  Similarly,  the  widow's  share  is  not 
affected  by  some  debts  which  do  affect  that  of  the  children.  The  general 
rule  is  tliat  tliose  debts  are  to  be  deducted  from  the  particular  fund  which, 
if  they  had  been  due  to  the  husband,  would  have  gone  to  increase  that  fund. 


SUCCESSION 


83 


Distribution  of  Moveable  Estate  on  Intestacy,  when  the  Legal  Claims  of 
Children  and  Spouses  have  not  been  altered  by  Convention. 


I.  Dead's  part,  one-thii"d  ; — to  chil- 

Legitim 

Jus  relictm 

Jus  relicti 

dren,  per  capita,  and  the  issue 

to 

to 

to  surviving 

of  in-odoceasing  children,  per 

children. 

widow, 

husband, 

stirpes.  * 

one-third. 

one-third. 

one- third. 

II.  The  children  being  all  dead. 

Jus  relictce 

Jus  relicti 

Grandchildren  ^Jcr  capita.        '\ 

Issue  of  predeceasing  grand-  J- 

children,      per      stii-pes  ; — J 

to 

to  surviving 

widow. 

husband, 

one-half. 

one-half. 

one-half  as  dead's  part. 

III.  Brothers  and  sisters  german,  per  ^ 

Dead's      part, 

capita,                                          1 

one  -  half,       of 

and  issue  of  predeceasingbrothers  j 

which     one-half 

and  sisters  german,  2>er  stirpes.) 

goes  to  father,  or 

IV.  Nephews  and  nieces,  full  blood, 

failing  him,  one- 

2}er  capita, 

third  to  mother. 

and  issue  as  above. 

V.  The  children  oi'No.lY., per  capita. 

And  so  on. 

VI.  Brothers   and   sisters  consang.,'1 

per  capita.                                     > 

Issue  of  predeceasing,  j;er  stirpes.  J 

VII.  Children  of  No.  VI.,  per  capita. 

and  issue  as  above. 

VIII.  Children  of  '^o.Yll.,  per  capita. 

On  the  failure 

IX.  Father. 

X.  Father's  full  brothers  and  sisters. 

per  capita. 

of     the     father, 

XI.  Children  of  No.  X.,  per  capita. 

mother        takes 

XII.  Children  of  No.  XL,  per  capita. 

one-third.    Fail- 

XIII. Father's  half  brothers  and  sisters 

ing       her,      the 

consang.,  per  capita. 

brothers  and  sis- 

And so  on. 

ters  uterine  and 
their      descend- 
ants take  one-half . 

XIV.  Grandfather,  paternal,  with  his 

collaterals  and  their  issue  to 

follow,  according  to  the  same 

rules  as  in  the  case  of  the  father. 

*  Note  the  heir  succeeding  to  heritage  cannot  claim  a  share  of  the  legitim  or  the 
dead's  part  unless  he  collates. 

If  there  is  no  surviving  spouse,  the  legitim  fund  is  one-half  the  moveable  estate,  the 
other  half  is  dead's  jjart. 

If  neither  spouse  nor  child  survives,  the  whole  is  dead's  part. 


84 


SUCCESSION 


Heritable  debts  do  not  affect  the  moveables  in  a  question  with  the  heir, 
but  the  creditors  of  the  deceased  are  entitled  to  make  use  of  the  whole  of 
his  estate  Personal  bonds,  when  they  give  the  widow  no  jus  relictcv,  are 
not  used  to  diminish  her  share,  provided  there  is  enough  in  the  heritable 
estate  the  dead's  part,  and  the  legithu  fund  to  meet  them  (Ersk  m.  9. 
•••^•-  A'is  14  Nov.  1816,  F.  C).  Heritable  securities,  as  they  are  still 
excluded  from  i\\Q  jus  rclidce  and  legitim,  cannot  be  deducted  from  these 

funds. 

Pkovisions  to  Wivks  are  Debts. — If  a  wife  has  a  provision  secured  by 
antenuptial  contract,  she  is  a  creditor,  and  her  claim  is  to  be  paid  from 
the  whole  executry.  Erskine  says  that  "rational  deeds  granted  by  the 
father  in  relation  to  his  moveable  estate,  if  they  be  executed  in  the  form 
of  a  disposition  inter  vivos,  are  sustained  though  their  effect  should  be 
suspended  till  his  death."  By  this  he  seems  to  mean  provisions  to  wife  and 
children.  "  I  admit  fully  the  principle  in  Balmains  case  (1721,  Mor.  8199) 
and  others,  that  a  reasonable  provision  for  a  widow  does  lessen  the  legitim. 
Ikit  still  this  must  be  under  provision  that  the  husband  has  no  means  of 
providing  her  otherwise.  It  is  like  a  case  of  marriage  contract,  destining 
estate  to  heirs  of  marriage,  which  is  subject  to  payment  of  provisions  ta 
younger  children ;  but  only  if  there  is  no  other  fund  to  pay  them  out  of  "" 
(Ld.  President  in  Laivrie,  1816,  Hume,  291).  Stair  (i.  5.  6.)  and  Erskine  (iii. 
9.  22)  require  that  bonds  of  provision  to  children,  in  order  to  be  a  burden 
on  the  whole  executry,  should  be  delivered  to  the  child  in  the  father's  life- 
time :  but  in  M'Kay,  1744,  Mor.  3948,  a  bond  of  provision  to  younger 
children,  though  found  in  the  father's  possession  at  his  death,  yet,  being 
executed  in  liege  poustie,  and  being  a  rational  provision  suitable  to  his 
circumstances,  was  found  to  affect  the  whole  head  of  executry.  Provisions 
in  antenuptial  contracts  in  favour  of  the  children  are  also  a  debt  against 
the  whole  executry  (Ersk.  iii.  9.  22).  The  funeral  expenses  of  the  husband 
are  a  debt  against  the  whole  executry ;  as  are  the  widow's  mournings,  and 
her  aliment  until  the  next  term  after  the  husband's  death. 

Insur.^xce  Policies. — Policies  of  insurance  current  at  death,  and  kept 
up  by  the  payment  of  the  premiums  from  part  of  the  moveable  estate  of 
tlie  deceased  person  by  whom  they  have  been  effected.  It  is  quite  possible 
that  the  policies  may  not  be  due  for  many  years,  but  their  actuarial  value 
as  at  the  death  of  the  party  in  right  of  them  belongs  to  his  moveable  estate 
{C/ialmers'  Trs.,  1882,  9  R  743 ;  Pringles  Trs.,  1872,  10  M.  621 ;  Muirhead, 
1867,  6  M.  95).  On  the  other  hand,  in  Wight,  1849,  11  D.  459,  it  was  held 
that  a  policy  on  the  wife's  life  payable  to  her  husband,  his  executors  and 
assigns,  was  not  part  of  the  goods  in  communion  at  her  death  ;  and  in 
Smith,  1869,  7  ^I  863,  that  where  such  a  policy  was  payable  to  her  heirs, 
executors,  and  assignees,  it  did  not  belong  to  the  husband. 

Aliment  of  Widow. 

The  widow  of  a  person  who  has  died  possessed  of  means  is  entitled  to 
aliment  till  the  first  term  after  the  death.  This  claim,  equally  with  a  claim 
for  mournings,  is  a  burden  upon  the  whole  executry.  It  is  calculated 
;,,r-.„,^;,,.r  to  the  position  she  occupied  as  the  wife  of  the  deceased 
•.1830. 8  S.  602  ;  Kermack,  1831,  9  S.  860  ;  M'Intrjres  Trs.,  1865, 3 
M.  1074;  make,  1840, 3  D.  317;  de  Blonay,  1863, 1  M.  1147;  MPherson,  1869, 
M  M.  246).  Where  a  widow,  besides  annuities  from  the  term  subsequent  to 
her  lju.sband'H  death,  was  given  the  liferent  of  the  residue,  she  was  found 
not  entitled  to  aliment  in  addition  {de  Blonay,  supra  \  MWright,  1799, 
Hume,  1 ;  licnnie,  16  May  1800,  F.  C).     The  widow's  mournings,  as  part 


SUCCESSION  85 

of  the  funeral  expenses  of  the  linsljaiul,  are  a  privileged  debt  (S'heddan 
15  May  1802,  F.  C. ;  Palmer,  27  June  1811,  F.  C. ;  M'Urcrjor,  1818,  Hume! 
8).  The  claim  was  sustained  against  the  heir  where  the  estate  did  not 
yield  a  sufficient  terce.  A  claim  for  aliment  where  the  widow  lias  separate 
estate  is  not  good  against  creditors  {Jkichanan,  1822,  1  S.  323).  It  is  due 
if  she  has  enjoyed  the  status  of  a  wife  (Ccanphdl,  1827,  5  S.  344).  If  a 
suitable  establishment  is  kept  up  for  her  at  the  expense  of  lier  husl)and'8 
representatives,  there  will  be  no  further  claim  for  aliment  {L'rcadalhane's 
Trs.,  1843, 15  Sc.  Jur.  389).  In  Hohhs,  1845,  7  I).  492,  an  aliment  of  £G0 
was  awarded  against  the  husband's  heir-at-law,  whei'c  the  free  icntal  of  the 
estate  was  £240. 

A  posthumous  child  has  a  right  to  be  alimented  out  of  the  executry 
estate  of  his  father  {Hastic,  1671,  Mor.  416;  Muirhead,  1706,  Mor.  5927), 
the  persons  lial)le  being  the  representatives  of  the  deceased  iathev  (Spald hi;/, 
1874,  2  E.  237).  In  Spaldiwj's  case  he  was  held — dissenting,  Ld.  Pres.  Inglis 
— to  be  entitled  to  aliment  out  of  a  trust  estate  consisting  of  the  whole  estate 
of  a  father,  which  had  been  vested  in  trustees  by  delivered  deed  during  his 
lifetime. 

In  an  old  case  {OUphant,  1794,  Bell's  Folio  Cases,  125)  the  principle  of 
implied  will  was  applied  to  the  effect  of  allowing  a  posthumous  child  to 
share  in  a  provision  granted  to  other  children  nominatim.  This  case  followed 
upon  Anderson,  1729,  Mor.  6590,  and  is  approved  in  Home's  Principles  of 
Equity;  but  in  Spalding,  1874,  2  E.  237,  it  was  pointed  out  that  that  case 
had  been  reversed  in  the  House  of  Lords  (1874,  1  Pat.  App.  138,  footnote). 
Spalding's  case  is  therefore  against  the  application  of  the  principle,  and  the 
view  there  stated  has  been  followed  in  Findlays  Trs.,  1886,  14  R.  167,  an 
Outer  House  judgment  which  was  acquiesced  in. 

Collation. 

Collation  is  the  name  of  a  privilege  which  belongs  to  the  heir  in 
heritage.  The  primary  rule  as  to  the  moveable  succession  is  that  it  is 
divided  among  the  next  of  kin  other  than  the  heir  in  heritage ;  and  there 
is  a  similar  rule  which  prevents  the  eldest  son,  when  he  takes  heritage,  from 
sharing  in  the  legitim.  At  common  law  the  heir,  if  he  be  one  of  the  next  of 
kin,  may  insist  that  the  moveables  and  the  heritage  shall  be  thrown  into  a 
common  stock  {Laiv,  1553,  Mor.  2365),  and  that  he  shall  share  in  the 
division.  The  Moveable  Succession  Act  extends  the  right  in  favour  of  the 
decendants  of  a  predeceasing  person  who,  had  he  survived,  would  have  been 
the  heir  (Stair,  iii.  4.  24 ;  Ersk.  iii.  9.  3).  "  The  eldest  son,  although  he 
may  be  heir  in  heritage  of  his  fatlier,  has  as  good  a  right  as  any  of  the 
other  children  to  legitim,  although  if  he  avail  himself  of  that  right  he  must 
collate  any  heritage  to  which  he  may  have  succeeded,  that  is  to  say,  he  must 
communicate  that  heritage,  or  the  value  thereof,  to  such  of  his  brothers  and 
sisters  as  may  also  have  right  to  participate  in  the  legitim  "  ( Ld.  Curriohill 
in  Panmure,  1856,  18  D.  703;  Murray,  1678,  Mor.  2372).  An  only  child 
who  was  both  heir  and  executor,  was  not  bound  to  collate  with  the  relict 
{Trotter,  1681,  Mor.  2375).  To  be  entitled  to  collate,  at  common  law. 
though  this  has  been  altered  by  the  Moveable  Succession  Act,  the  heir  had 
to  be  one  of  the  next  of  kin  {Macaw,  1787,  Mor.  238". ;  contra,  Ersk.  iii.  9.  3). 

The  rules  of  collation  at  common  law  are  laid  down  in  Anstruther,  183G, 
14  S.  at  p.  282  :— 

"  With  regard  to  the  persons  who  are  entitled  or  bound  to  collate,  the 
following  propositions  are  indisputably  established  : — 

"  1.  if  the  heir-at-law  claim  a  share  of  the  moveable  estate  as  one  of  the 


8Q  SUCCESSIOX 

next  of  kin,  he  is  bound  to  collate  the  heritage.     This  is  the  general  and 
fundamental  rule. 

"  2.  If  the  heir-at-law  is  himself  next  of  kin,  and  if  there  are  no  kindred 
in  the  same  degree,  there  is  no  place  for  collation,  for  he  is  both  heir  and 
executor. 

"  3.  In  the  case  of  heirs-portioners  being  themselves  exclusively  next  of 
kin,  there  cannot  be  collation,  for  they  are  all  heirs  and  all  executors  {Jack, 
1073,  Mor.  23G8;  liiccart,  1720,  Mor.  2378). 

"  4.  Heirs-portioners  being  in  the  same  degree  of  kindred  with  others  not 
heirs-portioners,  the  former,  claiming  a  share  of  the  moveables,  are  bound  to 
collate  with  the  latter  {Balfour,  1789,  Mor.  1378). 

"  5.  One  of  the  next  of  kin,  not  being  heir-at-law,  may  take  his  share  of 
the  moveables,  and  is  not  bound  to  collate  though  he  should  succeed  to  the 
whole  heritable  estate  by  destination. 

"  6.  The  heir-at-law,  not  being  one  of  the  next  of  kin,  is  not  entitled  to 
collate." 

If  the  heir  dies  without  collating,  his  representatives  are  not  entitled 
to  a  share  of  the  moveable  estate  when  they  cannot  collate  the  heritage 
{Neichigging's  Trs.,  1873,  11  M.  411).  It  is  only  the  heritage  that  comes  or 
would  have  come  to  him  by  disposition  of  the  law  that  he  must  collate. 

Where  he  takes  as  heir  of  provision  and  is  not  heir  alioquin  successurus 
he  need  not  collate  {Pmc  Cranfurd,  1794,  Mor.  2384;  Bucdeuch,  1677,  Mor 
2369) ;  it  is  only  heritage  that  comes  from  the  ancestor  that  he  need  collate 
If  heir  alioqidn  successiirus,  he  must  collate  heritage  coming  to  him  under  a 
settlement  {Anstruiher,  1836,  2  S.  &  M'L.  369  ;  Fislie7''s  Trs.,  1844,  7  D.  129 
Little  Gilmour,  13  Dec.  1809,  F.  C).     If  he  claims  moveables  in  Scotland 
he  must  collate  heritage  situated  abroad :  though  in  claiming  moveables 
abroad,  he  need  not  collate  Scottish  heritage  {Rohcrtson,  16  Feb.  1816,  F.  C. 
Robertson,  18  Feb.  1817,  F.  C. ;  Trotter,  1826,  5  S.  78  ;  1829,  3  AV.  &  S.  407) 
If  he  cannot  fully  communicate,  he  must  communicate  the  value  of  the 
interest   he   acquires   by  the   succession  {Fisher's  Trs.,  1850,  13  D.  245 
Najpier,  1868,  6  M.  264).     An  heir  of  entail  is  bound  to   collate  when  he 
is  alioquin  successurus,  but  not  otherwise  {Sinclair's  Trs.,  1881,  8  Pi.  at  p 
757 ;  Little  Gilmour,  supra ;  Breadalhanr,  1836,  14  S.  309,  2  S.  &  :\rL.  377) 

In  Blair,  1849,  12  D.  97,  where  a  stranger  gave  her  heritage  to  the  heir 
of  A.  and  her  moveables  to  his  next  of  kin,  it  was  held  that  the  heir  could 
not  share  without  collating.  Tliis  doctrine  is  criticised  with  disapproval  in 
Sinclair's  Trs,  1881,  8  E.  749. 

The  privilege  of  collation,  as  to  the  dead's  part,  may  be  excluded  by  the 
will  of  the  deceased.  Thus  if  the  will  bequeath  legacies,  and  leave  the 
residue  to  a  residuary  legatee,  or  clearly  bequeath  the  succession  to  the  next 
of  kin  as  specifically  under  tlie  will,  the  heir  will  have  no  right  to  demand 
collation  (Bell's  Com.,  5th  ed.,  i.  101  ;  Sinclair's  Trs.,  supra). 

Collation  is  usually  settled  by  private  arrangement,  the  heir  and 
the  executor  completing  their  titles  and  dividing  the  funds :  otherwise 
the  heir  may  take  action  against  the  executor  for  a  declarator  of  his 
right,  and  an  accounting  (Bell's  Com.  i.  104).  The  heir  may  retain  the 
heritage  and  pay  over  its  value  {Lnnes,  1897,  25  E.  23;  Fisher's  Trs.,  1850, 
13  D.  245).  If  he  communicates  the  heritage,  it  remains  heritable  as 
regards  the  succession  of  the  next  of  kin  sharing  in  it  {Napier,  1868,  6  M. 
264;  see  Kennedy,  1843,  6  D.  40). 

By  sec.  2  of  18  &  lOYict.  c.  23,  the  Moveable  Succession  (Scotland)  Act, 
it  is  provided  that  where  a  person  predeceasing  would  liave  been  the  heir 
in  heritage  of  an  intestate,  his  child,  being  the  heir  in   heritage   of  the 


SUCCESSION  87 

intestate,  shall  be  entitled  to  collate  the  heritage,  to  the  effect  of  claiming 
for  himself  alone,  if  there  be  no  other  issue  of  the  predeceaser,  or  for 
himself  and  the  other  issue,  the  share  of  the  moveable  estate  which  the 
predeceaser  might  have  claimed  on  collation.  And  daughters  of  the  pre- 
deceaser being  iieirs-portioners  shall  be  entitled  to  collate  to  the  same  eflect. 
Where  the  heir  shall  not  collate,  his  brothers  and  sisters  and  their  descend- 
ants in  their  place  shall  have  right  to  a  share  of  the  moveable  estate  equal 
in  amount  to  tlie  excess  in  value  over  the  value  of  the  heritage  of  such 
share  of  the  whole  estate,  heritable  and  moveable,  as  their  predeceasing 
parent  would  have  taken  on  collation. 

Where  the  heir  under  this  section  collates  iur  himself  and  brothers  and 
sisters,  these  share  only  in  the  moveable  estate,  not  in  the  combined 
lieritable  and  movea])le  fund  (Innes,  1897,  25  R  23).  The  heir  in  heritage 
is  entitled  under  this  section  to  call  upon  the  next  of  kin  to  allow  her  to 
collate,  even  though  her  relationship  to  the  deceased  is  too  remote  to  give 
her  a  right  to  a  share  in  the  moveables  with  the  next  of  kin  {Jamicson, 
1896,  23  R  547).  As  there  is  no  right  of  representation  in  legitim,  it  may 
be  necessary  to  have  a  separate  division  of  that  fund.  The  heir  cannot 
dispense  with  his  privilege  in  a  state  of  insolvency  to  the  prejudice  of  his 
creditors  (Bell's  Com.,  5th  ed.,  i.  103).  The  heir  is  not  liable  to  collate,  as  to 
his  legitim,  with  anyone  but  a  brother  or  sister,  or  their  assignees ;  or  as  to 
the  nmveable  succession,  with  anyone  but  the  next  of  kin  {Balmain,  1719, 
Mor.  2378 ;  Trotter,  1681,  Mor.  2375  ;  Murray,  1678,  :Mor.  2:574). 

Testate  Succession  in  Moveables. 

Testate  succession  in  moveables  is  regulated  by  the  will  or  settlement 
of  the  deceased.  Other  ways  in  which  the  line  of  legal  succession  may  be 
disappointed  are,  by  the  insertion  of  a  particular  destination  in  the  in- 
vestments of  money,  by  destinations  in  marriage  contracts,  by  donations 
mortis  causa,  and  by  verbal  legacies. 

A  judtie  is  to  construe  and  not  to  make  a  will ;  and  if  an  event  has 
happened^for  which  a  testator  has  not  provided,  from  not  having  foreseen 
it,  although,  if  he  had  foreseen  it,  there  is  a  strong  probability  that  he 
would  have  provided  for  it  in  one  particular  way,  his  supposed  wishes 
shall  not  prevail,  quod  voluit  non  dixit :  we  are  to  give  effect  to  the  ex- 
pressed, not  the  conjectural  or  probable,  intention  of  testators  (Ld.  Chan. 
Campljell,  Wing,  1860,  8  Clark,  H.  L.  202). 

The  power  of  making  a  will  belongs  to  every  person  not  subject  to 
legal  incapacity.  Our  law  allows  perfect  freedom  of  bequest  not  only 
in  the  original  limitations  of  a  will,  but  in  conditional  institutions  and 
other  rights  of  a  subsidiary  character,  intended  to  have  effect  in  certain 
contingencies. 

A  pupil  cannot  make  a  will. 

A  minor  can  test  upon  moveables,  and  possibly  upon  property  that  is 
merely  hcritalde  destinationc,  but  he  cannot  alter  the  succession  to  heritage 
except  by  selling  it. 

Married  persons  are  under  certain  restrictions  in  the  interests  of  each 
other  and  of  their  families.  At  common  law,  and  apart  from  such  modifica- 
tions as  may  have  been  made  in  the  particular  instance  by  marriage  con- 
tract, a  husband  or  wife  cannot  by  will  disappoint  the  claim  of  the  children 
to  legitim,  or  that  of  the  surviving  spouse  to  jus  rclidi  and  courtesy  or  to 
jus  rclidw  and  terce. 

The  regular  mode  of  dealing  with  the  succession  to  moveable  property 
on  the  death  of  its  possessor  is  by  testament.     This,  in  its  ultimate  analysis, 


88  SUCCESSION 

is  the  appointment  of  an  executor  to  ingather  and  divide  the  property ;  and 
•'  I  appoint  A.  B.  to  be  m}'  executor"  is,  by  the  law  of  Scotland,  a  complete 
testament  conferring  ujion  A.  B.  the  right  of  being  confirmed  executor,  and 
imposing  upon  him  "the  duty,  upon  acceptance  of  the  office,  of  ingathering 
the  esUte,  satisfying  the  creditors,  and  dividing  the  residue  among  those 
entitled  to  it  on  intestacy.  A  testament,  as  we  have  seen,  could  only  in 
exceptional  cases  have  any  effect  upon  heritage ;  and  an  instrument  intended 
to  take  elfect  upon  a  mixed  estate  had  to  take,  and  in  practice  still  takes, 
the  form  of  a  disposition  and  settlement. 

A  trust  disposition  and  settlement  is  the  usual  form  adopted  in  Scot- 
land for  the  regulation  of  a  mixed  succession :  the  whole  estate  being  dis- 
poned to  trustees,  who  are  usually  also  named  executors,  and  instructions 
being  given  to  them  as  to  the  provisions  which  the  disponer  wishes  to  have 
carried  out  upon  his  death. 

In  marriage  contracts  it  is  not  unusual  to  have  destinations  inserted  in 
favour  of  persons  who  are  to  come  in  in  case  of  the  failure  of  the  children 
or  descendants  of  the  marriage.  Such  destinations  have  the  effect  of  sub- 
stitutions, and  carry  the  property  unless  they  are  innovated  upon. 

The  nomination  of  an  executor,  though  usual,  is  no  necessary  part  of  a 
testamentary  writing.  If  no  executor  has  been  named  by  the  deceased,  tlie 
Sheriif,  as  Commissary,  will  appoint  an  executor-dative,  whose  duty  it  will 
be  to  carry  out  the  wishes  of  the  defunct,  if  he  has  competently  stated 
them. 

It  is  convenient  to  notice  here  that  a  verbal  or  nuncupative  legacy  will 
be  sustained  to  the  amount  of  £8,  6s.  8d.,  or  one  hundred  poimds  Scots, 
even  if  what  the  deceased  meant  to  deal  with  was  a  larger  sum  {Kelly,  1861, 
23  D.  703).  If  a  nuncupative  legacy  is  expressly  left,  it  will  be  effectual 
even  though  the  testator  directed  that  it  should  be  put  into  writing ;  but  an 
informal  will  will  not  be  sustained  as  importing  nuncupative  legacies 
{Croshie,  1865,  3  M.  870;  Bradford,  1884,  11  li.  1135). 

With  this  exception,  a  testamentary  deed  must  be  in  writing.  If  it  is 
not  \NTitten  by  the  testator  himself,  it  requires  to  be  attested  in  the  ordinary 
way,  that  is  to  say : 

1.  It  must  be  subscribed  by  the  granter  at  the  end  ;  and,  if  it  is  written 
on  more  than  one  sheet,  at  the  foot  of  each  page. 

2.  The  deed  must  be  signed  on  the  last  page  by  two  witnesses,  who 
must  be  fourteen  years  old  at  least,  and  who  must  either  see  the  granter 
sign  or  hear  him  acknowledge  his  signature.  It  is  not  fatal  to  the  deed 
that  the  witness  takes  some  benefit  under  it  {Sinison,  1883,  10  E.  1247  ; 
Ingram,  1801,  M.  "Writ,"  App.  No.  2;  Grahamc,  1685,  M.  16887);  but 
no  one  ought  to  be  made  a  witness  to  a  deed  who  takes  anything  under 
it,  and  no  party  to  the  deed  is  a  competent  witness. 

3.  The  designations  of  the  witnesses  must  be  set  forth  in  the  deed,  or  be 
appended  to  their  signatures. 

Testamentary  deeds  are  privileged  in  the  matter  of  notarial  execution, 
liefore  1874,  when  two  notaries  and  four  witnesses  were  required  to  execute 
a  deed  for  a  person  who  could  not  write,  a  testament  of  moveables  could  be 
executed  by  one  notary  and  two  witnesses. 

A  parish  clergyman  i)i  his  own  parish  may  act  as  a  notary  in  the 
matter  of  testaments  or  otlier  testamentary  deeds,  whether  relating  to  land 
or  not.  And  hy  the  1874  Act,  s.  41,  a  justice  of  the  peace  may  execute  a 
deed  for  anyone  who  from  any  cause  is  unable  to  write  (see  Irvine,  1892, 
19  1{.  458  ;  Camphcll,  1895,  22  R  443). 

A  will  may  be  holograph,  and  in  that  case  no  witnesses  are  required. 


SUCCESSIOX  89 

Every  holograph  writing  of  a  testamentary  character  shall,  in  the  absence 
of  evidence  to  the  contrary,  be  deemed  to  have  been  executed  or  made 
of  the  date  it  bears  (37  &  38  Vict.  c.  94,  s.  40). 

A  holograpli  writing,  to  be  valid,  should  be  subscribed  ;  otlierwise  it  is 
understood  to  lie  an  incomplete  act  from  which  the  party  hath  resiled 
{Unnlop,  1839,  1  D.  912;  Skinner,  1883,  11  It.  88  ;  Fciticrcw's  Trs.,  1884,  12 
K.  249;  Goldie,  1885,  13  R.  138).  This  rule  was  not  applied  in  two  cases 
{Russell's  Trs.,  1883,  11  K.  283;  Burnie's  Trs.,  1894,  21  K.  1015).  In 
K>j}cirs,  1879,  G  R  1359,  two  holograph  documents  were  found  in  an  envelo])e 
in  a  locked  desk,  the  one  superscribed  and  the  other  subscribed  by  initials. 
It  was  held  that  these  constituted  a  valid  will. 

The  privileges  of  holograph  deeds  have  been  extended  to  those  that  were 
liolograph  in  the  important  clauses,  "the  substantials  thereof"  {Vans,  1075, 
iAIor.  16885;  Fanfon,  1824,  2  S.  632);  but  in  Macdonald,  1890,  18  K.  101, 
it  was  held  that  a  printed  form  of  a  will,  containing  blanks  for  the  name  of 
the  testator,  for  the  names  of  the  legatees,  and  for  the  name  of  an  executor, 
filled  up  and  signed  by  a  domiciled  Scotsman  resident  in  Shanghai,  coidd 
not  receive  effect  as  a  holograph  will.  From  this  finding  Ld.  M'Laren  dis- 
sented, holding  it  much  to  be  desired  that  this  convenient  mode  of  making 
a  simple  will  should  be  recognised. 

In  Maitland's  Trs.,  1871,  10  M.  79,  writing  on  the  back  of  an  envelope 
containing  a  dei)Osit  receipt,  only  partially  holograph  but  signed,  was  held 
not  to  be  effectual  as  a  bequest.  In  that  case  Ld.  Deas  said:  "There 
are  three  classes  of  cases  in  which  such  questions  have  arisen :  (1) 
where  there  is  a  probative  deed  declaring  that  any  writing,  formal  or 
informal,  under  the  hand  of  the  granter  is  to  receive  effect;  (2)  where  some 
essential  part  or  parts  of  the  writing  are  said  to  be  holograph,  and  so 
to  give  the  character  of  holograph  to  the  whole  writing;  (3)  where  a 
writing  wdiich  is  not  holograph  is  adopted  by  the  party  by  some  writing 
which  is  holograph." 

The  testator  may  in  a  regular  writing  dispense  with  the  usual  forms  or 
solemnities :  he  may  adopt  papers  already  written,  as  part  of  his  will 
{Inglis,  1831,  5  W.  &  S.  785;  Callander,  1S03,  2  M.  291;  Baird,  1856,  18 
D.  1246).  He  may  also,  if  he  pleases,  impose  formalities  not  required  by  the 
law  {Nasmyth,  1821,  1  Sh.  App.  65) ;  or  he  may  declare  by  anticipation  that 
informal  writings  are  to  be  held  good,  at  least  as  conveying  instructions  to 
trustees  {Rankinc,  1849,11  D.  543;  Fumlas,  1807,  Hume,  917;  Baird, 
supra ;  JFilsone's  Trs.,  1861, 24  D.  163  ;  Gillesjne,  1831, 10  S.  174 ;  Young's  Trs., 
1864,  3  M.  10).  A  lady  executed  a  general  trust  disposition,  and  gave 
instructions  to  her  trustees  to  pay  all  legacies  or  bequests  which  she  might, 
by  any  writing  or  writings  under  her  hand  thereunto  annexed,  or  on  papers 
apart,  make  or  settle.  In  such  circumstances  the  question  is  whether  the 
paper  is  of  the  kind  contemplated  by  the  maker  of  the  trust  deed. 

The  learned  author  of  Wills  and  Succession  considers  that  these  decisions 
are  contrary  to  principle,  p.  290. 

For  the  case  of  adoption  by  docquet,  see  M'Intyre,  1  jMar.  1821,  F.  C. 
This  principle  was  approved  in  Gavine's  Trs.,  1883, 10  R.  448  ;  see  Maitland's 
Trs.,  1871,  10  M.  79 ;  Macmillan,  1850,  13  D.  187. 

A  deed  which  ])ears  that  it  is  holograph  is  receivable  as  such  till  the 
contrary  is  proved  (Krsk.  iii.  2.  22;  TurnhaU,  1844,  0  P.  896;  Rohcrison, 
1844,  7  D.  236  ;  Waddell,  1845,  7  L>.  605).  But  if  the  deed  is  sdent  as  to 
who  wrote  it,  it  is  for  the  executor  or  other  person  founding  on  it  to  show 
that  the  will  is  holograph  {Anderson,  1858,  3  Macq.  180).  Wiicn  an  un- 
tested writing,  bearing  to  be  holograph,  is  produced  by  the  person  thereni 


90  SUCCESSIOX 

named  to  be  executor,  confirmation  is  granted  cle  j^lano  if  there  is  no 
opiX)sition  {Cranston,  1890,  17  E.  410). 

A  will,  to  receive  efiect,  must  be  the  completed  expression  of  the 
testator's  will;  jottings  and  memoranda  which  point  to  a  purpose  not 
carried  into  eflect,  will  not  be  received ;  but  the  mere  title  put  upon  the 
document  has  not  much  eflect  given  to  it. 

"  The  law  has  not  made  it  requisite  to  the  validity  of  a  will  that  it  should 
assume  any  particular  form,  or  be  couched  in  language  technically  appro- 
priate to  its  testamentary  character.  It  is  suflicient  that  the  instrument, 
iiowever  irregular  in  form  or  inartificial  in  expression,  discloses  the  inten- 
tion of  the  maker  respecting  the  posthumous  destination  of  his  property ; 
and  if  this  appear  to  be  the  nature  of  its  contents,  any  contrary  title  or 
designation  which  he  may  have  given  to  it  will  be  disregarded  "  (Jarman 
on  JVills,  quoted  with  approval  by  Ld.  Chan.  Selborne  in  Hamilton, 
1882,  9  E.  (H.  L.)  at  p.  5G).  In  that  case  a  writing  headed  "Notes 
of  Intended  Settlement "  was  sustained  as  a  will.  Ld.  Watson  said :  "  I 
cannot  understand  upon  what  principle  a  mere  ambiguity  occurring  in  the 
descriptive  title  written  by  the  testator  can  be  held  to  qualify  the  terms  or 
to  destroy  the  validity  of  the  document  which  it  professes  to  describe,  when 
the  legal  character  and  eflect  of  the  document,  taken  by  itself,  are  not 
doubtful.  Such  an  ambiguity  will  justify  inquiry,  which  may  confirm  the 
testamentary  character  of  the  document,  and  may,  on  the  other  hand,  lead 
to  the  conclusion  that  the  writer  intended  it  to  be  nothing  more  than  a 
paper  of  notes  or  jottings  for  the  preparation  of  a  will  at  some  future 
period  ;  but  should  the  parties  lead  no  proof,  or  should  the  proof  adduced  by 
them  be  inconclusive,  the  document  must  receive  effect  according  to  its 
tenor  and  substance." 

If  there  is  on  the  face  of  the  document  something  to  suggest  a  doubt 
whether  it  was  intended  to  be  testamentary,  the  Court  must  be  put  in 
possession  of  some  extrinsic  circumstances  by  which  to  judge  whether  the 
deed  was  in  point  of  fact  testamentary  or  not.  Failing  that,  the  deed  is 
testamentary,  if  the  intention  of  the  testator  collected  from  it  is  sufficiently 
clear.  But  nothing  can  be  used  as  a  will  which  was  not  intended  to  be  a 
testamentary  act  by  a  testator  (see  Magistrates  of  Dundee,  1857,  19  D.  918 ; 
Forsi/th's^Trs.,lS72,  10  M.  616;  Bitchie,  1880,  8  E.  101;  Zamont,  1887, 
14  E.  603).  "When  a  signature  was  written  on  erasure,  but  the  deed  was 
otherwise  ex  facie  valid,  the  onus  was  held  to  be  on  the  challenger  to 
prove  that  the  signature  was  not  genuine,  or  had  not  been  duly  tested 
(Broivn,  1888,  15  E.  511). 

Destinations  in  Bonds,  etc. 

The  succession  to  stock  certificates,  bonds,  and  certificates  of  debt  of 
public  companies,  assignations  of  moveable  estate,  and  railway  debentures, 
can  be  regulated  by  destinations  in  the  instrument,  just  as  a  deed  deahng 
with  heritage  containing  substitutions  regulates  the  succession  (ConncU's 
Trs.,  1886,  13  E.  1175  ;  Buchaii,  1879,  7  E.  211 ;  Walker's  Exr.,  1878,  5  E. 
965 ;  Faterson's  Jvxl.  Fact.,  1897,  24  E.  499).  This  does  not  apply  to 
deposit  receipts. 

When  a  person  takes  these  securities  with  a  destination,  while  it  is  not 
to  be  overlooked  that  the  element  of  mandate  may  enter  into  the  design 
of  the  creditor  in  taking  the  bond  payable  to  himself  and  another  person, 
this  consideration  can  only  have  weight  to  the  effect  of  casting  on  the 
second  payee  or  survivor  the  onus  of  proving,  as  conditions  of  the  right 
which  he  claims,  first,  that  the  destination  was  inserted  with  the  authority 


SUCCESSIOX  91 

of  llic  true  creditor  or  investor ;  and,  secondly,  that  tlie  bond  was  delivered  to 
tlie  person  claiming  under  it. 

If  the  owner  of  property  holds  it  in  virtue  of  the  deed  of  another  man, 
who  has  left  it  to  him  and  liis  heirs,  a  general  conveyance  will  evacuate  the 
standing  destination.  But  a  general  revocation  or  general  conveyance  will 
not  usually  alfect  a  destination  made  by  or  at  the  instigation  of  the  testator, 
because  the  destination  is  like  a  special  legacy,  and  is  presumed  to  be  ex- 
cepted (Camrhrll,  1880,  7  E.  (H.  L.)  100;  Thovis,  1868,  6  M.  704;  Lang's 
Trs.,  1885,  12  R.  12G5).  In  order  to  keep  a  special  destination  out  of  the 
embrace  of  a  general  settlement,  it  is  the  duty  of  the  litigant  who  says  that 
the  special  destination  has  not  been  defeated,  to  show  to  the  satisfaction  of 
the  Court  that  it  was  not  the  intention  of  the  testator  to  disturb  the  stand- 
ing investiture  {Hamilton,  1804,  21  E.  (H.  L.)  :J5).  As  to  the  competency  of 
extrinsic  evidence,  see  Glcndomnjn,  1870,  8  M.  1075;  Farquhar,  1875,  o 
R.  71).  Probative  deeds  and  holograph  deeds  of  subsequent  date  may  be 
looked  to ;  but  see  Ritchie,  1880,  8  R.  101. 

TOKMS  NECESSARY   IX   WiLLS. 

There  is  no  positive  rule  as  to  the  materials  with  which  a  will  shall  be 
written — these  are  not  matters  of  solemnity ;  and  whether  the  document 
be  written  in  ink  or  in  pencil,  the  Court,  before  sustaining  it  as  a  will, 
must  be  satisfied  that  it  is  the  cnixa  voluntas  of  the  testator  (Muir's  Trs., 
1869,  8  M.  53  ;  Simsons,  1883,  10  R.  1247).  There  is,  however,  apparently 
a  presumption  that  pencil  markings  are  deliberative  and  not  final  (Lamont, 
1887,  14  R.  603  ;  3Tunro,  1890,  18  R.  122).  As  to  the  effect  of  erasures  and 
interlineations,  reference  is  made  to  the  case  of  Pattisons  Trs.,  1888,  16 
R  73,  where  it  is  laid  down — 

(1)  If  a  will  or  codicil  is  found  with  the  signature  cancelled,  or  with  lines 
drawn  through  tbe  dispositi^'e  or  other  essential  clause  of  the  instrument, 
then,  on  proof  that  the  cancellation  was  done  by  the  testator  himself,  or  by 
his  order,  with  tbe  intention  of  revoking  the  will,  the  will  is  to  be  held  to 
be  revoked ;  otherwise  it  is  to  be  treated  as  a  subsisting  will. 

(2)  If  only  some  of  the  legacies  are  scored  out,  this  only  raises  a 
question  as  to  these  particular  provisions ;  these  will  not  be  held  to 
have  been  revoked  unless  upon  evidence  that  the  scoring  was  done  by 
the  testator  himself,  or  by  his  direction;  and  the  authentication  of  the 
deletion  by  the  testator's  initials  is  sufficient  evidence  of  such  intention. 

(3)  Marginal  additions  and  interlineations,  even  apparently  in  the 
handwriting  of  the  deceased,  would  only  be  held  good  if  authenticated  by 
signature  or  initialling. 

(4)  When  words  are  scored  out  and  others  are  inserted  in  their  place, 
the  cancellation  is  conditional  on  the  substituted  words  taking  effect.  If 
the  substituted  words  are  rejected  on  the  ground  that  they  are  unsigned, 
the  will  ought  to  be  read  in  its  original  form. 

But  in  the  c^se  of  Rolertson,  1844,  7  D.  236,  it  was  laid  down  that  a 
holograph  deed  depends  mainly  on  the  handwriting  of  the  granter  in 
which  it^  is  proved  or  admitted  to  be.  Then  the  ordinary  doctrine  of 
erasure  and  superinduction  cannot  apply,  for  there  is  no  room  to  say  that 
the  alteration  or  change  was  not  made  by  the  granter.  On  the  contrary, 
being  in  his  handwriting  proves  that  it  was  made  by  him  ;  so  it  stands 
in  the  same  situation  as  an  ordinary  deed  when  it  has  an  express  clause 
mentioning  that  the  alterations  were  made  by  the  granter  (see  Mags,  of 
Dundee,  1858,  3  Macq.  134).  Between  what  is  written  and  what  is 
obliterated,  there  is  the  distinction  that  what  is  written  must  have  been 


92  SUCCESSION 

iiueiuioual,  while  what  is  obliterated  m;iy  have  been  accidental.  Deeds 
of  a  tostauientarv  nature  are  mure  favoured,  and  therefore  receive  a  more 
liberal  interpretation,  than  obligations  inter  vivos:  "  and  in  general,  though 
the  words  should  be  ambiguous  or  even  improper,  they  ought  to  be  inter- 
preted according  to  the  presumed  will  of  the  testator,  if  by  any  construction 
they  can  be  brought  to  it"  (Ersk.  iii.  9.  14). 

A  signed  list  of  objects  and  sums  of  money  does  not  constitute  a  will. 
"  What  are  the  essentials  of  a  testamentary  gift  ?  We  see  from  the 
decisions  that  testamentary  effect  has  been  given  to  writings  which,  to  all 
appearance,  were  in  their  inception  mere  drafts  or  memoranda  to  be  used 
in  the  preparation  of  a  will  or  codicil,  on  the  principle  that  where  a 
testator  puts  up  the  wa-iting  or  memorandum  with  the  principal  will,  he 
may  be  assumed  to  be  willing  that  his  testamentary  intentions  should 
stand  on  the  words  there  used.  But  the  Court  has  never  gone  so  far  as  to 
hold  that  a  mere  specification  of  names  and  sums  of  money,  without  words 
of  gift,  would  amount  to  a  will.  The  contrary  has  been  distinctly  affirmed 
by  both  Divisions  of  the  Court.  I  refer  specially  to  Ld.  Cowan's  opinion  in 
LoH'son,  and  that  of  the  Lord  President  in  Colvin"  (Ld.  M'Laren  in 
Waddcll,  1896,  24  K.  p.  194;  Lowson,  1866,  4  M.  p.  636;  Cohin,  1885,  12 
li.  p.  955) ;  but  in  Colvin  the  Ld.  Pres.  (Inglis)  demurred  to  the  statement 
that  the  words  of  gift  must  contain  a  verb.  "  I  do  not  think  it  matters  how 
inelegant,  or  how  imperfect  grammatically,  a  testator's  language  may  be,  if 
it  can  fairly  be  construed  to  mean  that  he  bequeaths  certain  sums  of 
money  to  certain  individuals,  sufficiently  designed  in  the  writing  itself." 
A  testament  may  be  made  in  the  last  moment  of  life,  and  under  the 
heaviest  sickness  or  bodily  distress,  provided  the  maker  be  of  sound 
judgment  when  he  signs  it.  It  speaks  from  the  last  moment  of  life,  and 
is  held  to  be  approved  of  and  confirmed  down  to  the  last  hour  that  he  is 
of  sound  disposing  mind  {Hyslop,  1834,  12  S.  413  ;  Nimmo,  1864,  2  M. 
1144). 

To  reduce  the  will,  proof  of  insanity  or  imbecility,  or  want  of  sound 
disposing  mind,  or  of  deception  and  fraud,  will  be  required.  A  deed 
granted  by  a  person  labouring  under  mental  incapacity  may  be  reduced. 
Insanity  does  not,  as  matter  of  law,  constitute  incapacity  to  test.  It  is 
evidence  of  incapacity  more  or  less  conclusive  according  to  the  extent  to 
which  it  has  affected  the  mental  operations  of  the  testator.  A  will  made 
during  a  lucid  interval  may  be  sustained,  and  the  reasonable  character  of 
the  deed  in  question  is  an  important  element  {Xishd's  Trs.,  1871,  9  M.  937  ; 
Ballantync,  1886,  13  R.  652  ;  Forsyth,  1862,  24  D.  1435).  But  if  you  can 
connect  the  insane  delusions  with  the  subject  of  the  will,  the  will  cannot 
stand  {MaitlamVs  Trs.,  1871,  10  M.  79).  Tiiere  is  no  legal  presumption 
that  a  deed  was  made  during  insanity  (WaddelL  1845,  7  D.  605;  see 
Hope,  1897). 

A  more  frequent  oljjection  taken  to  wills  is  that  the  testator  was  at 
tiie  tmie  weak  and  facile,  and  that  some  person  took  advantage  of  this  to 
impetrate  a  will  from  him.  But  the  circumvention  need  not'have  been  at 
the  instance  of  those  who  benefit  by  the  will  {Taylor,  1865,  3  M.  928; 
.WCnlloch,  1857,  20  D.  206:  lore,  1870,  9  M.  .291;  see  M'Callam, 
1894.  21  R.  824;  Jioojiey,  1895,  22  R.  761;  Mimro,  1874,  1  R.  1039). 
hssential  error  mduced  by  false  or  fraudulent  representations  will  also 
furnj.sh  a  ground  of  reduction  (Collie,  1891,  18  R.  419).  A  will  in  favour  of 
a  law  agent  was  set  aside  (Paterson,  1809,  Hume,  921).  Where  a  law 
agent  takes  from  a  client  a  deed  in  favour  of  himself,  he  must  overcome  by 
evidence  the  presumption  which  arises  against   the    deed    (Grieve,   1869, 


SUCCEISSIOX  03 

8  M.  317).  In  many,  i)eiliaps  in  most,  cases  the  iticsumptiou  a<:;aiiist  the 
deed,  created  by  tlie  mere  circumstance  that  the  party  favoured  is  the  law 
agent  who  prepared  it,  will  supply  the  want  of  all  other  elements  of 
fraudulent  impetration  (see  irdr,  1808,  25  II.  739). 

Settlements  obtained  from  testators  who  are  old,  or  are  in  ill  health, 
by  interested  parties,  are  looked  upon  with  suspicion  (Gillespie,  11  Feb. 
1817,  F.  C. ;  M'Culloch,  1857,  20  D.  200;  IMliday,  1857,  10  1).  929; 
MKellar,  1861,  24  D.  143).  Formerly  deeds  were  more  liable  than  they 
are  inuler  the  present  law  to  be  reduced  for  infornudities  ;  and  there  was  a 
rule  that  after  a  will  was  produced  in  judgment  or  recorded,  mistakes  in 
the  testing  clause  could  not  be  put  right  (Brown,  11  March  1809,  F.  C.  ; 
Cakhvell,  1871,  10  M.  99).  Under  sec.  39  of  the  Conveyancing  Act,  18G4, 
no  deed  subscribed  and  bearing  to  be  attested  by  two  witnesses  is  to  be 
deemed  invalid  because  of  any  informality  of  execution,  "  but  the  burden  of 
proving  that  such  deed,  instrument,  or  writing  so  attested  was  subscribed 
by  the  granter  or  maker  thereof,  and  by  the  witnesses,  shall  lie  upon  the 
party  using  or  upholding  the  same  (see  Addison,  1875,  2  1\.  457  ;  Smyth, 
1876,  3  IJ.  573;  MLarcn,  1876,  3  E.  1151;  Thomson's  Trs.,  1878,  6  It. 
141;  Tcner's  Trs.,  1879,  6  E.  1111;  L'roum,  1883,  11  E.  400;  Gcddcs, 
1891,  18  E.  1186;  liichardson's  Trs.,  1891,  18  E.  1131).  This  section 
of  the  Act  does  not  apply  to  deeds  executed  before  1st  October  1874 
(Gardner,  1878,  5  E.  (H.  L.)  105). 

"  I  do  not  think  the  proof  competent  and  reqiiisite  under  the  statute 
was  intended  to  the  bare  fact  that  the  subscriptions  are  genuine.  On  the 
contrary,  I  think  that  the  surrounding  facts  and  circumstances  attending 
the  subscriptions  l)oth  of  the  granter  and  witnesses, — everything,  in  short, 
tending  to  satisfy  the  mind  of  the  Court  that  the  deed  was  intelligently 
and  deliberately  subscribed  when  in  the  state  in  which  it  appears  when 
submitted  to  the  Court, — may  be  and  ought  to  be  elicited  in  the  proof  ' 
(Ld,  Deas  in  M'Laren,  at  p.  1158).  Though  obvious  mistakes  are  cor- 
rected, a  will  cannot  1)6  corrected  or  construed  by  means  of  a  paper  of 
instructions  (Blair,  1849,  12  D.  97).  Subsequent  writings  may  l^e  looked 
to  (Glendomcyn,  1873,  11  M.  (H.  L.)  33;  Farqnhar,  1875,  3  E.  71;  but 
see  Eitchie,  1880,  8  E.  101).  It  is  a  principle  of  the  law  of  Scotland  that 
where  a  deceased  person  has  left  various  writings,  probative  in  themselves,  for 
disposing  of  his  property,  they  constitute  one  settlement,  in  so  far  as  they 
have  not  been  revoked,  and  are  not  inconsistent  with  one  another  (Grant, 
1849,  11  D.  860 ;  Ogilvies  Trs.,  1870,  8  M.  427).  "  If  you  can  execute  the- 
whole  of  the  papers  as  one  testament,  you  are  bound  to  do  so  "  (Ld.  Truro 
in  Grant,  1852,  1  Macq.  163).  Testamentary  directions  are  of  course 
frequent  in  marriage  contracts,  which  then  have  the  eflect  of  a  will 
(Gregory's  Trs.,  1889,  16  E.  (H.  L.)  10;  Bertram's  Trs.,  1888,  15  E.  572). 

A  deed  mortis  causa  may  be  irrevocable,  and  in  one  sense  a  testament- 
ary deed ;  but  in  a  more  strict  and  proper  sense,  not  so  (Inglis,  J.-Cl.,  in 
Aires,  1861,  23  D.  717). 

Friendly  Societies. — Under  the  Act  consolidating  the  Friendly  Society 
Acts,  59  &  60  Vict.  c.  25,  a  species  of  statutory  will  is  legalised.  I'.y 
sees.  56  and  57  every  member  of  a  registered  friendly  society,  other  than  a 
benevolent  society  or  working-men's  club,  may  by  writing  under  his  hand 
nominate  a  person  to  whom  any  sum  of  money  not  exceeding  £100  shall 
be  paid  on  the  death  of  the  nominator. 

The  person  so  nominated  must  not  be  an  officer  or  servant  of  the 
society,  unless  he  or  she  is  nearly  related  to  the  nominator;  the  nomination 
may  be  revoked  by  marriage.     Any  purely  testamentary  writing  may  be 


94  SUCCESSIOX 

revoked  at  any  time  while  the  testator  is  of  disposing  mind  (see  Wightman, 
1S79,  G  R  (H.  L.)  13).  By  sec.  58,  if  a  member  dies  intestate  entitled  to  a 
6UU1  not  exceeding  £100,  the  society  has  power  to  distribute,  without  con- 
firmation, among  such  persons  as  seem  to  a  majority  of  the  trustees  to  be 
entitled  by  law  to  receive  the  sum.  If  the  member  is  illegitimate,  the 
trustees  may  give  the  money  to  those  who,  had  he  been  legitimate,  would 
liave  been  his  next  of  kin. 

Depositors  in  savings  banks  may  nominate  persons  to  receive  sums 
nut  exceeding  £100  (50  &  51  Vict.  c.  40,  s.  3  (2);  45  &  46  Vict.  c.  51,  s.  6). 

Revocation  of  Wills. 

A  clause  in  a  mortis  causa  deed  declaring  it  to  be  irrevocable,  will  not 
make  it  so,  but  may  itself  be  revoked  {Doiigal,  1789,  Mor.  15949).  And 
where  a  person  executed  a  deed  on  the  narrative  of  its  being  mortis  causa 
reserving  her  liferent,  and  dispensing  with  delivery,  and  delivered  it  to  the 
disponee,  she  was  still  held  entitled  to  revoke  and  alter  it  {Miller,  1826, 
4  S.  822).  Any  purely  testamentary  writing  may  be  revoked  at  any  time 
while  the  testator  is  of  disposing  mind  (see  Wightman,  1879,  6  E.  (H.  L.)  13). 

A  will  may  be  revoked  (1)  by  express  revocation;  (2)  by  the  execution 
of  a  subsequent  settlement  inconsistent  with  it ;  (3)  by  the  destruction  or 
cancellation  of  the  instrument ;  (4)  by  the  birth  of  children  to  the  testator ; 
but  where  in  a  testamentary  writing  a  provision  has  once  been  regularly 
created,  it  is  not  to  be  held  to  be  taken  aw^ay  in  a  subsequent  writing  except 
by  clear  words  of  revocation,  unless  one  of  the  presumptions  afterwards 
noticed  applies  {Scott,  1865,  3  M.  1130).  The  implied  revocation  of 
the  earlier  one  will  depend  on  whether  the  later  one  is  valid  or  not 
(Kirkpatrick's  Trs.,  1874,  1  E.  (H.  L.)  37). 

(1)  A  holograph  or  tested  deed  containing  an  express  revocation  will  be 
effective  according  to  its  terms.  A  testamentary  act  cannot  be  recalled  by 
intention  alone ;  there  is  required  some  definite  act  of  the  testator's  will, 
which  in  the  case  of  alteration  by  subsequent  writing  can  only  be  by  pro- 
bative instrument  {Scott,  1865,  3  M.  1120  ;  Stirling  Stuart,  1885,  12  E.  610  ; 
lieynokls,  1884,  11  E.  759). 

(2)  A  subsequent  will  or  settlement  of  the  deceased's  property  revokes 
a  prior  one  if  they  cannot  stand  together  (though  the  Court  will  take  pains 
to  give  effect,  if  possible,  to  every  testamentary  writing)  {Grant,  1849, 
11  I).  860;  Tronson,  1884,  12  E.  155;  Bertram's  Trs.,  1888,  15  E.  572; 
Dalglklis  Trs.,  1891,  19  E.  170;  Tennent,  1878,  6  E.  150).  Eevocation  of 
a  revocation  sets  up  the  original  deed  {Hoioden,  8  July  1815,  F.  C. ;  Dove, 
1827,  5  S.  734 ;  Best,  1880,  8  E.  66  ;  see  Jarman,  p.  153,  5th  ed.),  unless 
the  testator's  intention  appears  to  be  otherwise.  But  just  as  expressed 
intention  does  not  make  a  will,  so  neither  will  it  revoke  one  when  made ; 
and  the  clearest  evidence  of  intention  to  revoke  the  deed  will  not  affect  it 
if  the  revocation  does  not  take  place  {Walkers,  1825,  4  S.  323).  If 
destroyed  by  some  third  party,  it  can  be  set  up  {Leckie,  1884,  11  E.  1088). 

(3)  A  will  may  be  revoked  by  cancellation  of  the  instrument  {Nasmijth, 
1821, 1  Sh.  App.  65  ;  Falconer,  1848, 11  D.  220  ;  Doio,  1848,  10  D.  1465),  or 
hy  giving  instructions  to  have  it  destroyed  {Chisholm,  1673,  Mor.  12320 ; 
Buchanan,  1704,  M.  15932;  see  Crosbie,  1865,  3  M.  870).  "But  if  a  man 
were  to  throw  the  ink  upon  his  will  instead  of  the  sand,  though  it  might  be  a 
complete  defacing  of  the  instrument,  it  would  be  no  cancelling ;  or,  suppose 
a  man  having  two  wills  of  different  dates  by  him,  should  direct  the  former 
to  be  cancelle<l,  and  through  mistake  the  person  should  cancel  the  latter, 
such  an  act  would  be  no  revocation  of  the  last  will ;   or,  suppose  a  man, 


SUCCESSION  95 

having  a  will  consisting  of  two  parts,  throws  one  uniulfntionally  iniu  tht- 
fire,  where  it  is  burnt,  it  would  be  no  revocation  of  the  devises  contained  in 
such  part.  It  is  the  intention,  therefore,  that  must  govern"  (Ld.  Mansfield 
(pioted  in  Mar/s.  of  Dundee,  3  Macq.  at  p.  152  ;  see  Lmiont,  1887,  14  li.  G03  ' 
Fattisons  Trs.,  1888,  IG  E.  73).  Where  a  will  cannot  be  found,  the  jirc- 
sumption  is  for  revocation  {Bonthrone,  1883,  10  It.  779;  Winclicstcr  18G3 
1  M.  G85). 

(4)  A  will  may  be  revoked  by  the  birth  of  cliildren  to  the  testator. 
When  at  the  date  of  making  the  will  the  testator  had  no  cliildren,  and 
thereafter  a  child  is  born,  there  is  a  very  strong  i)resumption  that  the  will 
is  not  to  be  acted  on.  This  is  the  conditio  si  sine  liberis  testator  dcccsscrit. 
But  the  presumption  may  be  overcome.  "  If  the  testator  had  afterwards 
children,  and,  notwithstanding  their  existence  for  some  com])etcnt  time 
before  his  death,  made  no  alteration  of  the  settlement  in  their  favour,  it  is 
presumed  that  he  neglected  them  from  design,  especially  if  the  settlement 
was  not  of  the  whole  or  greatest  part  of  his  estate"  (Ersk.  iii.  8.  4G). 
In  Hughes,  1892,  19  R  (H.  L.)  33,  Ld.  Watson  observed  that,  according  to 
the  law  of  Scotland,  the  question  whether  the  testament  of  a  parent  is 
revoked  by  the  subsequent  birth  of  a  child  is  wholly  dependent  on  the 
circumstances  of  the  case.  The  presumption  also  applies  in  favour  of  a 
child  born  after  a  settlement  which  provides  for  children  already  born. 

The  conditio  has  been  held  not  to  apply  to  a  will  which  was  not  a  general 
settlement  of  a  whole  estate,  and  which  was  executed  in  the  knowledge  of 
the  wife's  pregnancy  {Adctmson's  Trs.,  1891,  18  E.  1133;  see  also  Millars 
Trs.,  1893,  20  E.  1040).  It  has  been  said  that  the  conditio  will  apply 
unless  it  was  made  "  as  plain  as  a  pikestaff  that  the  testator  did  not  intend 
the  succession  to  go  to  the  child"  (Ld.  Glenlee  in  Colquhoun,  1829,  7  S. 
709).  In  Bohies  Tr.,  1887,  15  E.  2,  Ld.  Eutherfurd  Clark  said :  "  I  am 
much  inclined  to  the  opinion  that  the  revocation  was  absolute,  and  that, 
even  had  the  maker  survived  the  birth  of  the  child  for  a  long  time,  the  will 
could  receive  no  etfect."  This,  however,  has  not  been  sup])orted  in  later 
cases  (MKie's  Tutor,  1897,  24  E.  526;  see  also  Spalding,  1874,  2  It.  237; 
Findlays  Trs.,  1886,  14  E.  167;  mcle7-'s  Trs.,  1894,  21  E.  704).  The  pre- 
sumption applies  even  in  a  question  with  other  children  (Elders  Trs.,snpi'a). 
It  has  been  said  that  wherever  a  last  will  is  cut  down  by  the  operation  of 
the  rule,  all  previous  testamentary  settlements  must  fall  with  it  excejit 
such  as  are  obligatory  and  matter  of  contract  {Elders  Trs.,  1895,  22  E. 
505).  The  Court  will  not  allow  a  proof  of  declaration  of  the  deceased  {ih., 
M'Kie,  1897,  24  E.  526 ;  Smith's  Trs.,  1897,  35  S.  L.  E.  129).  The  right  is 
personal  to  the  child  (Smith's  Trs.,  supra  ;   Watt,  1760,  Mor.  6401). 

We  have  seen  that  a  proper  will  is  ambulatory  and  may  be  revoked  at 
any  time ;  but  one  may  become  bound  by  an  irrevocable  deed  inter  vivos 
to  grant  a  legacy  or  not  to  alter  one  already  bequeathed  (Stair,  iii.  8.  28).    > 
An  i7iter  vivos  agreement  to  make  a  testament  or  grant  a  legacy  will  bar     ■ 
revocation  of  a  will  or  legacy  made  in  implement  of  it  (Turnhull,  1825, 
1  W.  &  S.  80 ;  Murison,  1854,  16  D.  529 ;  Dueiuid,  1831,  9  S.  844  ;  Curdy, 
1775,  Mor.  15946;  Paterson,  1893,  20  E.  484).     A  voluntary  settlement  is 
revocable   so   long   as   undelivered.      The   usual   clause   dispensing    with 
delivery  simply  means  that,  wdien  found  on  the  maker's  death,  it  is  to  be 
acted  upon. 
V   Delivery  is  a  bar  to  revocation  if  the  deed  confers  a  vested  interest. 

"  A  party  may  grant  an  irrevocable  deed  and  put  it  beyond  his  power 
by  delivery,  and  vest  effectually  the  property  so  conveyed  against  his  own 
subsequent  acts  and  deeds  for  the  benefit  of  existing  parties,  in  whom,  by 


96  SUCCESSION 

that  deed,  he  creates  an  interest"  (Ld.  IJutherfurd  in  Murison,  16  D.  529  ; 
cf.  Torry,  1837,  15  S.  1073;  see  Xajncr,  1864,  3  M.  57;  Sj^eiice,  1826, 
5  S  18  •  [^mitton,  1839,  2  D.  225;  Braidicood,  1835,  14  S.  64;  Robertson, 
1892,  19    \\.  849;    Williamson,  1890,  17   E.  927;    Miwraij,  1895,    22    IJ. 

\Vhere  a  deed  contains  a  destination  to  parents  in  liferent  and  children 
in  fee  and  only  liferent  infeftment  is  taken,  there  is  no  delivery  affecting 
the  fee  {Stcxcart,  1883,  10  R  463  ;  Gilpin,  1869,  7  M.  807). 

A  letter  promising  payment  of  a  sum  after  the  death  of  the  writer  is 
presumed  to  be  testamentary,  and  therefore  revocable  {Trotfer,  1842,  5  D.       . 
224;  Miller,  1859,  21  D.  377).     But  if  i)roper  words  of  obligation  are  used, 
the  gift  may  be  irrevocable  {Duguicl,  1831,  9  S.  844). 

]\IuTUAL  Wills. 

It  has  been  said  that  a  mutual  will  has  this  consequence :  that  it  is  not 
merely  a  declaration  of  intention,  but  an  obligation  not  to  revoke.  Thus 
far  a  mutual  will  is  a  sort  of  contract  (Ld.  Fullerton  in  M'Millan,  1850,  13 
D.  187).  But  a  mutual  settlement  is,  besides,  a  separate  settlement  of  each 
of  tlie  makers  of  it  (Millar,  1876,  4  E.  87) ;  and  accordingly,  though  the 
execution  by  one  of  the  parties  was  informal,  the  deed  was  sustained  as 
settling  the  succession  of  the  other. 

"  If  there  is  reciprocity,  the  deed  is  interpreted  on  the  principles  wliich 
regulate  contracts ;  but  in  the  absence  of  a  special  declaration  that  the  will 
is  a  mutual  one,  I  think  in  the  ordinary  case  it  is  to  be  understood  that 
there  is  not  reciprocity  merely  because  two  wills  are  contained  in  one  and 
tlie  same  instrument.  That  merely  shows  that  the  parties  wished  it  to  be 
understood  tliat  they  knew  about  each  other's  settlement.  It  does  not 
take  from  either  the  right  to  alter  his  or  her  will"  (Kay's  2'r.,  1892,  19  E. 
1071).  "  ]\Iutual  remuneratory  grants  between  the  spouses,  made  in  consider- 
ation of  each  other,  are  not  revocable  where  there  is  any  reasonable  propor-  v^ 
tion  between  the  value  of  the  two  (Ersk.  i.  6.  30).  If  the  grants  made 
lietween    spouses    are   not    onerous,    they    are    revocable    (Sfircn,    1873, 

11  M.  262;  Fcae,  1875,  2  E.  676;  Bcattic,  1884,  11  E.  846;  Ivay's  Tr., 
supra).  If  the  deeds  are  onerous  and  contractual,  they  cannot  be  y 
revoked  (Buchanan's  Trs.,  1890,  17  E.  (H.  L.)  53;  Croll's  Trs.,  1895,  *^ 
22  E.  677;  Mudie,  1896,  23  E.  1074).  They  may  be  revocable  as 
regards  riglits  conferred  on  third  parties,  while  contractual  as  between 
the  spouses  (Ifogg,  1863,  1  M.  647 ;  Bang,  1867,  5  M.  789  ;  Martin, 
1893,  20  E.  835).     If  there  is  no  mutuality,  the  deed  may  be  revoked 

by  either  of  the  makers  (Bcattic,  sujn-a:  Mitchell,  1877,  4  E.  800;  V 
Hunter,  1831,  5  W.  &  S.  455;  3Mville,  1879,  6  E.  1286).  The 
exercise  of  a  power  of  revocation  operates  the  withdrawal  of  the  estate 
of  the  person  so  revoking  from  the  embrace  of  the  settlement.  Thus 
it  was  held  that  a  legacy  of  £1000  bequeathed  by  two  sisters  in  a 
joint  settlement  was  in  reality  two  legacies  of  £500,  and  that  revocation  l)y 
one  sister  left  a  valid  legacy  of  £500  (IFilsone's  Trs.,  1861,  24  D.  103).  It 
is  usual  to  liave  in  mutual  wills  an  express  power  of  revocation.  There  is 
a  presumption  that  they  are  testamentary  and  not  contractual  (Traquair, 
1872,  11  M.  22);  and  in  Morris,  1882,  0  E.  952,  the  mutual  will  was  held 
not  to  alfect  the  savings  of  the  surviving  spouse  (see  Bcrwicl-'s  Exr.,  1885, 

1 2  E.  565).  "  Tlie  law  in  the  general  case  is  \\e\\  settled.  When  there  is  a 
mutual  settlement,  under  which  each  party  gives  and  receives  an  onerous 
consideration,  the  deed  usually  becomes  irrevocable  after  the  death  of  any 
of  the  parties  to  it.     It  is  not  always  so  indeed,  as  whether  it  can  be 


StTCCESSION  07 

,  revoked  by  the  coii.sent  of  survivors  depends  on  the  interests  created  by  the 
deed.  Nay,  in  some  cases  the  deed  is  not  revocable  by  the  consent  of  all 
the  granters,  as,  for  instance,  where  njus  crediti  is  conferred  on  third  parties." 
As  a  general  rule,  however,  none  of  the  granters  can  revoke  without  the 
consent  of  the  others;  and  when  one _d.ies,  the  settlement  becomes  jinal. 
That,  howcvQi'^  applies  only  to  the  case  of  remuneratory  deeds.  Tiie 
deceased  must  have  had  an  interest  in  maintaining  the  deed,  to  render  it 
irrevocable  on  his  death.  When  that  was  not  so,  the  Court  has  fre([uently 
refused  to  prevent  revocation  even  by  the  survivor  alone  (Ld.  Monci-cill" 
in  Craich's  Trs.,  1870,  8  M.  p.  903;  Lanr/,  18G7,  5  M.  789;  Feniie,  l8o4, 

17  D.  232).  When  a  mutual  will  executed  by  a  Ijrother  and  sister  was 
reduced  after  the  death  of  the  brother  on  the  ground  of  the  sister's  mental 
incapacity,  the  deed  remained  effectual  quoad  the  brother's  estate  {Graeme, 
18G9,  7  M.  1002). 

Maeriage  Conteacts. 

In  marriage  contracts,  rights  are  presumed  to  be  contractual  and  irre- 
vocable wiiich  are — 

(1)  Given  or  promised  by  one  spouse,  or  the  parent  of  a  spouse,  to  the 
other  spouse. 

(2)  Given  or  promised  to  the  children  or  issue  of  the  marriage  (Mac- 
donald,  1893,  20  E.  (H.  L.)  88;  rev.  1892,  19  R.  597). 

(3)  Where  rights  arising  to  third  parties  are  part  of  the  stipulations  of 
the  contract  by  which  the  spouses  intended  to  be  bound  {Mackic,  1884,  11 
E.  (H.  L.)  10 ;  Fergusons  Curator,  1893,  20  E.  835). 

Where  a  husband  and  wife  have  entered  into  an  antenuptial  contract, 
postnuptial  deeds  are  revocable  in  so  far  as  they  add  to  or  diminish  tlie 
provisions  of  the  first  contract  without  valuable  consideration  on  the  other 
part  (Ersk.  i.  6.  30;  Bac,  1875,  2  E.  676;  Beattie's  Tr.,  1884,  11  E.  846); 
but  it  is  still  a  contract,  and  not  merely  testamentary  {Buchanans  Trs., 

1890,  17  E.  (H.  L.)  53). 

If  the  purposes  of  a  marriage  contract  either  fail  or  are  satisfied,  the 
estate  becomes  the  absolute  property  of  the  person  who  conveyed  it 
{Bamsay,  1871,  10  M.  120;  Laidlaw,  1884,  11  E.  481;  Simons  Tr.,  1890, 

18  E.  135,  Lord  President,  at  p.  137). 

Postnuptial  contracts  are  of  full  power  intra  familiavi.  "  In  a  question 
with  creditors  a  postnuptial  marriage-contract  may  not  have  the  same 
power  as  an  antenuptial  marriage-contract,  but  intra  familiam  I  think  that 
it  has.  Marriage-contracts,  whether  antenuptial  or  postnuptial,  are  entered 
into  for  the  same  purposes  and  ends,  and  sliould,  I  think,  have  the  same 
legal  elfect,  when  the  interest  of  third  parties  is  not  involved"  (Ld.  Euther- 
furd  Clark  in  Beddic,  1891,  18  E.  491;  Allan,  1869,  8  M.  34;  Low,  1877, 
5  E.  185). 

A  conveyance  by  a  husband  to  his  marriage-contract  trustees  of  all 
property  now  belonging  to  him,  or  which  shall  belong  to  him  at  the  time  of 
his  decease,  does  not  deprive  liim  of  control  during  his  life  of  property 
acrpiired  in  the  interval.  It  did  include  a  spcs  succcssionis  belonging  to  the 
liusband  at  tlic  date  of  entering  into  the  marriage  contract  ( JJy//ic's  Trs., 

1891,  18  E.  1121). 

A  conveyance  Ijy  a  wife  to  a  husband,  who  had  made  certain  provisions 
for  her  in  case  she  should  survive  him,  of  all  that  should  be  belonging  to  her 
at  the  date  of  her  death,  was  subject  to  the  implied  condition  that  he  should 
survive  lier  {Busscll's  Trs.,  1SS7,  U  E.  849;  Wardlaw,  1880,  7  E.  1066). 
Nothing  short  of  the  most  explicit  and  express  words  should  be  permitted 

S.  E. — VOL.  XII.  7 


$S  SUCCESSION 

to  supi»ort  a  claim  l>y  the  heirs  and  assignees  of  the  predeceasing  spouse  to 
t-ake  the  estate  of  tlie  survivor. 

"  Provisions  to  the  issue  of  a  marriage  may  be  so  conceived  as  to  give 
them  either  a  right  of  fee,  or  a  jus  crecliti  which  will  vest  as  soon  as  they 
come  into  existence,  or  as  in  this  case  to  give  them  a  spcs  sxiccessionis, 
which  will  not  open  until  the  death  of  the  settlor.  It  is  not  disputed 
that  all  such  provisions  made  by  parents  intuitu  matrimonii  are  onerous 
and  obhgatory  in  so  far  as  immediate  children  of  the  marriage  are 
concerned.  But  the  effect  of  the  obligation  diflers  in  each  of  these  cases. 
Provisions  of  fee  to  children  on  their  birth,  through  the  medium  of  a 
trust  or  otherwise,  need  not  be  referred  to,  because  they  throw  no  light 
upon  this  case.  When  the  child  takes  a  proper  jus  C7'editi,  he  can  com- 
pete with  other  onerous  creditors,  and  can  restrain  his  parents  by  legal 
diligence  from  alienating  or  burdening  the  subjects  destined  to  him. 
When  the  provision  is  of  all  the  estate  of  which  the  parent  may  be 
possessed  at  the  time  of  his  death,  the  parent  remains  full  owner,  and  may 
during  his  lifetime  squander  his  entire  means  if  he  thinks  fit.  The 
interest  of  the  child  is  not  that  of  a  creditor,  but  of  an  heir.  Yet  inas- 
much as  the  provision  is  contractual,  his  spcs  sncccssionis  is  held  to  consist, 
not  in  dcstinatione  merely,  but  also  in  oUigatione ;  so  that  his  parents 
cannot  by  any  gratuitous  deed  create  rights  which  will  impair  or  defeat 
his  sp)es  "  (Ld.  Watson  in  Macdoncdd). 

EuLES  FOR  Interpeetixg  Wills. 

"  In  the  construction  of  an  instrument,  whether  will  or  deed,  every  word 
and  mark  are  primd  facie  to  be  assumed  to  have  been  intended  to  be  used 
in  their  ordinary  sense,  and  if  they  have  technical  meaning,  that  meaning 
must  likewise  prevail,  imless  it  is  apparent  from  the  context  or  from  the 
whole  purview  of  the  instrument  that  they  require  a  different  interpreta- 
tion" (Ld.  Selborne  in  Digrjcns,  1867,  5  M.  (H.  L.)  p.  76). 

The  meaning  of  the  maker  of  a  will  is  to  be  gathered  from  the  words  he 
has  used,  and  the  circumstances  in  which  he  has  used  them,  to  the  exclusion 
of  extrinsic  evidence  of  intention. 

Words  are  to  be  understood  in  their  plain,  ordinary,  grammatical  meaning, 
the  meaning  which  persons  of  ordinary  intelligence  w^ould  give  them,  unless 
you  are  driven  from  this  by  something  in  the  deed. 

If  some  part  of  the  deed  shows  that  the  testator  has  used  a  word  in  a 
peculiar  sense,  that  will  be  the  meaning  in  other  similar  places. 

Words  unknown  in  ordinary  phraseology  may  be  explained  by  extrinsic 
evidence.  When  their  meaning  is  discovered,  the  deed  will  be  read  as  if  the 
meaning  so  discovered  was  introduced  in  place  of  the  words  in  which  the 
will  is  expressed.  If  the  words  used  are  insensible  with  reference  to  the 
circumstances,  you  may  show  that  a  word  was  used  with  a  peculiar  meaning. 

Tliougli  there  cannot,  except  in  a  very  limited  number  of  cases,  be  any 
inquiry  hito  the  unexpressed  intention  of  the  testator,  or  the  bias  of  feeling 
m  liis  mind,  extrinsic  evidence  of  the  circumstances  which  surrounded  him, 
both  before  and  after  the  execution  of  the  deed,— the  state  of  his  family  and 
of  hi.s  estate,  and  the  state  of  his  knowledge, — is  competent  in  order  to  place 
the  Court  in  tlie  point  of  view  from  which  the  testator  would  have  regarded 
the  deed.  The  intention  of  the  testator  is  to  be  gathered  from  the  language 
lie  has  u.sed  in  it.  Tiie  condition  of  the  estate  may  also  afford  light,  and  the 
actings  of  tlie  testator  with  regard  to  it.  If  a  description  be  sufficient  to 
point  out  some  individual  person  or  thing,  extrinsic  evidence  is  admissible 
lor  the  purpose  of  identification.     Erroneous  additions  to  a  description  arc 


SUCCESSION  99 

disregarded.  An  express  gift  is  not  qualified  by  a  reason  assigned.  AN'hen 
the  words  of  a  will,  explained  by  the  surrounding  facts,  are  insulliciLMiL  to 
give  the  testator's  meaning,  the  deed  is  void  from  uncertainty,  and  no 
evidence  of  intention  will  be  allowed,  except  in  the  one  case  to  be 
mentioned  later ;  the  duty  of  the  Court  being  to  expound  what  the  deed 
declares.  Proof  of  intention  is  iuadmissiljle  to  clear  up  a  patent  anil)i<'uity, 
tliat  is,  an  ambiguity  appearing  on  the  face  of  the  deed ;  but  it  may  be 
invoked  to  clear  up  a  latent  ambiguity.  When  the  person  or  thing  intended 
is  deseriliL'd  in  terms  wliich  are  api)licable  indifferently  to  more'^thau  one 
person  or  thing,  evidence  is  admissible  to  prove  which  was  meant,  including 
expressions  of  intention.  AVhcre  a  question  arises  as  to  whether  both  legacies 
left  in  separate  deeds  are  payable,  evidence  of  the  circumstances  is  admissible  : 
but  anytiiing  in  the  nature  of  a  declaration  of  intention,  or  any  statement 
of  the  testator's  from  which  an  inference  can  be  drawn,  subsequent  to  the 
execution  of  the  will,  is  quite  inadmissible. 

To  solve  the  (luestion  of  whether  a  special  destination  is  or  is  not 
evacuated  by  a  general  settlement,  extrinsic  evidence  is  competent,  but 
not  evidence  of  declaration  of  intention.  Writings  or  instructions  of 
earlier  date  than  the  will  cannot  be  used  to  interpret  it,  but  formal  deeds 


observed  that  in  cases  of  patent  ambiguity  only  documents  of  a  testa 
meutary  nature  could  be  looked  at. 

Extrinsic  evidence  of  intention  is  refused  in  cases  where  the  maxim 
Debitor  non  2^rccsu7nitur  donarc  is  alleged  to  apply,  that  is  to  say,  you  may 
not  use  it  to  prove  that  a  legacy  was  meant  to  be  in  satisfaction  of  a 
provision  {Johnstone,  189G,  23  E.  (H.  L.)  G).  In  order  to  disappoint  the 
heir  in  heritage,  the  estate  must  be  given  to  someone  else.  This  is  said 
to  be  proba1)ly  true  also  in  moveables,  but  in  Beizley,  1739,  M.  6591,  an 
appointment  of  executors  with  an  exclusion  of  the  next  of  kin  was  hekl 
to  give  the  estate  to  the  executors.  A  will  speaks,  for  some  purposes, 
froin  its  date.  It  only  becomes  operative  on  the  death  of  the  testator, 
and  is  always  revocable.  It  is  therefore  the  last  expression  of  his  wishes. 
Every  word  is,  if  possible,  to  receive  a  meaning.  In  dispositions  of  heritage 
the  dispositive  clause  prevails ;  in  wills  of  moveal)les  the  later  clause  ju'c- 
vails,  unless  this  is  inconsistent  with  the  context  and  general  tenor. 

The  Court  must  try  to  find  a  rational  meaning ;  but  if  a  will  is  clear  and 
unaml)iguous,  it  should  be  carried  out  even  if  inconvenient  or  absurd. 
TarLial  intestacy  is  to  be  avoided.  The  whole  will  is  to  be  read  together, 
and,  if  possible,  a  meaning  is  to  be  found  for  every  word.  Of  two  modes  of 
construction,  that  is  to  be  preferred  which  will  prevent  intestacy.  Words 
used  more  than  once  are  presumed  to  be  used  in  the  same  meaning. 
Dilferent  words  point  to  differences  of  meaning.  Obvious  mistakes  may  be 
corrected,  and  the  testator's  intention  is  to  be  carried  out  as  far  as  it  can  be. 

"  Or"  may  sometimes  be  read  "  and,"  and  vice  vcrsd.  "A  will  may  be  con- 
strued so  as  that  the  word  '  or  '  should  be  considered  as  if  it  had  been  '  and,' 
where  such  appeared  from  the  context  to  be  the  meaning  of  the  le.'^tator. 
The  former  part  of  the  will  gave  the  title  absolutely  in  the  events  cither  of 
attaining  the  age  of  thirty-one  or  marrying,  and  then  followed  the  passage 
'  th((t  in  case  the  son  died  under  iloirty-one  or  unmarried,  the  residue  icas  to 
(JO  to  the  daughters';  the  effect  of  whicli  latter  clause,  unless  the  word  'or' 
should  be  construed  as  if  it  were  'and,'  would  lie  this,  that  though  l)y  the 
former  clause  the  son  was  to  have  the  residue  either  on  attaining  the  age 


100  RUCCESSTo^^ 

of  thirty-one  or  marrying,  whichever  should  first  happen,  by  the  latter 
tl.iuse  he  miglit  have  it  neitlier  in  the  one  event  or  the  other  "  (Ld.  Eldon  in 
Grant,  1813?  2  Dow,  at  p.  87).  The  literal  meaning  must  yield  to  the 
obvious  intention  of  the  granters. 

In  the  case  of  a  mutual  deed  by  two  brothers  p-o  indiviso  owners  of  a 
heritable  subject,  a  conditional  destination  ran :  in  the  case  of  any  more 
children  being  born  to  A.,  AND  in  the  event  of  one,  B.,  becoming  mamed 
and  lea\'ing  issue.     The  Court  read  the  word  "  and  "  as  if  it  had  been  "  or  " 


c? 


{Diinlop,  1884,  11  E.  1104;  CampMl,  1757,  Mor.  2991).  The  Court, 
ex  cequitate,  may  reject  the  express  words,  and  explain  their  meaning 
from  the  intention  of  parties,  which  is  clear  on  the  other  hand. 
\/  The  Court  is  always  reluctant  to  find  a  will  null  for  uncertainty, 
either  in  the  subject  or  object  of  the  bequest  {Mags,  of  Dundee,  1858,  3 
Macq.  134;  Bryce's  Trs.,  1878,  5  E.  722).  A\Tien  a  testator  makes  a  bequest 
to  a  class  of  children,  and  states  the  number  inaccurately,  the  Court  will 
reject  the  number,  and  all  the  cliildren  will  take  (Bryce's  Trs.,  supra : 
Smith's  Trs.,  1883,  10  E.  1144;  Millars  Trs.,  1891,  18  E.  989). 

If  the  Court  comes  to  the  conclusion,  from  a  study  of  the  will,  that  the 
testator's  real  intention  was  to  benefit  the  whole  of  a  class,  the  Court  will 
not  defeat  that  intention  because  the  testator  has  made  a  mistake  in  the 
number  he  has  attributed  to  that  class  ;  that  is  to  say,  the  number  wUl  be 
struck  out ;  but  according  to  a  recent  English  case,  you  cannot  add  some- 
tliing,  and  so  make  a  will  for  the  testator  {Donaldson,  1896,  L.  E.  1897, 
1  Ch.  75). 

"Sur\'ivor"  has  sometimes  been  read  as  "other"  {Eamsays  Trs., 
1876,  4  E.  243  ;  Paterson's  Trs.,  1893,  21  E.  253),  but  the  general  rule  is 
found  in  Forrest's  Trs.,  1884,  12  E.  389,  which  has  been  frequently 
followed,  and  in  which  the  word  received  its  natural  meaning. 

Id.  Morrall,  1845,  14  L.  .J.  Ch.  266,  Baron  Parke  laid  down  the 
following  rules : — 

1.  Technical  words  are  primd  fetcie  to  be  understood  in  their  strict 
technical  sense. 

2.  The  clause  is,  if  possible,  to  receive  a  construction  which  will  give  to 
every  expression  in  it  some  effect. 

3.  All  the  parts  of  the  will  are  to  be  construed  so  as  to  form  a  con- 
sistent whole. 

4.  Of  two  modes  of  construction,  that  is  to  be  preferred  which  would 
prevent  an  intestacy. 

5.  When  two  provisions  of  a  will  are  totally  irreconcilable,  so  that 
they  cannot  possibly  stand  together,  the  last  shall  be  considered  as 
indicating  a  subsequent  intention,  and  prevail,  if  there  is  nothing  in  the 
conicH  or  general  scope  of  tlie  will  which  leads  to  a  different  decision. 

When  It  is  apparent  that  words  have  been  omitted,  and  also  what  they 
are,  the  Court  may  supply  them  {Carleton,  1867,  5  M.  (H.  L.)  at  p.  155). 
^  ou  may  read  in  a  word  scored  out  {Mags,  of  Dundee,  supra.).  "  If  it  is 
necessary  to  make  sense  of  the  deed,  you  must  read  the  part  of  it 
obliterated  as  if  it  was  not  obliterated  —  a  doctrine  very  new  to  me 
cerfainly,  but  to  which  I  must  now  subscribe"  {Chapman,  1860,  22 
T).  74.").  ^       ^ 

\N  hen  a  testator  himself  expressly  declares  what  his  meaning  is,  no 
other  construction  can  be  admitted  {lA.  Eldon  in  Brodie,  1817,  6  Pat.  270). 
^o  absurdity  in  the  principle  of  division  ought  to  prevail  against  the 
meaning  of  clear  words.  "Moveable"  was  mtroduced  into  a  clause  which 
bore  to  restrict  tlie  rights  of  daughters  in  the  testator's  "  heritable  "  estate, 


SUCCESSION  101 

so  as  to  make  the  restriction  apply  to  tlie  share  of  a  mixed  succeK.sion  ;  the 
testator's  iuteutiun  tu  do  this  lieing  gathered  from  tiie  general  scope  of  his 
settlement  (Olouston's  Trs.,  1889,  10  11.  937).  It  was  held  to  be  a  case  of 
palpable  mistake,  but  in  that  case  there  was  repugnancy  from  his  giving  a 
full  gift  of  fee  and  tlien  trying  to  restrict  it. 

"  It  must  always  be  rememl)ered  that  nothing  can  justify  the  insertion 
of  words  to  iill  up  a  Ijlank  l)ut  the  assurance  that  those  words,  and  no 
others,  are  the  words  omitted."  AccoriHngly,  the  words  must  usually  be 
sui)plied  from  the  context  (jNI'Laren,  p.  IjG.j). 

"There  is  one  rule  of  construction,  which  to  my  mind  is  a  golden  rule, 
viz.  that  when  a  testator  has  executed  a  will  in  solenni  form,  you  must 
assume  that  he  did  not  intend  to  make  it  a  solemn  farce :  that  he  did  not 
intend  to  die  intestate  when  he  has  gone  through  the  form  of  making  a 
will.  You  ought,  if  possible,  to  read  the  will  so  as  to  lead  to  a  testacy,  not 
to  an  intestacy  "  (Ld.  Esher  in  Harrison,  1885,  L.  R  ;'.0  Ch.  U.  o90).  Every 
word  shall  have  its  effect,  and  not  be  rejected  if  any  construction  can 
possibly  be  put  upon  it. 

The  Court  is  to  construe  the  will  as  made  by  the  testator,  not  to  make 
a  will  for  him,  and  therefore  it  is  bound  to  execute  his  expressed  intention, 
even  if  there  is  great  reason  to  believe  that  he  has  by  blunder  expressed 
what  he  did  not  mean.  And  the  general  rule,  we  believe,  is  undisputed, 
that  in  trying  to  get  at  the  intention  of  the  testator  we  are  to  take  the 
whole  of  the  will,  construe  it  altogether,  and  give  the  words  their  natural 
meaning  (or,  if  they  have  acquired  a  technical  sense,  their  technical  mean- 
ing), unless  when  applied  to  the  subject  which  the  testator  presumaldy 
had  in  his  mind,  they  produce  an  inconsistency  with  other  parts  of  the 
will,  or  an  absurdity  or  inconvenience  so  great  as  to  convince  the  Court 
that  the  words  could  not  have  been  used  in  their  proper  signification,  and 
to  justify  the  Court  in  putting  on  them  some  other  signification  which, 
though  less  proper,  is  one  which  the  Court  thinks  the  w^ords  will  l>ear 
(Blackburn  in  Allgood,  1873,  L.  E.  8  Ex.  160,  p.  102).  "  If  you  find  that  that 
is  the  nomenclature  used  by  the  testator,  taking  his  will  as  the  dictionary 
from  which  you  are  to  find  the  meaning  of  the  terms  he  has  used,  that  is  all 
which  the  law,  as  I  understand  the  cases,  requires  "  (Ld.  Chan.  Cairns  in  /////, 
1873,  L.  E.  6  Eng.  &  Ir.  App.  285).  The  Court  has  a  right  to  ascertain  all 
the  facts  which  were  known  to  the  testator  at  the  time  he  made  his  will, 
and  thus  to  place  itself  in  the  testator's  position  in  order  to  ascertain  the 
bearing  and  application  of  the  language  which  he  uses,  and  in  order  to 
ascertain  whether  there  exists  any  person  or  thing  to  which  the  whole 
description  given  in  the  will  can  be  reasonably  and  with  sulficient  certauity 
applied  (Ld!  Cairns  in  Charter,  1874,  L.  E.  7  E.  &  I.  App.  377).  You  are 
never  to  introduce  and  interpolate  words  in  a  will,  nor  even  to  give  a  con- 
struction to  any  clause  of  a  will  contrary  to  what  the  plain  \yords  import, 
without  an  absolute  necessity  by  intention  declared  or  carried  in  some  other 
part  of  the  will  {Eden,  1852,  4  H.  L.  Ca.  284). 

Power  of  Appointment. 
Powers  of  appointment  given  under  the  deeds  of  a  third  party  are  met 
with  in  questions  of  succession:  thus  a  power  is  frequently  given  to  a 
liferenter  to  appropriate  the  fee  of  the  property  or  to  encroach  on  capit:d. 
A  general  power  mav  be  exercised  in  favour  of  himself;  but  a  power  to 
encroach  upon  capital  will  not  entitle  the  holder  of  the  power  to  eJcerciKC 
it  by  testamentary  deed  (>S))ro<,  1855,17  D.  840  ;  Millers  Trs.,  1890,  18  L.  ..01 ). 
A  father  has  an  implied  power  to  apportion  marriage-contract  funds (//ot<«>-. 


102  SUCCESSION 

180G,  Hume,  528;  Ormiston,  1809,  Hume,  531:  Funton,  1837,  15  S.  554; 
Erskine,  1826,  4  S.  357 ;  Edmonston,  170G,  Mor.  3219 ;  Ersk.  iii.  8.  49).  A 
liferent  ]»y  reservation  combined  witli  a  general  power  of  appointment  is  truly 
niuivaleilt  to  a  fee  {Davidson,  1GS7,  Mor.  3255;  IkiiUie,  23  Feb.  1800, 
F.  C. ;  Cninming,  175G,  Mor.  42G8)  ;  but  a  liferent  by  constitution,  even  with 
a  "eneral  poweV  of  appointment,  is  not  a  fee.  The  person  appointed  takes 
n<'t  from  him,  but  from  the  grantor  of  the  power  (M'Goirn,  1835, 14  S.  105  ; 
Jforris,  1853,  151).  71G  ;  1 855, 18  D.  (11.  L.)  43  ;  jilvcs,  18G1,  23  1).  712).  To 
I'ive  a  full  fee,  and  then  give  a  power  of  disposal,  is  to  do  nothing  more 
Than  give  the  fee  (Si7nso7is  Trs.,  1890,  17  R.  581).  "A  liferent  coupled 
with  the  largest  and  most  general  i)0wer  of  disposal,  if  there  is  a  destina- 
tion over,  cannot  give  a  fee"  (Ld.  St.  Leonards  in  Morris). 

"  If  an  estate  or  sum  of  money  be  given  to  an  individual,  who  is  sv.i 
juris,  without  words  of  limitation,  or  a  declaration  to  the  extent  of  his 
ownership,  but  with  words  indicative  of  the  intention  of  the  testator  that 
he  should  have  the  absolute  J2is  disjyonendi,  then,  in  any  case,  those  words 
are  to  be  taken  as  indicating  an  intention  that  he  should  be  the  absolute 
owner.  But  if  a  gift  is  made  to  afemme  convert,  and  provision  is  made  for 
her  children,  and  then  these  words  are  annexed  to  the  gift,  that  in  the  event 
of  her  having  no  children  the  property  is  committed  to  her  discretion 
alone,  as  she  may  thereafter  think  tit  to  deal  with  it,  those  are  words  which, 
hanng  regard  to  the  reference  to  her  discretion,  and  to  the  cause  for  the 
exercise  of  that  discretion,  and  to  the  fact  that  they  are  annexed  to  a  gift 
made  to  a  femnxe  convert  wdio  is  not  sui  juris,  must,  I  think,  in  conformity 
with  every  principle,  and,  so  far  as  I  know,  in  conformity  with  every 
authority,  be  held  to  amount  only  to  an  indication  of  intention  that  the 
ferame  convert  shall  have  a  power  of  appointment  or  of  disposition,  and 
not  to  be  indicative  of  an  intention  that  the  femme  convert  shall  become 
the  al)Solute  owner"  (Ld.  Westbury  in  rnrsell,  1865,  3  M.  (H.  L.)  at  p.  G8). 
The  effect  to  be  given  to  a  power  of  apportionment  is  the  same  whether 
the  person  who  is  to  exercise  the  power  be  the  original  owner  of  the  fund 
or  be  merely  the  donee  of  the  power.  It  is  also  immaterial  whether 
tlie  power  be  applicable  to  a  universitas  or  to  a  specified  sum  (Gillon's  Trs., 
1890,  17  \\.  435). 

In  exercising  a  power  of  appointment  it  is  not  necessary  that  the  power 
should  be  recited  (Balr/lcish's  Trs.,  1893,  20  R.  904).  A  testament  appointing 
an  executor  for  the  distribution  of  the  residue  of  the  testator's  personal 
estate  is  not  an  exercise  of  a  power  to  dispose  by  settlement  of  an  estate 
(MacJcaizie,  1874,  1  R  1050;  Eoivie's  Trs.,  1889,  16  R.  983;  Whyte,  1SS8, 
IG  R.  95);  but  the  general  rule  is  that  a  general  settlement  affects  property 
over  which  the  testator  has  a  power  of  appointment  {Ilyslop,  1834,  12  S. 
413;  ClarJc's  Trs.,  1894,  21  R.  546;  Smith,  1826,  4  S.  G79 ;  3fackic,  1885, 
12  R.  1230  ;  Buchanans  Trs.,  1890, 17  R.  (H.  L.)  53  ;  Montgomery's  Trs.,  1895, 
22  R.  824).  It  must  be  possible  that  he  meant  to  exercise  the  power 
{Lord  Advocate  v.  Methven's  Exrs.,  1893,  20  R.  429).  Such  a  power  may  be 
exercised   from   time   to  time  {Smiih-Cnnninghame,  1872,  10  M.  (H.  L.) 

Under  the  law  as  it  existed  before  1874,  when  a  power  was  given  to 
apportion  a  fund  among  several  persons,  it  was  fatal  to  the  exercise  of  the 
power  that  one  or  more  of  these  persons  was  not  allowed  to  share  in  the 
fund  (Marder's  Trs.,  1853,  15  D.  633;  Ecchs,  1856,  18  D.  778;  Smith's 
rrs,  1873,  11  M.  630). 

In  1874  the  Act  37  &  38  Vict.  c.  37  was  passed,  which  provides: 
1.   1  hat  no  appomtment,  which  from  and  after  the  passing  of  this  Act  shall  be 


SUCCESSION  103 

made  in  exercise  of  any  power  to  ap])()int  any  property,  n-A  or  peix.nal. 
amongst  several  objects,  shall  be  invalid  at  law  or  iu  equity  on  tlie  ground 
that  any  object  of  such  power  has  been  altogether  excluded,  but  every  such 
appointment  shall  be  valid  and  ellectual  notwithstanding  that  any  one  or 
more  of  the  objects  shall  not  thoroby,  or  in  default  of  a]i[)ointm('nt,  l,d<e  a 
share  or  shares  of  the  property  suliject  to  such  power.  2.  I'rovidcd  always, 
and  be  it  enacted,  that  nothing  in  this  Act  contained  shall  prejudice  or 
allect  any  provision  in  any  deed,  will,  or  other  instrument  creating  any 
power,  which  shall  declare  the  amount  or  the  share  or  shares  from  which 
no  object  of  the  power  shall  be  excluded,  or  some  one  or  more  object  or 
objects  of  the  power  shall  not  be  excluded. 

The  Act  has  been  held  to  apply  to  Scotland  {Camphdl,  1878,  5  K.  9G1  ; 
Mackic,  1885,  12  R.  1230;  Ifamillon's  Trs.,  1879,0  11.1210).  Where  a 
]iowcr  is  given  to  appoint  inuler  "  conditions,  provisions,  and  limitations," 
the  shares  of  the  appointees  may  be  restricted  to  a  liferent  with  a  power  to 
test  {miUacc's  Trs.,  1891,  18  II.  921 ;  Lennock's  Trs.,  1880,  8  11.  14).  Where 
conditions  which  are  not  warranted  are  imposed,  they  are,  if  separalde 
from  the  gift,  disregarded  {Wallaces  Trs.,  sivpra;  M' Donald,  1875,  2  It. 
(H.  L.)  125).  "  From  all  those  cases  the  plain  rnle  is  to  be  derived  that  if 
you  cannot  disconnect  that  which  is  imposed  by  way  of  condition  or  mode 
of  enjoyment  from  a  gift,  the  gift  itself  may  be  found  to  be  involved  in 
conditions  so  much  beyond  the  power  that  it  becomes  void.  Ikit  when  the 
conditions  are  separable  from  tlie  gift,  then  the  gift  may  be  valid,  and  may 
take  effect  without  reference  to  these  conditions"  (M'Laren  on  Wills,  \\. 
1100;  Wright's  Trs.,  1894,  21  R.  508;  Stirliiui,  1898,  36  S.  L.  \\.  194). 
When  the  appointment  is  ultra  vires  or  no  appointment  is  made,  the  fund 
is  divided  equally  {Gillons  Trs.,  1800, 17  E.  435 ;  Baiki^s  Trs.,  1SG2,  24  D. 
589;  Best's  Trs.,  1885,  13  R.  121).  A  gift  to  persons  to  be  selected  by 
trustees  falls  by  the  predecease  of  the  trustees  {Bohbie's  Jacl.  Fad.,  1893, 
20  R.  358). 

An  object  of  a  power  who  complains  of  the  way  in  which  it  has  been 
exercised  may  be  barred  by  acquiescence,  on  the  principle  of  approbate  and 
reprobate  {Smith-Cunninghame,  1872, 10  M.  (II.  L.)  39  ;  Bonhotc,  1885, 12  R. 
984  ;  Mackie,  1885,  12  R.  1230).  A  parent  having  a  power  of  appointment 
among  his  children  is  not  allowed  to  bargain  with  his  child  to  purchase  a 
share  in  this  species  of  expectancy  {Smith-Cuiinimjliame,  supra  ;  M'Bonahl, 
1874, 1  R.  817). 

Donatio  mortis  causa. 

An  exception  to  the  general  rule  that  writing  is  necessary  to  regulate 
the  succession  of  a  deceased  person,  and  to  disappoint  the  expectations  of  his 
legal  representatives,  is  found  in  the  case  of  mortis  causa  donations. 

"  Donatio  mortis  causa  in  the  law  of  Scotland  may,  I  think,  be  defined  as  a 
conveyance  of  an  innuoveable  or  incorporeal  right,  or  a  transference  ot  move- 
ables or  monev  by  <lelivery,  so  that  the  property  is  immediately  transferred  to 
the  grantee,  upon  the  con^lition  that  he  shall  hold  for  the  granter  so  long  as 
he  lives,  subject  to  his  power  of  revocation,  and,  failing  such  revocation,  then 
for  the  grantee  on  the  death  of  the  granter.  It  is  involved  of  ccursc  in 
this  deHnition,  that  if  the  grantee  predecease  the  granter  the  property 
reverts  to  the  granter,  and"  the  (jualilied  right  of  property  which  was 
vested  in  the  grantee  is  extinguished  by  his  predecease.  Such,  I  apprehend, 
is  the  doctrine  laid  down  by  Erskine,  more  largely  expounded  l>y  I'ankton, 
and  supported  by  the  general  tenor  of  the  decisions  of  the  Court"  (Ld.  1  res. 
Inglis  hi  Morris,  1807,  5  M.  p.  1041  ;  Bankton.  i.  9.  0.  and  17, 18,  19  ;  Lrsk. 


104  SUCCESSION 

iii  3.  91,  iii.  o.  11).  It  i?>  elTectnal  without  writing,  ami  may  be  proved  by 
parok  'The  gift  is  reyocahle  (IVriijhfs  Trs.,  1870,  8  M.  70S;  Macfarquhar, 
18ol>,  7  M.  70G;  Irvine,  1707,  Mor.  6350).  The  presumption  that  the  law 
implies  against  donation  requires  strong  and  unimpeachaljle  evidence  to 
overcome ^it,  and  it  must  be  independent.  The  evidence  of  the  alleged 
donee  cnnmtt  be  held  as  sufficient,  otherwise  there  would  be  no  presumption 
a-^nun-st  donation  {Sharp,  1883,  10  II.  1000  ;  Gilson,  1872,  10  M.  923  ;  l^oss, 
1871,  10  M.  197,  p.  200).  A  donation  cannot  be  established  without  proof 
of  a  verbal  or  written  declaration  of  intention  to  make  a  gift :  but  the 
declaration  may  be  made  to  a  third  party  {Ld.  Advocate  v.  Galloicay,  1884, 
11  Pi.  541;  Gibson,  1872,  10  M.  923;  Sharp,  supra;  ConnclVs  Trs.,  1886, 
13  K.  1175).  Some  of  the  judges  think  that  delivery  is  necessary.  "  In  all 
previous  cases  of  the  kind  there  has  been  at  least  some  act  of  the  deceased 
donor  which  is  admitted  or  proved  by  real  evidence  to  have  taken  place. 
The  money  is  invested  in  name  of  the  donee,  or  the  deposit-recei])t  is 
indorsed  in  his  favour  under  the  hand  of  the  donor."  Accordingly,  a  blank 
indorsation  of  a  deposit  receipt  will  not  prove  donation  (Dawson,  1891,  19 
R.  2G1;  M'XkoI,  1889,  17  R.  25).  But  in  Gilson,  1872,  10  M.  923,  the 
Lord  President  (Inglis)  said  :  "  I  do  not  think  that  actual  delivery  is  necessary 
to  make  a  donation  mortis  causa  effectual,  especially  if  the  money  stands  in 
the  name  of  the  donee."  The  existence  of  the  animus  doncmdi,  and  the  clear 
expression  of  that  as  a  present  intention,  are  enough,  but  less  is  not 
enough  {Thomsons  Exr.,  1882,  9  R.  911).  In  Blyth,  1885,  12  R.  674,  it  was 
held  that  it  was  not  necessary  that  the  alleged  gift  should  have  been  made 
under  an  immediate  apprehension  of  death,  nor  that  the  subject  of  the  gift 
should  be  actually  delivered.  In  M'Nicol,  1889,  17  R.  25,  opinions  were 
delivered  that  the  donation  must  be  made  in  apprehension  of  death. 
Delivery  of  the  document  of  debt  is  not  necessary  {Macfarlanc''s  Trs., 
1898,  25  R.  1201;  Crosbie's  Trs.,  1880,  7  R.  823;  Gibson,  supra;  Blyth, 
supi'a). 

"  Domdio  mortis  causa  is  a  donatio,  and  resembles  any  ordinary  gift  in 
many  respects,  but  it  differs  from  one  in  these  two  respects,  viz.  first,  that 
it  is  always  revocable,  and,  second,  that  it  is  made  in  contemplation  of  death, 
and  in  contemplation,  I  think, — whatever  may  have  been  said  to  the  con- 
trary,— of  immediate  death,  in  the  immediate  apprehension  of  death  ;  then 
if  that  apprehension  is  not  realised, — that  is  to  say,  if  death  does  not  follow, 
but  the  apprehensive  donor  recovers, — the  donation  is  revoked  by  that 
very  fact "  (Ld.  Young  in  M'Nicol). 

Deposit  Eeceiptt. — It  is  settled  law  that  a  deposit  receipt  can  never  be  a 
testamentary  paper,  and  though  it  be  conceived  in  favour  of  a  person  other 
than  the  depositor,  it  cannot  constitute  a  good  legacy  {Jameson,  1880,  7  R. 
1131).  A  destination  in  a  deposit  receipt  has  no  effect  in  succession 
(Cuihill,  1862,  24  D.  849 ;  IFatl's  Trs.,  1869,  7  M.  930  ;  Miller,  1874,  1  R. 
1107;  Croshie's  Trs.,  1880,  7  R.  ]..  826  ;  Dinwoodie,  1895,  23  R.  234). 

Approbate  and  Reprobate. 

There  is  a  rule  of  law  that  no  person  can  accept  and  reject  the  same 
instrument  (Ld.  Eldon  in  Kerr,  1819,  1  Bligh,  1).  Accordingly,  an  heir 
couhl  not  attack  a  deed  as  incapable  of  conveying  heritage,  or  as  being 
granted  on  deathbed,  and  at  the  same  time  claim  a  benefit  under  it. 
Sunilarly,  a  child  cannot  claim  his  legal  rights  and  a  share  under  a  total 
settlement  of  his  father's  property;  he  is  put  to  his  election  if  the  rights 
are  expressly  or  by  implication  excluded  by  the  deed. 

^Vhere  a  condition  is  expressly  imposed  which  is  possible  and  lawful, 


SUCCESSION  105 


o 


;uid  within  the  power  of  the  settler  In  imjuisc,  the  rule  is  aiijilied  {iJundus 
1829,  7  S.  241  ;  1830,  4  W.  &  S.  4G0;  Ucnnet,  1829,  7  S.  817;  Stewart, 
31  May  1809,  F.  C).  The  condition  will  be  enforced  if  the  person  impos- 
ing it  liad  uncontrolled  power  to  give  oi-  withhold  the  lienefit  which  the 
condition  qualilies  {Kcv,  1819,  1  liligh,  1  ;  Jhnylas'  Trs.,  18G2,  24  U  1191). 
To  raise  an  implied  condition  upon  which  the  choice  must  be  Uikcn,  the 
intention  to  make  a  condition  must  be  clear  beyond  all  doubt. 

Such  an  intention  may  lie  inferred  from  the  fact  that  the  deed  or  deeila 
are  framed  to  regulate  the  whole  of  a  succession. 

Some  person  who  is  in  the  position  of  donor  makes  to  another  an  uWi-v 
of  two  dirterent  things,  upon  the  footing,  express  or  im])lied,  that  the  person 
favoured  may  either  take  or  reject  the  two  things  olVered. 

Where  it  is  clear  that  several  deeds  are  meant  to  stand  together,  a 
persun  cannot  take  a  benefit  from  one  and  reject  the  other  (JJlack,  1841,  '.'> 
i).  522;  Stmvart,  1832,  11  S.  139;  Harvey  s  Trs.,  1800,22  1).  1310;  18G3, 
1  M.  345).  But  if  the  deeds  are  not  so  connected,  he  may  {Urquhart,  18")], 
13  D.  742;  Somcrrilles  Trs.,  1887,  14  R  770;  iWUonahl,  1876,4  1{.  45). 
"Where  a  child  prefers  his  legal  rights  to  a  testamentary  jtrovision,  any 
fund  set  free  is  applied  in  compensating  those  who  have  sullered  by  the 
choice  (Dixons,  1833,  6  W.  &  S.  431;  lioss,  1896,  23  R.  1024;  Snoch/s  Trs., 
1883,  10  R.  599).  It  will  depend  upon  the  terms  of  the  will  whether  any 
provisions  in  favour  of  the  issue  of  such  a  child  fall  or  remain  {Camphdis 
Trs.,  1889,  10  R.  1007). 

"  The  true  ground  of  decision  in  Fisher  v.  Dixon,  as  explained  by  the 
Lord  President  in  Jack's  Trs.,  is  that  in  a  family  provision  the  children 
have  a  separate  and  independent  interest,  which  is  not  affected  by  the  acts 
of  the  parent  derogating  from  the  authority  of  the  will.  It  is  not  necessjiry 
that  the  gift  to  the  children  should  be  separate  in  form;  if  it  is  sub- 
stantially a  separate  and  independent  interest,  the  law  will  protect  it,  and 
will  not  involve  the  children  in  the  consequences  of  the  parent's  election  to 
claim  legitim"  (Snoihj's  Trs.,  sitpra,  at  p.  602;  Jack's  Trs.,  1879,  6  R.  54:5; 
see  Urie's  Trs.,  1896,  23  R.  865).  In  a  case  in  which  the  child  claiming 
legitim  was  not  expressly  excluded  from  benefit  under  her  father's  will,  it 
was  held  that  when  full  compensation  had  l)een  provided  for  those  whom 
her  choice  disappointed,  and  there  was  still  a  balance,  that  balance  went 
to  her  under  the  original  gift  (il/rtr/«r/««c's  Trs.,1^^2,  9  R.  1138).  "To 
make  a  proper  case  of  election,  the  facts  of  the  case  must  be  such  as  to 
satisfy  three  conditions. 

"  In  the  first  place,  the  party  who  is  put  to  his  election  nnist  have  a 
free  choice,  and  whichever  alternative  he  chooses,  he  shall  have  a  right 
absolutely  to  that  which  he  has  chosen. 

"In  the  second  place,  the  necessity  of  making  the  election  must  arise 
from  the  will,  express  or  implied,  of  someone  who  has  the  i-ower  to  bind 
the  person  put  to  his  election. 

"  And  in  the  third  place,  the  result  of  the  election  of  one  or  other  of  the 
alternatives  must  be  to  give  legal  effect  and  operation  to  the  will  so  ex- 
pressed or  implied  "  (Inglis  in  Boughs'  Trs.,  1862,  24  D.  p.  1208). 

In  order  to  put  a  legatee  to  his  election,  it  must  be  in  his  power,  by 
waiving  some  claim  which  he  has,  to  perfect  the  right  of  the  testamentary  dis- 
ponees ;  accordingly,  a  legatee,  who  has  also  a  legal  claim  on  the  estate  of  the 
testator,  cannot  be  put  to  his  election  if  his  abandonment  would  only  lead  to 
a  partial  intestacy  (Ifeivit's  Trs.,  1891,  18  R.  793). 

An  election  made  in  ignorance  of  legal  rights  may  be  rccuUcd.  llie 
choice  must  be  a  deliberate  act  done  in  kncjwlcdge  of  the  circumsUincea 


luG  SUCCESSION 

(nrcnU^  1827,  5  S.  900:  m->sc,  1821,  1  S.  154;  Johnstone,  1825,4  S.  234; 
Honf  1833,  12  S.  222;  Sdkirl;  1854,  IG  D.  715;  InoHs  Trs.,  1887,  14  K. 
740  'atr.  1890,  17  E.  (H.  L.)  76;  Dawsons  Trs.,  1896,  23  R  1006; 
Countess  of  Klntorc,  1886,  13  R.  (H.  L.)  93 ;  MFachjcn,  1882,  10  R  285  ; 
Doivihlson,  1886,  13  Ti.  907).  In  Inglls  Trs.  an  opinion  was  expressed  that 
even  if  the  errr.r  under  which  the  child  made  her  election  was  an  error 
of  hiw,  whether  induced  l>y  anotlier  or  not,  the  child  would  be  entitled  to 
withdraw  her  election. 

An  election  made  by  a  minor  is  reducilile  on  the  grounds  of  minority 
and  lesion  (Brodic,  1827,  5  S.  900).  The  curator  bonis  of  an  insane  person 
may,  if  the  interests  of  his  ward  and  those  of  third  parties  require  it,  make 
election  for  him ;  but  whether  a  minor  or  lunatic  should,  before  majority  or 
convalescence,  elect  by  his  curator  is  completely  within  the  power  of  the 
Court,  and  will  lie  exercised  for  himl)y  the  Court  only  where  it  is  absolutely 
necessiirv,  with  a  view  to  the  interests  of  other  persons  {Cowan,  1845,  7  D. 
872;  TarnluU,  1848,  6  Bell's  App.  222;  Faterson,  1866,  4  M.  706; 
Kennedy,  1843,  6  IX  40 ;  Hope,  1858,  20  D.  390 ;  Morton,  11  February  1813, 
F.  C).  Where  a  person  is  mentally  incapable  of  making  his  election,  the 
right  is  not  lost  by  his  failing  to  make  it,  or  by  his  taking  a  benefit  under 
the  testamentary  provisions ;  the  right  wall  be  effectual  to  him,  if  he  recovers 
his  sanity,  or  to  his  representatives  if  he  dies  msane  {Young,  1880,  8  E. 
205).  In  Miller,  1886,  13  E.  764,  it  was  held  that  a  married  woman  is 
not  entitled  to  discharge  a  claim  for  leg;itim  without  the  consent  of  her 
husband.  But  where  a  wife  has  made  a  fair  election  in  her  own  interest 
and  that  of  her  family,  the  Court  would  not  allow  the  election  to  be 
opened  up  in  the  interests  of  the  husband's  creditors  {Stevenson,  1838, 
1  D.  181;  MDouf/al,  1858,  20  D.  658;  Zoivson,  1854,  16  D.  1098;  Millar, 
1876,  4  II.  87).  A  provision  by  a  husband  to  a  widow  of  the  liferent  of 
all  his  goods  and  gear,  moveable  and  inmioveable,  excludes  the  legal 
right  which  she  would  otherwise  have  had  to  the  property  of  the  third 
or  half  of  his  moveables  (Ersk.  iii,  3.  30).  "  When  there  is  no  ante- 
nuptial contract,  and  the  husband  makes  a  voluntary  provision  in  favour 
of  his  widow,  as  in  full  of  her  legal  claims,  she  is  put  to  her  election  on 
his  predecease ;  and,  in  the  event  of  her  death  before  she  has  had  an 
opportunity  of  making  her  choice,  the  right  of  election  passes  to  her  repre- 
sentatives. On  the  other  hand,  if  the  wife  has,  during  the  subsistence  of  the 
marriage,  consented  to  accept  the  provision  in  substitution  for  her  legal 
claims,  she  may  retract  her  consent  as  a  donatio  inter  virum  et  iixorem,  but 
her  right  of  revocation  being  strictly  personal  cannot  be  exercised  by  her 
representatives"  {Baxter's  Trs.,  1888,  15  R  (H.  L.)  p.  34).  "  By  the  law  of 
Sccjtlanil,  as  well  as  by  that  of  England,  a  married  woman  may  make  an 
elTectual  gift  of  her  separate  income  to  her  husband,  with  this  difference,  that 
by  Scotch  law  she  has  the  privilege,  even  after  her  husband's  death,  of  reclaim- 
ing the  subject  of  her  gift  in  so  far  as  it  has  not  been  bond  fide  consumed. 
The  wife's  consent  to  give  need  not  be  in  wiiting,  nor  in  terms  express,  l)ut 
may  Ijc  matter  of  inference  from  the  circumstances  of  the  case  or  the  conduct 
of  the  spouses"  {Edward,lS8S,  15  E.  (H.  L.)  37).  A  conveyance  by  a  daughter 
to  marriage-contract  trustees  of  the  share  she  would  take  under  her  father's 
will  was  hold  not  to  bar  her  representatives  from  claiming  legitim  {Crellin, 
1892,  20  E.  51).  If  a  legatee  elects  between  a  marriage-contract  provision 
or  legal  rights  and  a  testamentary  gift,  the  person  whose  interests  are  hurt 
by  the  election  has  a  right  to  compensation  out  of  the  unpaid  provision 
{irarvrji's  Tr.H.,  1803,  1  :\I.  345;  Dixon,  1833,  6  W.  &  S.  431 ;  Bussell's  Trs., 
1880.  13  E.  089). 


SUCCESS  rON  107 

Conditio  si  sine  lh'.eris  institutus  rFXESSEitrr  (Eusk.  hi.  8.  4G). 

This  is  a  condition  implied  in  settlements  of  laiul  and  in  marriage  Cdn- 
tracts  and  settlements  by  which  a  succession  is  regulated,  and  involves  an 
C(iuitalilo  extension  of  the  scope  of  the  liequcst  to  ]»('rsons  who  have  hcon 
altogether  overlooked  in  the  testator's  scheme  of  settlement;  fumidcd  on 
the  relationship  of  the  ]tarties,  and  on  the  presumption  that  the  maker  of 
the  deed  had  not  intentionally  disinherited  persons  having  a  claim  on  his 
goodwill. 

"The  condllio  has  been  held  to  apply  where  the  settlement  is  universal, 
where  the  beneficiaries  are  a  class,  and  the  provision  is  of  the  nature  of  a 
family  settlement,  and  where  the  testator,  if  not  a  parent,  is  at  all  events 
i)i  loco  2'>arcntis  to  the  beneficiaries.  Where  all  these  elements  concur,  the 
conditio  will  be  applied.  The  elfect  given  to  these  elements  depends  on 
two  principles :  first,  that  the  delectus  j^f^^'soncc  implied  in  a  nominalim 
bequest  is  excluded  when  the  provision  is  to  a  class  ;  and,  secondly,  that 
when  the  provision  is  of  the  nature  of  a  family  provision,  and  where  the 
granter  is  in  loco  ^inrcntis  to  the  beneficiaries,  there  is  a  prcsum]>tion  that 
the  granter  prefers  the  issue  of  a  predeceasing  beneficiary  to  any  substitute 
named  in  the  deed"  (Ld.  Moncreiff  in  JJlair's  Fxs.,  1876,  3  E.  362). 
The  state  of  the  testator's  knowledge  at  the  date  of  the  will  is  what 
is  looked  to :  his  survivance  of  the  legatee  makes  no  difference  {Xcilsoyi, 
1822,  1  S.  458  ;  Booth,  1832,  6  W.  &  S.  175).  That  the  conditio  applies  to 
the  case  of  marriage  contracts  was  settled  by  the  House  of  Lords  in  the 
case  of  Rur/hes,  1892,  19  E.  (H.  L.)  33. 

In  Crichton's  Tr.,  1890,  18  E.  260,  it  was  questioned  whether  the 
conditio  was  ever  applicable  to  deeds  granted  inter  vivos  on  which 
infeftment  had  followed,  but  the  question  was  not  decided.  For  the 
application  of  the  conditio,  the  beciuest  must  be  of  the  nature  of  a  family 
provision  (Marquis,  1890,  23  E.  595 ;  Douglas'  Uxrs.,  1869,  7  M.  504), 
and  must  he  made  by  one  who  is  in  loco  2^arc7itis.  It  does  not  apply  to 
bequests  in  favour  of  brothers  and  sisters  of  the  granter  {Hall,  1801, 
18  E.  690:  Blair  sExrs.,  1876,  3  E.  362;  Bcrivich's  Exr.,  1885,  12  E.  565), 
or  of  cousins  (Ehind's  Trs.,  1866,  5  M.  104),  or  of  illegitimate  children 
(Martin's  Trs.,  1864,  3  M.  326).  Nor  does  it  apply  to  the  case  of  legatees  . 
called  in  a  general  character,  as  heirs  or  next  of  kin  (Cockhurn's  Trs.,  1864, 
2  M.  1185)',  or  to  a  purely  personal  legacy,  as  of  plate  or  pictures  (Broicn's 
Trs.,  1882,  10  E.  441  ;  M Alpine,  1883,  10  E.  837 ;  Douglas  Exrs.,  1869, 
7  M.  504).  The  conditio  applies  to  l)equests  to  children  or  grandchddrcn 
(Maqs.  of  Montrose,  1738.  IMor.  6398;  Dixon,  1836,  14  S.  938;  1841, 
2  liob.  "l;  Wilbie,  1836,  14  S.  1121;  Lausons  Trs.,  1859,  21  D.  286). 
"  I  am  of  opinion  that  the  conditio  si  sine  liberis  applies  in  the  dn-ect  line, 
however  remote  the  descent  may  be"  (Ld.  Shand  in  Grant,  1882,  10  E.  92). 
The  children  who  take  under  the  condition,  as  a  general  rule  take  only  the 
share  that  would  have  gone  to  their  deceased  parent ;  they  do  not  share  in 
accretions  (Render  son,l^^Q  ,17  E.  2^?y,MNish,  1879,7  E.  96 ;  MCulloch'sTrs., 
1892,  19  E.  777).  In  the  last  of  these  cases  it  was  remarked  by  one  of  tlio 
judges,  that  he  would  not  be  disposed  to  assent  to  the  proposition  that 
"there  is  any  artificial  rule  of  construction  which  obliges  the  Court  to  hoU\, 
where  a  residue  is  disposed  of  among  different  members  of  a  family,  that  the 
children  of  one  of  the  residuary  legatees  who  may  die  leaving  issue  are  cut 
out  from  what  their  parent  would  have  taken  by  accretion.  It  only 
applies  to  the  case  of  nephews  and  nieces  if  they  are  called  as  a  class 
(Thomson's  Trs.,  1851,13  D.  1326;  Mcol,  1876.  3  E.  374;    Gaulds  Trs., 


108  SUCCESSION 

1877,  -4  li.  091 ;  Jin/ces  Trs.,  1878,  5  E.  722).  not  if  tliey  are  only  called  as 
iiuliviiluals  {Hamilton,  1838,  10  S.  478;  Gillespie,  1876,  3  R.  561  ;  MCall, 
1871. 10  M.  281  ;  Blair's  Exrs.,  1876,  3  R  302  ;  Brnce's  Trs.,  1898, 25  K.  796). 

The  expression  in  loco  i^arcntis  does  not  mean  that  the  uncle  has 
diuiiiij  his  life  occupied  such  a  position,  or  treated  his  nejfhew  and  nieces 
with  that  kindness  which  a  parent  would  show  to  his  children.  What  is 
meant  is,  that  in  his  settlement  he  has  placed  himself  in  a  position  like 
that  of  a  parent  towards  the  legatees,  that  is  to  say,  that  he  has  made  a 
settlement  in  their  favour  similar  to  what  a  parent  might  have  been  pre- 
sumed to  make  (Bowie's  Trs.,  1882,  9  K.  453).  "  I  cannot  lind  in  previous 
decisions  any  definite  or  distinct  limitation  of  the  condition  which  is  said 
to  i[ualify  the  application  of  the  general  rule  that  the  testator  must  have 
jjlaced  himself  in  loco  parentis  to  the  legatees,  except  that  the  person 
claiming:  the  benefit  of  the  conditio  must  show  that  the  testator  made  the 
bequest  in  consideration  of  relationship,  and  not  for  any  more  special 
re^ison  applicable  exclusively  to  the  individual  legatee "  (Ld.  Kinnear  in 
WaddclVs  Trs.,  1896,  24  E.  189). 

The  conditio  may  be  excluded  by  evidence  of  contrary  intention  {Grcig, 
1835.  13  S.  607),  as  where  a  testator  makes  other  provision  for  those  wdio 
would  benefit  by  it  {Carters  Trs.,  1892,  19  E.  408  ;  cf.  Forresters  Trs., 
1894,  21  E.  971).  In  Allan,  1893,  20  E.  733,  the  conditio  was  applied  to 
shares  of  residue,  but  denied  to  general  legacies  left  to  the  same  people. 
It  has  been  doubted  if  it  applies  to  the  issue  of  a  mere  conditional 
insWiwtQ  {Carter  s  Trs.,  supra). 

Kinds  of  Legacy. 

General  Legacy. — A  legacy  is  a  gift  made  by  a  testator  to  take  effect 
upon  or  after  his  death.  A  general  legacy  is  a  legacy  of  so  much  money  or 
other  property  not  identified  or  rendered  specific.  This  confers  upon  the 
legatee  merely  a  claim  against  the  executor  or  other  representatives,  the 
executor  being  liable  if  he  has  sufficient  free  executry  to  meet  it. 

Special  Legacy. — A  special  legacy  is  a  bequest  of  a  particular  sum  or 
debt  or  suljject  specially  distinguished  and  identified.  A  special  legatee 
has  an  action  direct  against  the  possessor  of  the  fund  or  subject,  the 
executor  being  made  a  party  to  the  action  in  order  that  the  rights  of 
creditors  of  the  deceased  may  be  secured.  A  special  legacy  is  not  revoked 
by  implication  by  a  posterior  general  disposition,  but  it  will  not  be  due  if 
the  subject  of  it  has  perished  or  been  disposed  of  by  the  testator.  If  the 
su})ject  of  a  special  legacy  has  been  pledged,  it  is  taken  cum  oncre  {Stewart, 
1891,  19  E.  310;  Lady  Balmerino,  1746,  Mor.  8074). 

Universal  Legacv. — A  universal  legacy  or  residuary  bequest  com})re- 
iiends  all  the  testator's  estate, or  what  remains  after  satisfying  expenses,  debts, 
and  other  legacies.  As  a  general  rule,  where  there  is  a  residuary  clause, 
there  can  be  no  ]jartial  intestacy.  The  residuary  legatee  is  not  substituted  to 
other  legatees  whose  gifts  may  fall  in  :  he  is  ah  origine  the  object  of  a  gift,  the 
subject  of  which  may  be  more  or  less  according  as  it  is  or  is  not  alfected  by 
contingencies.  The  residuary  legatee  is  so  called  because  his  universal 
h'gaoy  is  burdened  with  the  payment  of  the  particular  legacies  to  others. 
When  you  find  the  word  "residue"  occurring  in  a  testamentary  writing,  the 
presumption  is  that  it  carries  the  residue  of  the  whole  estate,  and  not 
merely  that  of  a  ])articular  fund  {Millar,  1894,  21  E.  921);  though 
thore  may  be  a  partial  residue  {Stohies  Trs.,  1888,  15  E.  340;  Doiunics 
7V.S.,  1882,9  E.  749  ;  llrovn,  1877,  5  E.  37). 

riiere  is  no   presumption  against  a  residuary   legatee  getting  also  a 


SUCCESSION 


109 


quantitative   legacy,  wbethev    in    his   own   name   or   as   one   of  a   class 
(Kirkpatrick,  1878,  6  R.  (H.  L.)  4). 

The  general  rule  is  that  the  testator  is  assumed  to  have  inlonded  to 
convey  a  benelit,  and  the  Court  is  to  arrive  at  the  intention  of  the  k'stator 
as  expressed  in  his  will,  aided  by  their  knowledge  of  tlie  circumstances  of 
the  case,  the  state  of  the  testator's  fortune,  his  family  and  relationships  ;  hut 
what  they  will  enforce  is  the  intention  he  has  expressed,  not  the  intention 
he  wonhl  be  likely  to  exjiress  where  lie  lias  failed  to  do  so. 

Demonstrative  Leciacy. — A  demonstrative  legacy  is  a  Ijcquest  payable 
out  of  or  secured  upon  a  particular  fund  or  security  (Z>o?////«.s'  A'./r.s.,  IsGO, 
7  M.  504).  When  a  legacy  is  to  be  paid  out  of  a  particular  fund,  if  that 
fund  perishes  or  is  exhausted,  the  legacy  falls,  uidess  it  ajijiears  that  the 
reference  to  a  ])articular  fund  was  merely  to  indicate  a  source  of  iiayment, 
and  in  case  of  duubt  the  presumption  is  in  favour  of  the  reference  being 
demonstrative  and  not  taxative.  A  demonstrative  legacy  will  not  abate 
until  after  the  fund  out  of  which  it  is  payable  is  exhausted  {Arhdhnot, 
175G,  Mor.  8080). 

Lkgatum  eei  alien.e. — This  is  a  legacy  of  something  which  does  not 
belong  to  the  testator.  Whether  this  legacy  be  exigible  or  not  depends 
upon  the  state  of  the  testator's  knowledge.  If  be  did  not  know  that  the 
thing  bequeathed  belonged  to  someone  else, —  and  in  duhio  this  is  to  bo 
presumed, — there  is  no  legacy ;  but  if  he  knew  that  he  was  dealing  with 
something  not  his  own,  the  legacy  is  good,  and  the  executor  is  bound 
to  make  it  good  to  the  legatee. 

Tiiere  is  no  distinction  now  between  a  legacy  of  heritage  and  one  of 
moveables,  so  long  as  there  is  an  intention  made  clear  that  heritage  shall 
pass. 

Nuncupative  Legacy. — A  legacy  may  be  left  by  word  of  mouth,  in 
which  case  it  will  be  valid  up  to  but  not  beyond  £100  pounds  Scots  {Kelly, 
1861,  23  D.  703). 

Abatement. — If  the  free  estate  of  the  deceased  is  not  sudlcient  to 
pay  the  legacies,  they  suffer  a  proportional  abatement.  The  testator  may 
of  course  give  preferences  if  he  pleases,  but  in  the  absence  of  other 
indication  the  rule  is  that  residuary  legacies  aljate  first,  next  general 
legacies,  and  last  of  all  special  legacies  (^'a^Y's  Trs.,  1886,  13  \l  1104).  A 
legacy  for  mournings  is  preferable  to  other  legacies,  to  the  extent  of  the 
cost  of  suitable  mournings  (CaldwaU,  1736,  Mor.  8066). 

Legacy  of  Annuity. — Where  a  testator  gives  a  legacy  in  the  sha]«e  of 
an  annuity  to  Ijc  purchased  for  the  legatee,  it  is  quite  settled  that  the 
legatee  is  entitled  to  payment  of  the  sum  directed  to  be  invested,  because 
it'is  always  in  the  power  of  the  legatee  to  realise  the  annuity,  and  it  is  not 
right  that  he  should  be  subjected  to  the  disadvantage  of  having  to  buy  uj* 
the  investment  at  a  diminished  ]>rice  {Murray,  1895,  22  W.  ]».  041  :  Pvv', 
1877,  4  R  403;  Millers  Trs.,  1890,  18  II.  301).  This  principle  will  be 
applied  even  in  the  case  of  annuities  declared  to  be  alimentary  unless  they 
are  protected  by  a  trust.  It'  there  are  neither  conditional  institutes  with 
an  interest  in  the  fund,  nor  trustees  charged  with  the  duty  of  holding  it, 
no  one  is  in  a  position  to  challenge  the  sale;  and  a  qualilication  of  a  right 
which  no  one  is  in  a  position  to  enforce  is  no  qualilication  at  all. 

rElU'ETUITlES   and   AcCUMUIATIONS. 

Perpetuities  are  illegal  l)oth  as  regards  heritage  and  moveables  (11  & 
12  Vict.  c.  86,  ss.  1-3,  47-49;  31  &  32  Vict.  c.  84,  s.  17).  A  liferent  in 
moveable  estate  may  be  constituted  or  reserved  only  m  favour  of  one  m 


no  SUCCESSION 

life  at  the  date  of  the  deed.  Where  any  person  of  full  age  and  born 
after  the  date  of  the  deed  (which  in  testamentary  deeds  is  the  date  of 
the  death  of  the  testator)  is  in  riglit  of  a  liferent  of  moveable  estate 
under  any  deed  dated  after  31st  July  1868,  such  moveable  estate  belongs 
to  him  absolutely,  and  if  held  by  trustees  must  be  made  over  to  him. 

Accumulations. — The  Thellusson  Act,  39  &  40  Geo.  iii.  c.  98,  enacts : 
"  Wiiereas  it  is  expedient  that  all  dispositions  of  real  or  personal  estate, 
whereby  the  profits  and  produce  thereof  are  directed  to  be  accumulated, 
and  tlie  beneficial  enjoyment  thereof  is  postponed,  should  be  made  subject 
to  the  restrictions  hereinafter  contained :  Be  it  enacted  that  no  person  or 
persons  shall,  after  the  passing  of  this  Act,  settle  or  dispose  of  any  real  or 
personal  property,  so  and  in  such  manner  that  the  rents,  issues,  profits,  or 
produce  thereof,  shall  be  wholly  or  partially  accumulated ;  for  any  longer 
term  than  the  life  or  lives  of  any  such  grantor  or  grantors,  settler  or  settlers  ; 
or  the  term  of  twenty -one  years  from  the  death  of  any  such  grantor — or 
during  the  minority  or  respective  minorities  of  any  person  or  persons  who 
shall  1)0  living,  or  in  ventre  sa  mere  at  the  time  of  the  death  of  such  grantor — 
or  during  the  minority  or  respective  minorities  only  of  any  person  or  persons 
who,  under  the  uses  or  trusts  of  the  deed,  directing  such  accumulations, 
would,  for  the  time  being,  if  of  full  age,  be  entitled  unto  the  rents,  issues, 
and  profits,  or  the  interest,  dividends,  or  annual  produce  so  directed  to 
ha  accumulated:  And  in  every  case  where  any  accumulation  shall  be 
directed  otherwise  than  as  aforesaid,  such  direction  shall  be  null  and  void, 
and  the  rents,  issues,  proceeds,  and  produce  of  such  property  so  directed 
to  be  accumulated,  shall,  so  long  as  the  same  shall  be  directed  to  be 
accumulated  contrary  to  the  provisions  of  this  Act,  go  to  and  be  received 
by  such  person  or  persons  as  would  have  been  entitled  thereto  if  such 
accumulation  had  not  been  directed." 

This  Act  as  originally  passed  did  not  apply  to  dispositions  of  heritage 
in  Scotland,  but  was  extended  to  them  by  the  Ifutherfurd  Act.  The  period 
of  twenty-one  years  is  reckoned  from  the  truster's  death  although  accumu- 
lation may  not  commence  till  long  after  {C'amjMl's  Trs.,  1891,  18  11.  992 ; 
Zor/an's  Trs.,  1896,  23  E.  848).  If  there  is  a  good  gift  of  the  estate  of  which 
the  revenue  is  directed  to  be  accumulated,  then  the  direction  is  held  to  be  a 
burden  upon  the  gifts,  and  the  person  entitled  to  the  estate  takes  the  income 
(Ol/Jlvic's  Trs.,  1840,  8  D.  1229;  Maekenzie,  1877,  4  11.  962;  MacioclVs  Trs., 
1877,  5  E.  248).  On  the  other  hand,  when  there  is  no  prior  gift  of  the  estate, 
the  reveime  has  been  regarded  as  undisposed  of,  and  been  given  to  the  repre- 
sentatives ah  intestato  of  the  testator  {Keith's  Trs.,  1857,  19  D.  1040  ;  Lord, 
1800,  23  D.  Ill;  Cathcari's  Trs.,  1883,  10  11.  1205;  CamphelUs  Trs.,  1891, 
18  E.  992 ;  Lorjan's  Trs.,  1896,  23  E.  848).  Tlie  rents  of  heritage  go  to  the 
pei-son  who  would  have  been  heir  at  the  time  the  rents  accrue.  Arrears 
and  other^  moveable  funds  go  to  the  next  of  kin  as  at  the  death  of  the 
testiitor  {CamphclVs  Trs.,  supra ;  Logans  Trs.,  siqna) ;  the  reasoning  by  which 
the  lieir  is  f^ound  seems  to  be  inconsistent  with  what  was  laid  down  in 
M'Adam,  1879,  6  E.  1256,  that  there  is  now  no  such  thing  known  in  the 
law  of  real  property  in  this  country  as  any  heir  possessing  an  estate  on 
apparency;  and  that  the  moment  the  breath  was  out  of  the  l)ody  of  the 
last  heir,  the  next  l.»ecomes  owner  under  a  complete  personal  title,  a  right 
to  the  lands  as  complete  as  any  right  to  land  can  be  without  feudalisation. 

J  he  Statute  55  &  56  Vict.  c.  58,  s.  1,  provides  that  no  person  shall 
settle  or  disj.ose  of  any  property  in  such  manner  that  the  rents,  issues, 
prohts,  or  HicDrne  tiiereof  shall  be  wholly  or  partially  accumulated  for  the 
purchase  of  land  only,  for  any  longer  period  than  during  the  minority  or 


SUCCK^^SION  1 1 1 

respective  minorities  of  any  person  or  persons  who,  niider  the  uses  or  trustH 
of  the  instrument  directing  such  accuniuhition,  wuuld  fur  the  tiiuo  being,  if 
of  full  age,  be  entitled  to  receive  the  rents,  issues,  prolits,  or  income  so 
directed  to  be  accumulated. 

Conditional  Institution  and  Substitution. 

"This  is  common  to  all  legacies,  that,  if  the  legatee  die  before  the  testator, 
the  legacy  becomes  void,  and  is  not  transinitteil  to  the  heirs  and  successors 
of  the  legatee  "  (Stair,  iii.  8.  21).  A  bequest  to  A.  and  his  assignees  is  inter- 
preted in  the  same  way  {Bell,  1845,  7  D.  614).  IhiL  if  a  legacy  is  given  to  A. 
and  his  heirs,  or  A.  and  his  executors  or  successors,  it  is  not  evacuated  by 
the  predecease  of  A.  It  is  taken  by  the  heirs  as  conditional  in.^titutes, 
that  is  to  say,  as  a  direct  gift  from  the  testator  {HaUibiuion,  1884, 1 1  11.  979 ; 
Clcland,  1891, 18  E.  377  ;  Ersk.  iii.  9.  9).  But  when,  from  the  terms  of  the 
deed  or  the  circumstances,  it  appears  that  this  rule  is  excluded,  it  will  not 
be  applied  (Donald's  Trs.,  18G4,  2  ]\I.  922  ;  Findlcuj,  1875,  2  l\.  909  ;  Lausons 
Trs.,  1859,  21  U.  286).  A  legacy  to  A.  and  his  iieirs  and  anyone  to  whom 
he  shall  leave  it,  gives  A.  no  power  of  disposal  before  the  legacy  vests  in  him 
{Henri/,  1824,  2  S.  725). 

In  dispositions  of  heritage  the  presumption  is  in  favour  of  substitution. 
If  you  have  a  destination  to  A.  whom  failing  to  B.,  and  A.  takes,  then,  unleps 
he  disposes  of  the  estate,  B.  will  be  entitled  on  his  death  to  succeed  as  heir 
under  the  substitution  {Ogilvie,  1852,  14  D.  363).  In  destinations  of  move- 
able and  mixed  estate,  the  presumption  is  against  substitution  ( WaUon, 
1884,  11  R.  444).  But  "substitution  in  moveables  is  recognised  in  the  law 
of  Scotland.  It  is  not  a  favourite  and  it  is  not  readily  presumed,  and  the 
substitution  if  effectually  created  will  be  evacuated  either  by  any  clearly 
expressed  intention  of  the  institute  to  evacuate  it,  as  by  assigning  or 
spending  the  money,  or  by  its  beconung  immixed  with  his  own  fiuuls, 
or  by  his  disposing  of  it  by  will.  But  if  not  evacuated,  a  substitution 
must  receive  its  etfect"  (Ld.  Moncreiff  in  BclVs  Exr.,  1897,  24  E.  11 20; 
MClymont's  Uxrs.,  1895,  22  E.  411;  Buchanans  Trs.,  1868,0  :\r.  536; 
Davidson,  1870,  8  M.  807 ;  Di/er,  1874,  1  E.  943).  It  is  said  that  there 
is  only  one  safe  formula  for  creating  a  substitution  in  moveables,  that  is 
to  say,  by  using  some  such  expression  as  "  whom  failing  cither  before  or 
after  the  interest  has  vested."  It  must  be  expressed  either  in  proper 
technical  language  or  by  a  direction  to  trustees  to  insert  a  clause  of 
substitution  in  the  conveyance  of  the  securities  of  the  trust  estate  {Grcl<j, 
1833,  6  W.  &  S.  406).  It  is  usual  to  protect  it  by  means  of  a  trust.  The 
Crown,  though  nltimus  lucres,  is  not  included  in  a  destination  to  heirs 
{Torric,  1832,  10  S.  597). 

Joint  Bequest. — A  bequest  to  persons  as  a  class,  e.g.  to  the  children 
of  A.,  is  a  joint  bequest  whether  the  children  be  named  or  not,  and  nothing 
lapses  by  the  predecease  of  one  of  the  class,  the  legacy  Iteing  divided  among 
the  survivors.  An  exception  is  admitted  in  the  case  where  the  testator 
has  used  such  expressions  as  "  equally  and  proportionally  among  tliem  " 
{}[acphcrson,  1894,  21  E.  386). 

Joint  and  Several  Legacies— Accketion.— A  legacy  to  A.  and  B. 
jointly,  or  jointly  and  severally,  goes  to  them  equally  in  case  they  both 
"survive  the  period  of  vesting:  if  one  of  Ihem  predecease,  the  other 
takes  the  whole,  and  the  share  of  him  who  predeceases  is  said  to  accrcsce 
to  the  survivor.  But  if  the  legacy  is  to  them  equally,  or  if  it  is  to  be 
equally  divided  among  them,  tliere  is  no  jus  accrcsccndi,  each  takes  on^ly 
his  own  share.     The  leading  case  on  this  subject  is  Pa^vtona  Trs.,  1886, 


112  SUCCESSION 

13  li.  ii'Ji,  where  the  rule  is  tlius  laid  down  by  Ld.  Tres.  liiglis : 
"  There  is  a  rule  of  construction  settled  by  a  series  of  decisions  beginning 
in  the  last  century,  and  coming  down  to  the  case  of  Buchanan's  Trs.  in 
1SS3,  to  the  effect  that  when  a  legacy  is  given  to  a  plurality  of  persons 
named  or  sulUciently  described  for  identification  '  equally  among  them,'  or 
'  in  equal  shares,'  or  '  share  and  share  alike,'  or  in  any  other  language  of  the 
siime  imix)rt,  each  is  entitled  to  his  own  share  and  no  more,  and  there  is 
no  room  for  accretion  in  the  event  of  the  predecease  of  one  or  more  of  the 
legatees.  The  rule  is  applicable  whether  the  gift  is  in  liferent  or  in  fee 
to  the  whole  equally,  and  whether  the  subject  of  the  bequest  be  residue 
or  a  sum  of  fixed  amount  or  corporeal  moveables.  The  application  of 
this  rule  may,  of  course,  be  controlled  or  avoided  by  the  use  of  other 
expressions  by  the  testator,  importing  an  intention  that  there  shall  be 
accretion  in  the  event  of  the  predecease  of  one  or  more  of  the  legatees " 
{Wilsons  Trs.,  1894,  22  E.  62;  Muirs  Trs.,  1889,  16  E.  954;  StoUc's  Trs., 
1888,  15  E.  340). 

Geneual  "Wokds  in  a  "Will  or  other  Mortis  Causa  Disposition. 

An  enumeration  will  or  will  not  limit  a  generality,  according  as  it  is  or 
is  not  sulhcient  to  satisfy  the  Court  that  it  was  intended  to  do  so  (Ld.  Young 
in  Oar/'s  Curator,  1885,  12  E.  1162;  Mackie,  1883,  11  E.  255). 

1.  If  a  legacy  is  given  in  tlie  form  of  an  enumeration  of  particular 
subjects,  followed  by  general  words,  the  general  words  are  held  to  include 
only  such  as  are  cjusdem  generis  with  those  specified  {Kcr,  1745,  Mor.  2274 ; 
Dunbar's  Trs.,  15  Jan.  1808,  Hume,  267;  Carswell,  1858,  20  D.  516).  But 
where  tlie  general  words  precede  the  enumeration,  the  rule  is  not  so  strict 
{Mackie,  1883,  11  E.  255). 

2.  If  the  general  words  follow  a  particular  enumeration  of  subjects  con- 
stituting a  diilerent  description  of  estate,  they  receive  effect  according  to 
the  natural  meaniug  of  the  W'Ords ;  that  is,  general  words  following  an 
enumeration  are  not  confined  to  sul)jects  ejusdem  generis  unless  they  are 
connected  by  words  of  relation  with  the  antecedent  enumeration  {Glover, 
7  Dec.  1810,  F.  C. ;   Welsh,  28  June  1809,  F.  C). 

3.  The  general  w^ords,  whether  heritable  or  moveable,  must  be  appro- 
priate to  the  quality  of  the  estate  to  be  given  {Paterson,  9  Feb.  1800,  Hume, 
128;  ^Sutherland,  1805,  Hume,  133;  Cloustons  Trs.,  1889,  16  E.  937).  In 
this  last  case  the  word  "heritable"  was  interpreted  so  as  to  affect  the 
whole  of  a  mixed  estate  (see  also  Neilson,  1860,  22  D.  646). 

The  modern  tendency  of  the  Courts  has  been  to  construe  general  words 
in  their  ordinary  sense.  You  are  not  justified  in  taking  away  from  them 
their  common  meaning  unless  you  can  find  something  reasonably  plain 
upon  the  face  of  the  document  itself  to  show  that  they  are  not  used  with 
that  meaning,  and  the  mere  fact  that  general  words  follow  specific  words  is 
certainly  not  enough  {Anderson,  L.  \\.  [1895]  1  Q.  B.  749). 

It  may  Ijc  u.seful  to  set  down  here  a  number  of  decided  points  on  the 
interpretation  of  general  words  in  bequests,  but  this  must  be  done  under 
reference  to  the  rule  that  every  deed  is  its  own  interpreter : — 

"  Goods,  gear,  and  sums  of  money  "  will  carry  corporeal  moveables,  not 
debts  {Mochrie,  1736,  :\Ior.  5018;  Brown,  3  Dec.  1805,  Mor.  "  Clause,"  App. 
No.  5).  "  Goods,  gear,  debts,  etc.,"  will  not  carry  heritable  debts  secured 
by  adjudiciition  {Ross,  1771,  2  Pat.  254;  Galloway,  12  Jan.  1802,  F.  C, 
57  Mor.  15950;  Crawford,  1838,  10  S.  1017).  "Goods  and  gear,  whether 
heritable  or  moveable,"  does  not  carry  a  lease  {Sutherland,  Feb.  1805,  Hume, 
133;  ralcrson,  1800.  Hume,  128).     "Moveables  whatsoever,"  with  words 


SUCCESSION  113 

descriptive  of  corporeal  luoveaMus,  will  not  carry  moveable  Ijtunl.s  (iJunhir's 
Trs.,  1808,  Hume,  2G7).  "  Moveable  estate  "  following  corporeal  moveables 
does  not  include  moveable  rights  (Carsnccll,  1858,  20  1).  51G).  "CaBh" 
includes  current  coins  and  bank  notes,  but  not  bonds,  bills,  or  securities 
{Jarcic,  18G0,  22  D.  1395).  "Money  wherever  deposited"  was  held 
equivalent  to  residue  of  moveable  estate  {Easson,  1879,  7  W.  251 ;  Crant's 
Trs.,  188G,  13  11.  G-4G).  A  gift  of  "income"  has  been  distinguished  from  a 
gift  of  the  liferent  of  a  capital  sum,  in  tliat  under  "income"  recurring  pay- 
ments will  be  included  (Fncr's  Trs.,  1897,  24  II.  437  ;  Strain's  Tr.^.,  1893,  20 
K.  1025).  "Furniture"  includes  articles  of  domestic  use,  but  not  Ijooks  or 
wine  (Bell's  Prin.  1872).  "  The  wliole  of  the  furniture  in  her  own  bedroom 
and  any  other  she  may  choose  for  furnishing  her  house,"  was  held  to  give 
a  power  of  choosing  liberally  but  fairly  similar  articles  to  those  in  her  own 
bedroom  {Bced,  1835,  13  S.  810;  see  Macdonald's  Trs.,  189G,  23  li.  913). 
Where  a  testator  disposed  separately  of  his  heritable  and  moveable  estate, 
"moveable  estate"  included  herita])le  bonds,  because  they  are  movealile 
quoad  succession  {Cunninr/ha77i,  1889,17  If.  218;  Hufjhcs'  Trs.,  1890,  18  \l 
299).  "  Property  and  estate "  are  the  two  most  general  words,  and  they 
include  both  heritage  and  moveables  {Grant,  1893,  20  E.  404;  Oafjs  Cur., 
1885,  12  K.  1162).  "Effects"  does  not  apply  to  heritable  estate  {Fitcairn, 
1870,  8  M.  G04  ;  but  see  Forsyth,  1887,  15  E.  172).  A  legacy  of  the  interest 
of  a  particular  sum  has  sometimes  been  interpreted  so  as  to  carry  the  capital 
(Sanderson's  Exr.,  18G0,  23  D.  227).  "Free  money"  includes  movealile 
funds,  not  merely  cash  in  bank,  less  debts  but  not  legacies  (Smith,  1829, 
7  S.  734). 

It  is  necessary  in  order  to  carry  heritage  in  a  testament  that  it  shall  be 
clear  that  the  words  used  refer  to  heritage ;  and  where  neutral  or  equivocal 
words  are  used,  the  intention  will  be  determined  from  the  context  (Grant, 
1893,  20  R  404). 

Falsa  demonstratio  non  nocet. — Errors  in  describing  the  thing 
bequeathed,  or  the  person  to  whom  it  has  been  bequeathed,  are 
disregarded  as  long  as  the  thing  or  person  is  capable  of  identification. 
Thus  a  bequest  of  all  the  gas  shares  bought  by  the  testator  for  £300  from 
certain  trustees  was  held  to  carry  all  the  shares  bought  from  the  trustees, 
although  these  had  cost  £798,  and  not  £300  (Bruce  s  Trs.,  1875,  2  II.  775  ; 
Donalks  Trs.,  18G4,  2  M.  922).  Errors  in  dividing  the  estate  will  not 
invalidate  the  bequest.  So  where  one-third  of  an  estate  was  left  to  one 
person,  two-thirds  to  another,  and  one-third  to  another,  it  was  held  that  by 
thirds  fourths  were  meant  (Smith's  Trs.,  1883, 10  II  1144).  Falsa  cnumcratio 
non  nocct  (Brycc's  Tr.,  1878,  5  E.  722).  Though  a  fact  be  stated  as  the 
cause  of  giving  a  legacy  which  is  not  actually  true,  the  legacy  is  due  for 
falsa  causa  non  nocct  (Ersk.  iii.  9.  8).  Nor  will  a  false  cause  given  for  the 
revocation  of  a  legacy  make  the  revocation  ineflectual  (Grant,  1S4G,  8 
D.  1077). 

In  Melvin,  1824,  3  S.  31,  a  testator  left  his  estate  to  a  general  disponee, 
under  burden  of  paying  all  legacies  he  might  thereafter  appoint  by  writing 
under  his  hand,  however  informal.  He  then,  in  a  letter  addressed  to  a  third 
party,  bequeathed  a  legacy  pavalde  out  of  a  sum  which  he  said  was  in  a 
certain  bank.  At  the  date  of  the  letter  there  was  no  such  sum  in  the 
bank,  but  at  the  date  of  his  death  there  was.  The  legacy  was  held  to  be 
good  to  the  testator's  intention  as  expressed  in  the  deed  or  deeds.  And  with 
regard  to  the  description  of  the  legatee,  it  is  enough  dummodo  constat 
de  iKrsona.  A  legacy  was  sustained  although  both  the  ChrisUau  and 
married  name  of  the  legatee  were  wrongly  given  (Keillcr,  1824,  3  S.  396). 

S.  K. — VOL.  XII.  ^ 


114  SUCCESSION 

Airain,  where  le^'acies  were  left  to  each  uf  the  daughters  procreate  of  the 
marriage  betwLxt  A.  B.  and  C.  D.  £-400  .  .  .  £1200,  and  there  were  four 
dau<»hters,  each  was  held  entitled  to  £400  (M'Zehose,  28  Feb.  1815,  F.  C. ; 
see  also  Macfarlancs  Trs.,  1878,  6  E.  288  ;  Millar's  Trs.,  1891,  18  U.  989 ; 
Bn/<y's  Tr.,  1878,  5  E.  722).  The  principle  applied  in  these  cases  seems  to 
be  that  if  there  is  an  inaccurate  enumeration  of  the  persons  composing  a 
class,  the  enumeration  will  be  disregarded,  and  the  legacy  will  be  payable  to 
the  class  (see  Broom,  p.  584). 

A  designation  may  be  defective  in  that  it  does  not  indicate  with 
certainty,  to  a  person  ignorant  of  the  circumstances  of  the  testator  and  the 
legatee,  whom  it  is  meant  to  favour.  In  that  case  the  maxim  applies  Cerium 
est  quod  ccrtum  reddi  potest.  A  legacy  to  my  late  brother  James'  son  was 
held  efilectual  thouL,di  the  only  child  of  James  was  a  daughter  {Macfarlane's 
Trs.,  1878,  6  E.  288). 

This  applies  both  to  bequests  to  individuals  and  to  societies.  Thus  a 
bequest  in  favour  of  "  godly  persons  "  and  "  godly  preachers  of  Christ's  Holy 
Gospel "  was  interpreted  in  accordance  with  the  religious  opinions  of  the 
testator  (Shore,  1842,  9  CI.  &  Fin.  355).  You  may  prove  that  a  testator  was 
likfly  to  favour  a  particular  society  by  such  means  as  showing  that  he  was 
in  tlie  habit  of  supporting  it,  etc.  A  direction  to  trustees  that  plate  and 
furniture  was  to  be  divided  equally,  was  held  to  mean  equally  among  the 
testator's  next  of  kin  (Dundas,  1837, 15  S.  427).  Where  a  bequest  was  left 
to  each  of  the  testator's  domestic  servants  who  should  be  in  his  service  at 
the  time  of  his  death,  a  claimant  who  proved  that  she  had  taken  charge  of 
the  place  of  business  of  his  firm,  and  had  been  in  the  habit  of  waiting  on 
him  at  the  office,  and  had  sometimes  assisted  at  his  residence,  was  found 
entitled  to  share  {M'Intyre,  1863,  2  M.  94 ;  Stirliwj  MaxwcWs  Exrs.,  1886, 
13  E.  854). 

Where  a  legacy  is  left  to  a  society,  secular  or  religious,  and  it  has 
changed  its  name  or  been  amalgamated  with  another,  if  the  elements  of 
continuity  of  title  and  identity  of  purpose  are  present,  the  legacy  will  still 
be  due  {Pringlc,  1823,  2  S.  588  :  Somvicrvail,  1830,  8  S.  370  ;  Wilsons  Exrs., 
1869,  8  M.  233;  see  Fergusons  Bequest,  1898,  36  S.  L.  E.  157).  A 
bequest  "to  all  my  creditors  of  whatever  sums  shall  be  necessary  for 
making  up  full  payment  of  the  balances  remaining  due  to  them,  as  the 
same  shall  be  set  forth  in  a  list  which  I  intend  to  leave,"  did  not  fail 
for  want  of  a  list  {Sjirot,  1855,  17  D.  840).  A  letter  of  a  testamentary 
character  addressed  to  one  of  the  beneficiaries  has  been  held  a  com- 
petent means  of  interpreting  an  ambiguous  bequest  {Ritchie,  1880,  8  E. 
101).  A  bequest  to  the  testator's  second  cousins  has  been  held  to  include, 
in  the  circumstances  of  the  case,  first  cousins  once  removed  {Drylics  Factor, 
1882,  9  E.  1178).  Bequests  left  to  trustees  for  "any  of  the  testator's  blood 
relations  that  the  trustees  should  think  the  most  fit,"  "to  such  of  the 
truster's  mother's  relations  as  they  should  appoint,"  "  to  such  of  his  friends 
anrl  relations  as  should  be  pointed  out  by  his  wife,"  and  other  similar  be- 
quests, have  been  sustained  (  Wharrie,  1760,  Mor.  6599  ;  Murray,  1729,  I\Ior. 
4075  ;  Snodfjrass,  1806,  Myr.  "  Service  of  Heirs,"  App.  No.  1 ;  Crichton,  1828, 
3  W.  &  S.  329;  Brown's  Trs.,  1762,  Mor.  2318;  Cairnie,  1837,  16  S.  1). 
r.ut  m  these  cases,  if  the  trustees  predecease  or  fail  to  take  up  the  trust, 
the  bequest  lapses  {RolUe's  Jud.  Factor,  1893,  20  E.  358  ;  Dick,  1758,  I\Ior. 
/446).  "  Eolations  "  includes  relations  on  the  mother's  side  as  well  as  those 
on  the  fatlier's  {Brown's  Trs.,  1762,  Mor.  2318);  and  under  "nearest 
relations  "  were  included  the  children  of  a  sister  uterine,  wlio  was  named 
in  other  parts  of  the  settlement  along  witli  the  testator's  brother  german 


SUCCESSION  115 

{Scott,  1855,  2  .AIac(i.  -^^  i  ^^orrk,  1838,  2  D.  22U).     When  a  i.t-rsoii  leaves 
liis  property  to  trustees  or  executors  for  the  puri)ose  of  being  (li\  idoil  aiuong 
or  bestowed  upon  benevolent  or  cluirita[)lc  objects,  this  is  by  the  law  of 
Scotland  a  t^^ood  bequest,  nnd  is  not  void  for  uncertainty  {Colh,  1894,  21  K. 
G;!8  ;  Hill,  182(;,  2  W.  &  S.  80  ;  MUlc)',  18137,  2  Sh.  &  M'L.  8(JG).    liut  to  IcjivJ 
a  residue  to  trustees  to  Ije  disposed  of  as  they  see  lit,  gives  them  no  right, 
and  the  property  will  pass  as  on  intestacy  (Sutherland's  2rs.,  1893,  2U  K. 
925).     Where  there  is  no  power  of  selection  given,  a  becpiest  to  "  charities  " 
is  void  from  miccrtainty  (Low's  Exrs.,  1873,  11  M.  744).     A  becjucst  to 
children,  whether  of  the  testator  or  of  a  third  party,  means  jn-ivul  facie 
legitimate  ahMvaw  (Tiirnlnll,  1895,  3  S.  L.  T.  No.  250);  and  if  there  be 
legitimate  children  in  existence,  in  the  absence  of  express  direction  to 
include  illegitimate  cliildron  within  the  scope  of  the  benelit,  only  legitimate 
children  will  take.     Gifts  to  illegitimate  children  noiiiinatim  are  good,  as  is 
probably  a  gift  to  the  illegitimate  children  of  A.  in  life  at  the  date  of  the 
will  (Ballantync,  17  Feb.  1814,  F.  C).     It  is  well  established  in  England 
that  a  bequest  to  unborn  illegitimate  children  is  void  as  being  contra  honos 
mores.     The   general   rule   in  bequests  to  a  class  specifically  defined  as 
"children"  or  "issue"  or  "heirs,"  is  that  only  those  in  existence  at  the 
period  of  distribution   take  a   share.     This  of   course  applies  where  the 
children,  etc.,  are  described  as  "then  in  existence"  or  "surviving  at  the 
time"  (Bogerson's  Trs.,  1865,  3  M.  684;  Blach,  1844,  6  D.  689;  Grant,  22 
May  1810,  F.  C. ;  Sleiuart's  Trs.,  1868,  7  M.  4 ;   Whittci's  Trs.,  1892,  19  If. 
975  ;   Wood,  1861,  23  D.  338  ;  Boss,  1878,  5  R.  833  ;  Hayivard's  Exrs.,  1895, 
22  R.  757).     But  where  no  precise  period  of  distribution  is  named,  or  the 
distribution  is  to  take  place  on  the  death  of  a  parent,  the  expression  may 
be  read  so  as  to  include  both  persons  born  and  persons  to  be  born  (Kenned ;i, 
1841,  3  D.  1266 ;  Scheniman,  1828,  6  S.  1019 ;  Martin's  Trs.,  1864,  3  M. 
326;  Hunters  Trs.,  1865,  3  M.  514;  Ca.rleton,  1867,  5  M.  (H.  L.)  151).     A 
legacy  to  the  children  of  A.  primd  facie  includes  all  the  children  of  A.  who 
are  alive  at  the  date  of  vesting,  whether  they  were  born  at  the  date  of  the 
will  or  not.     A  legacy  to  the  n.  children  of  A.  2)rimd  facie  is  limited  to  the 
children  of  A.  who  were  in  existence  at  the  date  of  the  will ;  but  the  Courts 
will  always  lean  to  a  demonstrative  and  not  a  taxative  construction  (Millei-'s 
Trs.,  1891, 18  K.  989).     A  legacy  to  the  heirs  of  A.  is  a  legacy  to  the  per.son 
who  would  on  intestacy  succeed  to  A.  in  the  ownership  of  the  subject ;  that 
is  to  say,  if  the  subject  is  moveable  it  means  next  of  kin  as  extended  by  the 
statute,  if  heritable,  heir  (C^rc^yry's  Trs.,  1889,  16  R.  (H.  L.)  10;  Blair,  1849, 
12  D.  97;  Irvine,  1851,  13  D.  1367).     Where  the  testator  is  himself  the 
heir  or  successor  of  the  institute,  then  on  the  predecease  of  the  institute  the 
bequest  fails  (Birnie,  1803,  20  R.  481).     A  destination  of  moveable  property 
to  the  nearest  heirs  and  successors  of  A.  calls  those  who  would  take  under 
the  Moveable  Succession  Act  (Nimmo,  1864,  2  M.  1144;  Maxu-ell,  1864, 
3  M.  318).     "Successors"  has  the  same  meaning  as  "heirs"  (Blair,  svpra). 
A  destination  to  A.  and  his  assignee  gives  no  right  to  anyone  unh  ss  A. 
survives  to  take  (Graham,  1807,  Mor.  "  Legacy,"  App.  No.  3  ;  Bell,  1845,  7 
D.  614).     "  Heirs  in  mvhilibus  "  does  not  mean  testamentary  representatives 
(Haldane's  Trs.,  1890,  17  R.  385).     A  destination  to  the  next  of  kin  of  A. 
is  no  longer  equivalent  to  legal  heirs  in  molilihus:  it  is  applicable  to  those 
members' of  tiie  class  who  would  have  been  the  sole  heirs  before  the  passing 
of  the  Act  (Younfs  Trs.,  1880,  8  R.  242;  Gregory's  Trs.,  1889,  16  R.  (H.  L) 
10).     In  the  common  law  of  Scotland  next  of  kin  and  heirs  in  mohdihi> 
meant  the  same  thing;  but  another  meaning  might  l>e  impressed  upon  the 
term  in  a  written  instrument  if  the  context  showed,  either  expressly  or  by 


116  SUCCESSION 

reasonable  implication,  that  it  was  used  in  a  diiTerent  sense  {ConncU,  18G7, 
5  M.  379;  S^ott,  1855,  1  Taters.  App.  507).  "Personal  representatives" 
generally  means  next  of  kin  (Stewart,  1802,  Mor.  "Clause,"  App.  No.  4; 
JAnj^t/H,'  1874,  1  E.  371).  "Executors"  may  mean  those  entitled  to 
the  ollice,  or  executors-nominate  (Scott's  Exrs.,  1890,  17  li.  389).  In  that 
case.  wJiere  it  was  held  that  a  legacy  went  to  the  executor  under  the  will 
iif  A.,  an  attempt  to  exact  payment  of  duties  as  if  the  bequest  had  been 
part  of  A.'s  succession  failed. 

In  the  ordinary  c<ise  the  executor  would  not  take  the  beneficial  estate 
unless  there  was  something  to  show  that  the  testator  meant  him  to  do  so 
(Juinicson,  1872, 10  M.  399).  The  word  "executor"  will  receive  a  construction 
consistent  with  associated  words,  such  as  "  heirs  "  or  "  next  of  kin  "  (Laicson, 
1820,  4  S.  384 ;  Stodart's  Trs.,  1870,  8  M.  GG7).  "  Issue"  has  no  technical 
meaning,  and  includes  all  descendants  (Turners  Trs.,  1897,  24  R.  G19). 
"  Family  "  means  children,  not  grandchildren  (Low's  Trs.,  1892,  19  E.  431 ; 
Fiiffc,  1841,  3  D.  1205 ;  contra,  Irvine,  1873,  11  M.  892).  "  Children  "  does 
not  include  grandchildren  (^(Zam's  Trs.,  189G,  23  E.  828).  "Eelations" 
generally  means  next  of  kin  (Williamson,  18G5,  4  ]M.  GG ;  Cunningham, 
1891,  18  E.  380;  Johnston's  Trs.,  1891,  18  E.  823;  1892,  20  E.  4G).  In 
one  reported  case  the  word  "  children  "  has  been  held  to  include  a  grand- 
child (Rankcn,  1878,  8  M.  878);  but  "children"  is  not  interpreted  to 
include  both  grandchildren  and  immediate  issue  (Eliind's  Trs.,  186G,  5 
M.  104). 

x\.  legacy  to  the  lawful  heirs  or  next  of  kin  of  A.  goes  to  those  who  are 
alive  at  the  death  of  the  testator  (Lord,  18G0,  23  D.  Ill;  Cockhirn's  Trs., 
1864,  2  M.  1185 ;  Eivart,  1870,  9  M.  232 ;  Gregory's  Trs.,  1889,  16  E.  (H.  L.) 
10  ;  Logans  Trs.,  1896,  23  E.  848  ;  Pearson,  1825,  4  S.  119).  Where  a  class 
to  be  benefited  can  l)e  ascertained  at  the  death  of  a  testator,  primd  facie, 
that  is  the  ])eriod  of  time  at  which  the  members  of  the  class  are  to  be 
identified  (Biggar's  Trs.,  1858,  21  D.  4).  A  gift  to  the  heir  of  A.  who  survives 
the  testator  w^ould  probably  not  vest  till  the  death  of  A.,  as  only  then  could 
his  heir  be  found;  though  in  CamphcU's  Trs.,  1891,  18  E.  at  p.  1004, 
Ld.  Young  is  reported  to  have  said :  "  I  should  indeed  be  prepared,  if 
necessary,  to  go  further,  and  hold  that  under  the  destination  of  the  most 
formal  conveyance  to  the  heirs-male  of  the  body  of  A.  B.  (A.  B.  himself 
being  clearly  excluded),  his  sons  would  take  although  A.  B.  should  himself 
happen  to  be  in  life  when  the  succession  opened,  and  that  his  survivance 
would  not  be  either  a  hindrance  to  its  opening  or  favourable  in  any  way  to 
heirs  subsequently  called."  This  is  inconsistent  with  the  opinions  of  the 
Lord  President  and  Ld.  Deas  in  Todd,  1874,  1  E.  1210-1212,  where  it  is 
said  that  a  man's  heir  has  no  existence  until  he  dies,  and  it  never  can  be 
ascertained  till  he  dies  who  will  be  his  heirs.  A  legacy  is  only  a  succession 
and  cannot  compete  with  a  jus  crediti,  in  a  bond  of  provision  granted  upon 
deathbed  (Mitchell,  1676,  Mor.  8056). 

^^Legacies  have  been  sustained  which  have  been  made  to  the  "  heirs  of  A. 
B.,"  and  A.  B.  being  in  life,  his  children  have  been  held  entitled  to  the 
legacies.  This  construction  requires  an  explanatory  context  (Lovcdag, 
1755,  Arab.  273;  Bull,  1858,  25  Beav.  540;  Sginers,  1848,  16  Sim.  267). 
Primd  facie  a  gift  to  a  class  is  to  be  divided  iKr  caiiita.  In  order  that  the 
division  should  bo  per  stirpes,  it  must  appear  from  the  will,  from  its  language 
or  Its  scope,  tliat  the  division  is  to  be  among  families  (Macdougall,  18GG,  4 
M.  372 ;  Bogie's  Trs.,  1882,  9  E.  453).  Legacies  to  two  or  more  families 
jointly,  or  to  a  family  and  individuals  by  name,  are  divided  p)er  capita 
(M'Kcnzic,  1781.  Mor.  GG02 ;  M'Courtie,  15  Jan.  1812,  Hume,  270;  Benny, 


SUCCESSION  117 

1S22,  2  S.  GO).  A  gift  to  issue  of  the  fee  of  what  their  i)arents  lifcrented, 
or  a  conditional  institution  of  children  to  their  parents,  inqilies  that  the; 
division  is  to  be  ^icr  stirpes  {Home's  Trs.,  1884,  12  II.  314;  Allrn,  l.SHG,  llj 
II.  975  ;  Loiv's  Trs.,  1892,  19  E.  431).  Where  a  residue  was  left  to  children 
named,  the  cliildren  of  a  deceased  son,  the  division  was  into  five  shares 
{Gallon-ays  Trs.,  1897,  25  E.  28).  AVhere  there  is  a  gift  to  the  children  of 
A.,  and  no  intention  sliown  to  include  those  who  may  be  born  after  the 
death  of  the  testator,  ^os^  nati  are  excluded  {M'Kenzie,  1781,  Mor.  GG02 ; 
Stewart's  Trs.,  18G8,  7  M.  4;  Whittet's  Trs.,  1892,  19  E.  975).  AN'here  a 
liferent  is  given  to  a  parent  and  the  fee  to  his  children,  some  of  whom 
exist,  the  legacy  vests  in  the  children,  but  jwst  nati  may  claim  a  share  unless 
there  is  some  direction,  express  or  implied,  that  excludes  them  {CaUhr, 
1842,  4  D.  1365 ;  Hunter's  Trs.,  1865,  3  M.  514;  Boss,  1878,  5  E.  833).  A 
gift  to  a  fatlier  in  liferent  and  to  unborn  children  in  fee  gives  the  fee  to  the 
fatlier  {Fergusons  Trs.,  1860,  22  D.  1442 ;  all'.  1862,  4  Macq.  397).  "Where 
a  benefit  is  given  by  will,  and  it  is  provided  that  in  the  event  of  the  person 
benefited  dying,  the  benefit  is  to  go  to  someone  else,  that  will  be  held  privid 
facie  to  mean  in  the  event  of  his  dying  before  the  testator,  unless  there  is  a 
clause  of  survivorship  {Pcaeoeh's  2rs.,  1885, 12  E.  878  ;  Wood,  Smith's  Judicial 
Factor,  1896,  24  E.  105).  Where  there  was  a  destination  to  "the  nearest 
legitimate  male  issue  of  my  ancestor,  namely,  T.  A.  F.,"  it  was  held  that  the 
destination  was  in  favour  of  T.  A.  F.  even  if  the  description  was  in  point 
of  fact  inaccurate  {Lord,  Lovat,  1884,  11  E.  1119).  Similarly,  a  legacy  to 
"  J.  S.,  one  of  my  second  cousins,"  was  good  though  J.  S.  was  not  a  second 
cousin  {Drylie's  Judicial  Factor,  1882,  9  E.  1178). 

Veritas  nominis  tollit  errorem  demonstrationis. — If  a  legatee  is  mentioned 
l)y  name,  and  an  inaccurate  description  is  added,  if  no  one  answers  to  the 
description,  a  person  answering  to  tlie  name  will  take.  If  no  one  answers 
to  the  name,  a  person  answering  to  the  description  will  take.  Where 
someone  answers  to  the  name  and  someone  else  to  the  description,  either 
the  name  or  the  description  will  prevail  according  as  it  is  reasonalily 
certain  in  which  a  mistake  has  been  made  {Drake,  1860,  8  H.  L.  172: 
Charter,  1874,  L.  E.  7  E.  &  I.  App.  377). 

Per  capita  ok  Per  stirpes. 

When  a  succession  is  divided  per  capita,  it  is  divided  into  as  many 
separate  parts  as  there  are  capita  or  heirs ;  when  it  is  divided  in  stirpes,  or 
by  the  stock,  the  partition  is  according  to  the  numl)er  of  stirpes  from  whom 
the  heirs  derive  right.  To  take  an  example :  If  a  father  dies  intestate 
leaving  two  children,  the  dead's  part  will  be  divided  between  tliem  j^er 
capita,  and  each  will  take  one-half.  If  he  leaves  a  child  and  grandchildren 
the  issue  of  a  predeceasing  child,  the  division  will  be  j^cr  stirpes,  and  the 
grandcliildren  take  the  half  that  would  have  gone  to  their  parent. 
Similarly,  in  testate  succession,  if  a  grandfather  leaves  money  to  his  grand- 
children per  capita,  each  takes  a  share ;  if  he  leaves  it  j^cr  stirpes,  there  will 
first  be  a  division  into  as  many  shares  as  there  are  separate  families  of 
grandfliildren. 

Gift  uy  I. m plication. 

Where  a  truster  has  directed  a  capital  sum  to  be  invested  for  certiiin 
beneficiaries,  there  is  an  inference  primd  facie  that  the  money  so  invested 
is  to  be  held  for  them,  or,  in  other  words,  that  there  is  a  gitt  to  them  of 
the  capital  sum,  if  there  is  nothing  in  tlie  will  to  set  aside  or  displace 
that  inference  (Ld.  Kinncar  in  Whitehead's  Trs.,  1897,  24  11.  1032). 


118  SUCCESSION 

If  a  testator  iu  his  testamentary  writings  shows  that  he  supposes  that 
he  has  bequeathed  to  someone  a  legacy,  and  refers  to  the  bequest  as  an 
accomphshed  fact,  this  may  be  held  to  be  equivalent  to  a  bequest  {Grant, 
1851,  13  D.  805).  Where"  a  testator  provided  for  the  payment  of  an 
annuity  of  £150  as  the  annuity  provided  in  his  marriage  contract,  and  it 
turned  out  that  the  marriage  contract  referred  only  to  a  provision  of  £100, 
the  larger  sum  was  found  due  {Forles's  Trs.,  1893,  20  R  248).  A  gift  has 
been  implied  where  there  has  been  an  expression  of  an  intention  to  give, 
not  followed  by  an  express  gift  (Mcarns,  1775,  Mor.  13050  ;  M'Gou-an, 
1842,  4  D.  1546).     This  is  said  to  have  a  special  force  in  family  settlements. 

Such  an  expression  of  intention  will  not  by  itself  be  allowed  to  burden 
a  gift  (Uryces  Tr.,  1878,  5  R.  722).  If  a  legacy  is  given,  to  take  eflcct 
on  the  death  of  a  particular  person,  or  upon  his  death  in  minority  or 
without  issue,  there  is  a  strong  presumption  that  he  is  meant  to  take  a 
liferent  of  the  fund,  or  that  if  he  survives  minority  or  has  issue,  a  vested 
interest  is  to  be  taken  (Aberdeius  Trs.,  1870,  8  M.  750).  A  fee  can  be 
conferred  by  implication  upon  the  children  of  A.  if  an  annuity  or  liferent 
be  given  to  him,  and  some  third  party  is  made  a  conditional  institute,  tlie 
condition  behig  the  death  of  A.  without  issue  {Douglas,  1843,  G  D.  318 ; 
Camphdl,  1852,  15  D.  173).  There  is  no  rule  that  the  bequest  of  the 
interest  of  a  sum  of  money  will  carry  the  principal  sum  where  not  specially 
destined  {Sanderson's  Exr.,  1860,  23  D.  227).  But  where  a  testator 
directed  his  executors  to  invest  £2000  for  the  benefit  of  his  son  and 
daughter  equally,  and  as  to  each  of  the  shares  to  pay  the  interest  thereof 
or  apply  it  to  the  use  of  his  said  son  and  daughter,  declaring,  "  I  leave  it 
to  my  executors  entirely  in  w^hat  manner  to  apply  these  sums :  whether  to 
pay  the  same  directly,  or  apply  it,  and  pay  it  to  others  for  behoof  of  my 
son  and  daughter,"  this  was  held  to  be  a  bequest  of  capital  {Sandersons Exr., 
supra ;  see  also  Lawsons  Trs.,  1890, 17  E.  1167).  Where  tliere  is  a  residuary 
legatee  to  take  the  fee,  a  gift  of  a  liferent  with  a  power  of  disposal  is  not 
a  gift  of  the  fee  {Aires,  1861,  23  D.  712). 

Precatoky  Tkusts. — In  the  later  cases  in  England  there  has  been 
shown  a  tendency  to  relax  the  doctrine  of  precatory  trusts.  In  considering 
whether  a  precatory  trust  is  attached  to  any  legacy,  the  Court  will  be 
guided  by  the  intention  of  the  testator  apparent  in  the  will,  and  not  by  any 
particular  words  in  wliicli  the  wishes  of  the  testator  are  expressed.  While 
it  is  important  that  rules  for  the  construction  of  wills  should  be  adhered  to 
where  they  have  been  laid  down,  they  must  not  be  used  to  defeat  the 
intention  of  the  maker  of  the  will  as  gathered  from  the  scope  of  the  will, 
the  words  used,  and  the  circumstances  in  which  they  are  used  {In  re 
Hamilton,  L.  R  [1895]  2  Ch.  370;  In  re  Williams,  L.  R.  [1897]  2  Ch.  12; 
Macpherson,  1894,21  R.  386;  Wilson,  1878,  5  R.  539;  Bruce,  1880,  7 
R  477). 

Double  Legacies. — One  rule  is  well  settled,  and  that  is  that  when 
exactly  the  same  amount  is  given  twice  in  the  same  paper,  tlie  pre- 
sumption is  that  it  is  a  mere  repetition,  arising  from  some  mistake  or 
forgetfulness ;  but  where  the  same  amount  is  bequeathed  in  two  distinct 
testamentary  papers,  both  equally  formal,  then  both  legacies  are  payable, 
unless  it  can  l)e  shown  from  the  settlement  of  the  deceased,  or  by  other 
competent  evidence,  that  his  intention  was  to  give  one  legacy  only  {Edin- 
larfjh  Roycd  Infirmary,  1881,  9  R  352  ;  Trs.  of  F.  C.  of  Scotland,  1887,  14 
R  333). 

The  presumption  in  favour  of  giving  the  legatee  all  the  legacies  is 
strengthened  if  thoy  are  given  mider  different  conditions,  or  if  the  reversion 


SliCCKSSION  II!) 

is  given  to  different  persons  (Stratoii's  I'rs.,  1840,  2  D.  820),  or  if  Liu;  hum 
given  is  charged  upon  dillerent  subjects  {Frcxv,  1828,  G  S.  oo4),  or  if  the 
legacies  arc  given  to  the  legatee  in  a  dillerent  character  {Ilorshrwjh,  1848, 
lOD.  824),  or  if  the  legacies  thoiuselves  are  of  a  diflV-rtMit  VwA  (I hwar 
1880,  8  K.  83  ;  Brjccs  Tr.,  1878,  5  \l  722).  That  the  dillerent  legacies 
carry  interest  from  dillerent  dates,  (tr  whatever  else  distinguishes  the 
various  legacies,  is  favourable  to  the  claim  of  the  legatee  to  all. 

It  has  been  said  by  \A.  M'Larcii  that  substitution  may  legitunately  be 
inferred — 

1.  Where  a  second  instrument  expressly  refers  to  the  first  in  such  terms 
as  to  indicate  an  intention  to  revise  it. 

2.  AVhere  it  is  ])lain  that  both  are  not  meant  to  be  operative. 

0.  Where  the  instruments  are  identical,  or  nearly  identical,  in  their 
terms,  the  absence  of  any  material  variance  between  two  provisions  is  ;n) 
argument  against  both  being  due. 

4.  Where  the  form  of  the  disposition  is  altered  to  meet  the  altered 
circinnslanccs  of  the  legatee,  or  to  constitute  a  liferent  or  benefit  of  some 
kind  in  favour  of  another  legatee  {Free  Church  of  Scotland,  1887,  14 
11.  .S33). 

5.  Where  the  second  provision  is  demonstrative,  ic.  where  it  only  points 
out  a  fund  from  which  the  original  provision  shall  be  paid  or  made  good 
{Chlvas'  Trs.,  1893,  21  R  1). 

Pay.ment  of  Debts  and  Legacies. — Legacies  are  always  postponed  to 
the  payment  of  the  testator's  debts.  Accordingly,  executors  or  trustees, 
before  paying  legacies,  should  see  that  the  estate  is  solvent ;  otherwise  they 
may  sul)ject  themselves  to  personal  responsibility. 

Apart  from  the  case  of  a  special  term  for  payment  being  pointed  out,  a 
legacy  is  due  at  the  date  of,  and  bears  interest  from,  the  death  of  the 
testator;  but  pavment  cannot  be  enforced  till  six  months  have  elapsed 
(Act  of  Sed.,  Februarv  1662;  Dufs  Trs.,  1862,  24  D.  552;  Glasgov's 
Trs.,  1830,  9  S.  87  ;  JfAlistcr's  Trs.,  1836,  15  S.  170).  Three  general 
rules  have  been  laid  down  for  the  payment  of  legacies — 

1.  Executors  cannot  be  compelled  to  pay  either  debt  or  legacy  until  the 
expiry  of  six  months  from  the  death  of  the  testator. 

2.  After  six  months,  if  they  have  reasonable  ground  to  suppose  that  the 
estate  will  meet  all  its  burdens,  they  may  i)Siy  primo  vejiicnti,  e\en  to  a 
legatee  (Beith,  1875,  3  H.  185  ;  Steivart's  Trs.,  1871,  9  ]\I.  810). 

3.  On  the  expiry  of  twelve  mouths  from  the  death,  after  making 
provision  for  the  payment  of  debts,  they  may  proceed  to  distribute  the 
estate. 

Ld.  Piedesdale,  in  Stair,  1827,  2  W.  &  S.  614,  expressed  the  rule  as 
follows:  "According  to  the  law  of  vScotland,  twelve  months  are  allowed 
for  the  i»urpose.  No  jierson  has  a  right  to  claim  against  the  executors  of  a 
testator  before  the  end  of  a  twelvemonth:  six  months  for  the  collection  of 
the  debts,  and  six  months  for  the  distribution  of  them,  according  to  the 
disposition  of  the  testator." 

This  must  be  regarded  as  fixing  a  maximum  in  rcsjiect  of  delay,  and 
probably  only  means  that  the  executor  will  not  be  heUl  liable  for  interest 
in  excess  of  what  he  actually  receives  until  the  year  has  elapsed. 

When  the  time  has  come  for  the  payment  of  del)ts,  if  there  be  any 
fiuestion  as  to  particular  debts  the  executor  is  entitled  to  insist  upon  their 
being  constituted  by  decree,  though  he  is  not  entitled  to  cause  expenses  by 
unnovssavv  opposition  (JacL:<oit's:  Tr-.,  1S:'2,  10  S.  507:  Za?/-,  1875,  3  K. 
1192). 


120  'SUCCESSION 

"  Thoucrh  a  decree  of  constitution  is  not  always  necessary,  yet,  wliere 
the  executry  estate  is  small,  and  the  amount  of  claims  uncertain,  and  the 
existence  or  amount  of  the  alleged  debt  at  all  doubtful,  the  executor  is 
entitled  to  protect  himself  and  the  estate  by  requiring  formal  constitution 
(Ld.  Pres.  Inglis  in  M'Gaan,  1883,  11  E.  249).  An  executor  may  obtain 
exoneration  in  an  action  of  multiplepoinding,  and  for  the  competency  of  this 
action  it  is  not  necessary  that  there  should  be  technical  double  distress  ; 
but  he  may  not  adoj^t  this  procedure  if  he  can  obtain  exoneration  without 
judicial  proceedings  {Mackenzie  sTrs.,  1895,  22  E.  233) ;  and  the  position  of 
a  beneficiary  is  diilerent  (J/anmi,  1894,  21  E.  827;  BoWs  Trs.,  1880,  7  E. 
1049).  In  the  case  of  the  executor  or  trustee  it  is  enough  that  there  should 
be  reasonable  doubt  as  to  the  meaning  of  the  instructions  he  has  to  carry 
out,  or  that  the  fund  should  be  insufticient  to  meet  all  the  claims  upon  it 
(see  Ld.  Young  in  Jamicson,  1888,  16  E.  15 ;  Frasers  Executrix,  1893,  20  E. 
374;   Winchester,  1890,  17  E.  1046). 

In  Stewart's  Trs.,  1871,  9  M.  810,  at  p.  813,  Ld.  Moncreiff  stated  the 
law  as  follows :  "  It  is  therefore  not  doubtful  in  point  of  law  that  if 
trustees  and  executors,  after  six  months,  pay  away  the  funds,  even  to 
legatees,  in  the  reasonable  belief  that  all  debts  have  been  satisfied,  they 
cannot  be  made  personally  responsible,  although,  if  there  was  from  the 
first  a  deficiency  of  funds,  the  legatees  may  be  obliged  to  pay  back  what 
they  have  got  to  the  unpaid  creditor.  Creditors  are  bound  to  make  their 
claim  in  reasonable  time ;  and  if  they  so  act  as  to  induce  executors  to 
believe  that  the  debt  is  abandoned  or  discharged,  they  cannot  make  them 
responsible  for  acting  on  a  belief  they  have  themselves  created ;  although 
their  debt  may  remain  entire  against  the  estate." 

But  where  personal  estate  has  been  paid  away  under  the  mistaken 
belief  that  securities  were  sufficient  to  meet  the  debts  secured  on  them, 
trustees  and  executors  have  been  held  personally  liable  {LamoncVs  Trs., 
1871,  9  M.  662;  Heritable  Secur.  Invest.  Assoc,  1892,  20  E.  675). 
In  this  case  the  following  remarks  were  made :  "  The  estate  is  insolvent, 
some  of  the  creditors  are  not  paid,  and  yet  the  trustees  have  paid  away  a 
portion  of  the  estate  to  beneficiaries.  There  can  be  no  doubt  that  they  are 
liable  to  replace  what  they  have  thus  paid  away,  for  no  trustees  are 
entitled  to  pay  away  one  shilling  of  the  estate  to  beneficiaries  until  all  the 
truster's  debts  are  paid,  and  if  they  do  so  before  ascertaining  with  certainty 
that  the  estate  is  solvent,  they  do  so  at  their  own  risk." 

In  this  case  there  w^as  a  strong  expression  of  dissent  on  the  part  of 
Ld.  M'Laren. 

Legatees  having  right  to  specific  sums  are  not  bound  to  grant  a  formal 
discharge  upon  obtaining  payment,  or  to  pay  ad  valorein  fees  to  the  agent 
of  the  party  making  the  payment.  Except  in  the  case  of  a  residuary 
legatee,  a  simple  receipt  is  all  that  can  be  required  {Fleming,  1861, 
23  I).  443 ;  MLaren,  1869,  8  M.  106). 

Eei'ETITIOX. — Legatees  may  be  called  upon  to  pay  back  what  they  have 
received  in  order  to  meet  the'^claims  of  creditors  where  it  turns  out  that 
the  estate  is  not  solvent,  even  although  the  payments  were  not  made  to 
them  precipitately  or  prematurely.  But  two  points  must  be  attended  to 
in  regard  to  such  claims  for  repetition  :  (1)  Until  the  legal  representative 
has  been  sued  and  found  to  have  no  funds,  such  a  claim  cannot  be  enter- 
tained. (2)  Each  legatee  is  only  liable  for  his  proportion  of  the  debt 
(/'uo/c,  1834,  12  S.  481;  Wyllie,  1853,  16  I).  180:  Threiplancl,  1855,  17 
D.  487 ;  Mnris.  of  St.  Andrews,  1893,  31  S.  L.  E.  225). 

Tlic  claim  is  one  of  repetition  of  money  paid   in  error,  and  will  lie 


SUCCESSION  121 

against  relicts,  bairns,  legatees,  because  they  received  payment  out  of  ati 
estate  which  was  insullicient  to  pay  debts.  Accordingly,  if  creditors  omit 
to  make  tlie  general  representative  liable  while  he  has  funds,  they  will  fail 
in  an  attcnnpt  to  secure  i)aynient  from  the  legatees,  who  are  only  liiible 
subsidiarie  {Tkrcipland,  supra;  Clelland,  1845,  17  D.  487).  In  case  the 
Ic'-'atees  have  not  actually  received  payment,  they  will  still  be  postponed 
to°creditors,  although  the  testator  left  funds  originally  suflicient  to  pay 
both  debts  and  legacies  ( Wallace,  IG  May  1821,  F.  C). 

A  letratee  who  has  received  payment  is  not  bound  to  repeat  to  creditors 
if  it  appears  that  there  was  originally  enough  in  the  executor's  liands  to 
pay  all,  and  the  executor  has  become  bankrupt ;  for  legatees  cannot  by  any 
action  compel  an  executor  to  clear  off  the  executry  debts  {liohertson,  1700, 
Mor.  8087  ;  Ersk.  iii.  9.  4G). 

rKESCUiPTiON. — A  claim  for  a  legacy  may  be  barred  by  the  negative 
prescription,  because  an  executor  is  just  a  debtor  with  a  limited  respon- 
sibility;  he  must  pay  debts  and  legacies  within  a  certain  time,  and  is  liable 
in  interest  if  he  does  not.  The  dilliculty  is  to  fix  the  term  of  payment  frfim 
which  prescription  is  to  run  {Jamicson,  1872,  10  M.  399).  A  claim  for  a 
legacy  is  saved  from  tlie  operation  of  the  negative  prescription  by  being 
acknowledged  by  the  executor  within  the  years  of  prescription  {Bri>jf/s, 
1854,  16  D.  385),  and  thirty-two  years'  taciturnity  was  held  no  bar  in  the 
case  of  Scath,  1848,  10  D.  377. 

Interest  Tayable  on  Legacies. — The  general  rule  is  that,  apart  from 
special  instructions  in  the  will,  no  higher  rate  of  interest  is  exigible  thiin 
that  which  the  estate  has  earned.  "  It  has  often  been  said,  and  I  think  it 
is  a  rule  of  law,  that  interest  is  only  due  when  there  is  either  a  contract  to 
pay  interest,  or  a  duty  to  invest,  or  in  respect  of  viorala  soludo"  (Ld. 
M'Laren  in  lioss,  189G,  23  E.  802).  There  is  no  statutory  rate  of  legal 
interest ;  five  per  cent,  was  at  one  time  considered  the  rate  to  be  allowed 
in  claims  for  legitim  or  jus  rclidm  {Bishop's  Trs.,  1894,  21  IJ.  728; 
M'3furray,  1852,  14  D.  1048;  Smith,  1857,  19  D.  267).  In  Boss 
only  4  per  cent,  was  found  due  in  a  question  of  legitim,  but  the 
executrix  was  not  in  mora.  In  3IelviUe,  1896,  24  E.  243,  where  the 
question  was  as  to  the  proper  investment  of  trust  funds,  3  i)cr  cent,  was  the 
rate  allowed  to  the  beneficiaries  (see  also  Inglis  Trs.,  1891,18  E.  48,  ; 
Camphcll's  Exrs.,  1898,  25  E.  687).  In  the  last  case  interest  at  3  per  cent,  was 
allowed  on  a  sum  left  to  trustees  by  a  person  who  died  otherwise  intesUitc. 

Conditions  in  Legacies. 

Legacies  are  pure  or  contingent,  and  in  contingent  legacies  the  con- 
ditions, if  clear,  intelligent,  and  lawful,  will  be  ellectual.  If  they  are 
physically  impossible,  or  inconsistent  with  law,  or  contra  honos_  vmrs 
they  will  be  held  pro  non  scriptis  (Stair,  i.  3.  7;  Ersk.  iii.  3.  f>o\  bell, 
rrin.  1785).  Conditions  are  implied  or  express.  The  most  unportiint 
implied  conditions  are  the  conditio  si  testator  sine  libcris  dcccsserit  and 
the  conditio  si  institutus  sine  libcris  dcccsserit,  which  are  elsewhere  con- 
sidered. Conditions  are  also  divided  into  casual,  potestative,  and  mixed 
conditions.  Casual  conditions  depend  upon  something  out  of  tiie  power  of 
the  legatee— upon  mere  accident,  on  something  to  be  done  by  a  third  party, 
or  upon  some  occurrence  which  it  is  no  part  of  the  testator's  intention  to 
bring  about.     Such  conditions,  if  lawful  and  possible,  obtain  their  cflecl. 

A  potestative  condition  depends  upon  an  act  in  tiie  i»ower  of  i lie 
legatee.  It  is  obligatory  on  the  legatee  by  his  accepting  the  legacy,  w  iicU 
indeed  may  be  meant  to  secure   the  performance  of  some  act  by  inni. 


122  SUCCESSION 

Wlicre  a  losjacv  is  given  to  a  person  in  the  character  of  trustee  or  executor, 
the  '^ift  woulj'seeni  to  be  conditional  on  acceptance  of  the  othce  (see  lirycc, 
19tir  June  1827,  More's  Notes,  cccxliv;  Orphoof,  1897,  24  E.  871).  A 
prohibitory  condition  may  be  inoperative  where  it  has  a  tendency  to 
interfere  with  the  Hberty  of  the  legatee  or  with  the  rights  of  property.  A 
condition  adjected  to  a  legacy  that  the  legatee  should  not  reside  with  her 
mother,  who  was  of  good  character,  was  entii'ely  disregarded  (Fraser,  1849, 
11  D.  14GG;  Grant's  Trs.,  1898,  25  E.  928). 

Total  prohibitions  of  marriage  are  illegal,  but  not  prohibitions  to  marry 
a  i)articular  person  (Forbes,  1882,  9  E.  G75 ;  Ommancy,  1792,  Mor.  2985; 
179G,  3  Pat.  448;  Graham,  182:3,  1  Sh.  Api?.  3G5).  A  condition  that  a 
legatee  shall  not  marry  in  minority  without  certain  consents  has  been 
held  good.  Trustees  cannot  refuse  their  consent  except  upon  reasonable 
grounds ;  it  is  sufficient  that  they  do  not  object,  and  their  consent  given 
after  the  event  will  suffice  {M'Kenzie,  1750,  Mor.  2977;  Buntin,  1710, 
Mor.  2972;  Fringle,  1G88,  Mor.  2972;  WclhcoocVs  Trs.,  1851,  13  D.  1211). 
In  the  ordinary  case  a  testator  may  attach  to  any  of  his  gifts  such  conditions 
as  to  tlie  marriage  of  the  legatee  as  may  seem  reasonable  {Brown,  1890,  17 
E.  517;  Smith's  Trs.,  1883,  10  E.  1144:  Sturrock,  1875,  2  E.  850;  Kidd, 
18G3,  2  M.  227 ;  Fouiis,  1672,  Mor.  2965).  When  a  full  gift  of  fee  is  made 
directly  to  a  legatee,  conditions  superadded  are  held  to  be  repugnant  to  the 
gift,  and  are  disregarded  {Ballantyne's  Trs.,  1898,  25  E.  621 ;  Steivart's  Trs., 
1897,  25  E.  302). 

"Whoever  has  the  income  of  a  fund,  and  also  the  control  of  the  capital, 
has  the  entire  estate ;  and  it  is  legally  impossible  to  protect  the  life-interest 
of  a  person  to  whom  the  fee  is  also  given  against  his  creditors  or  his  own 
acts  {Kinmond's  Trs.,  1898,  25  E.  819  ;  ^Gibson's  Trs.,  1877,  4  E.  1038). 
Where  a  power  is  given  to  trustees  to  restrict  the  right  of  a  legatee  to  an 
ahmentary  liferent  and  give  the  fee  to  his  issue,  creditors  can  only  take 
this  right  tantum  et  tale  {Chambers'  Trs.,  1878,  5  E.  (H.  L.)  151).  A  grantor 
of  a  liferent  is  entitled  to  fix  the  conditions  upon  which  it  shall  continue 
to  suljsist.  He  can  make  it  terminate  upon  the  occurrence  of  certain  events, 
or  upon  a  sale  {Chaplin's  Trs.,  1890,  18  E.  27);  but  clauses  of  forfeiture  are 
to  be  construed  strictly,  and  nothing  will  be  struck  at  unless  but  what  the 
deed  clearly  expresses  {Chaplin's  Tr.,  1891,  19  E.  237).  Where  a  person 
had  a  liferent,  with  power  during  her  life  to  sell,  burden,  or  otherwise 
dispose  of  the  corpus,  it  was  held  that  this  could  not  be  done  by  mortis 
causa  deed  {Miller's  :ZVs.,  1896,  24  E.  114).  A  declaration  as  to  irrevoca- 
bility really  goes  for  nothing  if  tlie  bequest  is  in  its  nature  revocable. 
Xo  man,  by  calling  his  will  his  last  and  irrevocable  will,  can  bar  himself 
from  altering  it  {Mitchell,  1877, 4  E.  at  p.  808).  A  mutual  deed  of  settlement, 
jiartaking  of  the  nature  of  contract,  cannot  be  altered  or  revoked  except  by 
both  of  the  parties  to  it. 

Satisfaction:  Deiutok  non  pk^sumituh  lonare. 

Tliere  is  no  rule  in  Scotland  that  a  settlement  on  a  daughter  by  marriage 
contract  is  presumed  to  be  satisfaction  of  previous  provisions  unless  these 
provisions  are  ex  oUigatione.  It  is  not  possible  to  define  what  are  slight 
differences  between  two  jn-ovisions,  and  is  wrong  to  argue  from  one  case 
to  another.  It  is  contrary  to  the  law  of  Scotland  to  lead  evidence  that  the 
testator  did  not  intend  to  give  both  {Johnstone,  189G,  23  E.  (H.  L.)  6,  L.  E. 
[1S9G]  App.  Ca.  95 ;  Keith  Johnston's  Trs.,  1894,  22  E.  28). 

But  if  the  legacy  is  given  wiien  the  father  is  bound  to  grant  a  provision, 
that  is,  succeeds  the  onerous  provision,  then  the  maxim  Debitor  non  p-a'- 


SUCCESSION  12?. 

sinnitiir  donare  applies,  whether  the  i)rovisioii  is  equal  or  not,  and  even 
thou-'h  there  be  dilVereut  destinations  f)vev  {Kijqnn,  1850,  IS  1).  ll.'i?; 
air.  1858,  3  Macq.  203;  Gallic,  1782,  Mor.  11374;  Ycstcr,  1688,  Mor. 
11479;  Nimmo,  1841,  3  1).  1109).  An  express  deelaration  that  a 
beciuest  is  additional  will  of  course  have  edeet  given  to  it  {Crniksluink, 
1845,  4  Bell,  179).  Satisfaction  is  not  implied  where  the  legacy  and 
the  provision  are  not  of  the  same  kind  {Clark,  1823,  2  S.  313;  DhiuIos, 
1827,  5  S.  790;  Elliot,  1873,  11  M.  735;  Somervell,  1884,  11  II. 
1004;  Ilavilancl,  1895,  22  W.  396).  The  same  maxim,  Drhitor  von 
pra^sumitur  donarc,  applies  where  the  testator  has  contracted  an 
ordinary  debt  to  the  legatee;  that  is  to  say,  the  general  rule  is  that 
the  legacy  is  to  be  regarded  as  in  satisfaction  of  the  debt  {L'al/onr, 
1842,  4  D.  1044).  Though  the  legatee  has  the  onus  thrown  on  him  of 
displacing  tlie  presumption,  this  may  often  be  readily  done  from  the  terms 
of  the  bequest,  ej/.  it  may  be  displaced  by  the  existence  of  a  destination 


App,         ... 

952),  or  the  debt  may  1)6  to  marriage-contract  trustees,  and  the  gift  to  a 

daughter  {Krith  Johnstons  Trs.,  1894,  22  IJ.  28). 

Ademption  is  a  word  also  used  as  the  name  of  the  principle  adojited 
from  England  by  which  it  is  held  that  when  a  particular  sum  is  left  for  a 
particula°  purpose,  and  a  similar  sum  is  given  to  the  legatee  during  the 
testator's  life,  then  it  is  competent  to  show^  from  the  nature  of  the  gift  and 
the  circumstances  in  which  it  is  given,  that  it  was  the  intention  of  the  donor 
that  it  should  be  taken  in  satisfaction  of  the  legacy  {Johanson,  1898,  36 
S.  L.  li.  169);  and  if  the  Court  are  judicially  convinced,  i.e.  by  competent 
evidence,  that  such  was  the  intention'of  the  testator,  they  will  give  ellect  to 
thig  intention. 

Where  a  testator  stands  in  loco  pareoitis  to  a  legatee,  and  after  the 
execution  of  a  will  or  bequest  in  his  favour  pays  him  money,  there  is  no 
presumption  that  the  advance  is  in  satisfaction  of  the  legacy,  though  slight 
evidence  will  raise  such  a  presumption  {Robertson,  1838,  16  S.  554;  Fyfc, 
1847,  9  D.  853 ;  Wclstcr,  1859,  21  D.  915).  But  the  contrary  is  the  rule  ni 
the  case  of  a  stranger  legatee— the  payments  are  to  be  set  aganist  the 
legacy  in  the  absence  of  proof  to  the  contrary  {Buchanan,  1824,  2  Sh.  A].]>. 
445  ;  Murray,  1843,  6  D.  176).  A  legacy  nuiy  be  satisfied  by  the  payment 
of  a  similar  sum  in  the  lifetime  of  the  testator  {Rohertsbn,  1838,  16  S.  554; 
Mollison,  1822,  1  S.  346;  Burrell,  1828,  6  S.  801).  A  declaration  that 
advances  are  to  be  taken  as  in  satisfaction  of  legacies  is  frequent  in  ].ractice, 
and  receives  its  effect  {Smith's  Trs.,  1894,  21  E.  633).  Where  the  intention 
to  satisfy  a  provision  to  a  family  by  advances  to  the  parent  is  expressly 
declared,  it  is  no  answer  to  say  that  the  children  are  receiving  no  benefit 
from  the  advance  {Hutchison,  1856,  2  Macq.  492).  In  England  it  seems  to 
be  settled  that  where  a  jicrson,  not  iu  loco  jmrcntis  to  a  legatee,  gives  a 
legacy  for  a  particular  purpose,  and  afterwards  advances  money  for  the  same 
purpose,  a  presumption  arises  that  the  legacy  is  taken  away.  "  Supi-ose  A. 
bequeathed  to  his  brother  £5000  to  buy  a  house  in  Merrion  S-iuare,  ami 
afterwards  bought  one  which  he  gave  to  his  brother,  are  there  twt.  houses 
to  be  bought?"  (J/o/ic/.-,  1810,  1  Ball.  &  B.  298;  7iW«r//,  1744,  3  Atk.  , ,.) 

Vesting. 
With   regard  to  the  question  of  vesting  in  legacies  the  ].riniary  n'^'^ 
is  to  give  elfect  to  the  intention  of  the  testator;  and  the  intention  of  tlie 


124  SUCCESSIOX 

testator  means  the  effect  upon  the  judicial  mind  of  the  language  used  by 
the  testator,  illustrated  by  the  circumstances  in  which  he  has  used  it. 

Accordingly,  if  the  testator  expressly  and  unambiguously  fixes  the  time  of 
vesting,  his  express  intention  will  settle  the  question,  unless  his  direction  is 
inconsistent  with  the  general  tenor  of  the  will.  There  is  a  general  rule 
that  vesting  is  to  take  place  as  soon  as  possible,  and  therefore  the  })resunip- 
tiou  is  for  vesting  a  morte  tcstatoris,  and  this  rule  holds  though  the  beneficial 
enjoyment  sliould  be  suspended  by  the  existence  in  another  of  annuity  or 
liferent  rights,  and  whether  the  fee  be  given  to  an  individual  or  to  a  class. 

The  jDostponement  of  payment  to  a  day  that  must  come  does  not  suspend 
vesting.  But  where  the  light  is  made  conditional  on  a  contingency  personal 
to  the  legatee,  as  his  majority  or  marriage,  there  will  be  no  vesting  till  the 
condition  is  purified — dies  incertus  jJvo  conditio7ie  haletur.  "Where  a  gift  of 
residue  is  made,  subject  to  the  exercise  of  an  unqualified  power  of  disposal 
given  to  some  third  person,  there  can  be  no  vesting  while  the  power  subsists. 
But  that  the  sum  a  residuary  legatee  will  get  is  of  uncertain  amount  vfiW 
not  interfere  with  the  leading  presumption  for  vesting  a  morte.  A  con- 
ditional institution  of  the  heir  or  next  of  kin  or  issue  of  the  memlters  of  a 
class  or  of  an  individual  does  not  suspend  vesting  (Iioss's  Trs.,  1897,  25  B. 
Go).     Tlie  considerations  that  point  to  suspended  vesting  are — 

1.  The  existence  of  a  suspensive   condition   personal   to   the   legatee 

adjected  to  the  gift. 

2.  A  proper  destination  over,  on  the  expiry  of  a  liferent  or  similar  right. 

0.  A  survivorship  clause  pointing  to  a  future  date  of  payment. 

4.  An  unqualified  power  of  disposal  given  to  a  third  party. 

5.  A  plain  statement  in  the  will  as  to  when  vesting  is  to  take  place. 

A  fee  may  vest  subject  to  defeasance.  Where  there  is  vesting  in  children 
as  a  class,  when  it  is  provided  that  later-born  children  shall  have  a  sliare, 
a  right  of  fee  vests  in  the  child  first  Ijorn,  subject  to  its  being  partially 
defeated  by  the  birth  of  other  children.  Where  a  fund  is  settled  on  children 
or  those  to  whom  the  testator  stood  in  loco  parentis,  for  their  liferent  use 
allenarly  and  their  children  in  fee,  and  to  another  person  or  persons  in  fee, 
then  when  these  persons  were  known  and  existing  at  the  death  of  the 
testator,  or  if  the  individuals  constituting  a  class  were  known  and  existing 
at  that  date,  the  fee  will  vest  in  them,  subject  to  defeasance  if  issue  appear. 

If  an  absolute  gift  is  made  by  a  testator  to  his  children,  and  he  then 
directs  trustees  to  hold  a  fund  for  the  children  in  liferent  and  their  issue 
in  fee,  the  fee  vests  a  morte  in  the  parent,  subject  to  defeasance  in  the  event 
of  issue  existing.  A  gift  to  be  divided  among  the  members  of  a  family  will 
not  be  cut  down  to  a  liferent  by  subsequent  directions.  Where  there  is  a 
full  gift  of  fee,  subsequent  directions  to  restrict  are  regarded  as  void  from 
repugnancy,  especially  where  there  is  a  direct  gift  {iHiUantijncs  Trs.,  1898, 
25  R.  621 ;  Stewart's  Trs.,  1897,  25  R.  302).  The  rules  of  vesting  may  be 
thus  summed  up : 

1.  The  primary  presumption  is  for  vesting  a  morte  testatoris. 

2.  A  declaration  by  tlie  testator  nut  inconsistent  witli  tlie  tenor  of  his 
will  fixes  the  date  of  vesting. 

3.  There  is  a  presumption  that  a  dies  incertus  attached  to  the  gift  is 
to  suspend  vesting.  If  there  is  a  full  gift,  and  the  condition  is  attached 
merely  to  the  payment,  vesting  will  take  place. 

4.  That  income  is  given  in'tlie  interval  is  in  favour  of  vesting :  that  the 
income  is  given  to  someone  else  makes  in  the  other  direction :  that  a  pro- 
vision 18  given  in  lieu  of  legitim  is  in  favour  of  vesting. 

y.  A  power  of  divisi(ju  given  to  someone  does  not  ^^cr  se  suspend  vesting. 


SUCCESSION  125 

G.  A  survivorship  clause  pointing  to  a  I'ulure  date  of  i^avnifnt  .l.,..« 
suspend  vesting. 

7.  That  there  is  no  direct  gift,  but  only  a  direction  to  trustees  to  divide, 
is  less  favoural)lc  to  vesting  than  a  direct  gift.  Tiie  (lucstion  is  ahvuys, 
what  did  the  testator  mean  to  be  the  time  of  vesting? 

8.  Where  there  is  a  condition  personal  to  the  legatee,  till  the  condition 
is  satisfied  there  will  be  no  vesting. 

A  beneficiary  who  has  an  absolute  right  of  fee,  and  is  of  full  age,  will  be 
relieved  of  a  trust  management  which  he  can  show  to  be  unnecessaiy  or 
inconvenient. 

Where  all  the  members  of  a  class  are  known,  payment  may  be 
accelerated  with  common  consent. 

An  annuitant  or  liferenter  whose  unassignal)le  right  is  nicroly  alimen- 
tary cannot  discharge  that  right  (Dtdhic's  Trs.,  1878,  5  E.  8.58). 

In  cases  where  the  final  distribution  of  a  trust  estate  is  to  take  place  on 
the  death  of  an  annuitant,  and  the  testator  had  no  other  purpose  to  serve 
in  postponing  payment  than  the  jtrotection  of  the  annuity,  the  Court  may, 
on  the  annuitant's  right  being  discharged,  order  immediate  distribution, 
provided  the  beneficiaries  have  a  valid  and  indefeasible  right  in  their 
provisions.  When  a  man  says  that  his  estate  is  not  to  be  divided  until  the 
death  of  an  annuitant,  he  may  mean  one  of  two  very  different  things.  He 
may  either  mean  to  secure  the  annuitant,  or  he  may  mean  to  secure  some 
interest  other  than  that  of  the  annuitant.  If  it  be  the  last  which  is  meant, then 
it  will  not  signify  in  what  position  the  interest  of  the  annuitant  may  stand  ; 
and  the  death  of  the  annuitant  must  l)e  taken  as  a  time  fixed  which  is  to 
regulate  the  distribution  of  his  estate.  But  if  he  mean  only  the  first,  then 
with  the  extinction  of  the  annuitant's  interest  the  condition  attached  to  his 
or  her  death  will  also  be  extinguished  {Alexander's  Trs.,  1870,  8  M.  414; 
Lucas  Trs.,  1881, 8  E.  502).  There  is  no  presumption  that  a  woman  is  j)ast 
child-bearing  at  any  age  {Beatties  Trs.,  1898,  25  E.  765).  Where  postpone- 
ment of  payment  is  not  required  in  order  to  protect  or  provide  for  any 
other  present  or  ulterior  interest  or  trust  purpose,  and  is  merely  a  restriction 
on  the  enjoyment  of  a  fully  vested  right  of  fee,  a  direction  to  postpone 
payment  is  to  be  disregarded  as  repugnant  to  and  inconsistent  with  a  right 
of  fee  (Millers  Trs.,  1890,  18  E.  801 ;  WilJcie's  Trs.,  189:'.,  21  E.  199 ; 
Greenlee's  Trs.,  1894,  22  E.  136;  Ballantyncs  Trs.,  1898,  25  E.  621).  "A 
direction  to  hold  for  A.  B.  is  a  gift  to  that  person  according  to  the 
decisions  "  (Ld.  Justice-Clerk  in  Ballantyne).     See  Legacies. 

Eesulting  Trust. 

If  a  will  does  not  dispose  of  the  whole  of  the  testator's  estate,  the  right 
to  the  part  undisposed  of  falls  to  the  legal  representatives  of  the  deceased, 
as  on  intestacy.  A  distinction  is  to  be  drawn  between  a  gift  of  an  estate 
burdened  with  certain  payments,  and  the  gift  of  an  estate  in  trust  for 
purposes  which  fail.  In  the  first  case,  if  it  turns  out  that  the  Inn-dens  do 
not  require  to  be  discharged  by  the  donee,  they  enure  to  the  principal 
estate ;  in  the  second,  there  results  a  trust  in  trustees  or  executor  for  the 
heir  or  next  of  kin. 

But  the  resulting  trust  will  be  excluded  if  the  gift  contains  expressions 
showing  an  intention  that  the  holder  shall  have  a  beneficial  interest.  In 
England  expressions  of  kindness  used  in  the  will  towards  the  donee  have 
been  allowed  weight,  but  merely  describing  a  trustee  as  "  my  cousin,"  "  my 
brother"  will  not  give  a  beneficial  mtQxeQt  {Borjers,  173:-.,  3  B.  Wms.  19.".; 
Connimjham,  1691,^2  Yern.  247).     The  exclusion  of  the  heir,  as  has  been 


126  SUCCESSION 

seeu,  dues  not  operate  in  lieiitage:  in  moveable  the  point  does  not  seem  free 
from  doubt  {Bcizlcij,  1739,  M.  0591). 

\  le'^\cy  to  trustees  can  only  be  constituted  Ijv  proper  words  of  bequest 
see."  21  Zi  Cousolid.  Act ;  Miller,  1837,  2  Sli.  &  M'L.  888).     The  disponee  of 


(see 
he 


heritaltle  property  has  the  benefit  of  the  lapse  of  legacies  charged  upon  it 
[Braulalhanc  Trs.,  1841,  3  D.  357;   Wijllic,  1830,  8  S.  337). 


Of  old  the  executor  took  the  free  succession  under  deduction  of  debts 
and  legacies. 

Bv"l617,  c.  14,  he  was  ordained  "to  make  count,  reckoning,  and  pay- 
ment* of  tlie  whole  goods  and  gear  appertaining  to  the  defunct,  and 
iutromitted  with  by  them,  to  the  wife,  cliildren,  and  nearest  of  kin 
according  to  the  division  observed  by  the  laws  of  the  realm."  But  the 
executor-nominate  still  got  one-third. 

The  Moveable  Succession  Act  enacts :  "  So  much  of  an  Act  of  the 
Parliament  of  Scotland,  passed  in  the  year  1617,  and  eutituled  Anent 
Executors,  as  allows  executors-nominate  to  retain  to  their  own  use  a  third 
of  the  dead's  part  in  accounting  for  the  moveable  estate  of  the  deceased  is 
hereby  repealed,  and  executors-nominate  shall,  as  such,  have  no  right  to  any 
part  of  the  estate." 

He  is  therefore  a  trustee  for  the  next  of  kin,  children,  and  widow, 
according  to  their  respective  interests  (Stair,  iii.  4.  24 ;  Ersk.  iii.  9.  26). 
Whether  the  executor'can  claim  one-third  as  against  the  Crown  is  not  decided 
{Finnic,  1836,  15  S.  165;  Murray,  1852,  1  Macq.  178).  The  onus  lies  upon 
the  executor  to  show  that  he  is  entitled  to  anything  in  a  beneficial  way 
(Ld.  Truro  in  Murray,  1  Macq.  185).  In  Finnie's  case  the  executors  were 
also  trust  disponees,  and  in  that  character  they  could  not  claim  any  part  of 
the  estate  for  themselves  as  against  the  Crown. 

British  Ships. 

No  one  can  hold  shares  in  a  British  ship  who  is  not  a  British  subject 
(57  &  58  Vict.  c.  60,  s.  1).  Accordingly,  special  provision  has  liad  to  be 
made  for  the  succession  to  such  shares  when  the  person  to  whom  they 
would  go  by  the  law  of  succession  is  not  capable  of  holding  them. 

By  sec.  28  of  the  Act,  when  the  property  in  a  registered  ship  is 
transmitted  on  deatii  to  a  person  not  qualified  to  own  a  British  ship,  the 
Court — that  is,  if  the  ship  is  registered  in  Scotland,  the  Court  of  Session — may 
on  application  by  or  on  behalf  of  the  unqualified  person  order  a  sale  of  the 
property  so  transmitted,  and  direct  that  the  proceeds  of  the  sale,  after 
deducting  the  expenses  thereof,  be  paid  to  the  person  entitled  under  such 
transmission,  or  otherwise  as  the  Court  direct.  The  application  should  be 
made  within  four  weeks ;  but  the  Court  can  extend  the  time,  but  not  beyond 
one  year  from  the  date  of  the  death.  If  the  application  is  not  made  within 
the  time,  or  if  the  Court  refuse  an  order  for  sale,  the  ship  or  share 
transmitted  is  subject  to  forfeiture  under  the  Act  {The  Millicent,  1891, 
W.  N.  162).  Where  any  sliip  or  share  has  become  liable  to  forfeiture,  any 
commissioned  officer  in  lull  pay  in  the  navy  or  army,  any  officer  of  customs, 
or  any  British  consular  officer,  may  seize  and  detain  the  ship,  and  bring 
her  for  adjudication  before  the  Court  of  Session  in  Scotland  (s.  76). 

The  lioard  of  Trade  has  powers  under  the  Merchant  Shipping  Act  of 
1894,  ss.  169-181,  of  dealing  with  the  property  of  British  seamen.  The 
Board  may  obtain  payment  of  wages  due  to  a  deceased  seaman,  and  the 
value  of  effects  wliicli  he  had  on  board  ship. 

(a)  If  the  property  exceeds  in  value  £100,  they  are  to  pay  the  residue, 
after  deducting  expenses,  to  the  legal  personal  representative  of  the  deceased. 


SUCCESSION  127 

(&)  If  the  property  does  not  exceed  £100,  the  Board  may  pay  it  lu  any 
claimant  who  is  proved  to  their  satisfaction  to  he  tlic  widow  or  u  child  of  the 
deceased,  or  to  he  entitled  to  the  personalty  of  the  deceased,  either  inider 
his  will  or  otherwise,  or  to  be  a  person  entitled  to  take  out  r<']iresciitati(»n, 
althou'di  no  such  representation  has  been  taken  out. 

(c)  The  lioard  may  require  representation  to  be  taken  out,  and  pay  and 
deliver  the  residue  to  the  personal  representative  of  the  deceased,  to  be  dealt 
with  in  due  course  of  administration. 

Where  a  deceased  seaman  or  apprentice  has  left  a  will,  the  Board  of 
Trade  may  refuse  to  pay  or  deliver  the  residue  of  wages  and  efl'ects. 

(a)  If  the  will  was  made  on  lioard  ship,  to  any  person  claiming,'  under  the 
will,  unless  the  will  is  in  writinsj;  and  is  signed  or  acknowledged  by  the 
testator  in  the  presence  of,  and  is  attested  by,  the  master  or  first  mate  of 

the  ship. 

(b)  If  the  will  was  not  made  on  board  ship,  to  any  person  claiming  under 
the  will,  and  not  being  related  to  the  testator  by  blood  or  marriage,  unless 
the  will  is  in  writing  and  is  signed  or  acknowledged  by  the  testator  in  the 
presence  of,  and  is  attested  by,  two  witnesses,  one  of  whom  is  a  super- 
intendent, or  is  a  minister  of  religion  officiating  in  the  jjlace  in  which  the 
will  is  made,  or,  where  there  are  no  such  persons,  a  justice,  British  consular 
officer,  or  an  officer  of  customs. 

Whenever  the  I^oard  of  Trade  refuse  to  pay  or  deliver  under  a  will,  the 
residue  is  to  be  dealt  with  as  if  no  will  existed.  Wills  of  persons  in  the 
Eoyal  Navy  may  be  affected  by  28  &  29  Vict,  c  72. 

Liability  of  the  Estate  of  the  Deceased  for  his  Debts. 

The  whole  of  the  estate  of  a  deceased  person,  whether  that  estate  be 
heritable  or  moveable,  is  liable  for  the  payment  of  his  debts.  The  creditor 
may  proceed  against  the  heir  or  against  the  executor  at  his  pleasure ;  but  if 
he  chooses  to  go  against  the  heir,  unless  the  benefit  of  discussion  has  been 
given  up,  he  must  proceed  against  the  heirs,  when  there  are  more  than  one, 
in  a  certain  order.  If  the  heir  pays  a  moveable  debt,  he  has  relief  against 
the  executor;  and  similarly,  if  the  executor  is  made  to  pay  a  heritable  debt, 
he  has  relief  against  the  heir ;  so  that  in  the  end  heritable  debts  fall  on  the 
heritage,  and  niOA'eablo  debts  on  the  moveable  estate. 

Personal  debts  fall  upon  the  personal  representative,  and  a  cash-credit 
bond  is  effectual  against  the  cautioner's  representatives  for  a  balance  in- 
curred after  the  cautioner's  death  (British  Linen  Co.,  1858,  20  D. 
557).  Cautioner's  obligations  as  a  rule  fall  on  the  personal  estate 
(Lowthian,  1797,  3  Pat.  621).  The  price  of  a  heritable  estate,  bought  but 
not  paid  for,  falls  on  the  execntov  (Arbuthnott,  1773,  Mor.  5225);  but  where 
the  purchaser  adopts  a  heritable  debt  over  the  property  he  has  purchased, 
or  makes  it  his  own,  the  debt  will  fall  on  his  heir.  Thus  when  a  i»ur- 
chaser  of  an  estate  over  which  there  was  a  heritable  bond,  bound  himself 
to  pay  it  as  part  of  the  price,  and  granted  a  personal  bond  of  corroboration 
to  the  creditor,  the  debt  formed  a  burden  on  the  heir  {Clayton,  182G,  2 
W.  &  S.  40 ;  Murraij,  1837,  16  S.  283).  The  Court  will  only  look  at  the 
condition  of  the  estate  as  it  was  at  the  death  of  the  ancestor.  Tlie  executor 
is  liable  for  the  price  of  a  heritable  estate  even  though  the  money  go  to 
pay  off  heritable  debts  secured  upon  it,  which  the  seller  is  bound  to  pay 
{Ramsay,  1887,  15  E.  25  ;  Mamicol,  16  June  1814,  F.  C).  But  where  herit- 
able sui)jects  were  sold,  and  the  price,  payable  at  a  future  period,  was 
declared  a  burden  on  the  subjects,  the  price  was  held  to  be  heritable  (see 
Murray,  1837,  16  S.  283;  Carrick's  Trs.,  1840,  2  D.  lOGS ;  Madrnzic,  1830, 


128  SUCCESSION 

4  \V.  vV  S.  32S).     Loss  oq  a  lease  falls  on  the  moveable  estate  {Bosslo rough's 
r/-^\.  1888,  IG  it.  157). 

Wliere  one  sold  land,  and  invested  part  of  the  price  in  the  funds,  and 
intimated  to  a  heritable  creditor  his  intention  of  paying  the  debt  in  six 
months,  it  was  found  that  the  residuary  legatee  was  bound  to  relieve  the 
heir  {ilinto,  1825,  1  W.  &  S.  678).  Arrears  of  feu-duty  fall  upon  the 
executor  {Johnston,  1829,  7  S.  226).  As  do  arrears  of  rent  {Exrs.  of 
A7«/oc/i,  1811,  Hume,  178;  Cranstoim,  1^1-^,  llwrne,  192).  An  obligation 
to  free  lands  of  debt  arising  under  a  warrandice  clause  falls  on  the  executor 
{Duchess  of  Montrose,  1887,  15  E.  (H.  L.)  19  ;  aflirming  14  II.  131).  Millar, 
1853,  1  Macq.  345,  and  Burns,  1887,  14  E.  (H.  L.)  20,  are  said  to  point  to 
the  conclusion  that  the  personal  obligation  in  a  ground-annual,  and  the 
obligation  in  a  lease  where  "  heirs,  executors,  and  successors  "  are  taken 
bound, fall  upon  the  executor;  but  see  MGillivray's  Exrs.,  1857,  19  D.  1099. 
Wiiere  a  proprietor  makes  contracts  for  the  erection  of  buildings  on  his 
property,  the  debt  is  a  personal  debt,  and  the  executors  are  liable  in  pay- 
ment of  it.  The  heir  paying  it  has  relief  against  the  personal  estate  {JRohson, 
1801,  23  D.  429). 

Debts  secured  by  infeftment,  or  declared  to  be  real  burdens,  fall  upon 
the  heir;  the  same  principles  determine  the  liability  of  the  debtor's 
representatives,  and  the  rights  of  succession  of  the  representatives  of  the 
creditor  {Clayton,  1826,  2  W.  &  S.  40  ;  Cavqjhell,  1817,  Hume,  180  ;  Macnicol, 
31  January  1816,  F.  C.  ;  M'Donndl,  1824,  3  S.  51 ;  Duncan,  1883,  10  E. 
1042).  If  the  grantor  clearly  shows  his  intention  to  make  a  bond  heritable, 
the  debt  will  fall  on  his  heir  {BclVs  Trs.,  1884,  12  E.  85). 

In  Waterson,  1881,  9  E.  155,  the  question  was  raised,  but  not  decided, 
as  to  whether  an  heir  of  entail  in  possession  who  grants  a  lease,  creates 
obligations  binding  the  succeeding  heirs  or  his  own  representatives 
(see  Todd,  1825,1  AV.  &  S.  217  ;  Eraser,  1831,  5  W.  &  S.  69). 

"  The  question  whether  a  succeeding  heir  of  entail  would  be  liable  in 
obligations  undertaken  by  his  predecessor  in  the  entailed  estate  is  one  of 
ditliculty.  The  cases  as  to  meliorations,  on  the  one  band,  and  those  as  to 
the  naturalia  of  leases  on  the  other,  throw  some  light  on  it.  But  appar- 
ently there  is  no  direct  authority  "  (Ld.  J.-Cl.  Moncreilf,  9  E.  p.  159). 

The  question  seems  to  be  touched  by  the  Entail  Amendment  Act,  1878, 
41  Yict.  c.  28,  which  provides  that  obligations  to  tenants  for  improvements 
of  the  description  contained  in  38  &  39  Vict.  c.  61  are  to  devolve  on  the 
heir  to  the  relief  of  the  executor  ;  as  are  also  liabilities  for  improvements 
on  the  mansion-house  or  offices,  or  any  part  of  the  estate  not  under  lease. 
Debts  due  by  the  ancestor  to  the  heir  are  extinguished  confusione 
(  Wrights,  1716,  ]\Ior.  5209).  If  the  ancestor  has  undertaken  a  liability 
for  behoof  of  the  heir,  the  executor  will  be  entitled  to  full  relief  of  that 
obligation  {Ilwjhson,  1822,  1  S.  415).  Obligations  accessory  to  lands  bind 
the  heir  and  entitle  the  executor  to  relief  {Carmichael,  1821,  1  S.  25) ; 
as  do  annuities  and  rights  having  a  tract  of  future  time,  unless  a  contrary 
intention  is  made  to  appear. 

By  the  law  of  Scotland,  as  a  rule,  a  liferent  annuity,  or  a  debt  secured  on 
lieritable  estate,  is  to  be  Ijorne  by  the  heir  succeeding  to  the  heritage  (  Wallace, 
1846,  8  D.  1038;  Mackintosh,  1873,  11  M.  (H.  L.)  28  ;  Brcadalbane's  Trs., 
1873,  IIM.  912  ;  Eivinq,  1752,  M.  5476).  In  the  case  of  intestate  succession, 
annuities  fall  as  a  natural  burden  upon  the  heir.  Of  course  a  testator  may 
make  other  provision  {Mackintosh,  1873,  11  M.  (H.  L.)  28  ;  Gordon,  1873, 
11  M.  334;  Smith,  1874,  1  E.  358;  Heatlies  Tr.,  1871,  8  S.  L.  E.  344). 
rrovisions  by  marriage  contract  to  younger  children  are  a  debt,  and  pay- 


SUCCESSION  120 

able  even  by  the  heir  of  the  luarnajTC  taking  nndei-  the  same  deed  (Lrslie, 
1870,8  i\l  (H.  L.)  09).  Executors  of  an  heir  of  entail  were  not  bound  to 
rebuild  a  mansion-house  jtuUed  down  by  him  with  a  view  to  rebuildinj^ 
{Breadalhanc,  1877,  4  11.  GG7).  A  direction  to  pay  heritaljle  debts  out  of 
jjersonal  estate  may  be  implied  as  well  as  express  {Macleud's  Trs.,  1871, 
9  M.  90.'5).  A  person  taking  under  a  testament  a  foreign  property  charged 
with  an  annuity,  has  no  relief  against  the  heir  taking  Scotch  heritage  (Ouili-ie, 
1826,  2  W.  &  S.  214). 

An  heir  of  entail  who  pays  off  provisions  may  take  an  assignation  and 
keep  up  the  debt  against  the  estate  (see  Crainfunl,  11  March  1^09,  E.C.; 
Frascr,  1854,  IG  JJ.  G45) ;  but  when  one  who  succeeds  under  a  simple 
destination  makes  up  a  title  and  pays  debts,  the  liability  is  extinguished, 
and  is  not  kept  up  by  an  assignation  {Codriivjlon,  1824,2  Sh.  App.  118). 
For  the  apportionment  of  current  lialjilitics,  see  Lcarmontli,  1878, 
5  E.  548  ;  Maitland,  1877,  4  R  422 ;  Hard,  18G2,  1  M.  14. 

A  charge  to  enter  heir  unanswered,  or  a  summons  in  an  action  of 
constitution,  infers  a  passive  title,  but  it  is  limited  to  the  particular  occasion 
(Ersk.  iii.  8.  93  ;  Bell's  Prin.  1925  ;  Montyomcrir,  1841,  4  D.  332). 

Pleading  a  peremptory  defence  in  an  action  brought  against  an  iieir 
imports  a  passive  title  as  to  that  debt  (Ersk.  iii.  8.  93  ;  Grieve,  1871, 
9  M.  582 ;  Kirkpatrick,  1838,  16  S.  608 ;  aifd.  1841,  2  Kob.  475). 

"An  heir  of  provision  represents  the  deceased,  and  in  representing  him 
he  has  to  perform  all  the  onerous  obligations  which  his  ancestor  has 
undertaken,  just  as  much  as  the  heir  of  line,  unless  the  estate  is  held  under 
the  fetters  of  an  entail.  He  may  be  liable  in  a  different  order ;  if  the  debt 
is  moveable  he  may  have  relief  from  the  executor,  and  as  heir  of  provision 
in  a  special  subject  he  may  have  relief  agahist  the  heir-general.  But  his 
representative  character  and  his  consequent  liability  to  creditors  are  un- 
disturbed" (Ld.  Kinnear  in  Bain,  1896,  23  B.  p.  533).  The  heir  who  takes 
up  a  lease  secluding  assignees  does  not  represent  {M'Lcod,  1868,  6  ]M.  445). 

Belief  between  Heik  and  Executor. 

The  heir  paying  a  debt  due  by  the  executor  has  relief  against  him  ;  and 
an  executor  paying  a  debt  of  the  heir  has  relief  agamst  that  heir  (Ersk.  iii. 
9.  48;  Bell's  rrin.  1936;  Stat.  1503,  c.  76).  The  law  itself  has  divided 
succession  into  two  branches,  the  heritable  and  the  moveable ;  and  as  each 
of  these  ought  to  bear  the  burdens  wdiich  naturally  attend  it,  the  heir  is  the 
proper  debtor  in  heritable  debts,  and  the  executor  is  primarily  liable  in  the 
moveable  debts.  As  already  pointed  out,  the  creditors  may  proceed  against 
eitlier  as  they  think  proper  (JPGiliiiTaij's  Exrs.,  1857,  19  D.  1099). 
Between  the  heirs  and  executors  tlie  question  of  liability  turns  upon  the 
character  of  the  obligation,  or  the  security  which  has  been  given  for  its 
implement.     This  holds  both  in  testate  and  in  intestate  succession. 

"No  loose  expressions  in  a  settlement  will  be  allowed  to  defeat  the 
general  rule  of  law"  {Doujlass  Trs.,  1868,  6  M.  231).  It  is  in  general  a 
good  defence  for  the  executor  to  plead  against  the  heir  that  the  executry 
fund  is  exhausted  {Rcnton,  1851,  14  D.  35).  The  right  of  relief  cannot  be 
exercised  to  the  prejudice  of  creditors  or  legatees.  Where  heritable  estate 
was  used  to  pay  legacies  in  the  belief  that  the  moveable  properly  was  iu- 
sullicient,  it  was  held  that,  on  an  accession  of  value  to  the  moveable  estate, 
a  sum  equal  to  the  value  of  the  heritage  sold  went  to  the  heir  {Stainloiis 
Trs.,  1868,  6  M.  240).  Where  a  debt  is  secured  on  more  than  one  subject, 
e.icli  estate  is  responsible  for  the  debt  secured  upon  it  (Stair,  iii.  5.  17; 
Ersk.  iii.  8.  52  ;  0>jilric,  1826,  2  W.  &  S.  214),  and  the  liability  is  ratciibly 

S.  E.— VOL.  XII.  '^ 


130  SUCCESSION 

Uiviiled  (Rose,  17S7,  3  Pat.  66;  Sinclair  s  Exrs.,  1798,  Hume,  176  ;  Moncreiff, 
1S23,  1  W.  ifc  S.  672;  Mackenzie.  1847,  9  D.  836).  When  a  particular  sub- 
ject is  burdened,  he  who  takes  that  subject  is  liable  in  the  obligation ;  and 
without  a  special  provision  to  that  eftect,  he  will  not  be  entitled  to  relief 
{IlcnJcrson,  1858,  20  D.  473;  Carrick's  Trs.,  1840,  2  D.  1068;  Brcadalhanc 
Ti's.,  1842,  4  D.  1259).  If  in  the  obligation  particular  heirs  are  bound, 
they  are  first  to  be  called  upon  (Ersk.  iii.  8.  52 ;  Blair,  1663,  Mor. 
3571).  In  taking  action  against  heirs,  the  creditor  must  follow  a  certain 
order  (Ersk.  Frin.  iii.  8.  24 ;  Ersk.  iii.  8.  52 ;  Stair,  iii.  5.  17)  ;  but  general 
disponees  are  primarily  liable  for  debts  not  charged  upon  particular  estates 
or  on  particular  beneficiaries  or  legatees  {Weir,  1738,  ]\lor.  5857;  Mercer, 
1745,  Mor.  9786). 

The  right  the  heirs  have  to  be  called  in  their  order  is  known  as  the 
hcnefieium  discussionis.  "When  an  heir  who  is  lialjle  only  subsidiarie  pays 
a  debt  due  by  the  ancestor,  he  has  an  action  of  relief  against  the  heir 
primarily  liable ;  and  that  even  though  the  obligation  bears  to  be  without 
benefit  of  discussion,  for  that  stipulation  is  only  meant  to  benefit  the 
creditor. 

Discussing  an  heir  implies  not  merely  calling  him  in  an  action  and 
obtaining  a  decree  agamst  him,  but  also  proceeding  either  to  personal  dili- 
gence, or  the  adjudging  of  any  heritable  estate  that  can  be  pointed  out  as 
belonging  to  him  (Ersk.  iii.  8.  53  ;  Inncs,  1773,  Mor.  3567).  It  is,  of  course, 
to  be  kept  in  mind  that  no  heir  is  now  liable  beyond  the  value  of  what  he 
succeeds  to.     The  order  in  which  they  fell  to  be  discussed  was : — 

1.  The  heir  of  Ime. 

2.  The  heir  of  conquest. 
;').  The  heir-male. 

4.  Heirs  of  tailzie  and  provision  by  simple  destination,  when  they  repre- 
sent the  deceased. 

Lastly,  heirs  under  marriage  contracts  where  they  are  not  entitled  to 
rank  with  creditors. 

The  institutional  writers  do  not  agree  as  to  whether  the  heirs  of  a 
marriage  or  other  heirs  of  provision  are  to  be  taken  first  (see  Bell's  Zcct. 
vol.  i.  250).  Heirs-portioners,  as  long  as  they  are  solvent,  are  only  liable 
each  for  her  own  share  of  an  ancestor's  debt ;  but  if  one  of  them  is  insol- 
vent, then  the  creditor,  after  discussing  her,  may  proceed  against  the  others 
for  the  balance ;  they  are  never,  however,  liable  for  the  share  of  the  bank- 
rupt heir  beyond  the  value  of  their  succession. 

The  lieir  must  ultimately  pay  heritable  debts,  the  executor  move- 
able debts  {Duncan,  1883,  10  E.  1042;  Frascr,  1812,  5  Pat.  642).  The 
same  rule  holds  in  testate  succession  unless  it  be  excluded  by  the 
testator  {Macintosh,  1873, 11  M.  (H.  L.)  28).  A  general  direction  to  trustees 
or  executors  to  pay  debts  does  not  alter  the  rule  {Mackintosh,  1870,  8 
M.  at  p.  631 ;  Frascr,  1812,  5  Pat.  642).  No  loose  expressions  in  a 
settlement  will  be  allowed  to  defeat  the  general  rule.  There  must  be  ex- 
press words  or  clear  implication  to  do  so  {MLeod's  Trs.,  1871,  9  M.  903). 
Where  a  limited  fee  is  given,  an  intention  that  the  estate  is  to  be  given 
free  of  debt  is  liberally  interpreted. 

The  intention  of  a  testator,  if  clearly  expressed,  will  give  the  rule 
{Mackintosh,  1873,  11  M.  (H.  L.)  28). 

Executor. 
Executry  is  the  general  name  given  to  the  moveable  estate  of  a  defunct, 
and  it  includes  the  widow's  share,  that  of  the  children,  and  tlie  dead's  part 


SUCCESSION  131 

(Stair,  iii.  8.  1 ;  Ersk.  iii.  9.  1).     The  moveable  estate  of  a  deceased  perHoii 
falls  regularly  to  be  administered  by  an  executor,  who  has  authority  from 
the  Sherifl',  as  Commissary,  to  administer,  intromit  with,  uplift,  receive, 
discharge,  and  if  needful,  lo  pursue;  in  short,  to  recover  and  distriltute,  as 
trustee  for  all  concerned,  the  moveuble  estate  belonging  to  a  ])cr8on  deceased 
(Ersk.  iii.  9.  27).     CouHrmation  is  the  sentence  by  which  the  authority  is 
given ;  and  while  it  was  never  necessary  in  order  to  vest  the  succession  in 
case  of  testacy  {Rohcrlson,  1828,  G  S.  440;  EUrr,  18r,9,  21  D.  1122),  yet 
it  was  necessary  in  order  to  vest  the  succession  in  the  next  of  kin,  till  the 
l)assing  of  tiie  Act  4  Geo.  IV.  c.  98.     Prior  to  the  passing  of  that  Act,  if  the 
next  of  kin  died  before  confirmation,  no  right  passed  to  his  rejiresentatives ; 
but  now  the  right  vests  by  mere  survivance  {Millvjan,  182G,  4  S.  432; 
Frith,  1837,  15   S.   729;  Mein,  1844,  6    I).   1112).     Confirmation  is  still 
necessary  for  an  active  title.     A  debtor  of  the  deceased  is  not  bound  to  pay 
without  it  {Taylor,  1830,  4  W.  &  S.  444;  Buchanan,  1842,  5  D.  211).     A 
licence  to  pursue,  from  the  Commissaries,  gave  the  executor  a  right  to  raise 
an  action,  but  not  to  take  decree  (Ersk.  iii.  9.  39 ;  Stair,  iii.  8.  50)     The 
general  rule  is  that  no  diligence  is  effectual  in  a  competition  where  confirma- 
tion has  not  preceded  it.     A  si)ecial  legacy  is  exigible  without  confirmation 
( 1090,  c.  20  ;  Wright,  1855, 17  D.  029  ;  Innerarity,  1840,  2 1).  813  ;  Lyle,  1842, 
5  D.  230) ;  and  confirmation  is  not  required  if  the  debtor  has  corroborated 
his  debt  to  the  executor  (Watson,  1782,  Mor.  7009),  or  if  actual  possession 
has  been  had  (Dohie,  1707,  Mor.   14390;  M'Whirtrr,  1744,  Mor.  14395; 
Smith's  Trs.,  1802,  24  D.  1142). 

Although  legitim  and  jus  relidce  vest  without  confirmation,  the  wklow 
and  children  have  no  direct  action  against  the  deceased's  debtors.  They 
nmst  claim  through  the  executor  (vl/ac/a'c,  1028,  Mor.  1788;  White,  l^^\, 
24  D.  38).  An  executor-nominate  is  one  appointed  by  the  will  of  the 
deceased.  He  is  not  required  to  find  caution  (4  Geo.  iv.  c.  98,  s.  2).  An 
executor-nominate  is  appointed  by  order  of  the  judge.  Certain  persons  arc 
entitled  to  this  office  in  their  order  (Ersk.  iii.  9.  32) : 

1.  A  universal  disponee  {MGoumn,  1835,  14  S.  105). 

2.  The  next  of  kin,  even  though  tliey  should  have  no  beneficial  interest 
{Boioie,  1871,  9  M.  720;  Bones,  1800,  5  M.  240).  Eepresentatives^  of  a 
deceased  father  have  been  conjoined  with  brothers  of  the  deceased  ( Wehster, 
1878,  0  H.  102).  The  mother  may,  in  the  absence  of  next  of  kin,  be 
confirmed  as  executrix-dative  qua  mother  in  consequence  of  the  interest 
conferred  upon  her  by  the  Moveable  Succession  Act ;  and  two  parties  may 
be  confirnred  jointly  though  they  are  appointed  in  different  characters  {Mmr, 
1870,  4  E.  74). 

3.  The  widow.  The  husband  comes  in  in  the  same  place  as  the  widow 
{Stewart,  1890,  17  R.  707;  Cam]iheU,  1892,  19  E.  503). 

4.  A  creditor. 

5.  A  legatee. 

0.  The  procurator-liscal  of  Court;  but  this  appointment  is  saul  to  be 
now  obsolete,  and  in  a  case  where,  imder  the  old  practice,  this  official  wouUl 
have  been  appointed,  a  judicial  factor  is  sought  for. 

On  the  death  of  a  foreigner  in  this  country,  the  Consul  reprcsentmg  his 
nation  may  be  appointed  executor  (24  &  25  Vict.  c.  12 1,  s.  4).  The  executor 
lodges  a  full  inventory  on  oath.  The  forms  of  procedure  in  obtaining 
confirmation  are  regulated  by  21  &  22  Vict.  c.  50,  as  amended  by  the  SheriH 
Court  Acts.  He  does  not  incur  responsibility  f.u-  the  debts  of  the  deceased 
ultra  rircs  invottarii. 

"An  executor  must  pay  legacies  and  debts  within  a  certain  time,  and  i» 


132  SUCCESSION 

liable  in  interest  if  he  does  not.  An  executor  is  notliincr  else  than  a  dehtor 
to  the  legatees  or  next  of  kin.  He  is  a  debtor  with  a  limited  liability,  but 
he  is  nothing  else  than  a  debtor ;  and  the  creditors  of  the  deceased,  and  the 
legatees  who  clami  against  him,  do  so  as  creditors  "  (Ld.  Pres.  Inglis  in 
Jamuso)i,  1872, 10  M.  399).  He  is  not  a  depositary :  his  duty  is  to  ingather 
and  di'^tribute  the  estate.  He  is  not  a  trustee  for  the  creditors  of  the 
deceased  {Globe  Insurance  Co.,  1849,  11  D.  618 ;  1850,  7  Bell's  App.  296  ; 
Stewart's  Trs.,  1896,  23  E.  739).  The  executor's  fund  is  a  trust  fund,  which 
may  be  vindicated  against  the  private  creditors  of  the  executor  {Tait,  1779, 
^lor.  3142;  Bell's  Com.  ii.  86).  The  executor  is  not  bound  to  pay  anything 
until  six  mouths  after  the  death.  After  six  months  he  may  be  compelled  to 
pay,  and  is  safe  in  paying  j(?r»uo  venienti  if  the  estate  is  solvent  (^ fair's  Exrs., 
1835,13  S.  313;  Beith,  1875,  3  E.  185;  Stcicart's  Trs.,  1871,  9  M.  810). 
Trustees  and  executors  have  been  held  responsible  when  they  paid  away 
estate  to  beneficiaries  without  seeing  that  the  debts  were  met  {LamoncVs 
Trs.,  1871,  9  M.  662;  Heritdblc  Securities  Investment  Association,  1892, 
20  E.  675).  In  Stewart's  Trs.  it  was  said :  "  It  is  therefore  not  doubtful 
in  point  of  law  that  if  trustees  and  executors,  after  six  months,  pay  away 
the  funds  even  to  legatees  in  the  reasonable  belief  that  all  debts  have  been 
sitistied,  they  cannot  be  mads  personally  responsible";  but  with  this 
statement  must  be  contrasted  the  law  laid  down  in  Lamond  and  the 
Heritable  Securities  cases,  that  no  trustees  are  entitled  to  pay  away  one 
shilling  of  the  estate  to  beneficiaries  until  all  the  truster's  debts  are  paid. 
Ld.  M'Laren  dissented,  holding  that  the  only  duty  was  to  make  the  estate 
forthcoming  in  due  course  of  administration. 

An  executor  has  no  title  to  institute  an  action  of  damages  for  personal 
injury  to  the  deceased  person  whom  he  represents.  Actio  j)ersonalis  moritur 
eum  i^crsona  {Bern's  Exr.,  1893,  20  E.  859).  The  brocard  just  given  has, 
however,  been  said  to  ])e  of  comparatively  small  importance  in  Scots  law 
{Darling,  1892,  19  E.  (H.  L.)  31);  but  if  the  action  has  been  commenced  in 
the  lifetime  of  the  defunct,  it  may  be  carried  on ;  and  if  there  are  averments 
of  patrimonial  loss,  this  is  in  favour  of  the  executor's  title  {Bern,  supra; 
Auhl,  1S74,  2  E.  191;  Neilson,  1853,16  D.  325;  Borthicick,  1896,  24  E. 
211).  If  a  delinquent  should  die,  an  action  of  damages  lies  against  his  heirs 
or  representatives ;  for  though  penalties  are  not  transmissible  against  a 
delinquent's  heirs,  yet  as  the  reparation  of  damages  is  grounded  on  an 
obligation  merely  civil,  the  heir  of  the  person  obliged  must  be  subjected 
to  it  (Er.sk.  iii.  1.  15,  iv.  1.  14,  iv.  1.  70).  A  claim  of  damages  for  injured 
feelings  may  be  constituted  against  the  representatives  of  the  wrong-doer 
{Evans,  1885,  12  E.  1295;  Wight,  1883,  11  E.  217).  In  a  competition 
between  the  creditors  of  a  deceased  person  and  those  of  the  next  of  kin, 
the  former  have  a  statutory  preference  for  a  year  and  a  day  (1695,  c.  41). 

In  the  institutional  writers  it  is  laid  down  that  the  executor  ought  not 
to  i>ay  without  decree ;  but  the  modern  law  seems  to  be  laid  down  in 
MCaan,  1883,  11  E.  249:  "Though  a  decree  of  constitution  is  not 
always  necessary,  yet  where  the  executry  estate  is  small  and  the  amount 
of  claims  uncertain,  the  executor  is  entitled  to  protect  himself  and  the 
estate  Ijy  requiring  formal  constitution."  Certain  debts  are  privileged  and 
can  be  paid  without  decree  in  any  case. 

'J'he.se  are : 

1.  Medical  attendance  on  deathbed,  drugs,  and  funeral  expenses 
{Douglas,  1674,  Mor.  11826;  Craicford,  1680,  Mor.  11832;  Ersk.  iii.  9.  43). 
A  wife's  funeral  expenses  are  privileged  \\\M)\\  her  own  estate  {Auchinlccic, 
1697,  Mor.  11834),  but  not  on  the  husband's. 


SUCCESSION  133 

2.  The  expenses  of  iiKjclerate  and  suiLablc  niouniinus  loi-  [\n;  family  ;  ,jj. 
at  least  (TIiom>iou,  1S5G,  18  I).  1240  :  Jloiran,  1742,  Moi:  ll.s:.2;  S/u,/(lan, 
1802,  Mur.  11855)  for  sueli  of  them  as  have  to  he  at  the  funeral.  The 
creditor  funcrarius  was  held  to  ho  preferalile  upon  the  moveahles  of  the 
defunct  to  all  other  creditors  (JiOwan,  sv/ira). 

■").  The  current  rent  of  the  dwelling-house  in  which  the  tenant  dies 
{Lad}/  IJmvqyacc,  1750,  Mor.  11852).  This  decision  is  douhted  in  Mr. 
Goudy's  work  on  ISankruptcy,  at  p.  545. 

4.  The  wages  of  domestic  and  farm  servants  for  the  curi-ent  teini 
(M'Lcan,  1832,  10  8.  217;  J/abcn,  1837,  15  S.  1087;  Jlall,  1G75, 
Mor.  11829;  Crawford,  1680,  Mor  11832);  hut  not  of  mechanics  or 
overseers  of  works  (White,  1781,  Mor.  11853;  Ridley,  1789,  Mor.  11854). 
The  Ministers'  Widows'  Fund  (19  Geo  iir.  c.  20).  Under  the  Friendly 
Societies  Act,  189G,  59  &  GO  Vict.  c.  25,  ss.  33-37,  these  societies 
have  a  prior  claim,  in  the  case  of  the  death  or  hankruptcy  of  an  ftilicer 
of  the  society,  for  debts  due  by  them  in  virtue  of  their  office.  Hates 
and  tax'cs  are  a  privileged  debt.  The  expense  of  realising  and  adminis- 
tering the  estate  is  also  privileged.  Debts  which  are  acknowledged 
by  the  deceased  in  his  testament  may  be  paid  without  decree.  Creditors 
doing  diligence  within  six  months  of  the  death  of  the  deceased  are  entitled 
to  be  ranked  jja?"i  passu. 

Small  estates  can  be  administered  under  the  Acts  38  &  39  Vict.  c.  41, 
and  ;')9  &  40  Vict.  c.  24,  as  amended  by  the  Sheriff  Court  Act,  187G,  which 
provided  a  cheap  method  of  administering  estates  whose  total  value  was 
under  £100,  by  application  to  the  sheriff'  clerk.  Sec.  34  of  the  Customs 
and  Inland  Pievenue  Act,  1881  (44  Vict.  c.  12),  extended  these  Acts  so  as  to 
apply  to  any  case  where  the  whole  personal  estate  and  effects  of  a  person 
dying  after  1st  June  1881,  without  any  deductif>n  for  debts  or  funeral 
expenses,  does  not  exceed  £300,  whoever  may  be  the  applicant  for  repre- 
sentation, and  wheresoever  the  deceased  may  have  been  domiciled  at  the 
time  of  death.  The  fees  payable  under  the  schedules  of  the  Act  are  not 
to  exceed  15s. 

ViTious  Intromission. 

"Wherever  anyone  having  access  to  the  effects  and  moveable  estate  of 
a  person  deceased,  unwarrantably  takes  possession  of  and  intermeddles 
with  it,  the  law  infers  a  universal  responsibility  from  the  uncontrolled 
intromission  "  (Bell's  Com.  i.  705  ;  Stair,  iii.  9.  9  ;  Ersk.  iii.  9. 49).  What  intro- 
mission is  vitious  is  not  clearly  defined.  Generally  mere  continuance  of 
possession,  or  even  taking  possession  for  preservation,  will  not  be  held 
vitious  (Thomson,  1834,  13  S.  143;  Dudycon,  1844,  6  D.  1015).  Once  an 
estate  has  been  confirmed,  it  has  no  place,  unless  the  confirmation  be 
merely  that  of  an  executor-creditor. 

Confirmation  by  an  executor-creditor  of  the  whole  estate  does  not 
protect  from  the  passive  title  those  who  do  not  claim  under  the  executor- 
creditor  (Montfiomeric,  1841,  4  D.  332).  In  Adam,  1854,  IG  1>.  964,  Ld. 
Justice-Clerk  Hope  considers  the  authorities,  and  lays  down  the  following 
proj)Ositions : 

1.  That  while  it  is  not  easy  to  give  a  dethiilion  of  the  doctrine,  and 
while  the  application  of  the  principle  has  been  relaxed,  it  still  stands  in 
full  force  as  a  check  on  unauthorised  proceedings,  to  prevent  personal 
appropriation  of  the  funds  of  the  deceased  without  a  title  and  without 
regard  to  the  interests  of  others  ;  and  further,  to  visit  one  who  has  generally 
intromitted  as  heir  or  executor,  meaning  to  take  up  the  whole  succession 


134  SUCCESSIOX 

with  full  liability,  if  he  attempt  at  last  to  draw  back  after  having  assumed 
and  acted  in  tlie  character  of  universal  representative,  and  when  matters 
are  no  Ioniser  entire.  If  fraud  is  excluded,  equity  interposes  for  his  relief 
if  the  facts  admit  of  it. 

AVhen  these  two  elements  concur  in  favour  of  an  alleged  vitious  intro- 

laiitor, first,  the  aliscnce  of  any  fraudulent  purpose,  and,  second,  the  absence 

of  anv  "ground  for  presuming  from  the  acts  founded  u})()n  the  intention  of 
taking  up  tlie  univcrsitas,  and  of  representing, — it  may  safely  Ije  said  that  no 
case  lias  supported  the  liability  on  the  passive  title  of  vitious  intromission, 
or  indeed  on  the  other  passive  title  of  gestio  pro  hcrcdc.  Every  person 
who  intromits  without  title  with  the  moveable  efl'ects  of  a  person  deceased 
is  a  vitious  intromitter,  according  to  the  legal  acceptation  of  the  term.  He 
may  have  intromitted  in  perfect  iona /f?e,  and  if  so  he  may  not  suffer  the 
penal  consequences  of  vitious  intromission.  Universal  liability  is  by  no 
means  the  necessary  consequence  of  vitious  intromission  (Ld.  Cowan  in 
Wilson,  18G5, 3  M.  lOGO  ;  see  Gardner,  1802,  Mor.  9840).  Any  probaUe  title 
will  accordingly  exclude  it  (Stark,  1713,  Mor.  9830  ;  Ersk.  iii.  9.  53  ;  Gardner, 
1830,  8  S.  600  ;  Yoiinrj,  1831,  9  S.  638  ;  Thomson,  183-4, 13  S.  143  ;  Dudgeon, 
1844,  6  D.  1015;  Adcwi,  supra).  If  the  value  of  tlie  intromission  be  very 
small,  it  will  not  be  inferred.  If  confirmation  be  carried  through  before  the 
action  is  brought,  the  vitious  intromission  is  purged  (Barbour,  1824,  3  S. 
299).  If  he  has  a  right  to  confirm  executor,  confirmation  within  year  and 
day  will  free  him  (Gardner,  1830,  8  S.  600 ;  Driimmond,  1709,  Mor.  14414 ; 
Stevenson,  1663,  ]\Ior.  9873).  Vitious  intromission  is  pleadable  only  by 
creditors  and  not  by  legatees,  or  a  w^idow  or  anyone  with  a  right  of  succes- 
sion to  the  deceased  (Ersk.  iii.  9.  54).  No  action  grounded  upon  vitious 
intromission  will  lie  against  the  heirs  of  the  intromitter,  except  in  so  far 
as  they  are  Incrati  by  the  transactions  {Cranston,  1666,  Mor.  10340  ;  Penman, 
1775,  Mor.  9836).  It  may  be  pleaded  by  way  of  exception  against  a  claim 
raised  by  the  heir  or  assignee  of  the  intromitter  (Simpson,  1854,  17  I).  33 ; 
overruling  Buchanan,  1842,  5  D.  211).  Vitious  iiitromitters  are  liable 
not  2??'o  rata  but  iwo  virili,  that  is  to  say,  the  debt  is  equallv  divided  among 
those  sued  (Chcdmers,  1662,  Mor.  14715  ;  Wilson,  1865,  3  M.  1060).  They 
are  liable  in  solidum,  at  least  to  the  amount  of  their  intromissions  (Stair, 
iii.  9.  4;  Wilson,  supra).  If  the  creditors  have  approved  the  intro- 
mission and  taken  a  dividend,  no  passive  title  is  inferred  (Freneh,  1797, 
Hume,  435;  Wcdker,  1827,  6  S.  204).  The  passive  title  has  been  inferred 
from  secretly  opening  sealed  repositories  (Scott,  1821,  1  S.  33),  privately 
removing  effects  (Cam2)hcll,  1755,  5  I^r.  Sup.  838),  recovering  funds  and 
paying  debts  (/br&es,  1823,  2  S.  395;  Cunninghame,  1827,  5  S.  315).  Stair 
says  vitious  intromission  is  simply  excluded  by  those  who  acquire  Ity  way 
of  commerce  londfidc  for  a  just  jirice  (Stair,  iii.  9.  15). 

Act  of  Sedeiiunt,  23rd  Feb.  1692.— By  this  Act  of  Sederunt,  where 
one  is  dying,  and  a  minor  or  pupil  will  succeed  him,  the  duty  of  locking  and 
sf-aliiig  u])  the  repositories  of  the  moribund  person  is  laid  u})(in  the  nearest 
relation  to  the  defunct  on  the  father's  side  or  tlie  mother's  side  who  shall 
Ije  present  at  the  time,  who  is  to  deliver  the  keys  to  the  Judge  Ordinary.  If 
a  man  in  similar  case  dies  in  the  house  of  another,  the  duty  is  laid  on  the 
master  or  niistress  of  the  house.  If  he  or  she  fail  in  this  duty,  there  is  a 
presumption  that  they  have  intromitted  witli  liis  writs  and  moveables. 

International  Law. 
What  law  determines  the  character  of  the  thing  as  heritable  or  moveable  ? 
The  principle  has  been  recognised  and  settled  that  the  character  of  a 


SUCCESSION  yy- 

suljjcct  as  lu'iitaMe  or  innveablo  doiieiids  on  tlie  l;iw  (if  tho  country  where 
it  is  placed  (JJoicnir,  18GG,  -i  M.  10G7  ;  Clarke,  183G,  U  S.  4.S.S;  XewUimh, 
1S;;2,  US.  05;  Bownic,  18GG,  4  ]\I.  1007).  Accordingly,  mortgages  on  land 
in  En,<j;laiid,  being  moveable  in  English  law,  were  held  to  form  part  of 
the  legitim  fund,  Ld.  Young  dissenting,  Montcith,  1882,  9  11.  082;  see 
7'irvc/i/an,  187o,  11  M.  51G.  In  Scotland  the  law  of  the  last  domicile 
regulates  the  construction  of  testamentary  deeds  as  to  moveables,  unless 
there  be  something  to  point  to  another  law  as  intended  by  the  testator  tu 
apply  (CormacJc's  To-.,  1875,  3  R  208;  Smith,  1891,  18  li.  1030;  Jirmni's 
Trs.,  1890,  17  li.  1174).  "  The  real  question,  as  in  every  testamentary  deed, 
is  what  was  the  intention  of  the  testator?  In  solving  that  question,  it 
no  doubt  l)ecomes  necessary  to  inquire  what  system  of  juris[»ruilence  the 
testator  had  in  view  in  making  his  settlement.  But  it  does  not  follow  of 
necessity  that  that  must  be  the  law  of  his  domicile.  It  might  be  his 
intention  that  his  settlement  should  be  construed  by  the  law  of  a  dilVerent 
country,  and  that  intention  might  be  expressed  in  his  will.  If  so,  the  law 
of  that  country  would  regulate  the  construction ;  and  if  from  other  circum- 
stances it  can  be  shown  that  he  had  in  view  the  law  of  a  particular 
country,  although  that  may  not  be  the  law  of  his  domicile,  it  must  govern 
the  construction  of  his  settlement"  {Stair,  1844,  0  D.  904;  Ld.  Pres.  Inglis 
in  Cormark's  Trs.,  supra;  Smith,  sujjra;  Ferguson,  1853,15  I).  637;  Trotter, 
1829,  3  W.  &  S.  407). 

"  The  place  of  execution  of  the  deed,  the  place  of  performance,  the 
estate  specially  conveyed,  were  in  Scotland,  the  trustees  also  were  resident 
in  Scotland."  In  questions  of  heritage  the  hx  rei  sitcc  rules.  Ordinary 
non-technical  language,  or  technical  language,  of  the  country  in  which  the 
lands  are  situated  will  be  interpreted  by  that  law,  but  foreign  technical 
terms  must  be  translated  so  as  to  give  effect  to  the  intention  of  the  testator 
{Studd,  1880,  8  E.  249;  affd.  1883,  10  K.  (H.  L.)  53;  Conncrs  Trs.,  1872. 
10  M.  027).  By  the  Act  of  1808,  the  intention,  as  manifested  by  the  will, 
is  to  prevail  as  to  heritage  in  the  same  way  that  it  is  to  prevail  as  io 
moveables. 

Where  a  domiciled  Scotsman  left  English  heritage  to  charitable  purposes, 
the  Scotch  Courts  sisted  procedure  to  await  the  decision  in  the  English 
Courts  as  to  the  right  to  administer  English  heritage  (^mn7's  Trs.,  1891, 
18  R.  793).  Moveables  directed  by  Scottish  trust  settlement  to  be  settled 
as  heirlooms  on  tlio  heir  to  English  settled  estate  were  settled  by  deed  of 
settlement  in  English  form  (Marq.  of  Bute,  1880,  8  E.  191).  A  decision  of 
the  House  of  Lords  in  an  English  case  ought  to  be  conclusive  in  Scotland  as 
well  as  England  as  to  the  questions  of  English  law  and  English  juris- 
diction which  it  determined.  It  cannot  conclude  any  question  of 
Scottish  law,  or  as  to  the  jurisdiction  of  any  Scottish  Court  in  Scot- 
land (Orr  Ewing,  1885,  13' 11.  (IL  L.)  1).  Ld.  Westbury's  doctrine  in 
Bmhin,  18G2,  10  II.  of  L.  1,  that  the  Court  of  the  domicile  is  ihc  forum 
concursus  to  which  the  legatees  under  the  will  of  a  testator,  or  the 
parties  entitled  to  the  distribution  of  the  assets  of  an  intestate,  are 
required  to  resort,  was  there  questioned.  The  lex  domicilii  oi  the  de- 
ceased at  the  date  of  his  death  regulates  succession  to  his  moveable 
property  {Bruce,  1790,  3  Bat.  103  ;  Hog,  1792,  3  Bat.  247).  The  class  of 
persons  to  be  bcnetited,  and  the  extent  and  amount  of  the  interest,  are  to 
be  determined  by  the  same  law  {Ommanney,  1790,  3  Bat.  448;  Craigxe,  1- 
June  1817,  F.  C).  The  Court  will  itself  construe  a  will  executed  abroad  in 
popular  language  {Thomson's  Trs.,  1851,  14  D.  217  ;  Bai)is/ord,lSi>'2^,  14  1). 
450).     Lex  rei  sita;  interprets  deeds  as  to  heritage  {Blackiit,  1832,  1*^  s. 


136  SUCCESSION  IN  EOMAN  I.AW 

oOO).  That  the  law  t.f  the  duiuicile  can  aluiie  settle  what  is  the  will  is  a 
principle  of  international  law  of  extensive  if  not  universal  acceptation  ;  that 
law  must  determine  not  only  what  is  the  true  meaning  and  construction 
and  eftect  of  any  will  or  deed  of  settlement  he  may  have  left  disposing  of 
his  moveahle  estate,  but  also  as  regards  his  moveable  estate,  whether  he  died 
testate  or  intestate  (Puri-is'  Trs.,  18G1, 23  D.  812).  The  law  of  the  domicile 
of  the  deceased  determines  questions  as  to  legitim  andyHS?'eZicte(//o^,  1792, 
3  Pat.  247:  Xishett,  1835,  13  S.  517;  Ncwlands,  1832,  11  S.  G5;  MaxiueU, 
1860,  3  Macq.  852).  The  capacity  to  make  a  will  is  determined  by  the  law 
of  the  domicile  {Cooper,  1888,  15  E.  (H.  L.)  23).  A  settlement  of  heritage 
could  be  revoked  by  a  foreign  will  {Purvis'  Trs.,  1861,  23  D.  812). 

Pactum  surEii  ilekeditate  viventis. 

By  the  law  of  Scotland  a  right  or  estate  in  expectancy,  or  sjics 
succc&iionis,  may  be  sold  and  assigned,  so  as  to  give  the  purchaser  a  good 
title,  in  a  question  with  the  seller,  to  the  right  estate  or  succession  when 
it  comes  to  be  vested  in  the  seller.  But  such  right  or  estate  in  expect- 
ancv,  or  sj^es  succcssionis,  is  not  attachable  l^y  the  diligence  of  creditors  of 
the  person  in  expectancy  or  entitled  to  succeed,  and  would  not  be  carried 
to  the  trustee  in  his  sequestration,  if  he  should  be  discharged  before  such 
right  estate  or  succession  was  vested  in  him  (Stair,  iii.  8.  28  ;  Trappcs,  1871, 
Id  M.  38  ;  Reid,  1893,  20  E.  510 ;  Ohers,  1897,  24  E.  719).  Creditors  have 
a  right  to  challenge  gratuitous  alienations.  In  KirJcland,  1886,  13  E.  798, 
opinions  were  expressed  that  it  was  for  the  Court  to  determine  whether 
in  the  circumstances  the  creditors  are  fairly  entitled  to  require  from  the 
bankrupt  an  assignation  of  a  spes  succcssionis;  and  that  the  trustee  is  en- 
titled to  obtain  an  assignation  under  the  81st  section  of  the  Bankruptcy 
Act,  1856,  if  that  would  benefit  the  estate. 

Succession  in  Roman  Law. — In  Eoman  law  the  estate  of 
a  deceased  person  formed  a  unifcrsitas,  wliich  passed  in  its  entirety,  with 
all  its  rights  and  liabilities,  to  an  heir  or  heirs.  Hercditas  nihil  aliud  est 
quani  siiccessio  in  nniversiim  jus  quod  defunctus  hahuerit  {Dig.  50.  17.  62). 
The  hercditas,  consisting  of  rights  and  liabilities,  might  for  a  time  have  an 
independent  existence  {hercditas  jacens),  and  might  even  acquire  new  rights 
and  incur  new  liabilities.  Hercditas  enim  non  hcredis  personam  sed  defv.neti 
sustinct  {Big.  41.  1.  34).  The  offer  of  tlie  hercditas  is  technically  dclatio ; 
the  vesting  of  the  estate  in  the  heirs  is  acquisitio.  The  persons  to  whom 
dclatio  is  made  depends  on  whether  or  not  the  deceased  has  made  a  valid 
designation  of  heirs  1:)y  testament,  i.e.  on  whether  tlie  deceased  died  testate 
or  intestate.  Testamentary  succession  takes  precedence  over  intestate 
succession.  Quamdiu  potest  ex  testamento  adiri  hercditas,  ah  intestato  non 
defertur  {Dig.  39.  29.  2).  Testate  and  intestate  succession  are,  in  Eoman 
law,  mutually  exclusive.  A  man  cannot  dispose  of  part  of  his  estate  by 
testament,  and  leave  the  rest  to  devolve  on  his  heirs  ah  intestato.  Nemo  jwo 
parte  testatns,  pro  parte  intestatus  deccdere  'potest  {Dig.  50.  17.  7). 

Succession  by  Testament. — The  Twelve  Tables  recognised  the  power 
of  disposing  of  property  by  will  in  these  terms :  Uti  legassit  super  p)ccunia 
tidclave  suce  rei,  ita  jus  esto  {Lip.  11.  14).  A  testament  is  defined  by 
Modestinus  as  UAlows :  Testamentum  est  voluntatis  nostrce  justa  scntcntia  de 
CO,  qmd  quispost  mortem  suam  fieri  velit  {Dig.  28.  1.  1  pr.).  The  power  of 
making  a  testament  V>elonged  only  to  citizens  above  puberty  who  were  sui 
juris.  Peregrines,  Junian  Latins,  lunatics,  and  various  other  classes  of 
persons  were  incapable  of  making  a  testament. 


SUCCESSION  IX  IIOMAX   LAW  137 

Form  of  Tcdamvul. — The  lonu  viiiicd  at  dilVeit  iiL  poriui's  of  lldiiiaii  law. 
In  the  earliest  times  testaments  were  made  eitlier  helbre  the  cmnilia  calafa, 
which  were  held  twice  a  year  for  the  purpose;  or  in in'ocindii ,  in  presence 
of  the  assembled  army.  Subserpiently  the  trdamcntnm  ]«r  aca  ct  lihram  was 
introduced.  The  testament  |>C7*  aes  ct  lihram,  in  its  original  form,  was  a 
fictitious  mancipatio  of  the  estate  inter  vivos  in  presence  of  live  citi/.<'n 
witnesses  and  a  libiipens  to  a  familice  einptor,  who  at  lirst  was  the  heir 
himself.  When  the  art  of  writing  became  common,  important  clian^'es 
took  place  in  this  form  of  will.  The  will  was  reduced  to  writiu;,',  the  heir 
ceased  to  be  a  party  to  the  mancipatio,  and,  though  a.familitr  emptor  .slill 
olliciated,  he  was  there  only  for  form's  sake.  The  procedure  now  consiHted 
of  two  parts:  (1)  the  familim  venditio,  the  formal  purchase  by  tha /ami! itr. 
emptor  of  the  vnircrsifas  of  the  testator's  estate;  and  (2)  the  nimcvjiatio 
testamcnti,  in  which  the  testator,  holding  the  closed  tablets  on  whieh  hi.s 
testament  was  written,  declared  that  tiiey  contained  his  will,  and  called  iijton 
the  witnesses  to  grant  him  their  testimony.  A  mistake  in,  or  an  omission  of, 
any  part  of  the  solenniities  rendered  the  testament  null  and  void.  The 
pnetors,  however,  in  order  to  prevent  the  intention  of  testators  V)eing  thus 
defeated,  granted  lonorum  jwssessio  secundum  tabidas  to  heirs  nominated  in  any 
testament,  which  was  made  by  one  who  was  a  citizen  sui  juris  at  the  date 
of  testation  and  the  date  of  his  death,  and  which  bore  the  seals  of  seven 
citizen  witnesses.  Tiiis  is  known  as  the  praetorian  testament.  Under 
Justinian  the  ordinary  form  of  will — derived  from  three  sources,  tlie  jns 
civilis,  the  prajtorian  law,  and  the  Imperial  constitutions — required  the 
signature  {subscript io)  of  the  testator  and  of  seven  witnesses  present  at 
the  time,  as  well  as  the  seals  of  the  seven  witnesses.  In  executing  the 
will,  there  must  be  iinitas  actus,  i.e.  its  execution  must  not  be  interru).ted 
by  any  intervening  act.  A  nuncupative  or  oral  will  might  be  made  without 
writing,  by  a  verbal  declaration,  addressed  by  the  testator  to  the  witnes-sfs 
and  expressing  his  last  wishes.  In  addition  to  these  ordinary  forms  of  will, 
there  were,  in  Justinian's  time,  certain  special  forms  of  wills,  f//.  the 
tcstamenium  militarc,  a  will  made  by  a  soldier  on  active  service,  which  was 
valid  without  any  formality  whatever ;  testamentum  pcstis  tempore,  in  case 
of  which,  being  made  in  time  of  plague,  the  witnesses  need  not  all  be  i-resent 
at  one  and  the  same  time;  testamentum  jn'incipi  o&/rt/»w,  executed  by  the 
delivery  of  the  will  to  the  emperor,  without  further  solemnity  ;  testamentum 
apud  acta  conditum,  executed  by  entering  the  testamentary  dispositions  in 
the  records  of  the  Court;  testamentum  parentis  inter  liberos,a\\W\  benefiting 
none  but  the  descendants  of  the  testator,  which,  if  oral,  was  validly  executed 
in  the  presence  of  only  two  attesting  witnesses,  or,  if  written,  was  validly 
executed  by  means  of  a  holograph  memorandum  bearing  the  date  of  its 
execution. 

Contents  of  Testament.— T\\q  essential  part  of  a  will  was  the  mstitutinii  ..i 
an  heir.  The  institution  of  inccrtm  persona'  was  void  ;  but  gradually  the  law 
reco.-nised  the  validity  of  the  institution  of  a  j!?r«/»»iJKs  suus  and  of  public 
juristic  pcrsonce,  though  both  belonged  strictly  to  the  category  of  vicertcc 
pcrsoncc.  A  peregrine  could  not  be  instituted  heir,  but  a  slave  might  be 
instituted  whether  he  belonged  to  the  testator  or  to  another.  Tf  the  lestaturs 
own  slave  is  instituted,  the  slave  is  enfranchised  by  implication  ;  it  the  sdaye 
of  anotiier  is  instituted,  the  slave  acquires  the  inheritance  for  his  master,  bub- 
stitution,  vidgaris  suhstitutio,  is  the  appointment  of  a  second  heir,  who  is  to 
take  in  the  event  of  the  first-api^inted  heir— Jtercs  insfdutus—uot  succrecl- 
ing  to  the  inheritance.  By  pupillarv  substitution  (pupilhms  suhstduiw)  a 
testator  may,  when  making  a  will  tor  himself,  practically  make  a  will  lor 


138  SUCCESSION  IN  IIOMAN  LAW 

an  impules  in  his  2^o(csta>i,  to  take  eftect  in  case  the  hUter  shouhl  die  t7}fm 
puhcrtafcm.  V>y  <|uasi-pupillary  suhstitution,  one  who  has  a  chikl  or  other 
desoendaut  insane,  may,  wlien  making  a  will  for  himself,  make  a  will  for 
his  insane  descendant,  to  take  efTect  in  case  the  latter  should  die  without 
recovering  his  sanity.  As  the  law  was  modified  by  the  pnx^tors,  not  only 
sni  harchs,  but  all  lihcri,  of  the  testator  had  to  be  instituted  heirs  or  disin- 
herited. If  they  were  passed  over  {prccteriti),  the  result  was  in  praetorian 
law  a  wrant  of  honorum  2^ossessio  contra  fahulas,  in  virtue  of  which  the 
prcetcriti  were  enabled  to  obtain,  as  against  the  testamentary  heir,  their 
share  ab  intcstato.  Further,  the  rights  of  the  nearest  relatives  of  the 
testator  were  safeguarded  by  their  being  entitled,  if  passed  over  in  his 
will,  to  impeach  and  set  aside  the  will  by  the  querela  inofficio&i  tcstamenti. 
(See  Legitima  Portio.) 

Position  of  Heir. — Among  co-heirs  in  testamentary  succession  there  was 
a  right  of  accretion,  so  that  if  one  of  them  could  not,  or  would  not,  take  his 
portion,  it  fell  to  the  other  heirs  according  to  their  shares  in  the  hereditas, 
to  the  exclusion  of  the  heirs  ah  intestato.  A  heres  extranens,  i.e.  an  heir 
who  was  neither  a  slave  of  the  testator  nor  in  his  2'>ot<^8tas,  had  to  make  an 
act  of  entry  (aditio  hereditatis),  in  order  that  his  riyht  of  succession  might 
vest  in  him.  A  period  of  deliberation  (tempus  deliberandi)  was  allowed  him 
to  decide  whether  or  not  to  enter,  and,  in  the  later  law,  the  intention  to 
take  the  inheritance  might  be  manifested  by  word  or  act.  A  heres  suus,  i.e. 
an  heir  in  the  ^lotedas  of  the  testator,  on  the  other  hand,  took  the  inheritance 
ipso  jure,  without  any  act  of  entry  on  his  part.  Indeed,  under  the  y»s  eirile, 
such  an  heir,  being  heres  necessarius,  was  not  permitted  to  repudiate  the 
inlieritance.  This,  however,  was  altered  by  the  prretors,  who  gave  sui 
hcredes  the  so-called  leneficium  cthstinendi,  i.e.  the  right  to  disclaim  tlie 
inheritance.  When  once  a  man  had  accepted  an  inheritance,  his  choice 
was  irrevocable,  on  the  principle  scmel  heres,  semper  heres.  The  only  excep- 
tion to  this  was  that  if  a  minor  had  rashly  entered  on  a  dammosa  hereditas, 
the  prajtor  might  grant  him  restitutio  in  integrum  on  attaining  njajority. 
By  introducing  the  henefieium  inventarii,  Justinian  rendered  all  questions  as 
to  tempus  deliberandi  and  restitutio  in  integrum,  in  relation  to  succession, 
unnecessary.  Any  person  to  whom  a  hereditas  was  offered,  whether  under 
a  testament  or  ah  intestato,  was  granted  the  privilege  of  entering  eum 
heneficio  inventarii.  Within  a  month  of  his  becoming  aware  of  his  right, 
the  heir,  if  he  chose  to  avail  himself  of  this  privilege,  had  to  begin  to  make 
up  an  inventory  of  the  property  of  the  deceased.  The  inventory,  which 
was  made  with  the  assistance  of  a  notary  (tahellio)  and  under  the  super- 
vision of  three  witnesses,  had  to  be  finished  within  three  months  of  the 
date  when  he  first  knew  of  the  offer  {delatio)  of  the  inheritance.  By 
adiijjting  tliis  ])rocedure,  the  heir  eifected  a  complete  separation  between 
the  hereditas  and  his  own  property.  He  was  exempted  from  all  liability 
for  the  debts  of  the  deceased  beyond  the  amount  of  the  assets  set  forth  in 
the  inventory.  He  ])aid  tlie  funeral  expenses  of  the  deceased,  the  cost  of 
the  inventory,  the  debts  ef  the  deceased,  and  any  legacies  bequeathed  by 
the  testator.  If  there  was  a  surplus,  he  took  it;  if  there  was  a  deficit,  he 
was  not  responsible  for  it.  This  was  a  fundamental  change  in  the  law. 
The  old  theory  that  the  heir  was  eadem  persona  cum  defuncto,  and  bound 
accor(Hng]y  to  see  all  the  debts  of  the  deceased  paid  in  full,  no  longer  held. 
An  heir  who  entered  cum  heneficio  inventarii  was  in  the  position  of  a  mere 
executor,  who  is  also  residuary  legatee. 

INTE.STATE  SUCCESSION.— A  man  might  die  intestate  either  because  he  had 
not  made  a  testament,  or  by  his  having  made  one  which  was  null  ah  initio 


SUCCESSION   IN  ROMAN    LAW  l:i9 

owiiif^  to  its  being  defective  in  some  oi:'  llio  forniMlilies  required  hy  law,  or 
by  his  testanient,  LliuUL;h  viilitl  Nvhen  made,  beinjj;  subseciueiitly  ruplum, 
or  irritum,  or  dcditulum.  A  testament  was  r\ii>tum  by  the  testator  cancel- 
lintf  or  destroying  it ;  by  liis  making  a  new  will,  unless  the  Becond  will 
confirmed  the  first;  liy  the  subse<iuent  adoption  or  biith  of  a  child  to  the 
testator,  the  child  not  being  instituted  or  disinheiiled  in  the  will.  A 
testament  was  irritum  by  the  testator  subse([U('ntly  undergoing  capHin 
deminntio.  A  testament  was  dcditntuin  where  the  heir  instituted  coidd 
not  or  would  not  enter  on  the  inheiitance. 

In  regulating  succession,  the  lloman  law  made  no  distinctit»n  betwt  i  n 
heritable  and  moveable  estate. 

Order  of  Intestate  Succession  under  XII.  Talks. — I'y  the  law  of  the 
XII.  Tables,  the  estate  of  an  intestate  devolved  on :  (1)  his  sin  lurcdrn, 
i.e.  those  persons  who  were  in  the  immediate  po(cs(((s  of  the  dccca.sed  at 
the  time  of  his  death,  and  who  became  sui  jv.ris  on  his  death,  the  division 
being  pn'  sthyes,  and  not  jjer  capita  ;  (2)  the  nearest  agnates  (jiroximi  agnati) 
of  the  deceased  at  the  date  when  tlie  fact  of  intestacy  was  ascertained, 
the  division  being  j*cr  cajjita;  (3)  the  [/ens  of  the  deceased. 

The  defects  of  the  system  were  that  it  excluded  emanciijated  childn  n, 
and  agnates  who  had  undergone  cajiitis  deminntio.  Further,  though  the 
XII.  Tables  made  no  distinction  between  male  and  female  agnates,  the 
media  Jurisprudcntia  excluded  female  agnates  of  nioie  remote  degree  than 
sisters.  xAgain,  on  the  failure  of  the  j)roximi  a;/nati,  i.e.  agnates  of  the  nearest 
degree,  there  was  no  devolution  to  agnates  of  the  next  degree.  Also  all 
purely  cognatic  relations,  including  children  in  relation  to  their  mother  and 
vice  versd,  were  ignored. 

Fra'torian  Order  of  Intestate  Succession.— Many  of  the  iniqv.itatrs  of  the 
earlier  law  of  succession  were  remedied  by  the  pnutors  granting  honurum 
jyosscssio  ab  intestato  to  certain  classes  of  persons  in  a  certain  order.  //( 
omnibus  vice  heredum  bonorum  possessores  habentur  {Dig.  38.  9.  7).  Accord- 
ingly, the  effect  of  the  action  of  the  prretors  was  practically  to  estabhsh  a 
new  order  of  succession,  consisting,  in  the  case  of  freeborn  persons,  of  four 
ordines:  {I)  lihcri,t\\Q  descendants  of  the  deceased,  including  emancipated 
children  ;  (2)  Icgitimi  heredes,  i.e.  the  deceased's  nearest  agnates  ;  (3)  coynad, 
i.e.  all  persons  related  to  the  deceased  by  blood, down  to  the  seventh  degree, 
including  agnates  who  had  undergone  cajnfis  dcmimitio,  agnates  of  the 
second  or  reuioter  degree  on  failure  of  the  first  degree,  and  female  agnates 
more  distantly  related  than  sisters,  each  degree  forming  a  gradus,  and  there 
being  successio  graduum ;  (4)  vir  ct  uxor,  i.e.  the  survivor  of  husband  and 
wife  in  a  marriage  sine  manu.  _  ^  \      en 

Changes  under  the  Empire  before  Justinian. — In  158  a.d.  the  SC. 
Tertullianum  permitted  a  mother  who  had  three  children  to  succeed  «ft 
intestato  as  an  agnate  to  her  son  or  daughter  dying  without  issue.  The 
mother  was,  however,  excluded  by  consanguinean  brothers  of  her  deceased 
child.  In  178  a.d.  the  SC.  Orphitianum  permitted  children  to  succeed  to 
their  mother  dying  intestate.  The  children  were  i^referred  to  agnates  of 
the  deceased  in  the  second  degree.  Both  these  senatus  eonsulta  aj.plied  to 
illegitimate  children.  In  503  a.d.  the  Emperor  Anastasius  aHowed  emanci- 
pated brothers  and  sisters  to  succeed  as  agnates  to  one-halt  of  the  sliare 
they  would  have  got  if  they  had  iu)t  been  emancipated.  Justinian  gave 
them  their  full  share  and  admitted  their  children,  as  well  as  uterine 
brothers  and  sisters  and  their  children.  . 

Justinian's  Fined  Settlement  of  the   Order  of  JntidaU    Successton.—  l>\ 
Novels  118  and  127,  Justinian  revolutionised  the  whole  system  of  intestate 


140  SUCCESS lOX  DI'TY 

successiuii.  AL,MKilion  was  evailicated  sltojijether,  and  the  canons  of  descent 
were  based  solely  on  blood  kinship,  whether  through  males  or  females,  and 
whether  there  had,  or  had  not,  been  capitis  dcmiimtio  minima.  Tlie  order 
of  intestate  succession  thus  established  was:— (1)  Descendants  of  the 
intestate,  male  and  female  alike,  whether  in  iwtcstalc  or  emancipated,  the 
division  being  jjir  stirpes;  (2)  ascendants,  the  nearer  excluding  the  more 
remote,  and,  concunently  with  them,  brothers  and  sisters  of  the  full  blood, 
the  division  being  j^cr  caiiita,  and  the  issue  of  predeceasing  brothers  and 
sisters  taking  the  share  which  would  have  fallen  to  their  parents  liad  they 
been  alive;  (o)  brothers  and  sisters  of  the  half  bluod,  consanguinean  and 
uterine,  the  division  being  per  capita,  and  the  issue  of  a  predeceaser  taking 
tlieir  parent's  share ;  (4)  all  other  collaterals  of  the  deceased,  without  dis- 
tinction between  full  blood  and  half  blood,  according  to  their  nearness  in 
ilegree  of  propiuLpiity,  the  nearest  degree  excluding  the  more  remote,  and 
all  those  of  the  nearest  degree  taking  p)cr  capita.  These  classes  furmed  a 
Siiccessio  ordinum,  there  being  in  eacli  07'do  a  sueccssio  (jraduiim,  and  each 
gradus  enjoying  the  jus  accresccndi.  It  appears  that  the  Pnetorian  law  as 
to  the  right  of  succession  of  the  survivor  of  husband  and  wife  was 
retained  as  subsidiary.  On  the  failure  of  all  heirs  and  successors,  testate 
or  intestate,  the  succession  devolved  on  the  Treasury,  as  idtimus  hceres, 
under  the  burden  of  paying  the  debts  of  the  deceased  to  the  extent  of  the 
value  of  the  estate. 

See  Lp:g.\cy"  ix  Eoman  Law;  Legitima  Portio;  Codicilli;  FALCiri:A 
Poirno ;  Fideicommissum. 

Succession  Duty.— See  Legacy  and  Succession  Duty. 

Suckcn  ;  Suckener  (A.  S.,  Soken,  the  area  within  which  a 
franchise  granted  by  the  king  to  a  subject  is  exercised). — The  sucken  was 
the  name  given  to  the  lands  astricted  under  the  obligation  of  thirlage  to 
the  mill  of  the  thirl.  The  suckeners  were  the  possessors  of  the  lands  within 
the  thirl,  and  on  them  lay  the  obligation  of  bringing  their  corns  to  be 
ground  at  the  mill  of  the  thirl.     See  Tiiiklage 

Summar  Roll.— The  rolls  of  the  Liner  House  of  the  Court  of 
Session  arc  :  (1 )  the  Singlk  P.ills  (q.v.)  Poll ;  (2)  the  Long  Poll ;  (3)  the  Short 
Poll ;  and  (4)  the  Summar  Poll.  The  Long  Poll,  which  is  put  out  at  the 
end  of  the  session,  contains  a  list  of  the  causes  which  have  come  into  the 
Division  during  the  session  and  which  have  not  been  disposed  of.  Tlie 
Short  Pull  may  be  described  as  the  ordinary  Debate  Poll  of  tlie  Division,  and 
contains  the  cases  which  are  to  be  heard  in  ordinary  course  and  without 
despatch.  From  the  beginning  of  the  session  the  Short  Poll  for  each  week 
contains  a  section  of  cases  from  the  Long  Poll,  until  all  cases  standing  in 
that  roll  have  been  disposed  of.  For  the  lest  of  the  session  the  Short  Poll 
consists  of  such  cases  as  have  come  into  Court  since  the  commencenieiit  of 
tlie  current  session  and  have  not  been  sent  to  the  Summar  Poll.  They 
are,  as  a  general  rule,  heard  in  the  order  of  their  date.  The  Sunnnar  Poll 
contains  such  cases  only  as  are  entitled  to  more  than  ordinary  despatch. 
It  is  in  the  discretion  of  the  Court  to  send  any  case  to  the  Sunmiar  Poll; 
but  among  the  cases  which  are  sent  to  this  roll  as  matter  of  course  are 
Bill  Chamber  cases,  petitions  (those  originating  in  the  Outer  House  as  well 
as  tliose  i)re.sented  to  the  Inner  Hou.se),  Bankruptcy  cases,  reclaiming 
notes  in  the  couise  of  the  pre])aration  of  the  cause,  and  motions  for  the 
adjustnjent  of  issues  (Mackay,  Manual,  288).     When  it  is  desired  to  have 


SUMMAIIV  DTI.TGENCE  OK  r.II.l.s  oK  KXcHaXOE       Ml 

a  case  sent  to  the  Siimmar  Ptoll,  counsel  must  appear  at  flin  Sin-?!*-  V,\\\n  and 
move  to  that  ellect. 

Summary    Diligence    on    Bills    of    Excliangc.— 

(Juo  o(  the  nuui}'  privilege's  attaching  to  hills  (»1"  exchange  !)}  ilie  i.iw  of 
Scotland  is  tliat  of  founding  suniniaiy  diligence  against  tho.se  liahle  under 
them.  The  former  law  on  this  point  has  not  heen  altered,  for  hy  the  98th 
section  of  the  llills  of  Exchange  Act,  1882  (45  &  46  Vict.  c.  01),  it  is 
provided  that  nothing  in  the  Act  or  in  any  re^ieal  ellecled  therehy  shall 
extend  or  restrict  or  in  any  way  alter  or  alTect  tiie  law  and  practice  in 
Scotland  ill  regard  to  summary  diligence.  The  existing  enactments 
rclathig  to  sunnnary  diligence  on  l)ills  are  :  1081,  c.  20  (whicli  had  reference 
exclusively  to  foreign  hills,  hut  the  provisions  of  which  were  extended  to 
inland  hills  hy  the  Act  1G96,  c.  30) ;  5  Geo.  iii.  c.  49, ss.  4,  5,  0 ;  12  Geo.  in. 
c.  72,  ss.  30,  42,  43 ;  1  &  2  Vict.  c.  114,  ss.  1  and  9. 

At  whose  Instance  Diligence  Competent. —  Summary  diligence  is  competent 
at  the  instance  of  any  holder  of  a  hill  whose  title  thereto  ajqicars  on  the 
face  of  the  hill,  and  does  not  require  any  other  evidence  to  set  it  up.     The 
cliain  of  endorsations,  if  the  protest  he  at  the  instance  of  an  endorsee,  must 
present  a  series  of  names  terminating  in  the  holder,  at  whose  insUmce  there 
may   he   a  valid  registration  of   the    protest  (Frascr,  1853,  15  D.  756). 
"Where  a  hill  is  drawn  and  held  by  two  or  more  payees  jointly,  the  protest 
will  run  at  their  instance.     A  protest  following  on  a  bill  held  by  a  married 
woman   will   be   at   her  instance,  although  it   is  advisable  to  insert   the 
concurrence  of  her  husband  {Li/le,  1849,  11  D.  404).     "Where  a  company 
with  a  descriptive  name  is  the  holder,  the  protest  sliould  run  in  the  name 
of  the  company,  with  the  addition  of  at  least  three  partneis,  if  there  are  no 
many  {Antermony  Coal  Coy.,  1800,  4  M.  1017).    Where  the  bill  is  signed  in 
the   company   name,    with  the   addition   of  certain  of    the  partners,  the 
protest  should  be  at  the  instance  of  the  company  and  the  partners  named. 
With  regard  to  corporations  as  holders  of   bills,  the  protest  runs  at  the 
instance  of  the  corporation  in  its  corporate  name.     Where,  subsequent  to 
the  maturity  of  a  bill,  the  holder  dies,  his  executor,  on  being  confirmed,  is 
in  right  of  the  bill.     As,  however,  the  notary  will  require  to  extend  the 
protest  at  the  instance  of  the  deceased,  the  executor  c^annot  proceed  by 
summary  diligence.     His  course  is  by  letters  of  horning  {Kennedy,  1849, 
11  D.  li98).     A  similar  course  must  be  followed  by  the  trustee  in  bank- 
ruptcy of  the  creditor  if  he  is  unable  to  get  the  bill  endorsed  to  him  {Shand 
&  Co.,  1848,  11  D.  102).     A  protest  of  a  bill  which  was  blank  endorsed 
was  extended  and  recorded  at  the  instsauee  of  A.,  and  on  the  following  day, 
without  any  new  presentment  or  noting,  in  the  name  of  B.,  who  thereui)on 
charged  the  debtor.     In  a  suspension,  B.  alleged  that  he  was  the  holder  of 
the  bill,  and  that  the  extending  and  recording  of  the  protest  in  the  nanie 
of  A.,  who  was  his  agent,  was  the  result  of  a  clerical  error.     The  Court, 
however,  suspendc<l    the   charge  (Service,  1807,  0  M.  172).     If  a  bill  he 
endorsed  after  protest,  the  protest  may  be  assigned  to  the  endoi-see,  to  the 
ettect  of  enabling  him  to  proceed  with  diligence  alreaily  begun  on  it.     The 
holder  of  a  bill,  although  a  foreigner,  does  not  re<nure  to  si.st  a  mandatary 
as  a  preliminary  to    summary  diligence  (/m «•■>',  1S49,  11   D.  984;  ihilrj/, 
1849   21  dur  .".49).     But  the  person  sought  to  be  charged  must  he  sid.Ject 
to  the  jurisdiction  of  the  Scotch  Courts\Z>ar/.s-,  1897,  24  B.  297.  and  cjuses 
there  cited),  although  it  does  not  necessarily  follow  that  the  lull  should  he 
drawn,  accc[)ted,  or  m;ide  pavable  in  Scotland  {.yacLmur,  1854,  1<  J).  H'4). 
Ayaind  'wkoiii  BUigemc  6'o//i^>dc«<.— Diligence  is  competent,  ni  the  case 


U2        Sr^fMARY  DILIGENCE  OX  BILLS  OF  EXCIIAXGE 

of  au  accepted  bill,  against  any  party  liable  on  it,  provided  due  notice  of 
dishonour  is  given  to  the  party  charged,  other  than  the  acceptor  (Act, 
8.  49);  and  in  the  case  of  an  unaccepted  bill,  against  the  drawer  and  prior 
endorsers,  but  not  the  drawee  (Act,  s.  55  (3)),  even  although  he  have  funds 
in  his  hand  sufficient  to  meet  it.  As  regards  the  acceptor,  summary 
dilic'ence  is  competent  against  him  at  any  time  within  the  six  months, 
altlfou^h  no  notice  of  dishonour  has  been  given.  Where  a  bill  is  granted 
by  a  company,  diligence  can  be  used  against  any  member  of  the  firm, 
although  his  liame  does  not  appear  on  the  bill  (Wallace,  1841,  3  D.  1047). 
Where  the  acceptor  or  endorser  required  to  be  charged  is  dead,  the  holder 
of  the  bill  cannot  proceed  with  summary  diligence  against  his  personal 
representatives,  but  must  proceed  l)v  an  ordinary  action  (Kijjjjen,  1822, 
2  S.  105  (X.  E.  99)). 

lllic/i  Summary  Diligence  Competent. — Summary  diligence  is  competent 
on  an  extract  registered  protest  from  the  books  of  Council  and  Session  or 
of  the  Sheriir  Court  within  the  jurisdiction  of  which  the  person  sought  to 
lio  char'^ed  resides.  The  extract  contains  a  warrant  to  charge  the  party 
liable  on  the  bill  to  pay  the  sum  in  the  bill,  with  interest  and  expenses, 
within  six  days  if  resident  in  Scotland,  and  fourteen  days  if  resident  furth 
thereof.  The  extract  registered  protest  follows  on  a  protest  (for  form  of 
which,  see  Bills)  by  a  notary  public,  or  in  certain  special  cases  by  a  house- 
holder, as  after  explained.  In  the  case  of  protests  for  non-acceptance,  tiie 
protest  must  be  registered  in  six  months  after  the  date  of  the  bill,  and  in 
the  case  of  protests  for  non-payment,  in  six  months  after  the  due  date  of 
the  bill  (Act,  s.  14).  In  bills  payable  on  demand,  the  six  months  are 
reckoned  from  the  date  of  demand,  and  not  from  the  date  of  the  bill 
(MTcOstie,  1849,  12  D.  124 ;  Bon,  1846,  12  D.  1310).  Where  a  bill  is 
payable  at  sight,  and  accepted  by  an  undated  acceptance,  the  six  months 
ruia  from  the  date  of  the  bill  (Moffat,  1838,  16  S.  406).  If  the  protest  is 
not  timeously  registered,  the  only  course  open  to  the  holder  within  the 
prescriptive  period  is  an  ordinary  action. 

When  Summary  Diligence  Incompetent. — In  order  to  warrant  summary 
diligence,  the  document  founded  on  must  be  a  proper  bill  of  exchange  or 
j.romissory  note  (ShepJierd,  1833,  2  S.  346  (X.  E.  304),  3  W.  &  S.  384). 
Summary  diligence  is  incompetent  upon  the  following  documents,  namely : 
an  undated  bill,  one  wanting  in  any  material  particular  (Act,  s.  20),  or 
irregular  in  form,  or  ex  facie  vitiated  or  altered ;  on  a  bill  accepted  con- 
ditionally (Hughson,  1857,  20  D.  271);  on  a  lost  bill  (Kennedy,  1897, 
4  S.  L.  T.  247) ;  on  one  past  due,  found  in  the  holder's  repositories  torn 
in  pieces,  and  thereafter  pasted  together  (Thomson,  1850,  12  D.  1184);  on 
a  bill  where  there  is  a  discrepancy  between  the  words  and  the  figures  as  to 
the  amount  payable  (Bell,  iVi^i.  s.  325);  on  an  improperly  or  irregularly 
stamped  bill,  or  on  a  bill  so  long  as  an  ordinary  action  on  it  is  in  depend- 
ence (Denovan,  7  D.  378).  If,  however,  the  action  is  abandoned,  and  there 
is  no  question  of  res  judicata  or  prescription,  summary  diligence  would 
seem  to  be  competent  (Clark,  1875,  3  R  166). 

Hills  signed  by  initials  (Bell,  Com.  vol.  i.  pp.  413,  415)  or  by  mark 
(Lcll,  Com.  vol.  i.  p.  416)  do  not  warrant  summary  diligence;  but  a  bill 
signed  by  a  notary  public  on  behalf  of  a  third  person  in  conformity  with 
the  statutory  solemnities,  or  a  liill  signed  by  a  person  duly  authorised  to 
that  effect,  jjrovided  the  authority  is  well  known  and  recognised,  will 
authorise  summary  diligence.  Where  the  signature  of  tlio  party  sought  to 
be  cliarge*!  is  b^rgeil,  or  placed  on  the  bill  without  the  authority  of  the  person 
whose  signature  it  purports  to  be,  summary  diligence  is  incompetent  (Act, 


SUMMONS  14;; 

s.  24).  As  to  adoption  of  forged  signature,  see  M'Kciizic,  1880,  7  IL  830 ; 
rev.  8  K.  (II.  L.)  8.     If  tlie  Court  is  not  satislied  that  the  signature  Ih 

forged,  caution  will  be  reijuired  before  a  threatened  charge  is  suspended 
{Ikixruhjc,  187U,  7  S.  L.  11.  -IvJO  ;  see  also  Graham  Stewart  <>u  !.■>■'■  <<( 
Diligence,  pp.  374,  375). 

Sanimary  Diligeace  on  a  Householders  Ccrtijlcalc  of  Protest. — liy  sec.  94 
of  tlie  B.  of  E.  Act,  it  is  provided  that  "  where  a  dishonoured  bill  or  note  i.s 
authorised  or  reipiired  to  be  protested,  and  the  services  of  a  notary  cannol 
bo  obtained  at  the  place  where  the  bill  is  dishonoured,  any  householiler  or 
substantial  resident  of  the  place  may,  in  the  presence  of  two  witnesses,  give 
a  certificate  signed  by  them  attesting  the  dishonour  of  the  bill,  and  the 
certiiicate  shall  in  all  respects  operate  as  if  it  were  a  formal  protest  of  the 
bill."  A  iovm  of  the  certificate  is  given  in  the  schedule  to  the  Act  (see 
Bills).  Under  this  section  the  question  arises.  Is  this  certificate  a  good 
ground  for  the  founding  of  summary  diligence,  keeping  in  view  tlie  ])ro- 
vision  of  sec.  98  ?  In  Soimrville,  1898,  5  S.  L.  T.  310,  35  S.  L.  IL  443,  the 
Lord  Ordinary  (Kyllachy)  decided  the  question  in  the  negative,  but  the 
Court,  while  adhering  to  the  judgment  of  the  Lord  Ordinary,  proceeded 
upon  a  diiferent  ground,  and  expressed  no  opinion  as  to  whether  summary 
diligence  proper  includes  the  protest  of  the  bill,  or  does  not  begin  till  after 
protest.  In  a  Sherili'  Court  case  {iWIiohcrt,  1898,  5  S.  L.  T.  317)  the  ques- 
tion determined  by  the  Lord  Ordinary  against  the  competency  of  summary 
diligence  was  decided  by  the  Sherifi-Substitute  in  favour  of  the  com- 
petency. We  agree  with  the  Sheriff-Substitute  (see  opinion  contra, 
Tiiorburn  on  B.  of  E.  Act,  p.  207).  It  may  be  stated  that  not  long  after 
the  Act  came  into  force,  a  certificate,  framed  in  accordance  with  the 
schedule  to  the  Act,  was  presented  at  the  llegister  House,  Edinburgh,  for 
registration,  in  order  that  use  might  be  made  of  sununary  diligence.  The 
Keeper  of  the  Eegister,  founding  on  sec.  98,  declhied  to  register  the 
certificate,  and  the  question  was  then  referred  to  the  law  oilicers  of  the 
Crown,  who  instructed  the  keeper  to  record  the  certificate ;  and  since  then 
the  practice  at  the  Eegister  House  has  been  in  accordance  with  this  opinion. 
The  opinion  is  published  in  the  Scotsman  of  5tli  December  1882.  (For 
history  of  sec.  94,  see  Juridical  Eevicw,  vol.  x.  p.  462.) 

Sum  for  tuhich  Diligence  Competent. — Diligence  is  only  competent  for 
non-payment  of  the  contents  of  the  bill,  and  for  interest,  damages, 
expenses,  exchange,  and  re-exchange  (as  to  interest,  see  Act,  s.  9).  If  a 
payment  has  been  made  to  account,  diligence  is  only  competent  for  the 
balance  due.  If,  notwithstanding  the  payment,  diligence  is  commenced  for 
the  full  sum  in  the  bill,  the  diligence  is  not  wholly  null,  but  would  be 
suspended  to  the  extent  of  the  sum  paid  {Wilson,  1862,  24  D.  271). 

See  Bills;  Tromissory  Notes;  Charge;  Suspension. 

Summary   Procedure;    Summary   Prosecution. 

—See  Criminal  Prosecution  (Summary);  Complaint  (Summary). 

Summons. — By  derivation  summons  is  an  elliptic. il  cxi>re.ssion  for 
the  writ  s«»imo/un^  a  defender  to  attend  the  Court  mentioned  therein  to 
answer  the  demand  made  on  him.  Formerly  actions  in  all  the  Civil  Courta 
in  Scotland  were  originated  by  a  summons,  but  by  the  Siierilf  Courts 
(Scotland)  Act,  1876  (39  &  40  Vict.  c.  70),  summonses  were  superseded  liy 
petitions,  in  tlie  form  given  in  Schedule  A  to  that  Act,  in  onlinary  actions 
in  the  Sheriff  Court.  Actions  in  the  Small  Debt  Court  and  Debts  Uecovery 
Court  are  still  commenced  by  the  is:5ue  of  a  summons  (Debts  Itec  »very 


144  SUMMONS 

(Scotland)  Act,  1867  (30  &  31  Vict.  c.  96),  incorporating  1  Vict.  c.  41).  The 
summonses  still  in  use  in  the  inferior  Courts  will  be  treated  of  afterwards. 

Su7nmo7is  in  the  Court  of  Session. — The  summons  in  the  Court  of  Session 
is  a  writ  iu  the  sovereign's  name  passing  under  the  signet  and  signed  by  a 
writer  to  the  signet,  whose  signature  is  the  warrant  for  affixing  the  signet. 
The  form  of  the  summons  is  prescribed  by  the  Act  of  1850  "  to  facilitate 
procedure  in  the  Court  of  Session  in  Scotland"  (13  &  14  Vict.  c.  30,  s.  1, 
and  Schedule  A).  The  summons  consists  of  four  parts:  (1)  the  address; 
(2)  the  instance  or  statement  of  the  names  and  designations  of  the  parties ;  (3) 
the  conclusions  ;  and  (4)  the  will.  Prior  to  the  passing  of  this  Act  the  grounds 
of  action  were  stated  immediately  before  the  conclusions  ;  but  by  sec.  1  of 
the  Act  it  is  provided  that  "  the  pursuer  of  any  summons  before  the  Court  of 
Session  shall  set  forth  in  such  summons,  in  such  way  and  manner  as  the 
Court  having  regard  to  the  forms  set  forth  in  Scliedule  (A)  hereunto  annexed 
may  from  time  to  time  prescribe  by  Act  of  Sederunt  as  applicable  to  the 
various  forms  of  action  now  in  use,  the  name  and  designation  of  such 
pursuer,  and  the  name  and  designation  of  the  defender,  and  the  conclusions 
of  the  action  without  any  statement  whatever  of  the  grounds  of  action ; 
but  the  allegations  in  fact  which  form  the  grounds  of  action  shall  be  set 
forth  in  an  articulate  condescendence,  together  with  a  note  of  the  pursuer's 
pleas  in  law,  which  condescendence  and  pleas  iu  law  shall  be  annexed  to 
such  summons  and  shall  be  held  to  constitute  part  thereof." 

(1)  Tlie  address  of  a  summons  is  as  follows : — 

"  Victoria,  by  the  Grace  of  God,  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  Queen,  Defender  of  the  Faith  ;  To  ,  messengers-at-arms,  our  sheriffs 

in  that  part,  conjunctly  and  severally,  specially  constituterl,  greeting  :  " 

This  portion  of  tlie  summons  is  the  same  in  all  kinds  of  actions,  and  is 
usually  printed  "  Victoria,  &c." 

(2)  The  statement  of  the  parties  follows : — 

"^^^le^eas  it  is  humbly  meant  and  shewn  to  us  by  our  lovite,  A.  [i usert  name  and 
desi(j nation],  pursuer,  against  B.  [insert  name  and  designation],  defender,  in  terms  of 
the  Condescendence  and  Xote  of  Pleas  in  Law  hereunto  annexed  :  " 

(3)  The  conclusions  of  a  summons  are  the  most  important  part,  and  of 
course  they  vary  with  the  action.  Some  special  conclusions  will  be  given 
later,  but  there  follows  here  the  conclusion  in  any  ordinary  action  for 
payment  of  money  : — 

"Therefore  the  defender  Ought  and  Should  be  Decerned  and  Ordained,  by  decree  of 
the  Lords  of  our  Council  and  Session,  to  make  payment  to  the  pui'suer  of  the  sum  of 
£  sterling  [v:here  any  liquid  document  of  debt  is  libelled  on,  vhether  hand,  bill,  or  otlicr 

document,  as  the  case  may  be,  set  it  forth  here  as  shortly  as  possible,  describing  it  merely  by  its  date 
and  tlie  names  of  the  -parties  by  and  to  whom  granted],  with  the  legal  interest  thereon  from 
the  day  of  until  ])ayment,  together  with  the  sum  of 

sterling,  or  such  other  sum  as  our  said  Lords  shall  modify,  as  the  ex]>enses  of  the  jirocess 
t'j  follow  hereon,  conform  to  the  laws  and  daily  practice  of  Scotland  used  and  observed 
in  the  like  cases  as  is  alleged  :  " 

(4)  The  will  of  a  summons,  like  the  conclusions,  varies  according  to 
circumstances,  but  the  usual  form  is  as  follows : — 

"(Jiirwill  is  herefore,  and  we  charge  you  that  on  sight  hereof  ye  pass  and  in  our 
name  and  authority  lawfully  summon,  warn,  and  charge  the  said  defenders  personally, 
or  at  their  respective  dwclling-])laces,  to  compear  before  the  said  Lords  of  our  Council 
and  S.'ssion  at  Kdiiihurgli,  or  wliere  it  may  hai)pen  them  to  lie  for  the  time,  the  seventh 
(or  if  in  Orkney  or  Shetland,  the  fourteenth  ;  but  see  ClTATlux)  day  next  after  the  date 


SUMMONS  145 

of  your  citation  in  the  hour  of  cause,  with  continuation  of  days,  to  answer  at  tlic  instonc* 
of  the  i.ursuer  in  the  matter  above  libelled  :  That  is  to  say,  to  hear  and  see  the  premiae^ 
verified  and  proven,  and  decree  and  sentence  pronounced  by  our  said  Ix)rds,  in  u-nun  of 
the  conclusions  above  written,  or  else  to  allege  a  reasonable' cause  in  the  contrary  ;  with 
certification  as  effeirs  [if  warrant  to  arrest  on  the  dependence  is  dtsired,  add  .-—Annnr  that 
in  the  meantime  ye  lawfully  fence  and  arrest  All  and  Sundry  the  whole  rc-idicat 
moveable  goods  and  gear,  debts  and  sums  of  money,  and  other  moveable  effecta  belunj,ing 
or  addebted  to  the  defender  wherever  or  in  whose  hands  soever  the  same  can  be  fuund  ; 
all  to  remain  under  sure  fence  and  arrestment,  aye  and  until  .sufficient  caution  and 
surety  be  found  acted  in  the  Books  of  our  Council  and  Session  that  the  same  shall  be 
made  forthcoming  to  the  pursuer  as  accords  of  law  [see  Arrestment].  //  tmrrant  of 
Inhibition  is  desired,  add : — And  also  that  ye  lawfully  inhibit  the  said  personally 

or  at  his  dwelling  j^lace  if  within  Scotland,  and  if  furlh  thereof,  at  the  office  of  the 
Keeper  of  the  Record  of  Edictal  Citations  at  Edinburgh,  from  selling,  burdening,  dis- 
poning, alienating,  or  otherwise  affecting  his  lands  or  heritages,  to  the  prejudice  of  the 
pursuer ;  and  that  ye  cause  register  this  summons  and  the  execution  hereof  in  the 
General  Register  of  Inhibitions  at  Edinburgh  for  publication  to  our  lieges  [Court  of 
Session  Act,  18G8,  31  &  32  Yict.  c.  100,  s.  18  ;  see  Ixhibitioxs]]. — According  to  Justice, 
as  ye  will  answer  to  us  thereupon,  which  to  do  we  commit  to  you  and  each  of  you,  con- 
junctly and  severally,  full  power  by  these  our  letters,  delivering  them  by  you  duly 
executed  and  indorsed  again  to  the  bearer. — Given  under  our  signet  at  Edinburgh  {the 
date  of  signet ing  is  added  by  the  official  representing  the  Keeper  of  the  Signet)." 

The  following  forms  for  the  conclusions  of  particular  actions  are  taken 
partly  from  the  Court  of  Session  Act,  1850  (13  &  14  Vict.  c.  3G,  Schedule 
A),  and  partly  from  the  Session  Papers  in  the  Advocates'  Library.  Each 
example  has  been  tested  in  practice.  "Where  not  otherwise  mentioned,  the 
conclusions  are  alone  altered,  the  other  portions  remaining  as  in  the  example 
given  above : — 

(1)  Count,  Reckoning,  and  Payment. 

"Therefore  the  defender  Ought  and  Should  be  Decerned  and  Ordained,  by  decree  of 
the  Lords  of  our  Council  and  Session,  to  exhibit  and  produce  before  our  said  Lords  a  full 
and  particular  account  of  his  whole  intromissions  as  factor  for  the  pursuer  [or  othenrise, 
as  the  case  may  be],  whereby  the  true  balance  due  by  him  to  the  pursuer  may  appear 
and  be  ascertained  by  our  said  Lords  :  And  the  defender  Ought  and  Should  be  Decerned 
and  Ordained,  by  decree  foresaid,  to  make  payment  to  the  pursuer  of  the  sum  of 
sterling,  or  of  such  other  sums  as  shall  appear  and  be  ascertained  by  our 
said  Lords  to  be  due  by  the  defender  as  the  balance  of  his  said  intromissions,  with  the 
legal  interest  thereof  from  the  day  of  until  payment  ;  or  in 

the  event  of  the  defender  failing  to  produce  an  account  as  aforesaid,  he  Ought  and  Should 
be  Decerned  and  Ordained,  by  decree  foresaid,  to  make  payment  to  the  pursuer  of  the 
sum  of  sterling,  which  shall  in  that  case  be  held  to  be  the  balance  of  his 

eaid    intromissions,  with  the  legal  interest  thereof  from  the  said  day  of 

until  payment ;  and  whether  the  said  account  is  produced  or  not,  the  defender 
Ought  and  Sliould  be  Decerned  and  Ordained,  by  decree  foresaid,  to  make  payment  to 
the  pursuer  of  the  sum  of  sterling,  ov  such  other  sum  as  our  said  Lords 

shall  modify  as  the  expenses,  &c.  So." 

(2)  Declarator  of  Trust. 

"  Therefore  it  Ought  and  Should  be  Found  and  Declared,  by  decree  of  the  Lords  of 
our  Council  and  Session,  that  a  disposition  dated  ,  whereby  for  the  causes 

therein  specified  the  pursuer  sold,  alienated,  and  disponed  to  the  defender  and  his 
heirs  and  assignees  whomsoever,  heritably  and  irredeemably.  All  and  Whole  the  lands 
of  ,  was  a  trust  in  the  person  of  the  defender  for  the  use  and  behm.f  of  the 

pursuer  and  his  heirs  or  assignees  :  And  the  defender  Ought  and  Should  be  Decerned 
and  Ordained,  by  decree  foresaid,  to  denude  of  the  said  lands,  and  to  convey  the  same, 
with  the  writs  and  evidents  thereof,  to  the  pursuer  and  his  heirs  and  assigneeis,  with 
warrandice  from  the  defender's  own  facts  and  deeds  [insert  conclusion  for  expenses,  and 
will,  as  fc«/ore]." 

(3)  Summons  of  Reduction. 

In  this  case  the  will  follows  immediately  on  the  address : — 

"Victoria,  &c.— Our  Will  is,  and  we  charge  you  that  on  sight  hereof  ye  pa.^  and  in 
our  name  and  authority  lawfully  summon,  warn,  and  charge  B.  [design  him],  defender, 
a.  E. — VOL.  XII.  ^^ 


14G  SUMMONS 

jKjrsonally  or  at  liis  dwelling-iilace  if  within  Scotland,  and  if  furth  thereof  by  delivery 
of  a  copy  hereof  at  the  office  of  the  Keeper  of  the  Record  of  Edictal  Citations,  to  com- 
l>ear  before  the  Lords  of  our  Council  and  Session  at  Edinburgh,  or  where  it  may  happen 
ihem  to  be  for  the  time,  the  said  defender,  if  in  Scotland,  the  seventh  day,  and  it'  fiuth 
of  Scotland  the  fourteenth  day  next  after  the  date  of  your  cit^ition  in  the  hour  of  cause, 
with  continuation  of  days,  to  answer  at  the  instance  of  our  lovite  A.  [design  Jiim], 
jmrsuer  ;  to  whose  great  hurt  and  j)rejudice  the  pretended  trust  disposition  and  settle- 
ment [or  as  the  cdse  man  '/<]  afteniientioned  was  made  and  granted,  wherel)y  the  pursuer 
has  good  and  undoubted  right  to  call  for  exhibition  and  production  thereof,  and  to 
prosecute  and  follow  forth  the  present  action  of  reduction  ;  That  is  to  say,  the  defenders 
to  bring  with  them,  exhibit,  and  produce  before  our  said  Lords  a  pretended  T.  D.  and  S. 
by  (7.,  and  bearing  to  be  dated  ,  or  of  whatever  other  date,  tenor,  or  contents 

the  same  may  be  :  To  be  seen  and  considered  by  our  said  Lords,  and  to  hear  and  see  the 
same,  with  all  that  has  followed  or  may  follow  thereon,  reduced,  retreated,  rescinded, 
cassed,  annulled,  decerned  and  declared  l)y  decree  of  our  said  Lords  to  have  been  from 
the  beginning,  to  be  now,  and  in  all  time  coming  null  and  void,  and  of  no  avail,  force, 
strength,  or  eti'ect  in  judgment  or  outwith  the  same  in  time  coming,  and  the  pursuer 
reponed  and  restored  thereagainst  in  intajrum  for  the  reasons  and  causes  set  forth  in  the 
Condescendence  and  Note  of  I'leas  in  Law  hereunto  annexed  :  Therefore  and  for  other 
reasons  to  be  proponed  at  discussing  hereof,  the  said  pretended  Trust  Disposition  and 
Settlement  [or  as  the  case  may  be],  with  all  that  has  followed  or  may  follow  on  the  same. 
Ought  and  Should  be  reduced,  retreated,  rescinded,  cassed,  annulled,  decerned  and 
declared,  by  decree  of  our  said  Lords,  to  have  been  from  the  beginning,  to  be  now,  and  in 
all  time  coming,  null  and  void,  and  of  no  avail,  force,  strength  or  ettect  in  judgment  or 
outwith  the  same,  in  time  coming,  and  the  pursuer  restored  thereagainst  in  integrum. 
And  the  defender  Ought  and  Should  Ije  Decerned  and  Ordained,  by  decree  foresaid,  to 
make  payment  to  the  j)ursuer  of  the  sum  of  sterling  [insert  conclusion  for 

expense  as  before],  or  else  to  allege  a  reasonable  cause  in  the  contrary  :  "With  certification 
to  the  defender,  if  he  fail,  our  said  Lords  will  proceed  in  the  said  matter  and  reduce, 
decern,  and  declare  in  manner  foresaid. —  According  to  Justice,  &c."  See  swjjra, 
Eeductiox. 

(4)  Summons  of  Multiplepoinding. 

"  Victoria,  &c.—  Whereas  it  is  humbly  meant  and  shewn  to  us  by  our  lovite  A.  [name 
and  design  him],  pursuer  ;  against  B.  [name  and  designation],  common  debtor,  and  C.  D. 
and  E.  [insert  names  and  designations  of  each  in  order,  and  state  who  is  the  real  raiser], 
creditors  or  pretended  creditors  of  the  said  B.,  all  defenders  in  terms  of  the  Con- 
descendence and  Xote  of  Pleas  in  Law  hereunto  annexed  :  Therefore  it  Ought  and 
Should  bo  Found  and  Declared,  by  decree  of  the  Lords  of  our  Council  and  Session,  that 
the  pursuer  is  only  liable  in  once  and  single  payment  of  the  principal  sum  of 
sterling  contained  in  a  bond  dated  ,granted  by  him  to  the  said  B.,  his  heirs, 

executors,  or  assignees,  and  interest  thereon   from   the  day  of 

until  jjayment,  or  until  consignation  in  this  process,  and  that  to  the  person  or  persons 
who  may  have  just  right  thereto  ;  for  determining  which  the  said  several  persons, 
creditors  or  pretended  creditors  foresaid,  and  the  said  B.,  common  debtor,  for  his 
interest,  and  all  others  pretending  right  thereto,  ought  to  produce  their  respective 
grounds  of  debt  and  diligences  thereon,  or  other  interest  in  the  said  sum,  and  dispute 
their  preferences  thereto:  And  the  pursuer  should  be  found  entitled  to  retain  the 
expenses  of  this  process  as  the  same  shall  Ijc  ascertained  in  the  course  thereof,  and 
Decerned  and  Ordained  to  make  payment  of  what  sum  shall  remain  in  his  hands  after 
such  retention  to  such  of  the  defenders  or  others  as  may  be  found  to  have  best  right 
thereto  ;  and  the  defenders  who  shall  be  found  to  have  no  right  to  the  sums  in  medio 
and  all  others  Ought  and  Should  be  Decerned  and  Ordained,  by  decree  foresaid,  to  desist 
and  cease  from  further  troubling  the  pursuer  with  respect  to  the  premises  in  time 
coming,  conform  to  the  laws  and  dailv  ]>ractice  of  Scotland  used  and  observed  in  tlie. 
like  cases  as  is  alleged.— Our  will  is  herefore,  &c." 

(5)  Summons  of  Divorce. 

"Victoria,  &c.— Whereas  it  is  humblv  meant  and  shewn  to  us  bv  our  lovite  A. 
\desujn  hirn],  pursuer  ;  against  B.,  his  wife,  defender  ;  and  against  G.  [design  him],  co- 
flef.-nder,  in  terms  of  the  Condescendence  and  Note  of  Pleas  in  Law  hereunto  annexed  : 
1  lierefore  the  Lords  of  our  Council  and  Session  Ought  and  Should  find  facts,  circum- 
stances and  fiuahfications  proven  relevant  to  infer  the  guilt  of  adultery  of  the  defender 
Jj.  with  the  said  co-defender  C,  and  therefore  find  her  guiltv  of  adultery  with  him 
accordingly  :  And  our  said  Lords  Ought  and  Should  divorce  and  separate  the  defender 


SUMMONS  14- 


from  tlu'  pursnor,  .uid  fntiii  Itis  society,  fellowsliij),  aii<l  <(.iii|paiiv,  aii.l  Fin<l  an.l  Iwlv 
the  defender  to  liave  forfeited  all  the  riyhls  and  i)rivilege8  of  a  lawful  wif.-,  and  thai  il 


arc 

inirsuer  i.s  entit]e(l  to  live  single  or  to  marry  any  free  Vvdiuan  as  if  1m-  had  'n."v.'r'lH.Jii 
married  to  tlu;  defender,  or  as  if  slie  were  naturally  dead  :  And  also  that  the  defender 
the  said  JJ.,  has  lost  and  amilted  the  whole  goods,  gear,  money,  and  othefM  whalHoc-ver 
which  were  anyways  contracted  or  agreed  to  Ije  j>aid  to  the  (fefemhr  in  r.-s|..-.t  .,f  siid 
marriage,  or  whatever  she  had  right  to  claim  in  virtue  thereof  :  And  the  .sud  C.  Ought 
and  Should  be  Decerned  and  Ordained,  by  decree  of  our  said  I^ords,  to  make  pavnient 
to  the  pursuer  of  sterling  in  name  of  damages  and  solatium  :  And  the  )vi'u\  H.  [if 

she  has  separate  estate]  and  C.  Ought  and  Should  he  Decerned  and  Ordained,  conjunctiv 
and  severally,  to  make  payment  to  the  pursuer  of  the  sum  of  sterl'ing,  or  t^m-ii 

other  sum  as  our  said  Lords  shall  modify,  as  the  expenses  of  the  process  to  follow  iiereou 
conforui  to  the  laws  and  daily  practice  of  Scotland  used  and  observed  in  the  like  cawa 
as  is  alleged. — Our  will  is  herefore,  &c." 

These  will  serve  as  examples,  but  forms  fur  every  kind  of  summons  will 
be  foil  ml  in  the  Juridical  Sti/lcs,  vol.  iii. 

Dilierent  conclusions  may  be  combined  in  one  summons,  and  tluit  even 
in  the  case  of  alternative  conclusions  which  are  irreconcilable.  Thus  in 
common  practice  a  conclusion  for  declarator  of  marriage  is  almost  always 
coupled  with  a  conclusion  for  damages  for  breach  of  promise  of  m;irriage 
(see,  for  example,  Session  Papers  in  Imrie,  19  K.  185;  Stetrart,  15  S.  1198  ; 
the  case  of  Malay,  12  II.  431,  was  a  case  in  which  declarator  of  marriage 
was  sought  on  two  alternative  grounds  which  were  inconsistent).  Further, 
a  conclusion  may  be  inserted  to  take  effect  at  a  future  time — usually  called 
an  eventual  conclusion.  Thus  one  who  has  arrested  a  fund  wliich  has 
vested  in  his  debtor,  though  burdened  with  a  liferent,  may  follow  up  his 
arrestment  by  an  action  of  furthcoming,  concluding,  not  for  immediate 
payment,  but  for  payment  at  the  death  of  the  liferenter  (per  Ld.-Pres.  Tnglis 
in  Jameson,  14  E.  64.')). 

While  several  pursuers  and  several  defenders  may  be  conjoined  in  one 
summons  where  there  is  a  common  object  to  be  attained  {D.  of  Bucclaich, 
4  R.  (H.  L.)  14 ;  Mitchell,  21  E.  367),  yet  two  parties  cannot  be  sued  on 
different  grounds  in  the  same  summons  {Barr,  0  i\I.  G51 ;  Taylor,  12  1!. 
1304;  Smyth,  19  E.  81). 

By  the  Act  13  &  14  Vict.  c.  36,  "above  referred  to,  it  was  provided  that 
every  summons  passing  the  signet  required  to  be  signed  by  a  Writer  to  the 
Signet  on  every  page.  By  the  Court  of  Session  Act,  1868  (31  c'v:  32  Vict, 
c.  100,  s.  13),  any  agent  entitled  to  practise  before  the  Court  of  Session  may 
sign,  provided  that,  if  he  be  not  a  AVriter  to  the  Signet,  the  last  page  must 
be  signed  by  a  Writer  to  the  Signet;  "  and  any  Writer  to  the  Signet  shall, 
on  a  fee  of  two  shillings  and  sixpence  being  tendered  to  him,  Ite  bound 
so  to  sign  any  summons  which  may  bo  presented  to  him  for  that  jiurjiose, 
but  he  shall  not  by  so  signing  incur  any  responsibility."  This  ])rovisiou 
destroyed  the  practical  monopoly  of  Court  of  Session  business  formerly 
enjoyed  by  the  Society  of  Writers  to  the  Signet.  A  compearer  once 
presented  a  note  to  the  Court  stating  that  he  was  about  to  raise  an  action 
against  certain  members  of  the  College  of  Justice,  and  was  unwilling  in 
these  circumstances  to  ask  a  Writer  to'the  Signet  to  sign  the  summons,  and 
craving  the  Court  to  authorise  the  Keeper  of  the  Signet  to  affix  the  signet 
to  a  summons  signed  by  the  pursuer  alone.  The  Court  refused  this 
application,  l)ut  authorised  the  Keeper  to  signet  printed  copies  of  the 
summons  instead  of  manuscript  {iroey,  13  E.  207)  The  signeting  of  the 
summons  is  not  in  any  sense  a  judicial  act,  and  the  true  date  of  the 
commencement  of  an  action  is  the  date  of  the  execution  of  the  summon.s 
(Alston,  15  E.  78).  Therefore  where  jurisdiction  is  to  be  founded  agiimst 
a  foreigner  by  letters  of  an-estment  Jurisdiction  is  fundandcc  causa,  it   is 


148  SUMMONS 

unnecessarv  to  execute  them  before  the  summous  is  signeted,  and  indeed 
it  is  enou*'h,  in  the  opinion  of  some  judges,  if  they  are  executed  before 
defences  are' lodged  {Wall's  Trs.,  15  11.  359).  But  see  opinions  of  Lds. 
Shand  and  Adam  in  Morlej/,  16  K.  78,  which  seem  to  imply  that  at  the 
commencement  of  the  action  (i.e.  the  execution  of  the  summons)  the 
jurisdiction  must  have  been  already  founded.  _ 

In  former  times  a  very  slight  inaccuracy  in  the  names  or  designations 
of  the  parties  in  the  summons  was  enough  to  make  the  citation  bad.  In 
the  case  of  Guthrie,  11  S.  465,  an  objection  was  taken  by  a  compearing 
defender  that  in  the  summons  he  was  called  "  William  Munro,"  whereas  his 
full  name  was  "  William  John  Munro,"  and  the  Inner  House,  to  whom  the 
objection  was  reported,  only  repelled  the  objection  with  much  difficulty,  on 
the  special  ground  that  the  defender's  signature  was  illegible.  By  the 
Court  of  Session  Act,  1868  (31  &  32  Vict.  c.  100,  s.  21),  no  party  appearing 
shall  be  entitled  to  state  any  objection  to  the  regularity  of  the  execution  or 
service  of  the  summons  convening  him.  Even  when  the  defender  does  not 
appear,  a  trifling  error  of  this  sort  would  not  now  be  sufficient  to  ground  a 
suspension  or  reduction  of  the  decree  {Cruickslianl<:,  15  E.  326  ;  Spalding, 
10  E.  1092;  Turnhull  &  Co.,  14  D.  45;  cf.  Brown,  12  R.  340).  The 
description  of  parties  must,  however,  still  be  reasonably  accurate  and 
sufficient  to  be  recognisable.  Thus  a  description  of  a  party  as  "  residing  in 
London "  was  held  insufficient  (Sceales,  4  M.  300),  and  a  description  of  a 
hatter  in  Paisley  as  "  merchant  in  Glasgow  "  was  held  fatal  (Eamar/e,  6  S. 
853).  Of  course  it  would  be  a  good  answer  to  such  an  objection,  that  the 
defender  mislead  the  pursuer  {Guthrie,  11  S.  645).  To  omit  the  names  of 
defenders,  describing  them  generally  as  "  A.'s  trustees  "  or  "  B.'s  executors,"  is 
incompetent  (Bell,  3  D.  380).  The  position  of  Bishop  in  the  Episcopal 
communion  in  Scotland  is  not  recognised  in  law  {Dinibar,  11  L).  945; 
Drunimond,  6  July  1809,  F.  C).     See  Citation. 

Amendment  of  Summons. — {a)  In  Undefended  Actions. — By  the  Court 
of  Session  Act,  1868  (31  &  32  Vict.  c.  100,  s.  20),  it  is  provided  that:  "In 
undefended  actions  any  error  or  defect  in  any  summons  or  other  plead- 
ing, whereby  the  action  is  commenced  in  the  Court  of  Session,  may  be 
amended  upon  application  to  the  Lord  Ordinary  or  the  Court  before  whom 
it  depends,  if  the  Lord  Ordinary  or  the  Court  think  such  amendment  should 
be  allowed ;  and  such  amendment  shall  be  made  in  writing  cither  upon  the 
summons  or  pleading  or  in  a  separate  paper,  and  shall  be  authenticated  by 
the  signature  of  counsel ;  and  the  Lord  Ordinary  or  Court  may,  if  he  or 
they  think  fit,  order  the  amended  summons  or  other  pleading  to  be  served 
upon  the  absent  defender  or  defenders,  with  liberty  to  him  or  them  to  enter 
appearance  within  such  time  as  shall  seem  proper;  provided  that  the 
expenses  occasioned  by  such  amendment  shall  not  be  chargeable  against 
the  defender  or  defenders  ;  and  provided  also  that  such  amendment  shall 
not  have  the  effect  of  validating  diligence  used  on  the  dependence  of  the 
action  so  as  to  prejudice  the  rights  of  creditors  of  the  defender  interested 
in  defeating  such  diligence,  but  shall  be  operative  to  the  effect  of  obviating 
any  objections  to  such  diligence  when  stated  by  the  defender  himself  or  by 
any  person  representing  him  by  a  title  or  in  right  of  a  debt  contracted  by 
him  subsequent  to  the  using  of  such  diligence."  Prior  to  this  enactment, 
there  was  no  power  of  altering  a  summons  in  an  undefended  action.  It 
will  be  seen  that  this  section  gives  the  power  of  amendment  in  very  wide 
terms,  without  the  proviso  in  sec.  29  (to  be  afterwards  noticed)  that  such 
amendment  shall  not  subject  to  the  adjudication  of  the  Court  any  larger 
sum  or  any  other  fund  or  property  than  such  as  are  specified  in  the  original 


SUMMONS  149 

pleading.  It  niiiy  therefore  be  competent  to  amend  the  .suninions  by  addin" 
entirely  new  conclusions,  but  there  is  no  reported  decision  on  this  section.** 

(h)  In  Defended  Actions. — The  very  limited  powers  of  amendment 
after  closing  the  record  which  parties  had  under  the  Judicature  Act,  1825 
(6  Geo.  IV.  c.  120,  s.  10)  (see  lli:s  novitek  vknikns  ad  notitiam),  did  not 
extend  to  alterations  on  the  summons.  The  only  warrant  for  alterations 
on  summonses  is  contained  in  the  Court  of  Session  Act,  18G8  (31  &  32  Vict, 
c.  100,  s.  29),  which  is  as  follows:  "The  Court  or  the  Lord  Ordinary  nuiy  ut 
any  time  amend  any  error  or  defect  in  the  record  or  issues  in  any  action  or 
proceeding  in  the  Court  of  Session,  upon  such  terms  as  to  expenses  and  <jther- 
w^ise  as  to  the  Court  or  Lord  Ordinary  shall  seem  proper ;  and  all  .sueli  amend- 
ments as  may  be  necessary  for  the  purpose  of  determining  in  the  existing 
action  or  proceeding  the  real  (piestion  in  controversy  between  the  parties 
shall  be  so  made  ;  provided  always  that  it  sliall  not  be  competent  by 
amendment  of  the  record  or  issues  under  this  Act  to  subject  to  the 
adjudication  of  the  Court  any  larger  sum  or  any  other  fund  or  property 
than  such  as  are  specified  in  the  summons  or  other  original  pleading,  unless 
all  the  parties  interested  shall  consent  to  such  amendment ;  and  ])rovi(ied 
also  that  no  such  amendment  shall  have  the  ellect  of  validutiuL'  diH-^'nce 
used  on  tlie  dependence  of  the  action  so  as  to  prejudice  tlie  rights  of 
creditors  of  the  defender  interested  in  defeating  such  diligence,  but  shall  be 
operative  to  the  effect  of  obviating  any  objections  to  such  diligence  when 
stated  by  the  defender  himself  or  by  any  person  representing  him  by  a 
title  or  in  right  of  a  debt  contracted  by  him  subsequent  to  the  execution 
of  such  diligence." 

This  clause  has  no  application  to  alterations  made  by  parties  at  the 
adjustment  of  the  record  {Cairns,  20  R  16). 

It  is  in  the  discretion  of  the  Court  to  allow  or  disallow  any  amendment 
proposed  under  this  section  {Taylor,  12  R  1304).  It  is  not  competent  to 
amend  a  summons  by  the  addition  of  a  new  pursuer  without  defender's 
consent  {Hislop,  8  11.  (H.  L.)  95;  Anderson,  10  M.  217);  unless  in  ex- 
ceptional circumstances  {Morison,  1  R.  110).  But  striking  out  certain 
pursuers  from  the  summons  and  the  relative  conclusions  was  held  to  be  a 
competent  amendment,  but  did  not,  under  the  second  proviso  of  the  section, 
validate  diligence  so  as  to  confer  on  the  remaining  pursuer  a  preference  in 
competition  with  other  creditors  {Fischer,  23  IJ.  395).  A  new  defender 
cannot  be  added  without  his  own  consent  (Mackay's  Manual  of  Practice, 
p.  186  ;  but  see  under  Title  to  Sue  and  Defend). 

The  conditions  which  the  Lord  Ordinary  may  impose  in  granting  leave  to 
amend  are  not  limited  to  payment  of  expc-nses,  but  may  include  such  condi- 
tions as  agreeing  to  the  other  side  sisting  new  parties  {Duthie  Brothers  lO  Co., 
19  R  905).  Further,  when  a  party  has  been  informed  of  the  conditions  on 
which  he  will  be  allowed  to  amend,  he  may  amend  on  these  conditions  or  he 
may  decline  to  amend,  but  he  cannot  make  the  amendment  and  repudiate  the 
conditions.  "  If  he  considered  the  terms  of  the  Lord  Ordinary  too  onerous, 
he  should  have  asked  leave  to  reclaim  against  the  interlocutor  prescribing 
those  terms  ;  but  even  if  that  had  not  been  granted,  his  proper  course  would 
have  been  to  go  on  and  take  his  fate  on  the  existing  record,  and,  if  need  were, 
raise  the  question  of  the  conditions  of  amendment  as  soon  as  he  was  able  to 
ask  our  judgment  upon  it  on  a  reclaiming  note  "  (per  Lord  President  in  Dutfne 
Brothers  tfc  Co.,  19  U.  905).  Amendments  have  been  held  competent  by  which 
the  summons  concluding  for  payment  to  the  pursuers  personally  wasjiltercd 
so  as  to  conclude  for  payment  to  a  trust  estate  {Carruthers,  17  U.  709),  or 
to  the  pursuers  "as  trustees  foresaid"  {Broicns  Trs.,  24  11.  IIOS). 


150  SUMMONS 

The  proviso  tliat  amemlments  shall  not  be  competent  which  would 
subject  to  the  ailjiulication  of  the  Court  any  larger  sum  or  other  fund  or 
l»roperty  than  tliat  originally  mentioned,  must  be  construed  with  reference 
to  the  facts  of  each  case,  but  the  following  illustrations  may  be  referred  to : — 
Cases  u'?ie re  amendment  was  allouxd :  Roitenlurg/l-i  ]L  35;  Goran  Rope  & 
Sail  Co.,2A  11.  368;  Caledonian  Fdy.  Co.,  24  S.  L.  E.  120.  Cases  where 
amendment  not  allowed:  Bnssell,  Hoj^e,  &  Co.,  23  E.  256;  Zmy,  21  E.  749; 
lMmi)ig  ct-  Co.,  16  E.  828;  London,  18  R  549;  Gibson's  Trs.,  4  E.  1001; 
Gillespie,  1  E.  423.  There  are  certain  "  conclusions  of  style,"  such  as  the 
conclusion  for  expenses,  or  the  conclusion  for  a  random  sum  in  a  count, 
reckoning  and  payment,  the  omission  of  which  was  not  fatal  to  the 
summons  under  the  older  law,  and  which  therefore  may  be  admitted  as 
amendments  under  this  section  {Scott,  7  S.  566;  Dohson,  20  I).  610).  But 
a  conclusion  for  interest  cannot  competently  be  added,  as  it  would  submit 
to  the  adjudication  of  the  Court  a  larger  sum  than  was  originally  concluded 
for  {Shotts  Iron  Co.,  8  M.  383). 

Supplementary  Summons. — Before  the  passing  of  the  Court  of  Session 
Act,  1868,  above  mentioned,  a  supplementary  summons  was  frequently  used 
for  the  purpose  of  correcting  any  fault  or  error  in  a  principal  summons. 
Tiie  wide  powers  of  amendment  contained  in  sees.  20  and  29  of  that 
Act,  above  narrated,  have  for  the  most  part  superseded  the  need  for  this 
step,  and  it  is  now  seldom  resorted  to  except  for  the  purpose  of  meeting 
the  defence  of  "all  parties  not  called,"  since,  as  above  mentioned,  a  new 
defender  cannot  be  added  by  amendment  except  with  his  own  consent.  A 
supplementary  summons  cannot  contain  statements  inconsistent  with  those  in 
the  principal  summons,  but  new  facts  and  giounds  of  action  may  be  stated, 
provided  the  conclusions  are  the  same  (Hounison,  9  S.  534;  Cargil,  5  S.  48 ; 
Scott,  7  S.  338 ;  McDougall,  7  S.  460).  A  supplementary  summons  cannot 
be  raised  when  the  original  summons  is  null  (Mclndoe,  5  S.  02  (N".  E.  85); 
*Steivai't,  14  S.  989),  or  when  the  time  has  expired  witliin  wliich  the  action 
requires  to  be  brought  (Paul,  2  S.  626  (N.  E.  533)).  A  supplementary  summons 
may  not  be  raised  for  the  interest  when  the  principal  sunnnons  concludes  for 
the  capital  only  {Edinburgh  &  Glasgow  Canal  Co.,  1  Bell's  App.  316  ;  rev.  C.  of 
S.).  A  supplementary  summons  requires  to  be  signeted  and  served,  and  fee-fund 
dues  have  to  be  paid  just  as  in  the  case  of  an  ordinary  summons ;  but  as  certain 
intermediate  steps  are  sometimes  saved,  and  as  the  original  action  cannot  be 
abandoned  without  payment  of  all  the  defender's  expenses,the  use  of  it  is  some- 
times an  economy.     The  form  of  a  supplementary  summons  is  as  follows : — 

"  Victoria,  &c. — Whereas  it  is  luuuljly  meant  and  sliewn  to  us  by  our  loxito.  A., fursuer, 
against  B.,  C,  and  D.,  defenders,  in  terms  of  tlie  Condescendence  and  Note  of  Pleas  in  Law 
liereunto  annexed  :  Therefore  tlie  present  action  ought  to  he  conjoined  with  an  action 
raised  on  at  the  pui'suer's  instance  against  7>.  and  C.  before  named  and 

designed  [or  as  the  case  may  he],  and  in  the  conjoined  actions  it  Ought  and  Should  be 
Found  and  Declared  [rjive  conclusions  as  in  the  jprinciiMl  summons]. — Our  will  is  here- 
fore,  &c." 

Repeating  a  Summons. — There  are  certain  defences  which  can  only  be 
maintained  by  way  of  action.  For  example,  where  a  defender  is  sued  on  a 
deed  executed  by  himself,  and  he  alleges  in  the  defence  that  the  deed  was 
fraudulently  obtained  from  him,  he  can  only  maintain  this  defence  by 
bringing  an  action  of  reduction.  To  obviate  the  extra  expense  wliich  this 
course  would  cause,  the  parties  may  agree  to  "  repeating  the  summons." 
That  is  to  say,  in  the  example  given  above,  a  summons  of  reduction  at  the 
instance  of  the  defender  would  be  signeted,  but  not  further  proceeded  with, 
and  this  summons  would  Ije  lodged  in  process,  and  an  interlocutor  pro- 


SUMMONS  151 

iiouncecl  by  the  Lord  Ordinary  in  the  ori-inal  itrocoss,  holding,' the  summons 
of  reduction  repeated  incidcntcr ;  and  it  may  be  conjoined  willi  the  (jri"iual 
action  or  not.  This  would  enable  the  defence  to  be  proved  without  ob- 
jection ;  but  it  would  have  no  ellect  except  as  a  defence  to  the  orij,'inal 
action  ( Weir,  M.  4034).  This  can  only  be  done  with  the  consent  of  the 
other  party  (Ivory,  Form>i  of  Process,  ii.  Gl).  A  repeated  summons,  being 
purely  incidental  to  the  original  action,  cannot  be  sustained  where  tlie 
original  action  is  incompetent  (L'ridf/cs,  1  S.  (N.  E.)  351).  The  repeating  of  a 
summons,  being  merely  a  technical  formality,  is  seldom  resorted  to  now, 
tiie  same  end  being  attained  by  tiie  pursuer  not  pressing  his  objection  to 
the  defence  (see  Shand's  Practice,  pp.  503  and  652). 

Summons  in  the  Inferior  Courts. — As  above  mentioned,  ordinary  actions 
in  tlie  Sheriff  Courts  are  now  commenced  by  "petitions"  in  jilace  of 
summonses  (Sherilf  Courts  (Scotland)  Act,  187G  ;  see  Siiekiff  Col'UTs). 

r>ut  cases  in  the  Small  Debt  Court  and  Debts  Kecovery  Court  are  still 
commenced  by  a  summons,  which  is  in  the  following  form : — 

"A.  r>.,  Sheriff  of  the  Shire  of  ,  to  ,  oHicers  of  Court,  jointly 

and  severally  :  Whereas  it  is  humbly  coni])laine(l  to  mc  l»y  C.  1).  [desiyn  Itim],  tliat  K.  F. 
[design  him],  defender,  is  owing  the  coinplainer  the  sum  of  [here  insert  the  oriijin 

of  debt  or  ground  of  action,  and,  whenever  possible,  the  date  of  the  cause  of  action  or  last  date 
in  the  nccounti,  which  the  said  defender  refuses  or  delays  to  pay  ;  and  therefore  the  said 
defender  Ought  to  he  Decerned  and  Ordained  to  make  i)ayment  to  the  cumplainer,  with 
expenses  :  Herefore  it  is  my  will  that  on  sight  hereof  ye  lawfully  summon  the  said 
defender  to  compear  before  me  or  my  substitute  in  the  Court-house  at  ,  upon 

the  day   of  at  of   the  clock,  to  answer  at  the   comnlainer's 

instance  in  the  said  matter,  with  certification,  in  case  of  failure,  of  being  lield  a.s  con- 
fessed ;  reijuiring  you  also  to  deliver  to  ihe  defender  a  copy  of  any  account  pursued  for, 
and  that  ye  cite  witnesses  and  havers  for  both  parties  to  compear  at  the  said  place  and 
date  to  give  evidence  in  the  said  matter  ;  and  in  the  meantime  that  ye  arrest  in  security 
the  goods,  effects,  de1)ts,  and  sums  of  money  belonging  to  the  defender  as  accords  of  law. 
Given  under  the  hand  of  the  Clerk  of  Court  at  the        day  of 

/.  P.,  Sheriff  CUrk." 

(I  Yict.  c.  41,  Schedule  A,  incorporated  with  the  Debts  Recovery 
(Scotland)  Act,  1867  (30  &  31  Vict.  c.  96).  Schedules  B,  D,  and  E  give 
forms  for  summonses  of  sequestration  and  sale,  forthcoming,  and  multi- 
plepoinding  respectively;  and  the  Small  Debt  Amendment  (Scotland)  Act, 
1889  (52  &  53  Vict.  c.  26),  Schedules  A  and  B,  give  forms  of  summonses 
for  delivery  of  articles  not  exceeding  £12  in  value.  It  is  unnecessary  to 
quote  these  here,  since,  as  aftermentioned,  the  printed  forms  must  be 
obtained  from  the  Sheriff  Clerk.) 

There  is  no  Condescendence  or  Note  of  Pleas  in  Law  annexed,  the 
grounds  of  debt  being  stated  in  the  summons,  or  in  an  account  affixed  to 
the  summons  and  served  with  it.  The  Sherift'  Clerk  keeps  at  his  office 
printed  forms  of  Small  Debt  and  Debts  Recovery  summonses,  which  are 
filled  up  and  signed  by  the  Sheriff  Clerk  or  his  depute  (I  Vict.  c.  41,  ss. 
25  and  37)  on  tlic  application  of  the  suitor  or  his  agent,  and  on  payment 
of  one  shilling  for  the  summons,  including  precept  of  arrestnient,  and^ six- 
pence for  each  copy  for  service.  It  is  then  served  by  the  oflicer  of  Court 
on  payment  of  corresponding  fees  (1  Vict  c.  41,  s.  32). 

There  is  also  a  Justice  of  Peace  Small  Debt  Court,  in  wldch  a  summons 
is  used  in  the  same  terms,  except  that  the  commencement  is : — 

"The  Honourable  Her  Majestv's  Justices  of  the  Peace  for  the  Shire  [or  Stewartry]  of 
"  [12  &  13  Vict.  c.  34,  Schedule  (A)]. 

The  Justice  of  the  Peace  Court  has  only  jurisdiction  in  cases  in  which 
the  sum  in  dispute  docs  not  exceed  £5. 

See  SiiF.iuFF  and  Justice  of  the  Peace. 


152  SUNDAY 

Sunday. — Cert^un  recent  Acts  contain  ])rovisions  regarding  Sunday. 
Thus  the  t-mploynient  of  young  persons  undcu-  the  age  of  eighteen  years 
and  of  women  in  factories  and  workshops  on  Sunday  is  prohibited,  with 
certain  specified  modifications,  by  41  Viet.  c.  16,  s.  21 ;  and  the  selling  of 
exciseable  liquors  on  Sunday,  with  certain  exceptions,  is  prohibited  by  25  & 
20  Vict.  c.  ob,  s.  7  {Macdonald,  1895,  21  K  (J.  C.)  38). 

No  judicial  acts  can  legally  be  performed  on  Sunday.  Diligence 
executed  on  Sunday  is  therefore  null,  from  which  rule,  however,  warrants 
against  persons  in  mcditatione  fugcv-  are  excepted  ex  necessitate  {Kemi^t,  1786, 
^I.  8554).  But  the  voluntary  acts  of  private  parties  are  binding  though 
dated  on  Sunday  {Dunecin,  1084,  M.  15003;  Elliot,  1844,  0  D.  411). 
Decrees-arbitral  also  may  be  valid  (Bankt.  i.  456). 

[In  this  connection  ride  Stair,  bk.  iii.  tit.  1,  s.  37;  tit.  3,  s.  11 ;  bk.  iv.. 
tit.  47,  s.  27  ;  Ersk.  bk.  iii.  tit.  2,  s.  33 ;  bk.  iv.  tit.  4,  s.  17 ;  bk.  i.  360,  456  ; 
iii.  31;  Hume,  i.  573;  Bell,  Com.  ii.  460;  Bell,  Prin.  s.  44;  Macdonald, 
Criminal  Law,  204;  Blair,  Justice  Manual,  253.]  See  also  Sabbatii- 
Breaking. 

Supercargo. — A  supercargo  is  an  agent  of  the  shipper  who  sails 
with  the  goods,  and  is  empowered  to  dispose  of  them  and  to  purchase  others 
with  the  price.  The  cargo-owner  thus  retains  possession  during  the  voyage, 
and  maintains  full  control  over  the  cargo  (Ersk.  iii.  3.  44 ;  Bell,  Prin. 
s.  219).  The  supercargo,  in  virtue  of  his  control,  may  decide  or  alter  the 
destination  of  the  cargo,  and  thus  change  the  destination  of  the  ship,  unless 
some  restriction  is  placed  upon  his  authority  which  prevents  this  {Davidson^ 
1810,  12  East,  381,  11  R.  R.  420).  It  was  at  one  time  held  in  Scotland 
that  he  could  bind  his  principals  to  repay  money  borrowed  by  him,  although 
his  commission  did  not  bear  any  express  authority  to  borrow,  and  the 
money  was  not  applied  to  their  behoof  {Eogers,  1732,  Mor.  3954). 

Superiority, — Superiority  is  the  estate  reserved  by  law  to  the 
granter  in  every  feudal  grant  of  land.  Erskine  (ii.  3.  10)  defines  it  as  "the 
interest  which  the  superior  retains  to  himself  in  all  feudal  grants  " ;  but  by 
this  he  must  not  be  taken  to  mean  any  interest  which  a  proprietor  may 
choose  to  reserve  in  conveying  his  lands,  for,  as  he  explains  in  regard  to  the 
definition  of  a  feu,  "the  radical  right  is  said  to  remain  in  the  granter 
because  there  is  not  in  any  feudal  grant  an  absolute  or  total  cession  of  the 
subjects  disponed,  made  by  the  granter;  he  reserves  to  himself,  or  rather 
the  law  reserves  for  him,  an  interest  in  it "  (ii.  3.  7).  It  is  essential  to  the 
constitution  of  a  feu  that  the  superiority  should  remain  with  the  granter 
while  the  property  is  transferred  to  the  grantee,  and  that  the  grantee  should 
acknowledge  the  superiority  by  some  service  or  payment ;  so  that  no  right 
wanting  these  characteristics  can  be  a  feu  (Ersk.  ii.  3.  11;  Bell,  Lect. 
o63).  This  reserved  right  to,  and  interest  in,  lands  feued,  because  it 
IS  regarded  as  the  highest  right,  is  called  the  Superiority.  For  the 
same  reason  it  is  also  called  the  dominium  directum  (Ersk.  ii.  3.  10;  cf. 
Stair,  ii.  3.  7).  Similarly,  the  granter  is  called  the  superior  because  he  is 
feudally  higher  than  the  grantee,  who  by  taking  infeftment  in  the  lands 
under  the  grant  (see  Infeft.ment)  becomes  his  vassal. 

_  Tiie  nature  of  the  superior's  right  appears  most  clearly  by  comparison 
with  the  correlative  right  of  the  vassal.  The  iaimfcu  is  most  commonly 
used  to  denote  the  subjects  gi-anted,  more  particularly  in  their  relation  to 
the  superior;  but  it  more  properly  expresses  the  vassal's  right  to  them, 
and  may  be  defined  as  a  riglit  to  lands  given  under  condition  of  a  certain 


SUrERIOKITY  153 

return  to  be  luudo  by  the  grantee,  tlie  radical  right  remuinin;^'  wiiU  iho 
granter  (Ersk.  ii.  3.  7;  Menzies,  519,  520).  The  right  so  givt-n  is  the 
vassal's  estate,  which  is  called  the  dominium  utile,  or  property  (Stair, 
ii.  3.  7;  Ersk.  ii.  3.  10).  It  is  not  a  usufructuary  right,  but  a  right  of 
property  in  the  subjects  carried  by  the  charter.  The  superior's  bencficiiil 
interest  is  under  ordinary  circumstances  confined  to  the  services  and  i>ay- 
ments  due  by  the  vassal ;  yet  the  superiority  also  is  cot  a  mere  burden  on 
the  lands,  lialher  the  relation  of  superior  and  vassal  with  regard  to  their 
respective  interests  in  the  lands  resembles  that  of  joint  jiroprietors  (]5ell, 
Zed.  5G2) ;  but  the  joint  ownership  is  a  most  abnormal  one,  conKi.'?liiig  of 
two  concurrent  ownerships,  each  in  its  nature  absolute  over  the  \\hole 
subjects  (Stair,  ii.  3.  7 ;  Menzies,  520,  527 ;  Bell,  Prin.  676 ;  see  P'eudal 
System).  On  the  one  hand  the  vassal,  as  has  just  been  said,  is  absolute 
})roprietor,  while,  except  in  certain  contingencies,  the  superi(jr  can  exercise 
no  right  of  ownership.  Thus  the  superior  has  no  right  to  possess  the  lands 
or  to  draw  the  rents  (Bell,  Zcct.  563),  nor  can  he  sue  an  action  of  niaills  and 
duties  {Prudential  Assurance  Co.,  1884,  11  E.  871),  nor  is  he  regarded  as  a 
heritor  in  respect  of  the  lands  feued  (Bell,  Lect.  642;  Dundas,  1778,  Mor. 
8511).  On  the  other  hand,  the  superior  holds  the  radical  riglit  to  the  land. 
After  making  the  grant,  he  holds  his  estate  of  superiority  on  the  title  on 
which  he  formerly  held  the  donmiium  plenum  or  undivided  estate  (lu-sk.  ii. 
5.  1) ;  and  when  that  was  necessary,  he  could  demand  from  his  own 
superior  a  renewal  of  that  title,  including  lands  feued  by  him  (//'.).  He  i.s 
also  entitled  to  pursue  real  actions  relating  to  his  feued  lands  against 
any  but  his  vassals,  as  to  whom  he  is  barred  by  his  own  grant  (Ersk.  ii. 
5.  1;  Menzies,  598;  Edmonstone,  1886,  13  R.  1038;  M.  Pnadallane,  1851, 
13  D.  647;  Laird  of  Lagg,  1624,  Mor.  13787).  In  alienating  or  burdening 
the  superiority,  he  dispones  the  lands  (p.  182,  infra) ;  and  on  resuming 
possession,  whether  by  resignation  or  by  forfeiture,  he  thencefoith,  without 
taking  sasine,  possesses  the  dominium,  plenum  on  his  original  title  (see 
Consolidation). 

The  superior  may  be  either  the  Crown  or  a  subject  holding  land  im- 
mediately or  mediately  of  the  Crown.  Crown  superiorities,  like  Crown 
lands,  are  allodial,  for  the  Crown,  as  the  original  owner  of  all  lands  in  the 
kingdom  and  source  of  feudal  rights,  can  have  no  superior ;  but  every  subject 
proprietor  must  liold  his  lands  either  of  the  Crown  directly  or  of  some  other 
subject.  Udal  lands  in  Orkney  and  Shetland  and  Church  lands  form 
exceptions  to  this  rule.  These  are,  like  Crown  lands,  allodial ;  that  is  to 
say,  their  proprietors,  though  subjects,  have  in  them  the  absolute  right 
which  the  Crown  has  in  its  property  (Ersk.  ii.  3.  8;  Menzies,  516;  Dundas, 
1777,  5  Bro.  Supp.  609.  See  Feudal  System).  Also  when  a  title  is 
completed  under  the  Lands  Clauses  Act  (8  &  9  Vict.  c.  19,  s.  80),  no  feudal 
relation  with  the  superior  of  the  lands  is  created  (J%s.  of  Inverness,  1893, 
20  E.  551 ;  cf.  MCorUndale,  1893  (().  H.),  31  S.  L.  B.  561). 

As  every  feudal  proprietor  may  sub-feu  his  lands,  an  indefinite  number 
of  feudal  estates  may  be  created  in  any  one  parcel  of  land  (see  Feudal 
System).  For  example,  A.  may  feu  to  B.,  B.  to  C,  and  C.  to  D.  In  tins 
case,  A.  is  B.'s  superior,  and  over-superior  to  C.  and  D. ;  but  unless  A.hQ 
the  Crown,  he  must  in  turn  be  a  vassal.  B.  is  vassal  to  A.,  superiur  to  C, 
and  over-superior  to  I).  C.  is  vassal  to  B.  and  sub-vassal  to  A.,  I'Ut 
superior  to  D.  Superiors  lower  in  the  feudal  scries  are,  in  contrast  with 
the  over-superiors,  called  mid-superiors  or  subaltern  superiors,  J^nd  their 
estates  are  called  mid-superiorities.  The  estate  of  an  over-superior  as  such 
is  called  an  over-superiority,  and  that  of  a  sub-vassal  as  such,  a  sub-leu. 


1-4  SlTErJOEITY 

All  these  feu  lal  de.sii,'iuitions  are  strictly  relative.  They  are  not  appropriated 
t)  i».irticular  individuals  in  the  feudal  series,  but  apply  each  to  every  one, 
according  to  the  relation  in  which  he  is  considered.  In  this  way  one  person 
may  be,  in  respect  of  one  piece  of  land,  sub-vassal  to  a  first  superior, 
vassal  to  a  second,  and,  as  regards  his  own  interest,  proprietor,  or  in  turn 
superior.  Hi-j  property,  also,  is  to  his  over-superior  a  sub-feu,  to  his 
superior  a  feu,  and  to  himself,  his  property  or  superiority,  as  the  case 
may  be. 

The  mid-superiorities  created  by  successive  feus  frequently  were  created 
to  confer  a  vote,  and  had  no  pecuniary  value.  But  they  were  real  in- 
defeasible estates,  which  could  only  be  extinguished  by  Consolidation  (p.  183, 
infra).  That  is  to  say,  as  a  feu-charter  contains  a  holding  dc  me  only, 
the  feuar  could  not  at  his  own  hand  pass  over  his  immediate  superior  to  hold 
of  a  higher  superior.  But  before  superiors  were  compelled  to  grant  entry  to 
disponees  (p.  155,  infra),  defeasible  mid-superiorities  used  frequently  to  be 
created  under  deeds  containing  double  holdings  de  me  or  a  me  de  superiore 
meo.  The  disponee  by  taking  infeftment  de  mc  created  a  mid-superiority  in 
the  disponer,  but  on  his  being  acknowledge!  by  the  disponer's  superior,  his 
title  was  attributed  to  the  a  mc  holding  as  if  the  defeasible  mid-superiority 
had  never  existed  (see  Disposition). 

Originally  feudal  grants  were  not  so  much  alienations  of  property  as 
temporary   cessions   of  the   rights  of   property,  but  without  the  right  of 
alienation,  to  a  favoured  individual.     This  is  only  in  accordance  with  the 
jtrimary  design  of  feudalism, — the  maintenance  of  a  military  following. 
It   is   probable   that   the   superior   originally  had   the  right  of   resuming 
possession  at  will,  and  certain  that  he  at  one  time  might  do  so  on  the 
death  of  the  vassal  to  whom  the  grant  had  been  made.     But  this  was  never 
the  law  of  Scotland.     From  the  introduction  of  feudalism  into  this  country 
feus  have  been  held  to  descend  to  the  heir  of  the  investiture,  or,  if  there 
be  no  destination  in  the  charter,  to  the  grantee's  lawful  heir  (Ersk.  ii.  7.  5). 
But  the  theory  that  the  feu  was  only  given  to  one  single  vassal  at  a  time, 
on  whose  failure  the  superior's  original  riglit  came  again  into  force,  was  an 
operative  principle  in  our  law  up  to  1874.    The  practical  results  of  the  theory 
were  the  necessity  for  writs  by  progress  and  the  right  to  casualties.     Each 
heir  or  singular  successor,  in  order  to  become  entered  in  the  lands  as  vassal, 
had  in  turn  to  receive  them  under  a  precept  from  the  superior,  as  the 
original  feuar  had  done,  the   theory  being   that   the   lands  were  in  the 
superior's    hands    either   by  non-entry   (p.    167)   or   by   resignation   (see 
Disposition).     When  a  vassal  died,  until  the  heir  had  been  ascertained  and 
acknowledged  there  was  no  vassal,  and  so  the  lands  came  into  the  superior's 
hands  under  the  casualty  of  non-entry.     Wiien  the  heir  was  ascertained, 
the  superior  in  all  tenures  but  ward  then  issued  a  precept  to  infeft  him 
in  the  lands  on  his  paying  tlie  casualty  of  relief  for  their  recovery.     In 
the  tenure  of  ward,  for  the  duties  of  which  a  minor  was  considered  in- 
competent, the  lands  remained  with  the  superior  under  the  casualty  of  ward 
while  the  heir  was  under  age.     Tiie  casualty  of  marriage  seems  to  have 
been  designed  as  a  safeguard  against  a  virtual  alienation  by  an  unsuitable 
marriage  on  the  part  of  the  heir.     Wlien  a  vassal  was  outlawed  he  could 
no  more  perform  his  feudal  duties  tlian  if  he  were  dead,  yet  his  heir  could 
not  enter  in  his  place;  so  during  his  life  his  lands  fell  to  the  superior  by 
liferent  escheat.     In  the  tenure  of  ward  the  alienation  of  more  than  half 
the   fee   inferred  Recognition,  i.e.   the   resumption,  of  the   whole  by  the 
superior ;  for  since  it  was  essential  in  a  ward  fee  that  the  superior  should 
have  a  vassal  of  his  own  choice  in   possession  of   the  lands,  alienation 


SUPERIOIUTY  155 

amounted  to  desertion  of  tlieni  (Ersk.  ii.  5.  lu).  rmUr  the  oilier  tenures 
alienation  did  not  infer  recognition.  Sub-feus,  in  which  the  original  fuunr 
remained  as  vassal,  were  competent  to  any  extent.  15ut  the  feuar's  right 
was  so  far  regarded  as  in;dienal)le,  that  conveyances  purjtorting  to  aliemitt- 
the  vassal's  whole  right  and  substitute  another  in  his  ])hice,  were  incjit  jih 
regards  the  superior  even  after  pos.session  had  been  taken  by  the  dispone*' 
{Wallace,  1739,  Mor.  4195;  Hysloi^,  1863,  1  M.  535).  The  original  vu^sil 
remained  vassal,  and  the  disponee  a  mere  po-ssessor,  till  the  suj>erior,  having 
received  the  lands  back,  granted  them  to  the  disponee,  wliich  wa.s  the 
method  more  in  accordance  with  theory  (Ivesignation),  or  adopted  tin? 
vassal's  disposition  as  his  own  deed  (Contirniation ;  see  1)isi'0.sition).  On 
granting  the  new  infeftment  the  superior  was  by  statute  entitled  to  a  fine 
called  composition. 

Duties  of  Superiority. — A  superior,  by  granting  a  feu,  becomes  liable, 
without  any  stipulation,  to  warrant  it  to  the  feuar  and  his  successors 
(Ersk.  ii.  3.  11).  Before  the  commencement  of  the  Conveyancing  Act  ol 
1874,  he  was  also  bound  to  give  an  entry  to  those  who  were  entitled, 
whether  as  heirs  or  by  singular  title,  to  succeed  the  feuar  as  vassals  in  tlie 
lands.  Entry  is  the  recognition  as  his  vassal  by  a  superior  of  lands  of  the 
person  entitled  to  the  property  of  the  lands.  It  is  now  unnecessary  and, 
subject  to  the  exceptions  noted  below,  incompetent  for  a  superior  to  gi'ant 
an  entry,  for  every  proprietor  infeft  in  lands  is  to  be  held  to  be  entered 
with  the  nearest  superior  of  them  whose  estate  of  superiority  would  not 
have  been  defeasible  at  the  will  of  the  proprietor  so  infeft  uiuler  the 
law  as  it  existed  prior  to  the  passing  of  the  Conveyancing  Act  (37  &,  38 
Vict.  c.  94,  s,  4  (1  and  2)).  It  is  as  yet  unsettled  whether  a  person  infeft 
only  in  security  is  thereby  entered  with  the  superior  {Carniihcll,  1890,  17 
1{.  6G1).  However  this  may  be  settled,  a  bondholder  can  in  no  case  be 
considered  a  singular  successor  so  as  to  be  entitled  to  the  benefit  of  a 
stipulation  in  favour  of  singular  successors  in  a  feu-right.  But  the  holder 
of  an  absolute  disposition,  though  truly  in  security,  is  a  singular  successor 
{CamijbcU,  supra ;  see  Absolute  Disposition). 

It  is  now  incompetent  for  a  superior  to  grant  any  writs  by  progress,  by 
which  entry  used  to  be  granted,  except  charters  of  novodamus,  precepts 
or  writs  from  Chancery  or  of  clarc  constat,  or  writs  of  acknowledgment 
(37  &  38  Vict.  c.  94,  s.  4  (1)).  r,y  the  charter  of  novodamus  the  vassal's 
right  is  not  merely  renewed,  but  the  respective  rights  of  superior  and 
vassal  may  be  modified.  The  precept  of  dare  constat  is  a  convenient  means 
of  making  up  a  title  when  the  superior  is  willing  to  acknowledge  his 
vassal's  heir  without  service  (Ersk.  iii.  8.  71;  ]\Ienzies,  805;  Bell,  Led. 
1086  and  1096).  Writs  of  elare  constat  were  made  equivalent  to  i.recepts 
by  the  Titles  to  Land  Act,  1858.  The  vassal's  title  may  now  be  comiileted 
by  registration  of  a  writ  of  dare  constat  (21  &  22  Vict.  c.  76,  s.  11  ;  31  &  32 
Vict.  c.  101,  s.  101).  Precepts  and  writs  from  Chancery  are  simihir  writ^i 
by  which  titles  of  heirs  in  Crown  holdings  may  be  completed  (Ersk.  iii.  8.  70  ; 
Menzies,  830 ;  Bell,  Led.  ii.  1086 ;  21  &  22  Vict.  c.  76,  s.  11 ;  31  &  32  Vict, 
c.  101,  s.  84).  The  heir  or  executor,  as  the  case  may  be,  of  a  creditor  in  a 
bond  and  disposition  in  security  may  complete  his  title  thereto  by  writ  t»f 
acknowledgment  from  the  debtor  registered  in  the  appro]))  iate  Begister  of 
Sasines  (8  &  9  Vict.  c.  31,  s.  3 ;  31  &  32  Vict.  c.  101,  s.  125,  Sched.  (I.I.); 
37  &  38  Vict.  c.  94,  s.  63). 

Though  it  is  thus  still  competent  to  receive  an  entry  from  a  .'superior, 
tlie  rules  as  to  forcing  an  entry  are  no  longer  of  more  than  historical 
interest;   for   whenever  a  superior  is  unwilling,  or,  from   his   title  being 


156  SUPEKIOPJTY 

incomplete,  unable  to  give  the  entry  asked,  the  obvious  course  for  the 
heir  is  to  serve,  and  so  obtain  a  statutory  entry. 

Before  14G9  only  the  heir  of  the  investiture  was  entitled  to  demand 
an  entry  against  the  superior's  will.  But  appraisers,  adjudgers,  and  pur- 
chasers at  judicial  sales  were  successively  given  this  privilege  by  statute 
(Acts  14G9,  c.  36;  1G72,  c.  19;  1G81,  c.  17).  If  the  superior  refused  to 
give  an  entry,  these  four  classes  of  persons  were  entitled  to  have  him 
ordained  to  do  so  by  three  consecutive  precepts  from  Chancery,  and  on  his 
persisting  in  his  refusal,  to  apply  for  entry  to  the  next  superior  siqiplendo 
vices  (Stair,  iii.  5.  4G  ct  seq.  ;  Ersk.  iii.  8.  79 ;  Menzies,  819).  In  1747 
every  heir  duly  served,  and  every  purchaser  in  right  of  a  procuratory  of 
resignation,  was  given  right  to  charge  the  superior  on  letters  of  horning  to 
enter  him  on  his  tendering  the  casualties  due  (20  Geo.  ii.  c.  50,  ss.  12,  13). 
After  this  enactment  superiors  could  still  refuse  entry  except  by  resigna- 
tion. But  they  were  subsequently  obliged  to  grant  entry  by  confirmation 
to  any  one  re([uiring  them  to  do  so  who  could  show  a  title  capable  of  being 
made  public  by  confirmation  and  offered  the  proper  casualties  (10  &  11 
Yict.  c.  48,  s.  G ;  31  &  32  Vict.  c.  101,  s.  97). 

Before  a' superior  can  effectively  give  an  entry,  and  so  be  entitled  to 
call  on  the  vassal  to  enter  (p.  1G9),  his  own  title  must  be  complete;  but 
though  it  is  incomplete  at  the  time  of  giving  entry,  if  it  be  subsequently 
completed  the  vassal's  title  will  be  validated  accrctione  (Ersk.  ii.  5.  45; 
iii.  8.  80;  Bell,  Zfrf.  ii.  741,  1140;  Bell,  Prin.  710).  A  vassal  is  not  in 
safety  to  take  an  entry  from  a  superior  who  is  unable  to  instruct  a  right 
to  the  superiority  {Henderson,  1836,  14  S.  540),  nor  is  he  bound  to  do 
so_  {Melvill,  Chalmers,  etc.,  infra).  Yet  he  may  not  take  critical 
objections  to  the  superior's  title ;  and,  on  the  other  hand,  it  appears  that 
a  title  taken  from  a  superior  who  can  show  an  ex  facie  title  and  an 
undisputed  right  is  good,  though  the  superior's  title  be  afterwards  reduced 
{Gihson-Craig,  1838,  16  S.  1332;  affd.  1841,2  Eob.  446;  Menzies,  813; 
Innes,  1844,  7  D.  141).  A  vassal  is  not  entitled  to  object  to  the  title  of 
a  superior  from  whom  he  or  his  authors  have  already  taken  an  infeftment 
{Breadalhane,  1880,  8  R.  42  ;  affd.  1881,  8  E.  (H.  L.)  92  ;  see  Bell,  Frin.  710  ; 
Bell,  Zecf.^  1142).  A  lif'erenter  in  the  superiority  by  reservation  can  enter 
vassals  without  special  power  reserved  but  a  liferenter  by  constitution  can- 
not unless  he  has  special  power  (Bell,  Zcct.  ii.  1141).  A  vassal  is  entitled 
to  receive  entry  jointly  from  ^?ro  indiviso  superiors  and  also  from  heirs- 
portioners,  unless  the  formal  right  of  superiority  has  been  taken  by  the 
eldest  (Bell,  Lect.  ib.;  Bell,  Prin.  1083).  The  entry  implied  under  the 
Conveyancing  Act  of  1874  is  equally  effectual,  whether  the  title  of  the 
superior  or  of  any  over-superior  has  been  con)pleted  or  not  (37  &  38  Vict. 
c.  94,  s.  4  (2)). 

After  1474,  if  a  superior  did  not  complete  his  title  when  required,  he 
was  liable  to  be  charged,  at  the  instance  of  an  heir  duly  served,  to  obtain 
himself  infeft  in  forty  days,  and  on  his  failure,  to  loose  the  tenant  for  his 
lifetime  (Act  1474,  c.  57;  Rossmorc,  infra).  The  vassal  had  then  to  obtain 
decree  of  declarator  of  tinsel  of  the  superiority  {Dickson,  1802,  Mor.  15024), 
after  which  he  could  charge  the  next  superior  to  give  him  an  entry  sup- 
2)lendo  vices.  The  superior  refusing  to  complete  his  title  lost  only  the 
casualty  of  non-entry  due  by  the  vassal  whom  he  refused  (Ersk.  iii.  8.  80; 
liossmorcs  Trs.,  1877,  5  E.  201).  A  sim])ler  procedure  was  introduced 
by  the  Transference  of  Lands  Act  of  1847  (10  &  11  Vict.  c.  48,  s.  8), 
which  has  b;en  incorporated  in  the  Titles  to  Land  Consolidation  Act 
of   1868.     If   a   superior   had   not   completed  his  title  so  as  to  be  able 


SUrERIORITY  irj 

to  give  an  entry,  then,  if  the  luinuul  vahiu  of  tlie  siipLTiority  did  nut 
exceed  five  pounds,  any  person  entitled  to  demand  an  entry  nii;,'lit,  by 
summary  jjetition  in  the  Bill  Chamber,  liave  tiie  superiority  declared 
forfeited,  and  thereafter  apply  for  entry  to  the  over-superior  (:U  &  32 
Vict.  c.  101,  s.  104).  If  the  yearly  value  of  the  superiority  \v;is  over 
five  pounds  it  could  not,  in  similar  circumstances,  be  declared  furffiled;  but 
the  vassal  might  on  petition  obtain  warrant  to  enter  with  the  Crown  or  any 
mediate  over-superior,  the  immediate  over-superior  losing  the  casualties 
due  on  the  vassal's  entry,  and  being  liable  for  the  ('X])enses  of  the  jjrocess 
and  the  completion  of  the  vassal's  title  (ss.  105,  lUG).  A  decree  of  for- 
feiture, whether  under  the  Act  of  1847,  or  of  18G8,  in  order  to  be  ellectual 
had  to  be  against  those  personally  in  right  of  the  superiority  (liossmorc,  cit.). 
"Whatever  the  value  of  the  superiority,  the  superior  might  relimiuish  IiIh 
estate  to  the  petitioning  vassal  by  minute  in  process,  whereupon  the  va.ssal 
might  proceed  to  obtain  entry  with  the  over-superior  (s.  107). 

An  analogous  procedure,  still  perfectly  competent,  by  which,  apart  from 
applications  for  entry,  mid-superiorities  may  be  extinguished,  was  introduced 
by  the  Titles  to  Land  Act  of  1858  (21  &  22  Vict,  c!  76,  s.  23).  Under  the 
provisions  of  that  statute  as  re-enacted  by  the  Consolidation  Act  (."U  k  .'52 
Vict.  c.  101),  any  superior,  whether  he  has  made  up  a  title  or  not,  and 
whatever  the  annual  value  of  his  estate,  may  relinquish  it  to  his  immediate 
vassal  by  deed  of  relinquishment  (s.  110,  Schcd.  (CC)  No.  1).  On  this  deed 
being  accepted  by  the  vassal  (Sched.  (CC)  No.  2),  and  with  the  acceptance 
and  a  writ  of  investiture  by  the  immediate  over-superior  written  on  it 
(Sched.  (CC)  No.  3)  being  recorded  in  the  appropriate  Register  of  Sasines, 
it  is  declared  that  the  relinquished  superiority  shall  be  extingui.sheil,  and 
that  the  vassal  and  his  successors  shall  hold  the  lands  of  the  over-superior 
by  the  tenure  and  for  the  reddendo  by  and  for  which  the  relimiuished 
superiority  was  held.  The  over-superior  is  declared  bound  on  production  to 
him  of  the  deed  of  relinquishment  and  acceptance,  to  receive  the  vassal  by  writ 
of  investiture  (s.  111).  It  is  not  quite  clear,  in  view  of  the  provisions  of  the 
Conveyancing  Act  of  1874,  whether  the  writ  of  investiture  is  still  necessary,  or 
the  registration  of  the  deed  of  relinquishment  and  acceptance  is  sufticieut  to 
extinguish  the  superiority  and  make  the  vassal  hold  of  the  nearest  superior 
whose  estate  is  indefeasible.  The  purpose  and  tendency  of  the  Conveyanc- 
ing Act  favours  the  latter  view  ;  but  three  propositions  may  be  advanced 
for  the  former.  (1)  What  the  section  in  question  enacts  is  that  registration 
of  the  deed  of  relinquishment  witli  the  acceptance  and  writ  of  investiture 
written  thereon,  will  extinguish  the  mid-superiority.  (2)  Recognition 
of  a  vassal  by  an  over-superior  for  the  first  time  is  not  an  ordinary  entry, 
and  there  seems  to  be  as  good  ground  for  excepting  it  as  for  excepting  entry 
by  charter  of  novodamus.  (3)  In  point  of  form  the  writ  of  investiture 
does  not  resemble  any  charter,  precept,  or  writ  by  progress.  The  investiture 
on  relinquishment  is  as  effectual  as  if  the  grantor  of  the  deed  of  relinquish- 
ment, having  completed  his  title,  had  conveyed  the  superiority  to  his  vassal, 
who,  thereupon,  had  completed  his  titles  and  resigned  ad  remanent iam  in 
his  own  hands  (s.  111).  In  case  of  the  relinquishment  of  entailed  superiori- 
ties, provision  is  made  for  the  application  of  the  price  (s.  112).  The  heir 
entitled  to  a  superiority,  if  he  relinquislies  without  making  up  his  title,  does 
not  thereby  make  himself  liable  for  his  author's  debts,  except  to  the  extent 
of  the  price  which  he  has  received  (s.  110).  A  superior  may  lose  his  rights 
entirely  if  his  vassal  holds  of  another  superior  on  an  ex  fane  good  title 
for  the  prescriptive  period  (Bucclcugh,  1890,  18  R.  1;  cf.  no.rhnrg/u;  1.^00. 
18  R.  8). 


158  SUPERIOrJTY 

Hiyhfs  of  Superionti/. — The  rights  of  superiority  may  be  conveniently 
classified,  after  Erskine's  division  of  the  properties  of  feus,  as  essential, 
natural,  and  accidental  (Ersk.  ii.  3.  11);  though  Eiskine  himself  classifies 
them  simply  as  fixed  and  casual,  evidently  regarding  the  accidental  rights 
not  as  rights  of  superiority  proper,  but  as  rights  by  stipulation  (Ersk.  ii.  5.  1). 
The  essential  or  fixed  rights  are  two:  the  radical  right  of  property  in  the 
lands,  which  has  already  been  discussed,  and  the  right  to  some  service  or 
payment  as  an  acknowledgment  from  the  vassal.  Erom  the  first  word  in 
the  Latin  charter  of  the  clause  dealing  with  it,  this  acknowledgment  got  the 
name  of  the  raldcndo  (Menzies,  551 ;  Bell,  Led.  1632).  The  natural  rights 
are  so  called  because,  while  they  may  be  renounced  at  will,  they  yet,  in  the 
absence  of  stipulation,  arise  from  the  nature  of  the  feudal  contract.  To  this 
class  belong  the  casual  rights  or  casualties,  so  named  from  their  falling  to 
the  superior  on  uncertain  events  (Ersk.  ii,  5.  5),  The  accidental  rights, 
under  which  fall  reservations,  real  burdens,  and  conditions,  depend  in  eacli 
case  on  the  terms  of  the  charter  or  coniract. 

Duties  and  Casualties. — The  precise  nature  of  the  fixed  services  or  pay- 
ments and  the  casualties  due  to  the  superior  depends,  firstly,  on  tenure, 
and  secondly,  on  stipulation. 

Ward. — In  the  tenure  of  ward,  the  usual  reddendo  was  "  services  used 
and  wont,"  i.e.   military   service ;    but  it  was  quite   consistent   with   the 
holding   to   stipulate   for   some   special   service   (Ersk.  ii.  4.  2).     Of   the 
casualties  proper  to  ward  there  were  three  peculiar  to  that  holding — wai  d, 
marriage,  and  recognition — as  well  as  several  others  which,  being  common 
to  feu-farm,  will  be  dealt  with  under  that  head.     By  the  casualty  of  ward 
(Ersk.  ii.  5.  5  ei  seq.),  which  fell  when  a  vassal  left  an  heir  in  minority, 
the  superior   was   entitled   to   the   guardianship   of    the    minor's   person 
and  the  administration  of  his  estate,  with  the  full  profits  thcieof.     The 
reason  of   this   was   that   the   superior   being   without   a   vassal   able   to 
perform   proper   duties   (Ersk.   ii.    5.   9),   was   entitled   to   the   profits   of 
his   estate.     Moreover,  no   minor   was   allowed   to   enter   to   a   ward   fee 
(Ersk.  ii.  5.  30) ;   so  when   such  a  fee   fell    to  a   minor,  the  lands   were 
in   non-entry,   and   he   was  regarded   not   as   vassal   but  as  heir   till  his 
majority.     Without  his  own  consent  or  the  authority  of  law  the  superior's 
right  could  not  be  limited  by  debts  contracted  by  the  vassal  or  by  rights 
granted   by   him,  such   as   subaltern   ga^ants   (except   for   a   short   period 
by  statute,  Ersk.  ii.  5.  7),  leases,  or  servitudes  not  fortified  by  prescription. 
The   ward   was,  however,   burdened   with   an   alimony   to   the   heir,   and 
restricted  by  widow's  terce  and  debts  of  adjudgers  who  had  been  entered  by 
the  superior  or  had  competently  charged  him  to  enter  them  before  the  casualty 
fell.     Further,  the  superior  was  bound  to  exercise  his  right  to  the  profits  of 
the  estate  with  the  same  moderation  as  a  lifereuter.     The  casualty  came  to 
an  end  in  the  case  of  an  heir  on  his  attaining  the  age  of  twenty-one,  and 
in  tliat  of  an  heiress  or  heirs-portioners  on  the  heiress  or  the  eldest  heir- 
portioner  attaining  the  age  of  fourteen.     A  ward  fee  held  of  a  subaltern 
superior  who  was  likewise  a  ward  vassal  was  called  Hack  icard,  because  the 
vassal  was  lial^le  to  lose  his  rents  during  both  his  own  minority  and  that  of 
his  superior  (Ersk.  ii.  4.  4).    The  casualty  of  ward  could  be  taxed,  that  is,  the 
superior  could  conipound  his  rights  for  an  annual  payment  during  his  vassal's 
minority ;  in  which  case,  on  lieing  paid  his  yearly  compositiori,  he  had  no 
further  concern  with  the  guardianship  of  the  ward  or  the  administration 
of   the  estate,  and   was   released   from  all  responsibility  for   the   ward's 
maintenance  (Bell,  Lcct.  562  ;  Ersk.  ih.).     The  casualty  of  marriage  fell  due 
wlien  the  feu  came  to  be  in  the  hands  of  a  minor  heir  over  the  a<ie  of 


SUPEIIIORITY  159 

puberty.  This  casualty  seems  to  have  been  the  subject  of  so  nnu  h  ubimc 
that  it  is  dillicult  to  say  what  the  legal  rights  of  superiors  were.  Tic  right 
is  said  to  have  arisen  from  the  superior's  tutorial  i)ower  over  a  minor  heir 
in  pursuance  of  which  he  at  first  arranged  a  suitable  match  for  his  ward' 
and  later  came  to  demand  what  the  heir's  position  entitled  liim  to  expect 

from  his  wile  as  tocher.     The  payment,  called  the  avail— i.e.  the  value of 

the  marriage,  seems  originally  to  have  been  demanded  only  from  minors  un- 
married at  the  death  of  their  ancestors  on  their  being  reipiired  by  the  sutterior 
to  marry.  But  it  was,  through  time,  extended  to  all  cases  where  the  heir 
even  when  major,  was  unmarried  at  the  ancestor's  death,  whether  he  was  re- 
quested to  marry  or  not.  The  superior's  consent  to  the  marriage  was  latterly 
construed  as  a  renunciation  of  the  casualty;  but  to  accept  the  wife  chosen  by 
the  superior  did  not  release  the  heir  from  his  obligation.  On  the  contrary, 
if  the  superior  selected  a  wife  "without  disparagement"  (Stair,  ii.  4.  50) 
who  herself  freely  consented,  to  refuse  her  and  marry  another  subjected  the 
heir  to  a  double  avail.  The  avail  was  origin.'dly  calculated  as  the  amount 
of  tocher  which  the  heir  might  be  expected  to  receive  in  consideration  of 
the  value  of  his  whole  ward  lands;  but  it  was  su])S(fiuently  modified  by 
the  Court  of  Session  to  two  years'  rent  of  his  whole  lauds.  It  was  payable 
entirely  to  the  "eldest"  superior;  that  is,  the  Crown,  and  after  it  the 
subject-superior  of  whom,  or  of  whose  ancestors,  the  heir  or  his  ancestors 
earliest  held  land  in  ward.  By  Craig's  time  the  double  avail  amounted 
simply  to  a  heavy  single  avail  (Ersk.  ii.  5.  18  d  scq.).  The  casualty  of 
recognition  Mas  a  forfeiture  to  the  superior  of  the  whole  feu  on  the  vas.'-al's 
alienating  more  than  half  of  it  to  a  stranger,  that  is,  to  anyone  not  idioqni 
successv.rus.  The  word  recognition  at  first  signified  any  resumption  of  his 
original  estate  by  the  superior,  but  came  later  to  have  this  limited  sense. 
This  casualty,  like  the  preceding  two,  depends  on  the  principle  that  the 
superior  is  entitled  to  have  an  elticient  vassal  in  his  lands.  Its  leading  rules 
are  that  the  alienation  must  be  voluntary, — though  not  necessarily  gratuitous, 
— effective,  and  without  the  superior's  consent.  Thus  neither  adjudications, 
nor  alienations  on  which  no  sasine  followed,  nor  feus  even  of  the  wliole  lands 
for  a  feu-duty  of  more  than  half  the  rent,  nor  infeftments  of  warrandice 
before  eviction,  nor  infeftments  in  security  of  a  sum  less  than  half  the 
value  of  the  lands,  nor  alienations  by  vassals  under  interdict,  nor  those  to 
the  completion  of  which  the  superior's  confirmation  was  uecessaiy,  could  infer 
recognition.  Alienations  to  which  the  superior  had  consented  could  not  be 
computed  with  unauthorised  alienations,  to  make  up  the  half.  The  superior 
might  waive  his  rights  either  expressly  by  confirming  an  alienation  by  which 
the  forfeiture  had  been  incurred,  or  implicitly  by  granting  a  charter  of 
confirmation,  precept  of  clave  constat,  or  other  deed  recognising  the 
vassal's  right  which  he  was  not  legally  bound  to  grant  (Ersk.  ii.  .">.  10  H 
scq.).  The  tenure  of  ward,  with  the  services  and  casualties  peculiar  to  it, 
was  abolished  in  1747  (20  Geo.  ii.  c.  50,  ss.  1  and  0).  Ward  fe\is  held  of 
the  Crown  were  converted  into  blench  (s.  2),  and  those  held  of  subject- 
superiors  into  feu-farm  (s.  4). 

Blench. — Blench  tenure  affords  a  striking  illustration  of  the  formal 
necessity  in  a  feudal  holding  of  some  acknowledgment  to  the  superior. 
Grants  in  libera  alhafirma  are  truly  gratuitous,  being  commonly  bestowed 
as  the  reward  of  some  past  service ;  yet  the  vassal  is  bound  to  make  some 
yearly  payment,  however  trilling — for  example,  a  pair  of  spurs,  a  penny 
money,  or  a  pound  of  pepper.  If  the  thing  payable  is  of  yearly  growth,  it 
is  not  demandable  beyond  the  year;  but  if  not,  it  may  be  demanded  any 
time  within  the  years  of  prescription,  unless  the  taxative  words  si  ;>c<Wwr 


160  SUrERIORITY 

tantum,  or  si  petatur,  are  added  in  the  reddendo  clause,  in  which  case  the 
vassal  is  free  bevond  the  year,  whatever  the  nature  of  the  subject  (Ersk.  ii. 

4.  7).  The  vassal  is  also  liable  for  the  same  casualties  as  in  feu.  The 
nieasure  of  tlie  casualty  of  relief  in  this  tenure  is  the  1)lench  duty  (Ersk.  ii. 

5.  49  •  Bell,  Led.  624:).'  That  of  non-entry,  in  fees  originally  blench,  is  the 
retour  duty  or  new  extent.  In  fees  converted  from  ward  it  is  one  per 
centum  of  the  valued  rent,  a  valuation  made  for  purposes  of  assessment 
about  the  tune  of  Cromwell  (Ersk.  ii.  5.  30-36 ;  Bell,  Zcef.  623 ;  Duff, 
Feudal  Conveyancing,  462). 

Mortification. — In  the  tenure  of  mortification,  by  which,  before  the  Refor- 
mation, land  was  held  by  the  Church  and  religious  houses,  the  only  return 
was  preccs  ct  lacryma:,  that  is,  the  ministrations  of  the  Church  on  behalf 
of  the  donor's  soul.  As  the  vassal  could  never  die,  there  were  no  casualties. 
The  main  purpose  of  this  form  of  grant  was  declared  superstitious  at  the 
Reformation  (Act  1587,  c.  29),  and  it  is  now  practically  obsolete,  though 
still  competent  for  educational  and  charitable  purposes  (Ersk.  ii.  4.  10  and  11). 

Burya/je. — Royal  burghs  hold  their  land  of  the  sovereign  by  burgai^e 
tenure  for  the  service  of  watching  and  warding.  "Wliile  each  burgher  is  liable 
for  his  share  of  service,  the  true  vassal  is  the  burgh  as  a  corporation, 
and  consequently  there  are  no  casualties  under  this  holding  (Ersk.  ii.  4.  8 ; 
see  Burgh). 

Feu-farm,  now  by  far  the  most  important  tenure,  arose  from  the 
necessity  of  maintaining  agricultural  industry.  Its  earliest  form  was 
soccage,  in  which  the  vassal  held  his  feu  on  condition  of  agricultural  service 
on  his  lord's  land  in  place  of  military  service  (Ersk.  ii.  4.  5).  It  is  doubtful 
whether  this  form  ever  prevailed  in  Scotland  (Ersk.  i.  1.  35).  The  reddendo 
in  feu-farm  proper  is  a  feu-duty  or  yearly  payment,  either  in  money  or  in 
kind ;  in  addition  to  which  various  personal  services  used  commonly  to  be 
stipulated.  It  early  became  the  practice  in  this  holding  to  enumerate  the 
particular  services  to  be  rendered  in  each  case,  adding  the  w^ords  2'>'>'0  omni 
alio  oncre  to  obviate  further  demands  on  the  part  of  the  superior  (Ersk.  ii. 
4.  5).  These  services  fall  into  two  general  classes,  the  military  and  the  civil. 
The  first  comprise  hosting  and  hunting,  or  following  the  superior  in  wars 
and  commotions  and  at  frays  and  followings,  that  is,  supplying  him  with 
a  retinue  when  required,  either  for  public  or  private  wars,  or  in  peace  for 
purposes  of  display  (Ersk.  ii.  5.  2).  Shortly  after  the  rebellion  of  1715  all 
such  services  were  declared  illegal  in  both  feu  and  ward  holdings,  pecuniary 
compensation  being  provided  to  superiors  (Clan  Act,  1  Geo.  i.  stat.  2,  c.  54). 
The  second,  which  are  still  competent,  consist  chiefly  of  agricultural  ser- 
vices, for  e.Kample,  the  supply  of  reapers,  but  may  include  others  of  a  more 
personal  nature,  so  long  as  they  are  in  no  way  military  {Munro,  1763,  Mor. 
14497,  supplying  peats  for  superior's  house;  Duke  of  Argyll,  1762,  Mor. 
14495,  the  maintenance  of  a  boat  and  crew  for  the  superior's  use).  So  far 
as  agricultural,  these  services  must  be  demanded  year  by  year  or  they  are 
lost  without  compensation  (Young,  1693,  Mor.  13071;  Duke  of  Hamilton, 
1835, 14  S.  162 ;  Hope,  1872, 10  M".  347;  on  services  generally,  Menzies,  521, 
552  ;  Bell,  Led.  573,  633).  All  services  still  exigible  by  a  superior  may  now 
be  commuted  under  the  Conveyancing  Act  of  1874,  as  follows:  (a)  Where 
an  annual  money  payment  has  in  fact  been  accepted  by  a  superior  for  five 
years,  in  lieu  of  any  services  due  to  him,  whether  in  pursuance  of  an 
express  agreement  or  not,  the  payment  is  to  be  taken  to  be  the  yearly 
value  of  the  services  in  lieu  of  which  it  has  been  made,  and  the  superior  is 
bound  to  accept  it  as  such,  (b)  Where  there  has  been  no  such  practical 
commutation,  either  party  may  apply  to  the  Sherid"  to  fix  the  annual  value 


SUrElilOItlTV  1,;, 

of  tlie  services,  which  he  is  authoii.sed  to  du  suiuiiiarily  ami  linally;  and 
tlie  siiiu  fixed  by  hiiii  is  thereafter  to  be  accepted  by  the  suiicrior  in  uhiee 
of  the  services  in  question.  The  annual  value,  when  ascertained  in  tho 
iirst  method,  may  be  stated  in  a  memorandum,  framed  after  a  form  nrovided 
by  the  Act  (Sclicd.  G),  signed  by  the  ])arties  (U-  tlicir  resi)ective agents.  The 
money  jiayment  is  declared,  on  registration  in  the  ajjitropriate  Ju-gihter  of 
Sasines  of  such  a  memorandum,  or  of  an  extract  of  the  Sheriirs  decree, 
to  ac([uire  all  the  qualities  of  feu-duty,  and  to  form  an  addition  to  any 
existing  feu-duty.  Further,  on  such  registration  the  superior's  right  to 
the  services  is  to  be  held  to  be  disciiarged  (37  &  38  Vict.  c.  34,  ss,  20,  21). 
This  commutation  is  competent  notwithstanding  any  entail  (s.  21).  l-eu- 
duty  now  generally  consists  of  a  money  payment,  but  may  also  be 
stipulated  for  in  kind,  suliject  to  the  provision  of  the  Conveyancing  Act 
that  in  all  feus  granted  after  its  commencement  tlni  feu-duty  nuist  be  of 
fixed  amount  or  quantity  (s.  23).  All  duties  payable  in  kind  are,  in  the 
absence  of  contrary  stipulation,  demandable  in  the  particular  thing 
stipulated,  whether  it  continues  to  be  produced  on  the  lands  or  not;  but 
the  superior  is  entitled,  if  the  stipulated  payment  be  in  grain,  to  demand 
the  grain  grown  on  the  lands  at  the  time,  thougli  superior  to  that  grown 
at  the  date  of  stipulation  (Bell,  Prin.  694).  In  the  case  of  payment  being 
stipulated  in  kind  or  money  alternatively,  the  option  is  with  the  vassal 
unless  the  terms  of  the  reddendo  clause  demaiul  the  opposite  (//'.  090). 
Unlike  services,  payments,  whether  in  money  or  in  kind,  fall  into  arrears 
{Youiuj,  supra]  Hope,  supra).  The  superior  has  the  option  of  demanding 
his  arrears  in  kind,  or  in  money  according  to  the  market  values  for  the 
respective  years  {Duke  of  Hamillon,  supra).  It  has  been  laid  down  as  a 
general  rule,  that  arrears  of  feu-duty  do  not,  in  the  absence  of  express 
stipulation,  bear  interest  until  they  have  been  judicially  demanded  by  the 
superior  {Twcedelale,  1842,  4  D.  862;  Bell,  Prin.  095).  But  doidjts  have 
been  expressed  whether  this  rule  is  inflexible,  and,  in  particular,  whether 
the  demand  must  be  judicial  (Tu'ceddedes  Trs.,  1880,  7  H.  at  p.  04:;).  A 
superior  has  been  found  entitled  to  bank  interest  from  the  date  of  con- 
signation on  arrears  of  feu-duty  to  wliich  he  had  been  found  entitled  out 
of  consigned  money  {Polloch,  1802,  24  D.  371).  It  is  not  settled  whether 
even  where  there  is  a  stipulation  for  interest  the  vassal  is  entitled  to  purge 
an  irritancy  which  he  has  incurred,  without  paying  interest  {Maxwell's 
Trustees,  1893,  20  II.  958);  but  the  o])inions  expressed  in  the  case 
oi  Jfaxu-eH's  Trustees  favour  the  view  that  he  would  be.  In  modern  feu- 
rights  interest  is  almost  invariably  stipulated  for. 

The  superior  has  various  means  of  securing  and  compelling  payment  of  his 
feu-duty,  depending  respectively  on  his  radical  right  of  property  in  the  lands, 
his  real  right  to  the  feu-duties,  and  the  personal  obligation  of  the  vassal. 
In  virtue  of  the  first  he  has,  in  rankings  of  creditors  a  preference  to  the 
extent  of  the  full  feu-duty  over  the  whole  of  the  lands,  lujwever  these  may 
be  divided  (Bell,  Prui.  097  ;  Bell,  leet.  i.  034 ;  see  Lord  Watson  in  Samleimiv, 
infra,  12  li.  (H.  L.)  at  p.  70),  and  his  rights  are  in  no  way  allected  by  com- 
mercial sequestration  (19  &  20  Vict.  c.  79,  s.  102).     He  also  has  a  hyj^othec 


-.  .^  .XV.U  .w...v.«v.^  by  the  Ilypot ,  .  . 

or  the  Bankruptcy  Act  (19  &  20  Vict.  c.  79.  s.  119).  In  practice  the 
alternative  remedy  of  poinding  of  the  ground  in  virtue  of  the  real  riglil 
is  adopted  more  generally  than"  sequestration  under  the  hypothec. 

S.  E. — VOL.  XII. 


1G2  SUrEKIORITY 

Tliinllv,  feu-ilutv,  iw  ihe  reason  that  it  is  an  essential  condition  of 
the  leuilal  holding,  is  a  debt  secured  on  the  lands  or  debit  inn  fundi  inde- 
i.endently  of  the*^  conditions  essential  to  the  constitution  of  ordinary  real 
burdens  (Krsk.  ii.  5.  2;  Stair,  ii.  4.  8).  lu  particular,  though  since 
conveyances  were  made  registrable  it  will  generally  do  so,  it  does  not 
require  to  appear  on  record  (Bell,  Zed.  1156).  Also,  while  the  duties  in 
feus  constituted  since  1874  must  be  of  fixed  amount  or  quantity  (37  &  38 
Vict.  c.  97,  s.  23),  duties  of  indefinite  amount  in  earlier  fens  are  equally 
dchita  fundi. 

"The  general  rule  as  between  superior  and  vassal  —  and  confining 
myself  strictly  to  feudal  principle,  which  in  this  matter  is  still  in  full  force 
—is,"  said  Ld.  GiHbrd  in  Morrisons  Trs.  (1878,  5  E.  800  at  809),  "that  all 
the  reserved  rights  of  the  superior  —  that  is,  all  rights  reserved  by  the 
charter — everything  wliich  he  does  not  expressly  give  to  the  vassal — remain 
ettectually  secured  by  the  superior's  own  infeftment,  and  are  therefore 
real  rights  —  dchita  fundi  —  available  against  the  subject  into  whose 
hands  soever  the  mere  vassal's  right,  called  the  dominium  utile,  may  happen 
to  come.  ...  In  general,  therefore,  it  is  really  sujterfluous  for  the  parties 
to  a  feu-contract  to  stipulate  that  the  superior's  rights,  or  any  of  them, 
shall  constitute  dchita  fundi  or  real  burdens "  (cf.  Ld.  Corehouse  in 
Tailors  of  Ahcrdcen,  1840,  1  Eob.  296).  Accordingly,  the  superior  is 
"  entitled  to  an  action  for  poinding  all  the  goods  on  the  lands  burdened," 
i.e.  on  the  feu,  "  in  order  to  his  payment,  even  though  the  original  debtor 
should  have  been  divested  of  the  property  in  favour  of  a  singular  successor  " 
(Ersk.  iv.  1.  11).  This  right  to  poind  in  itself  gives  no  preferential  right 
to  the  goods  (Bell,  Prin.  699).  To  secure  such  right  the  superior  must 
raise  an  action  of  poindi7ig  of  the  ground,  or  real  poinding,  so  called 
because  it  is  directed  not  against  a  personal  debtor  to  secure  the  effects 
belonging  to  him,  but  against  the  burdened  lands  to  secure  the  effects 
brought  upon  them,  without  regard  to  the  liability  of  their  proprietor. 
The  calling  of  this  action,  by  rendering  the  subjects  litigious,  secures 
the  superior's  preference  against  all  diligence  not  then  complete.  The 
conclusions  are  that  the  goods  should  be  poinded  and  sold  in  satisfaction 
of  the  feu-duty  already  due  and  of  the  future  payments  as  they  re- 
spectively fall  due  (Mackay,  Manual  of  Practice,  509). 

Unless  it  has  been  allocated  (p.  167,  infra),  the  whole  feu-duty  is  a  real 
burden  on  every  part  of  the  lands  burdened,  and  so,  if  the  feu  has  been 
divided  among  various  disponees  or  sub-vassals,  the  superior  can  realise  his 
whole  feu-duty  from  the  effects  brought  on  to  the  lands  bv  any  of  them 
{Crs.  of  Eyemouth,  \lb1,  5  Bro.  Supp.  856;  Stormount,  1682,  2  Bro.  8upp. 
13;  see  Sandernan,  1881,  8  E.  790;  Sandeman,  1883,  10  E.  614;  rev.  1885, 
12  E.  (H.  L.)  67).  Tenants  are  so  far  protected  by  statute  as  to  be  lial)le 
only  to  the  extent  of  their  rents  due  and  unpaid  (Act  1469,  c.  36  ;  Stair,  iv. 
23.  10;  Ersk.  ii.  8.  33;  Bell,  Lect.  1195).  But  where  the  tenant  has  paid 
a  grassuni,  a  question  arises  as  to  the  true  amount  of  his  liability  to  the 
superior  (liell.PriVi.  699). 

A  former  superior,  after  he  has  alienated  tlie  superiority,  cannot  poind 
tlie  ground  for  arrears  though  incurred  while  he  was  superior,  for  the 
reason  that  he  no  longer  lias  the  real  right  to  the  land,  which  is  the  founda- 
tion of  the  action  (Scot.  Her.  Co.,  1885,  12  E.  550;  and  see  Ld.  Eutherfurd 
Clark  111  Maxwell's  Tr.,  1893,  20  E.  958).  The  superior's  right  to  poind 
the  ground  is  not  affected,  like  that  of  heritable  creditors,  by  the  bankruptcy 
statutes  (Bell,  Prin.  699;  42  &  43  Vict.  c.  40,  s.  3 :  49  Vict.  c.  23,  s.  3 
(4);  Ld.  Deas  in  Poycd  Ban!:,  1877,  4  E.  985 ;  19  &  20  Vict.  c.  79,  s.  102). 


SUrKKIOlMTY  IQ.j 

In  the  fuuith  place,  the  vassal,  hy  acccptin-  the  feu,  siil.j,-cls  himself  to 


granted  under  a  feu-charter,  which  contains  no  express  ohli'^Mtion  on  the 
vassal's  part,  or  under  a  feu-contract  in  ordinary  form,  whidi  contains  an 
express  obligation  by  the  vassal  to  jiay  the  feu-duty  and  perrorin  the 
prestations  of  the  contract  and  a  clause  of  re-^istration  for  execution  (Ia\ 
Pres.  In-lis  in  Aiton,  IG  R.  at  p.  029).  Under  a  feu-contract,  i.ayiiKMit  or 
implement  may  be  enforced  by  summary  diligence,  while  under 'a  charter 
an  action  is  necessary.  The  ordinary  terms  of  the  obligation  in  a  feu- 
contract  ar(;  as  follows :  "  For  which  causes  and  on  the  other  part,  the  said 
]).  (the  vassal)  binds  and  ol)liges  himself,  and  his  heirs  and  successors 
whomsoever  in  the  said  subjects,  to  make  payment  to  the  said  A.  (the 
superior),  and  his  heirs,  successors,  or  assignees,  of  the  sum  of  £ 
sterling  yearly  in  name  of  feu-duty  for  the  said  subjects"  (Jurl</. 
Sfi/ks,  i.  ;]6).  The  rule  as  to  the  duration  of  the  liability  of  a  vassal 
so  bound  was  stated  by  Ld.  Pres.  Inglis  in  the  Police  Comrs.  of  Damlcc  (1884, 
11  R.  586)  as  follows:  "The  feuar  is  bound  so  long  as  he  lives  and  con- 
tinues as  feuar  in  the  whole  obligation,  and  when  he  dies  his  heirs  and 
executors  are  liable  only  in  arrears,  wliile  his  successor  in  the  feu  becomes 
liable  in  the  whole  obligation"  (ef.  Ld.  Pres.  Inglis  in  Did  Lauihr,  17  P.  at 
p.  327).  So  long  as  he  lives,  the  feuar  "  continues  as  feuar  "  until  anotlier 
is  entered  in  his  place.  He  cannot  avoid  payment  of  his  feu-duty  by 
refuting  his  feu,  that  is,  by  relinquishing  it  to  the  superior  without  the 
superior's  consent.  This  was  attempted  in  the  case  of  Hunter  (18:14,  13  S. 
205),  on  the  ground  that  feus,  being  hcneficia,  could  be  renounced  at  will. 
But  by  the  judgment  of  the  whole  Court  it  was  found  that,  wliether 
or  not  this  doctrine  applied  to  real  hcneficia,  where  the  feu  was  truly  onerous 
the  consideration  was  legally  due  (see  Stair,  ii.  3.  34,  ii.  4.  48,  i'i.  11.  6). 
Again,  the  vassal  could  not  before  1874  free  himself  of  his  obligation 
merely  by  alienating  his  feu  to  a  third  [larty,  even  though  possession  was 
ceded  to  the  disponee. 

But,  as  follows  from  the  above  rule,  on  an  entry  being  granted  to  the 
disponee   by   the   superior   the   former   vassal   becan;e   free  as   to   future 
payments,   and   the   disponee   became   liable   in    his   place   c:c   (kliyatioiir 
(Wallace,  1739,  Mor.  4195;  Hjslop,  1803,  1  M.  535,  see  p.  551  ;  Marshall, 
1895,  22  P.  954,  Ld.  Kinnear,  at  p.  902,  and  Ld.  Kyllacliv,  //-.).     When, 
by  the  Conveyancing  Act  of  1874   (37    &   38   Vict.   c.  94,  s.  4   (2)),   it 
was  enacted  that  infeftment  should  im]dy  entry  with  the  superior  without 
his   intervention,   it   was   provided   that,   notwithstanding   this,  the  last- 
entered  vassal  should  continue  liable  for  the   feu-duties  and  other  pres- 
tations of  the  feu  till  notice  of  change   of  ownership  was  given  to   the 
superior,  without  prejudice  to  the  superior's  remedies  against  his  imjiliedly 
entered   vassal.      If   the   last-entered   vassal   has   to    make    payment    of 
any  feu-duties  owing  to  his  successor's   neglect   to  give   notice,   he   may 
recover  them  from  him,  and  for  this  purpose  all  the  superior's  remedies  for 
recovery  of  feu-duty  are  to  be   held  to  be  assigned    to  him,   "  but   that 
always  under  reservation  of,  and  without  prejudice  to,  the  superior's  riglits, 
remedies,  and  securities  for  making  effectual  aiul  recovering  all  other  feu- 
duties  due  and  to  become  due  to  him  "  (ih.).     Apart  from  this  enactmeut, 
no  one  paying  feu-duties  on  behalf  of  another  has  any  right  to  an  assigna- 
tion of  the   superior's   remedies   for   his  relief  {Guthrie,  ii>6(),  S  P.  l*^": 


164  SUPEKIOPtlTY 

Jlaishciuvoirs  Tnistees,  1877,  8  11.  108,  in  note).  To  free  a  vassal  from  his 
liabilities  there  is  now  required,  first,  the  implied  entry  of  his  successor, 
and,  Si'comlli/,  notice  of  change  of  ownership.  It  is  illegal  to  stipulate  for 
any  other  form  of  intimation  than  that  provided  by  the  Act  (s.  22). 

*  The  liability  for  feu-duties  accruing  after  the  death  of  a  vassal  is 
transferred  to  his  successors  in  tlie  feu,  and  no  responsibility  for  them 
attaches  to  his  personal  representatives  as  such.  This  is  illustrated  by 
two  recent  cases  (Aiton,  1889,  16  E.  625,  and  Macrae,  1891,  19  11  138). 
In  the  first  the  vassal  bound  himself  and  his  heirs,  executors,  and  successors 
whomsoever  "  to  pay  t  he  feu  -  duty  named,"  and  that  at  the  term  of 
IMartinnias  yearly.  He  died  on  15th  April  1887,  leaving  his  whole  personal 
estate  to  his  wife.  The  heir  refused  to  take  up  the  feu,  and  in  March  1888 
the  superior  raised  an  action  against  the  executors  for  the  feu-duty  due 
at  Martinmas  1887,  or,  failing  their  making  payment  of  the  feu-duty,  for 
damages  in  respect  of  their  failure  to  take  up  the  feu.  The  executors 
plead  that  on  a  sound  construction  of  the  feu-contract  they  were  not  liable 
for  feu-duties  after  the  death  of  the  late  vassal,  and  that,  not  having  broken 
any  contract,  they  were  not  liable  in  damages.  These  contentions  were 
upheld  by  the  Court,  on  the  ground  that  a  vassal's  personal  obligation  for 
feu-duty  was  limited  to  instalments  falling  due  during  his  possession  of 
the  feu ;  that  if  the  heir  refused  to  enter,  the  superior  had  his  remedies 
tmder  the  casualty  of  non-entry,  or  the  Conveyancing  Act  (s.  4  (4)) ;  and 
that  the  executors  were  neitlier  bound  nor  entitled  to  enter  to  the  feu. 
The  second  case  illustrates  the  application  of  the  rule  to  an  obligation  ad 
factum  prwstandiim.  The  feuars,  trustees  for  a  firm,  bound  tliemselves 
"and  the  survivors  and  survivor  and  the  heir  of  the  survivor"  by  feu- 
contract  under  burden  of  erecting  certain  houses  within  two  years.  After 
the  expiry  of  the  two  years  the  last  survivor  died  in  possession  of  the 
feu,  leaving  his  whole  estates  to  his  widow  as  sole  trustee.  The  building 
obligation  had  not  been  implemented,  and  the  widow  refused  to  take 
up  the  feu.  The  superior  thereupon  raised  an  action  against  her  as 
trustee,  concluding  for  implement,  or  failing  that,  for  damages.  The 
Court  granted  absolvitor,  holding  that  this  case  was  governed  by  the 
same  rule  as  Aiton,  that  is  to  say,  that  after  the  feuar's  death  only  his 
successor  in  the  feu  was  liable  in  the  prestations  of  the  charter.  This 
distinction  is,  however,  to  be  observed  between  the  two  cases.  In 
Aiton  the  executors  could  not  possibly  have  been  made  liable  either 
for  feu-duty  falling  due  after  the  ancestor's  death,  or  for  damages  on 
account  of  the  feu  having  been  left  in  non-entry  by  the  heir.  In  iVacrae, 
on  the  contrary,  while  the  executrix  could  not  be  rendered  directly 
liable  for  the  prestation  in  question,  yet  her  ])redecessor  had,  by  his 
failure  to  build,  incurred  a  liability  transmissible  against  his  personal 
representatives;  and  opinions  were  expressed  to  the  effect  that,  while  its 
was  impossible  to  grant  decree  in  terms  of  the  summons  for  an  alleged 
failure  by  the  executrix,  the  result  might  have  been  dillerent  if  she  had 
been  sued  as  representing  her  author  for  damages  for  his  failure  (Ld. 
Kinnear,  at  p.  147).  These  rules  apply  alike  to  cases  of  liability  implied 
under  feu-charter  or  expressed  in  the  ordinary  terms  of  a  feu-eontract. 
liut  an  express  obligation  may  be  so  conceived  as  to  extend  (a)  the 
liabiHty  of  the  feuar  and  his  representatives  after  alienation  of  the  feu, 
and  (b)  the  liability  of  his  personal  estate  after  his  death.  Two  ways  in 
which  this  may  be  done  are  respectively  illustrated  by  the  cases  of  King's. 
Collcfje  of  Aberdeen  and  Broivn's  Trustees  (1852,  14  D.  675 ;  rev.  1854,  17  D 
(H.  of  L.)  30,  1  Mac(i.  526  ;  1855,  2  Macq.    40),  and  Dundee  Police  Com- 


SUrEKIOIMTV  165 

missioncrs  (1SS4:,  11 IL  HSG).  lu  tlir  lirst-iiientionetl  cases  the  circumsUmcea 
were  practically  tlio  same.  The  ohligatioii  for  the  rcii-duty  was  taken  in 
a  separate  personal  Ijoiid,  in  which  the  feiiar  hound  hiiiiscH',  liis  heir« 
executors,  and  successors.  Thereafter  in  each  case,  on  the  feuar's  succeBsor 
in  the  leu,  who  was  also  his  personal  representative,  desirin;^'  to  alienato 
the  feu,  the  question  arose  whetlier  he  could  thus  rid  himself  of  \m 
liahility  for  feu-duty.  On  appeal  to  the  House  of  Lords  it  was  deter- 
mined that  he  could  not,  because  the  bond  in  itself  contained  a  jdain 
obligation  on  him  and  his  representatives  in  perjjetuity,  whidi  it  wa.s 
impossible  to  limit  by  reading  along  with  it  the  documents  constituting  the 
feudal  relationship.  The  rule  that  the  liability  under  contracts  of  ground- 
annual  depended  purely  on  contract,  as  ojjposed  to  tenure,  iiad  already  been 
laid  down  by  the  House  of  Lords  in  cases  which  were  referred'  to  aa 
precedents  in  Broums  case  (Small,  1849,  11  D.  495;  rev.  1853,  1  Mac<i. 
345;  Jioijal  Bank,  1851,  13  D.  912;  rev.  1853,  1  Macq.  358):  but  though 
there  is  no  decision  of  that  House  in  the  case  of  a  feu-charter  or  a 
feu-contract  in  ordinary  terms,  it  seems  that  such  a  case  would  be 
regarded  as  depending  on  the  feudal  relationshi])  (see  L.  C.  in  lioyal  Bank, 
supra,  1  Macq.  at  p.  3G0).  In  the  case  of  the  JJnndce  Police  Coinmi'isiinirrs, 
the  obligation  was  contained  in  the  feu-contract,  but  was  in  the  following 
terms:  "The  said  second  party  hereby  binds  and  obliges  himself  and  his 
heirs,  executors,  and  successors  whomsoever,  conjundly  and  severally"  to 
pay  the  feu-duty,  and  inter  alia  to  erect  certain  buildings.  Some  years  after 
the  time  for  erecting  buildings  had  expired,  a  singular  successor  was  entereil 
as  vassal,  notice  of  change  of  ownership  having  been  duly  given.  No 
buildings  had  been  erected,  and  a  half-year's  feu-duty  was  overdue.  In 
these  circumstances  the  superior  raised  an  action  against  the  original  feuar 
and  the  then  entered  vassal,  conjunctly  and  severally,  for  implement  of 
the  building  prestations,  or  alternatively  for  damages,  and  for  payment 
of  the  arrears  of  feu-duty,  and  of  a  stipulated  additional  feu-duty  on 
account  of  the  failure  to  build.  The  original  feuar  pled  that  he  had  been 
freed  of  all  his  obligations  by  tlie  entry  of  his  singular  successor,  but 
the  Court  held  the  contrary.  Ld.  I'res.  Inglis  said:  "In  the  case  of  an 
ordinary  obligation  on  a  vassal,  his  heirs,  executors,  and  successors,  there 
is  no  conjunct  and  several  liability.  .  .  .  But  here  they  are  all  to  be 
liable  conjunctly  and  severally,  that  is  to  say,  they  are  all  liable  to  pay 
the  same  amount,  to  do  the  same  thinrf,  and  each  is  liable  for  the 
performance  of  the  whole.  That  being  so,  it  seems  to  follow  of  necessity 
that  these  obligations  upon  the  feuar,  his  heir,  executors,  and  successors  arc 
perpetual.  The  feuar's  heirs  are  made  liable  conjunctly  and  severally 
with  the  successor  in  the  feu,  but  he  is  not  liable  for  arrears  incurred 
before  his  time  (his  estate  is,  but  not  himself);  therefore,  in  making 
the  heirs  and  executors  conjunctly  and  severally  liable  with  the  successor, 
it  necessarily  follows  that  they  are  liable  for  feu-duties  after  the  succcs.sor 
comes  in."  Xo  case  has  yet  ari.scn  illustrating  the  liability  of  executors 
along  with  the  heir  in  possession,  but  by  parity  of  reasoning  it  seems  that 
under  similar  obligation  they  would  be  held  liable  (see  Ld,  Pros.  Inglis, 
supra). 

The  successor  in  the  feu  bears  no  personal  responsiliility  for  arrears. 
Each  vassal,  with  his  personal  representatives,  is  alone  liable  for  arrears 
which  have  fallen  due  during  his  time.  The  feu-duty  of  the  year  in  which 
a  vassal  dies  is  allocated  between  his  successor  in  the  feu  and  his  personal 
representatives,  the  latter  being  liable  for  the  proportion  up  to  the  vas.-^jil's 
death  {Aiton,  supra,  Ld.  Kinnear,  at  p.  G2G).     In  the  words    .f  T.l.   Vrr?. 


1G6  SUrErJOPJTY 

Inc^lis  quoted  above,  the  vassal  is  "  not  liable  for  arrears  incurred  before  his 
tiu°e  (his  estate  is,  but  not  himself)."  The  last  \vc)rds  evidently  refer  to  the 
real  liability  of  the  lands  feued.  A  singular  successor  is  not  in  the  general 
case  liable  for  arrears  at  all.  But  when  a  vassal  has  allowed  the  feu-duty 
payable  by  him  to  fall  into  arrear  so  as  to  incur  an  irritancy  it  is  question- 
able whether  he  is  not  liable  to  pay  the  whole  feu-duty  resting-owing, 
thoufdi  partly  due  before  his  time,  in  order  to  purge  the  irritancy 
{MaxurU's  Trs.,  20  E.  958).  An  heir,  while  he  is  directly  liable  as  vassal  for 
duties  accruing  after  his  ancestor's  death,  is  liable  for  arrears  only  {a)  in- 
directly as  representing  his  ancestor,  and  (h)  suljsidiarily  to  the  ancestor's 
executors,  {a)  Tliis  point  is  clearly  illustrated  by  the  opinion  of  Ld. 
Kinnear  in  Macrae  (19  E.  138,  at  p.  147),  to  the  effect  that  it  is  incompetent 
to  sue  the  personal  representative  directly  for  that  for  which  he  is  truly 
liable  as  representing  his  predecessor,  (h)  Arrears  of  feu-duty  form  a  nun-e- 
able  debt,  for  which,  therefore,  the  heir,  if  he  make  payment,  \\ill  have 
relief  against  the  executor  {Johnston,  1829,  7  S.  220). 

There  is  this  distinction  to  be  observed  between  the  case  of  pay- 
ments and  that  of  other  prestations :  that  while  only  one  vassal  and  his 
representatives  can  be  liable  for  termly  or  casual  payments  accruing  at 
definite  times,  in  the  case  of  continuing  obligations  several  singular 
successors  in  the  feu  may  become  liable  in  the  same  obligation.  This  was 
decided  in  the  case  of  Marshall,  1895,  22  E.  954,  the  facts  of  which  were, 
that  a  vassal,  being  under  liability  to  liis  superior  in  terms  of  his 
feu -contract  to  rebuild  certain  premises  on  his  feu  which  had  been 
destroyed  by  fire,  transferred  the  feu  to  a  second  party,  who  transferred  it 
to  a  third,  before  the  superior  had  succeeded  in  making  good  his  claim  by 
action.  The  second  and  third  parties  were  in  turn  duly  entered  with  the 
superior  in  terms  of  the  Conveyancing  Act.  The  superior  then  brought  a 
supplementary  action  against  all  three.  The  first  and  second  parties 
pleaded  that,  since  they  were  no  longer  vassals,  they  were  entitled  to 
absolvitor.  The  Court  held  that  all  three  were  liable,  on  the  ground  that 
the  obligation  had  been  prestable  while  each  had  been  vassal,  that  none 
had  been  discharged,  and  that  in  case  of  a  continuing  obligation  there 
was  no  inconsistency  in  a  vassal  remaining  liable  i'or  his  uniniplemented 
obligation  while  his  successor,  by  becoming  vassal,  became  also  liable. 

The  superior  has  a  personal  action  not  against  his  immediate  vassal 
alone,  but  also  against  sub-vassals,  tenants,  and  intromitters  witli  the  rents- 
(Stair,  ii.  4.  7 ;  Ersk.  ii.  5.  2 ;  Bell,  Prin.  700).  In  the  case  of  Sandc- 
man  v.  Scottish  Provident  Investment  Society  Ltd.  (1881,  8  E.  790),  the 
exact  point  decided  was  that  a  sub-vassal  in  part  of  a  feu  is  not  personally 
liable  for  the  whole  feu-duty ;  but  in  that  case  the  sub-feu  duties  due  and 
resting-owing  were  tendered,  and  I'rom  the  opinions  it  would  appear  that  a 
sub-vassal's  liability  to  his  immediate  superior  is  the  measure  of  his  personal 
lialjility  to  the  over-superior  (see  also  Hyslop  v.  Shaw,  1863,  1  M.  535). 
The  ratio  of  this  liability  is  not  made  very  clear  in  the  cases.  The  Ld. 
Tresident  {Hyslop,  1  M.  at  551)  seems  to  rely  on  the  sui)crior's  radical  right 
and  practical  convenience ;  Ld.  Shand,  in  Sandcman,  8  E.  at  797,  on  pure 
equity.  It  has  been  suggested  that  the  sub- vassal  should  be  liable  for  that 
proportion  of  the  cuimdo  feu-duty  which  his  sub-feu  bears  to  the  whole  feu, 
even  in  cases  where  the  sub-feu  duty  is  less  {M.  Twccddales  Trs.,  1880,  7 
E.  620,  at  p.  628 ;  Sandcman,  8  E.  at  p.  797).  While  a  superior  cannot 
sue  tenants  for  rent  as  such  {Prudential  Assurance  Co.,  1884,  11  E.  871), 
he  may  sue  them  in  respect  of  overdue  feu-duties  to  the  extent  of  their 
rents.     In  the  leading  case  on  the  subject,  their  liability  is  laid  on  intro- 


SUPEIJIOinTY  jQy 

mission,  and    there    ihe   same  ratio  is  apidied  to  sulj-vavsil-i  (/•/  ,/ 

Assur.  Co.,  ciL).     A  trustee  for  creditors  has  been  held  i-ernjiially  1......    ,., 

the  superior  on  the  same  ground  {Ahcrcorn,  IS'So,  U  S.  1G8).  It  is  ('lea r 
that  this  liability  cannot  extend  to  leu-duties  due  before  the  intromission; 
but  in  spite  of  the  decision  in  the  case  of  L'if/;/(n'  (infra),  it  is  tlillieult  n(»t 
to  agree  with  the  minority  of  the  judges  that  the  liability  should  continue 
while  the  intromitter  is  accountable,  as  tenant  or  otherwise,  f(jr  moiu'V 
obtained  by  the  intromission  (L'if/f/ar,  17o8,  Mor.  4191;  Ifamilfun,  1712 
Mor.  4189  ;  I^ollo,  1029,  Mor.  4185).  besides  these  remedies,  the  siipeiior' 
if  his  leu-duties  are  in  arrear,  has  the  right  to  irritate  the  leu  (infra). 

A  vassal  may  retain  the  feu-duty  if  his  superior  has  clearly  failed  in 
his  undertaking  as  superior  (Ainslie,  18;!9,  2  IJ.  G4;  1842,  4  D.  6.''i9  • 
Arnoft's  Trs.,  1881,  9  1^.  89),  but  not  merely  because  he  is  engaged  in  .somi- 
dispute  with  his  superior  (Thorn,  188G,  lo  li.  102G :  see  A'cr  ^1790  Mor 
2G92;  aff.  1792,  ;;,  I'at.  238;  Cockburn,  1825,4  S.  128;  rev.  1S2G.  2  \V..S:  s! 
293).  The  superior's  right  to  feu-duty  cannot  be  lost  by  the  negative 
prescription,  but  the  separate  terndy  payments  prescribe  if  they  are  not 
demanded  within  forty  years  from  the  dates  at  which  they  severallv 
become  due  (Ersk.  iii.  7.  12;  Bell,  rrin.  609).  Before  1874  the  voluntary 
granting  of  an  entry  without  reservation  was  held  to  imply  a  discharge  of 
all  arrears  of  both  feu-duties  and  casualties  (Stair,  ii.  4.  23 ;  Ersk.  ii.  5.  4G  ; 
Tailors  of  Glasf/ow,  1851,  13  D.  1073;  lord  Advocate,  1872,  lU  M.  1024; 
but  see  Ld.  Kyllachy  in  Marshall,  22  1{.  p.  9G3) ;  but  then  a  superior 
could  refuse  entry  till  he  was  paid  (Ersk.  ii.  5.  45 ;  20  Geo.  II.  c.  50,  8.s. 
12  and  13).  While  the  Conveyancing  Act  has  made  it  impossible  for  a 
superior  to  do  this,  it  has  safeguarded  his  right  to  all  feu-duties  and 
arrears,  and  reserved  to  him  all  means  for  their  recovery  not  inconsistent 
with  its  provisions  (s.  4  (3)).  A  discharge  of  all  arrears  is  also  implied 
by  a  disposition  of  the  superiority  in  the  vassal's  favour  (Menzies,  G64 ; 
Argyll,  167G,  M.  842). 

The  effect  of  an  allocation  of  feu-duty,  in  case  of  the  division  of  a 
feu  among  several  disponees  or  sub-vassals,  is  to  make  each  parcel  of 
ground  liable  only  for  the  proportion  allocated  on  it.  The  superior  is  under 
no  obligation  to  grant  an  allocation  unless  he  has  expressly  undertaken 
to  do  so  in  the  feu-charter  (Bell,  Frin.  G97  ;  Duffs  Feudal  Convej/ancin;/,  80). 
Before  1874  the  only  way  by  which  an  allocation  could  be  carried  out  was 
by  a  charter  of  novodanius  apportioning  the  feu-dnty,  but  under  the 
Conveyancing  Act  of  1874  it  may  be  done  by  memorandum  engrossed  on 
a  deed  conveying  the  lands  on  wliich  the  allocation  is  made  antl  sigiu'd 
by  the  superior  or  his  agent  (37  &  38  Vict.  c.  94,  s.  8,  and  ScIrmI.  1)). 
The  rights  of  heritable  creditors  on  the  estate  of  superiority  cannot  be 
affected  by  an  allocation  of  feu-duty  unless  they  are  made  ]>arties  thereto 
(ib.).  The  right  to  the  feu-duties  may  be  assigned  without  the  superiority 
itself  being  alienated  (Duuglas  of  Kelhead,  1G71,  Mor.  930G  :  Bell,  /V/». 
703). 

Casualties. — The  casualties  now  prestal)le  under  the  tenure  of  feu-faim 
are  non-entry,  relief,  liferent  escheat,  composition,  and  irritancy.  Of  these, 
the  last  two  arc  peculiar  to  this  tenure,  Init  the  first  three  were  common  to 
ward-holding  while  it  existed.  There  used  to  be  two  other  casualties  comnum 
to  ward  and  feu  tenures,  disclamation  and  ])urpresture  or  jiurpiision,  both  of 
which  have  long  been  obsolete.  Their  effect  was  that  the  vassal's  rights  were 
forfeited,  under  the  first,  if  he  disowned  his  su]>erior,  and,  under  the  - 

if  he  encroached  on  his   superior's  lands.     The  casualty  of  marria_.    

sometimes  introduced  by  stipulation  into  holdings  by  feu-farm,  which  were 


1G8  SUrEIJIOEITY 

then  called  feus  cum  maritagio  (Ersk.  ii.  5.  23,  28  :  Bell,  Led.  i.  573).  In 
feu-holdin*',  as  well  as  in  ward-holding,  this  casualty  was  a  del  it  um  fundi 
(Ersk.  ih.).  It  was  made  incompetent  in  feus  by  the  Act  which  abolished 
ward-holding  (20  Geo.  ii.  c.  50,  s.  10). 

In  feus  granted  after  1st  October  1874,  no  casualties  are  due  by  law, 
and  it  is  not  competent  to  stipulate  for  casualties  properly  so  called.  In 
lieu  of  them  it  is  permitted  to  stipulate  for  periodical  payments  over  and 
above  the  regular  feu-duty,  of  fixed  amount,  and  payable  at  fixed  times 
depending  entirely  on  stipulation  (37  &  38  Vict.  c.  94,  s.  23).  This  enact- 
ment in  no  way  affects  the  right  to  casualties  under  feus  of  earlier  date, 
which  are  still  demandable. 

Non-entry. — A  feu  which  has  no  vassal  entered  in  it  is  said  to  be  in 
non-entry.  Lands  might,  prior  to  the  passing  of  the  Conveyancing  Act  of 
1874,  come  to  be  in  non-entry  in  various  ways,  e.g.  if  a  vassal  died  and  his 
heir  did  not  enter,  or  if  the  heir's  service  was  reduced,  or  if  a  vassal  died 
after  having  alienated  his  feu  and  the  disponee  did  not  enter,  or  if  the  lands 
had  been  resigned  and  not  given  out  again.  No  lands  are  now  to  be  deemed 
to  be  in  non-entry  (37  &  38  Vict.  c.  94,  s.  4  (4)) ;  but  prior  to  the  commence- 
ment of  the  Conveyancing  Act  of  1874,  as,  on  the  one  hand,  a  superior  was 
obliged  to  give  entry  to  those  entitled  to  the  property,  so,  on  the  other, 
he  was  entitled  to  have  a  vassal  entered  in  the  feu,  or  to  enter  into 
possession  of  it  himself.  Originally,  the  superior  could,  at  his  own  hand, 
exclude  the  heir  from  possession  till  he  entered  (Ersk.  ii.  5.  29 ;  Bell,  Frin. 
706) ;  later,  his  remedy  was  by  action  of  declarator  of  non-entry.  In  the 
simple  action  brought  against  an  heir  who  was  entitled  to  enter  and 
delayed  to  do  so,  the  conclusions  were,  for  declarator  (1)  that  the  lands 
had  been  in  non-entry  since  the  death  of  the  last-entered  vassal ;  (2)  that 
the  bygone  non-entry  duties,  up  to  the  date  of  citation,  belonged  to  the 
superior ;  (3)  that  the  full  rents  thereafter  belonged  to  the  superior ;  and 
(4)  for  warrant  to  poind  the  ground  for  the  bygone  non-entry  duties 
(Jurid.  Styles,  2nd  ed.,  iii.  186).  The  heir  was  the  proper  defender  though 
there  were  no  conclusions  against  him  (Ersk.  iii.  5.  42).  Where  there  had 
been  resignation  in  favorcm,  the  action  took  the  form  of  a  reductiou- 
improbation,  to  have  it  declared  that  the  disposition  in  favour  of  the 
negligent  disponee  was  null  and  void,  followed  by  the  ordinary  conclusions 
as  above.  In  this  case  the  superior  might  call  the  person  in  possession 
instead  of  the  heir  (Bell,  Frin.  709;  Mags,  of  Dundee,  1829,  7  S.  801; 
.l/oc/tcnsie,  1838,  16  S.  1326;  Governors  of  Cauvins  Hospital,  1863,  1  M. 
1164),  but,  except  in  this  case,  the  defender  could  insist  on  the  heir  being 
calh'd  (Mags,  of  Hamilton,  1854,  16  D.  437),  and  the  heir  was  always 
entitled  to  enter  {Figgot,  1829,  8  S.  213;  Bell,  Frin.  709).  Though,  since 
the  passing  of  the  Conveyancing  Act  of  1874,  those  infeft  in  the  pro- 
Ijerty  become  entered  by  force  of  statute,  superiors  are  still  entitled, 
under  feu-rights  granted  before  the  passing  of  the  Act  of  1874,  to  the 
casualties  of  relief  and  composition  to  which  they  had  right  on  the  entry 
of  lieirs  and  singular  successors  resioectively  under  the  old  law ;  and  as 
they  can  no  longer  have  the  lands  declared  to  be  in  non-entry,  a  special 
remedy,  called  an  action  of  declarator  and  for  payment  of  a  casualty,  is 
provided  by  the  Act  (37  &  38  Vict.  c.  94,  s.  4  (4)).  In  this  action  the 
conclusions  are  for  declarator  (1)  that  a  casualty  has  become  due,  and 
(2)  that  until  payment  of  said  casualty  the  rents  belong  to  the  superior, 
and  (3)  for  decree  for  the  amount  of  the  casualty  of  relief  or  composition. 
This  action  lies  against  the  successor  in  the  lands  whether  infeft  or  not, 
implied  entry  is  no  defence  to  it  (see  Stuart,  1889,  2  B.  85),  and  tlie  effect 


SUrEPJOinTY  109 


l\V 


of  clccrec  Uicreiu  is  lluiL  of  a  declarator  (jC  iioii-ontry  iiiuler  tin,'  old  hi 
until  the  overdue  casualty  is  paid  with  oxiK'iises  (.'>7  it  .".8  Vict.  c.  'J-i 
s.  4  (4)).  ]Uit  Ihe  non-entry  duties  proj.er  which  Ibnnerly  fell  due  before 
citation  cannot  now  fall  {ib.),  and  are  no  lon«,'er  recoverahle  even  if  they 
hatl  fallen  Ijefore  the  connnencenient  of  the  Conveyancing  Act  (L  A.,  l.S'JU, 
17  li.  945).  The  new  action  of  declarator  cannot  be  raised  until  a 
declarator  of  iioii-entiy  would  have  been  coni[)etent  (37  &  38  Vict  c  04 
6.  4  (:'.)). 

After  citation  in  the  action  of  declarator  of  non-entry — now  of  dcelarator 
and  for  payment  of  a  casualty — the  superior  is  strictly  entitled  to  the  wli").' 
rents  (Ersk.  ii.  5.  40);  yet  the  rigid  enforcement  of  this  claim  has  alw.r- 
beeu  regarded  with  so  much  disfavour  that  a  reasonable  excuse  will  free 
the  vassal  from  the  full  penalty,  even  after  citation  (Melvill,  1G77,  Mor. 
9321;  iVaiihuul,  1704,  Mor.  9325;  Douf/lm,  1G75,  Mor.  9:;i8;  Jiohin  182:5, 
2  S.  404;  Fcrrier's  Trs.,  1877,  4  K.  738).  The  retour  duties  to  which  the 
superior  was  entitled  from  the  last  vassal's  death  were,  in  feu-holdings,  the 
feu-duties  to  which  he  would  have  been  entitled  in  any  case  (Ersk.  ii.V».  30). 
Xon-entry  duties  due  before  citation  were  (Irhita  fundi,  and  might  be 
recovered  by  poinding  of  the  ground;  but  those  falling  due  after  citali<»n 
never  were,  and  are  not  now,  for  the  superior's  right  is  that  of  a  proprietor 
to  his  rents,  aud  may  be  so  enforced  after  his  right  lias  been  judicially 
declared  (Ersk.  ii.  5.  42).  Before  he  can  give  an  cntiy,  and,  consequently, 
before  he  is  entitled  to  sue  an  action  of  declarator  of  non-entry  or  for 
payment  of  a  casualty,  the  superior's  own  title  must  be  complete  (p.  15G). 
He  must  also  show  that  he  is  the  superior  entitled  to  the  casualty  {Chalmers, 
1745,  Mor.  9330,  15091 ;  1746,  1  Tat.  404).  The  casualty  is  excluded  by 
a  liferent  recognised  by  the  superior,  by  courtes}',  and,  to  the  extent  of  one- 
third,  by  terce  (Ersk.  ii.  5.  44).  Though  a  liferenter  is  infeft  in  the  lands 
and  entered  by  the  Conveyancing  Act,  this  is  no  answer  to  an  action 
against  the  fiar  for  a  casualty  {Stuart,  1889,  17  Pu  85). 

Relief  and  Comivmtion. — These  payments  are  due  on  the  entry  of  a  new 
vassal — relief  on  that  of  an  heir,  composition  on  that  of  a  singular  successtjr 
(Ersk.  ii.  5.  47,  ii.  7.  7 ;  Menzies,  525 ;  P>ell,  Led.  i.  023-4;  I3ell,  Prin.  715). 
When  the  property  is  in  the  hands  of  j?«'0  indiviso  proprietors,  a  proportional 
part  of  the  full  casualty  is  due  on  the  death  of  each  {Gorcrnors  of  Ccuvin's 
Hospital,  1803,  1  ]\1.  11G4).  Tlie  fpiestions  to  which  these  c;isualties  now 
give  rise  are  intimately  connected,  but  in  origin  they  are  widely  different. 
Eelief  is  an  old  casualty  which  was  common  to  ward,  blench,  and  feu 
holdings.  It  is  payable  by  the  heir  of  the  investiture  {Stirlinf/,  1842.  4  1>. 
684)  on  his  recognition  by  the  superior,  as  an  acknowledgment  that  the  lands 
have  returned  to  the  superior  and  require  to  be  relieved  or  redeemed  (Ersk.  ii. 
5.  47,  48  ;  Bell,  Led.  616).  Its  amount  early  came  to  be  that  of  the  retour 
duty, — i.e.  in  feu-holdings,  the  feu-duty, — and  is  so  still  in  the  absence  of 
special  stipulation.  The  origin  of  composition  is  statutory.  I'.y  the  Statute 
1469,  c.  30,  which  recjuires  superiors  to  enter  purchasers  in  ap})risings  (p. 
156),  it  is  provided  that  the  purchaser  shall  on  his  entry  pay  to  the  over-lord 
a  year's  maill  as  the  land  is  set  for  the  time.  The  Act  1072,  c.  10,  which 
substituted  adjudications  for  apprisings,  declared  that  the  rights  of  sui»eriors 
should  remain  the  same;  and  the  Act  of  1081,  c.  17,  instituting  judicial 
sales,  gave  the  purchaser  right  to  demand  an  entry  on  paying  a  year's  rent. 
Before  ordinary  purchasers  were  entitled  to  demand  an  entry,  it  had 
become  customary  for  them,  on  being  voluntarily  received  by  the  superior, 
to  pay  the  same  line  (Ersk.  ii.  7.  7) ;  and  when  they  ol)taincd  right  to  force 
an  entry,  it  was  made  a  condition  that  they  should  do  so  (20    doo.   II. 


170  SUrEEIOEIIY 

c.  r.O,  ss.  12,  lo;  lu  cV  11  Vkt.  c.  48,  s.  G;  ;U  &  32  A'ict.  c.  101,  s.  97; 
Aitchisoji,  1775,  2  Ross,  L.  C.  183;  see  Ld.  Curriehill  in  Steuart,  1882,  19 
S.  L  Pi.  640).  Owing  to  the  peculiar  origin  of  this  payment,  consicteraLle 
doubt  has  been  felt  as  to  wliether  it  should  be  regarded  as  a  casualty,  and 
consequently  a  dchitum  fundi,  or  merely  as  a  personal  debt.  It  will  probably 
sullice  for  the  decision  of  most  points  now  likely  to  arise  in  practice,  that 
in  the  Conveyancing  Act  the  terra  "  casualty  "  includes  composition  (37  & 
38  Vict.  c.  94,  s.  3);  yet  so  lately  as  1889  {Stuart,  17  Pi.  85)  an  opinion  was 
expressed  that  a  renunciation  of  "casualties"  by  a  superior  contained  in  a 
feu-charter  dated  in  1701  did  not  bar  a  demand  for  composition.  In  the 
case  of  Cockhurn  Boss  (6  June  1815,  F.  C.)  the  question  was  mooted  but 
not  decided.  "  It  appears  to  me,"  said  Ld.  Glenlee,  in  that  case,  "  that  it 
is  just  a  feudal  casualty  or  not,  according  as  you  take  the  expression  in 
a  more  extensive  or  in  a  more  limited  sense."  In  the  Edlnhunih  Gas  Lvjht 
Co.  (1843,  5  D.  1325)  it  was  held  that  an  express  declarator  that  part  of  a  feu 
should  be  burdened  with  the  casualties  of  the  whole  included  composition. 
Put  because  the  then  recent  case  of  Sth-Jiiuj  (1842,4  D.  684)  was  not  referred 
to  in  it,  an  opinion  has  been  expressed  that  this  case  was  decided  on  specialty 
{Morrisuii's  Trs.,  1878,  5  E.  800,  Ld.  Ormidale).  In  StirUiuj,  though  the 
point  did  not  require  to  be  decided,  a  strong  opinion  was  expressed  that  com- 
position was  not  a  casualty  (Ld.  Justice-Clerk  at  p.  715;  see  also  Bell 
on  Compldinrj  Title,  309 ;  Bell,  Com.  i.  23  ;  Bell,  Prin.  728).  In  Morrisons 
Trs.  it  was  held  competent  to  poind  the  ground  for  a  composition  stipulated 
in  a  feu-right ;  but  this  judgment  proceeded  on  the  ground  that  the  deed  in 
question  made  it  a  real  burden;  for  on  the  question  whether  past -due 
composition  is  in  the  general  case  a  dehitum  fundi,  Ld.  J.-Cl.  Moncreitf 
indicated  his  agreement  with  Ld.  Ormidale,  who  dissented. 

As  relief  and  composition  alike  were  the  price  paid  by  a  new  vassal 
for  his  entry,  the  Conveyancing  Act,  by  declaring  infeftment  in  lands 
eqinvalent  to  entry  with  the  superior,  would  implicitly  have  abolished 
these  casualties.  But  as  it  was  not  the  purpose  of  the  Act  to  affect 
the  pecuniary  rights  of  superiors,  it  provided  that  the  implied  entry 
should  neither  prejudice  tiie  superior's  right  to  casualties,  feu-duties,  or 
arrears,  nor  make  him  entitled  to  tlieni  sooner  than  he  would  have  been 
under  the  old  law  (37  &  38  Vict.  c.  94,  s.  4  (3)). 

Under  the  old  law  the  casualty  of  relief  or  of  composition  only  became 
due  when  the  vassal  demanded  an  entry  or  the  superior  forced  him  to  take 
one  by  raising  an  action  of  declarator  of  non-entry.  So  long  as  the  vassal 
was  content,  and  was  permitted,  to  depend  on  a  base  title,  the  superior  had 
only  "a  claim  which  must  be  made  effectual  l)y  an  action"  (Ersk.  ii.  5.  29). 
On  the  principle  that  the  new  action  of  declarator  and  for  payment  of  a 
casualty  comes  exactly  in  place  of  the  declarator  of  non-entry,  Ld.  Curriehill 
held,  in  Lciih  Heritages  Co.  (1876,  13  S.  L.  R  731),  that  a  clause  of  relief 
binding  the  seller  to  relieve  the  purchaser  of  all  casualties  due  at  its  date 
did  not,  although  the  seller  had  been  impliedly  entered  and  had  paid  no 
casualty,  entitle  the  purchaser  to  relief  from  a  composition  subsequently 
demanded,  on  the  ground  that  the  composition  was  not  due  at  the  date  of 
the  disjjosition.  That  opinion  was  overruled  by  the  case  of  Straiton  Estate 
Co.  (1880,  8  Pt.  299;  Fanjuhar,  6  S.  L.  T.  45:!).  In  this  case,  as  in  the 
former  one,  an  impliedly  entered  vassal  who  had  paid  no  casualty  granted 
a  disposition  of  his  land  binding  himself  to  the  disponees  in  relief  of  all 
casualties  due  prior  to  the  date  of  entry.  In  the  preceding  case  of  Sivriglit 
(1879,  5  P.  922)  the  singular  successor  had  been  found  liable  for  the 
casualty,  but  in  Straiton  it  was  held  that  tlie  casualty  became  "  due  and 


SUrEKIOIUTV  171 

exigible"  on  Llie  death  of  the  hist  vassal  who  hail  p;ii<l  a  caHUullv,  and  UaL 
the  singular  successor  was  entitled  to  iflief.  Thus  the  itii-sfut  law,  whirh 
hardly  tallies  witli  tlie  old,  seems  to  be  as  slated  by  lA.  Currieliill  in 
Sfcunrt  (1882,  19  S.  L.  11.  G40,  at  p.  G.")!):  "The  casualty  becomes  a  debt 
due  by  the  new  vassal  from  the  nioment  of  his  imidicd  entry,  or  ....  from 
the  date  of  the  death  of  the  last  vassal  ....  wliere  he  survived  tbe 
date  of  the  new  vassal's  infeftment." 

Under  the  old  law  a  purchaser  was  entitled,  before  accepting  a  ilisposilion, 
to  conijiel  the  selh-r  to  enter  {0((rdi)irr,  1790,  Mor.  loOoT).  Similarly,  since 
187-1  the  puiciiaser  may  compel  the  seller  to  pay  a  casualty  due  by  bim 
(Lawrie,  1876,  8  li.  305,  in  note).  In  tStr((iton  the  judges  h(dd  that  tlie  pur- 
cliaser  does  not  lose  this  right  by  accepting  and  registering  a  disposition,  at 
least  if  it  contains  a  clause  of  relief.  Ld.  Shand  and  Ld.  Young  expressed 
the  view  that  the  result  would  have  been  the  same  though  there  had  been  no 
clause  of  relief,  but  this  was  not  decided.  Another  question  touched  on 
in  this  case  was,  whether  a  purchaser  who  under  the  old  law  had  accepted 
a  disposition  from  an  unentered  proprietor  and  then  entered,  paying  a 
casualty,  could  demand  relief,  on  tbe  ground  that  the  casualty  had  been 
exigible  from,  if  not  due  by,  the  seller.  Professor  ]5ell  seems  to  have  tbougbt 
that  in  such  circumstances  the  purchaser  would  have  been  entitled  to 
relief,  at  least  if  his  disposition  contained  a  clause  of  relief  (Cell,  Led.  G91), 
but  the  point  must  be  regarded  as  open  (see  Ld.  Justice  -  Clerk,  8  I.', 
p.  300,  Ld.  Shand,  p.  313). 

Closely  connected  with  the  question  of  the  date  when  casualties  become 
due  is  that  of  the  year  the  rent  of  which  is  to  be  taken  as  their  measure. 
Tiiere  are  four  decisions  on  this  point,  in  two  of  which  (Sivrii/ltt  and 
Canrpbcll,  infra)  the  defender  was  not  infeft  till  after  187-1,  while  in  the 
other  two  \Stcuart  and  Houston,  infra)  he  was  infeft  before  that  date, 
and  became  entered  by  the  Conveyancing  Act  at  its  commencement.  In 
Slvright,  1879,  6  K.  1208,  the  subject  fell  into  non-entry  in  1872;  in  1874 
the  last-entered  vassal's  trustee  became  impliedly  entered;  in  1870  the  de- 
fenders became  infeft,  and  so  entered;  in  1877  the  superior  raised  action. 
It  was  found  that  neither  the  year  of  the  demand  nor  that  of  tlie  defenders" 
infeftment  was  the  proper  criterion,  but  that  it  was  equitable  to  take  as 
the  basis  of  calculation  the  average  rent  of  three  years  ]«receding  Whit- 
sunday 1874,  the  year  in  which  the  subjects  ceased  to  be  in  non-entry. 
This  case  was  complicated  by  the  subjects  being  chiefly  minerals,  and  ijie 
grounds  of  decision  are  not  very  clear.  The  decision  in  Campbell  (1874, 
22  S.  L.  li.  292)  proceeded  on  a  different  rule.  There  the  last-entered 
vassal  died  in  1837.  His  trustees  became  entered  in  1874  by  the  oi)eralion 
of  the  Act,  and  in  1870,  without  having  paid  a  casualty,  conveyed  to  the 
defender,  who  became  infeft  and  entered  in  that  year.  The  last  surviving 
trustee  died  in  1870.  In  1883  the  superior  demanded  two  casuallies,  both 
according  to  the  rental  of  that  year:  the  one  for  the  trustee's  entry  in 
1874,  the  other  in  respect  of  his  death  in  1870.  After  the  decision  \\\ 
Mounscy  {Infra)  the  claim  for  tlie  first  casualty  was  withdrawn,  so  the 
only  question  which  remained  was  that  of  the  year's  rent  to  be  taken. 
It  seems  that  the  only  two  years  urged  in  argument  wore  1883  and  18,0, 
neither  of  them  being  the  year  selected  in  Sivrijld.  U\.  Fraser  decided  in 
favour  of  1870,  on  the  ground  that  it  was  the  rent  of  the  year  of  entry 
which  was  taken  under  the  oUl  law,  and  should  be  under  the  new. 

Turning  to  the  second  pair  of  cases,  in  Stmart  (1882,  10  S.  L^IJ.  ••40) 
the  circumstances  were  that  the  last-entered  vassal  died  in  187;'»;  that 
the   defender   was   infeft   in    1809  and    consequently     became   nnpliedly 


172  SUPEKIOPJTY 

€Dtered  iu  1874;  and  tliat  iu  1880  the  superior  raised  action  for 
payment  of  the  rent  of  that  year  as  the  casualty  due.  It  was  held  by  Ld. 
<Jurriehill,  and  acquiesced  in,  that  the  casualty  due  was  the  amount  of 
the  rent  of  1873 ;  but  it  must  be  said  that  his  reasoning  mainly  points 
to  1874,  the  year  indicated  by  the  case  of  Sivright  {supra).  The  last 
decision  on  this  subject  is  that  of  Houston  (1892,  19  E.  524).  In  it  the 
defender  became  infeft  in  1873,  at  which  time  the  lands  were  held  to  be  in 
non-entry,  and  entered  by  operation  of  the  Conveyancing  Act  in  1874. 
Thus  the  circumstances  were  substantially  those  of  Stcuart ;  but  here  the 
question  was  directly  raised  between  the  year  of  the  defender's  implied 
entry  and  the  previous  date  at  which,  under  the  old  law,  an  action  of 
declarator  of  non-entry  would  have  become  competent.  The  Court,  holding 
that  the  eftect  of  the  Act  on  infeftments  taken  prior  to  its  commencement 
was  the  same  as  if  a  writ  of  confirmation  had  been  crranted  at  that  date, 
decided  that  1874  was  the  proper  date.  A  case  where  the  last  vassal  who 
paid  a  casualty  did  not  die  till  after  the  implied  entry  of  the  defender  has 
not  arisen. 

Though  more  than  one  vassal  has  been  impliedly  entered  since  the 
death  of  the  last  vassal  who  paid  a  casualty,  the  vassal  who  is  entered 
when  the  demand  for  casualty  is  made  is  entitled,  on  paying  a  casualty,  to 
the  full  immunities  of  a  vassal  entered  under  the  old  law  {Mounsaj, 
1884,  12  E.  23G).  In  Mounsi:ys  case  the  lands  fell  into  non-entry  in 
1871.  James  Miller,  who  had  become  infeft  iu  1867,  became  impliedly 
entered  at  the  commencement  of  the  Conveyancing  Act,  and  thereafter 
sold  to  the  defender  Palmer,  wlio  became  infeft,  and  so  entered  so, 
in  1875.  In  1883  the  superior  demanded  and  received  a  casualty 
"payable  ...  on  the  death  of  the  last-entered  vassal  in  1871."  Miller 
died  in  1883,  after  the  superior  had  made  his  fir.st  demand.  There- 
upon the  superior  demanded  another  casualty  from  Palmer;  but  to  this 
it  was  found  that  he  had  no  right,  as  Palmer,  when  he  paid  the  casualty 
first  demanded,  would  have  been  entitled  under  the  old  law  to  a  charter 
by  progress  in  his  own  favour.  As  a  superior  cannot  demand  casualties 
sooner  under  the  Conveyancing  Act  than  Ibrmerly  (s.  4  (3)),  no  casualties 
can  fall  in  respect  of  implied  entries  during  the  life  of  a  vassal  who 
has  paid  a  casualty  (Ld.  Shand,  at  p.  246 ;  Ld.  Mure,  248 ;  Bell,  Prin. 
723).  Further,  under  the  old  law,  tliough  several  transmissions  took 
place  while  the  fee  was  in  non-entry,  the^superior  was  entitled  to  only 
one  casualty,  and  that  from  the  disponee  entered  when  the  demand  was 
made  (Bell,  Prin.  ib.):  nor  could  he,  at  least  w^ithout  express  stipulation, 
demand  arrears  of  casualties  payable  in  respect  of  bygone  entries  (supra). 
But  now  that  all  disponees  infeft  are  entered  vassals,  and  an  exigible 
casualty  becomes  a  debt  due  by  them  as  at  the  date  of  their  implied  entry 
(supra),  the  question  might  arise  whether  the  superior  has  a  direct 
claim  for  payment  of  a  casualty  against  a  person  who,  having  been  im- 
pliedly infeft  after  the  death  of  the  last  vassal  who  paid  a  casualty  without 
hnnself  paying  a  casualty,  has  alienated  the  lands  before  the  demand  was 
made.  Such  a  demand  is  quite  distinguishable  from  that  in  Mounscys  case, 
but  on  principle  it  does  not  seem  likely  to  be  successful  (Ld.  Mure  in 
Mounscy,  atp.  248.)  Thus  the  law  stands  that  one  casualty  is  payable  by 
the  vassal  impliedly  entered  when  a  casualty  is  exigible  and  demanded 
{Sivright,  Mounscy,  supra);  that  a  casualty  becomes  due  at  the  date  of 
death  of  the  last  vassal  who  has  paid  a  casualty  by  the  vassal  then 
impliedly  entered;  that  its  measure  is  the  rent  of  the  year  of  the  vassal's 
implied  entry,  unless,  probably,  in  cases  where  the  last  vassal  who  paid 


SUPERIOIUTY  173 

a  casualty  was  alive  at  that  date  ;  and  that  a  vassal  payinrr  a  casuultv 
is  entitled  to  relief  against  his  author  from  whom  a  casualty  was  exi"ible 
at  least  if  he  has  a  clause  of  relief  in  his  disposition.  In  tliis  °state' 
of  the  law  a  difficulty  arises  in  connection  with  tlie  riglit  of  relief,  since  a 
later  vassal  may  have  to  pay  a  casualty  larger  than  his  predecessor  would 
himself  have  been  liable  for.  It  is  true  that  under  the  old  law  where  an 
obligation  to  relieve  of  any  casualty  subsequently  demanded  had  been 
effectively  constituted,  a  sinular  difficulty  might  equally  well  occur.  But 
since  it  has  been  held  that  under  the  Conveyancing  Act  a  casualty  of 
composition  constitutes  a  fixed  debt,  this  rather  points  to  the  conclusion  that 
the  rent  of  the  year  when  the  casualty  first  became  demandable  should 
regulate  its  amount  whenever  it  may  be  paid  (see  Siraiton  and  Steuart, 
supra). 

Before  the  commencement  of  the  Conveyancing  Act  it  was  competent, 
when  lands  fell  in  non-entry,  for  a  proprietor  infeft  in  the  dominmm  utile 
on  an  a  me  vel  dc  me  charter, — i.e.  holding  as  a  sub-vassal, — to  put  forward 
the  heir  of  the  deceased  vassal  or  mid-superior,  if  he  consented  {Douglas^ 
1769,  M.  15035),  thus  incurring  the  expense  only  of  a  relief  instead  of  a  com- 
position ;  and  the  superior  was  bound  to  receive  the  heir  (Bell,  Prin  712  • 
Hill,  1824,  2  S.  681 ;  Piggot,  1829,  8  S.  213).  This  has  been  altered  by  the 
Conveyancing  Act.  The  disponee  is  now  in  the  position  of  a  vassal  con- 
tirmed  by  the  superior,  who  consequently  could  not  at  common  law  have 
put  forward  his  author's  heir.  Also  the  defeasible  mid-superiority  to 
which  the  heir  formerly  entered  is  abolished  (37  &  38  Vict.  c.  94,  s.  4 
(2)).  Therefore  whether  his  infeftment  was  prior  or  posterior  to  the  com- 
mencement of  the  Act,  the  disponee  who  is  infeft  is  now  liable  for  a 
composition  though  the  heir  be  willing  to  enter  (Fcrrier's  Trustees,  1877, 
4  R  738 ;  Possmores  Trs.,  1877,  5  1(.  201 ;  Sivright,  1878,  5  E.  922).  At 
common  law  the  fact  that  trustees  held  for  the  heir  did  not  exempt  them 
from  payment  of  composition  if  they  entered  {Grindlay,  18  Jan.  1810, 
F.  C. ;  cf.  Kcill,  1882,  19  S.  L.  B.  827).  When  trustees  could  no  longer  be 
infeft  and  yet  unentered  {Lamont,  1879,  6  R  739  ;  aff.  1880,  7  B.  (H.  L.)  10) 
this  was  felt  to  be  a  hardship,  to  remedy  which  it  has  been  enacted 
(1)  that  where  a  trust  is  created  under  which  heritable  estate  is  to  be 
conveyed  to  the  testator's  heir  immediately,  or  within  twenty-five  years,  or 
by  virtue  of  which  the  heir  has  the  ultimate  beneficial  interest  in  the 
estate,  the  trustees  shall  not  be  liable  for  more  than  an  heir's  casualty 
because  of  their  entering  or  of  their  having  entered  prior  to  the  Act,  by 
infeftment  or  otherwise;  (2)  that  the  heir,  on  entering  thereafter — i.e. 
after  the  trustees  have  entered  and  paid  relief — shall  not  be  liable  for  any 
casualty  ;  and  (3)  that,  whether  he  enters  or  not,  another  casualty  shall 
be  exigible  on  his  death  as  if  he  had  been  entered  (50  &  51  Yict.  c.  69,  s.  1), 
The  rubric  in  the  case  of  Stuart  (17  E.  85),  to  the  effect  that  this  section 
is  not  retrospective,  is  hardly  accurate.  Tlie  terms  of  the  section  certainly 
bear  to  be  retrospective.  In  Stuart  the  Lord  Ordinary  (Ld.  Ivinnear) 
merely  held  that  the  Act  had  no  bearing  on  that  action,  because  it  had 
been  raised  before  the  Act  passed,  and  in  the  Inner  House  the  point  was 
not  referred  to. 

A  trust  for  special  purposes,  e.g.  for  payment  of  debts  {Ilunth/,  1887, 
14  E.  1091),  or  to  secure  a  hferent  {Hope,  1883,  10  E.  1122),  is  regarded  as 
a  mere  burden.  The  radical  right  remains  with  the  granter,  and  con- 
sequently the  trustees,  though  infeft,  are  not  liable  for  any  casualty  during 
the  truster's  life,  and  on  his  death  his  heir  may  enter  (Camphell,  Mor.  App. 
"  Adjud."  No.  11  ;  Gilmour,  1873,  11  M.  853 ;  M'Millan,  1831,  9  S.  551 ;  atl'.. 


174  SUPEPilOHITY 

1834,  7  W.  A:  S.  441 ;  Limhai/,  G  D.  771 :  Home,  1887,  1".  li.  193 ;  Huntbj, 
supra;  Hope,  supra).  Further,  any  trustee  or  other  disponee  may  put 
forward  the  heir  so  long  as  he  himself  is  not  infeft  (D.  Haniilton,  1883,  10  11. 
1117  :  Xcill,  1882,  19  S.  L.  E.  827  ;  see  Ld.  Shand  in  Rossmorcs  Trs.,  supra). 

If  the  vassal  infeft  in  the  lands  when  a  casualty  is  due  and  demanded, 
be  the  heir  alioqui  succcssu.rus  of  the  last  vassal  who  paid  a  casualty, 
he  is  liable  only  for  relief,  although  he  takes  the  estate  under  a  mortis 
caiisa  disposition  from  his  ancestor,  and  makes  up  his  title  in  a  form 
appropriate  to  a  singular  successor.  The  earliest  cases  on  this  point  arose 
in  connection  with  entails.  "When  a  deed,  whether  a  strict  entail  {q.r.) 
or  not,  contains  a  destination,  then,  once  the  destination  has  been  re- 
cognised by  the  superior,  the  heirs  of  provision  under  it,  and  not  the 
vassal's  heirs-at-law,  are  heirs  in  a  question  with  the  superior.  The  destina- 
tion was  recognised,  or,  as  it  is  called,  enfranchised,  by  the  superior's  granting 
a  charter  containing  or  confirming  it,  as  he  was  bound  to  do  on  receiving  a 
casualty  of  composition  from  an  institute  or  substitute  under  the  destination 
(Stair,  li.  3.  43  ;  Ersk.  ii.  7.  7  ;  Bell,Zal  ii.  1142  :  D.  Hamilton,  1^21, 6  S.  94  ; 
Stirlimj,  1842,  4  D.  G84;  Advocate-General,  1854,  17  D.  21  ;  cf.  Ld.  Watson 
in  Johnstone,  infra,  19  IJ.  (H.  L.)  at  p.  42  ;  see  also  Heriofs  Hospital,  1884, 1 2 
II.  30;  Mafjs.  of  Musselburgh,  1809,  Mur.  15038).  Since  1874  a  destination 
in  a  recorded  disposition  is  enfranchised  when  a  vassal  pays  a  casualty 
in  circumstances  in  which  under  the  old  law  he  w^ould  have  been  entitled  to 
a  charter  containing  that  destination  {Lord  Advocate,  1894,  21  H.  553).  The 
casualty  properly  due  is  composition,  but  if  the  superior  chooses  to  re- 
cognise a  vassal  as  holding  under  a  new  destination  for  a  smaller  casualty, 
the  investiture  is  nevertheless  enfranchised  (ib.).  On  the  other  hand,  it 
has  long  been  law  that  a  vassal  in  right  of  lands  under  a  new  investiture, 
and  also  heir  under  the  recognised  investiture,  is  entitled  to  enter  as 
heir,  leaving  unrecognised  the  new  investiture,  on  which  liis  personal 
title  depends  (Mackenzie,  1777,  Mor.  15053,  App.  "Sup.  and  Vas."  No.  2; 
Marquess  of  Hastings,  1859,  21  D.  871).  The  same  rule  applies  where  the 
singular  title  under  which  a  vassal  alioqui  succcssurus  has  right,  is  a  simple 
disposition  mortis  causa  {Macldntosh,  188G,  13  E.  692).  On  the  other  hand, 
if  during  the  life  of  an  entered  vassal  a  new  investiture  has  been  constituted 
in  the  person  of  his  heir  (on  these  cases  see  Ld.  Watson  in  Johnstone, 
supra,  19  E.  (H.  L.)  at  p.  42),  tlien,  for  the  same  reason  for  which  the  heir 
could  not  have  been  put  forward  if  the  new  investiture  had  been  in  some 
third  party,  he  can  only  enter  as  a  singular  successor  on  payment  of 
composition  {Stuart,  1889,  16  E.  1030;  Ferriers  Trs.,  supra). 

If  the  vassal  from  w^hom  the  casualty  is  demanded  being  the  heir  of  the 
last  proprietor,  is  infeft  on  a  disposition  from  that  ])roprietor's  trustees,  he 
is  liable  as  a  stianger  for  composition,  although  the  trustees  have  paid 
composition,  if  his  ancestor  has  not  been  expressly  entered,  or  paid  a 
casualty  {Johnstone,  1891,  18  E.  587;  aff.  1892,  19  E.  (H.  L.)  39).  Jiut  if 
his  ancestor  has  been  expressly  entered,  or  has  paid  a  casualty,  his  lial)ility 
depends  on  whether  or  not  the  trust  has  created  a  new  investiture  {Stuart, 
1889,  17  E.  85).  Tlie  heir  has  been  held  liable  in  relief  only  when  the 
trustees  have  never  been  infeft  {Hope,  1883, 10  E.  1122 ;  Atholc,  1890,  17  E. 
724),  or  when,  though  they  have  taken  infeftment,  the  trust  is  only  a  burden 
on  the  fe^e  of  the  estate  {Stuart,  supra,  17  E.  85  ;  Hope,  supra;  Atholc,  1890, 
17  E.  733).  The  rule  was  thus  stated  l)y  the  Ld.  President  in 
Stuart  (17  E.  p.  96) :  "  It  appears  to  me  that  if  there  was,  by  virtue  of 
that  trust-disposition,  a  disinherison  of  the  defender,  he  could  not  now  serve 
as  heir  in  special  to  his  father,  although  by  the  operation  of  the  trust  and 


SUrEIMoitlTY  ,^ 


subsequent  events  it  has  come  to  l.e  a  ivsullin^r  tnist  in  favour  of  the  heir 
as  a  benehciary  under  the  trust.  If  the  h.ir  can  now  ch.ini  the  estat.-  "nil 
as  a  benehciary  under  the  trust,  then  his  character  as  h.-ir  is  l'uuc      I'.nf  ir 


Ins  ri,<,'hts  as  heir  have  only  been  suspended  or  burdened  by  the  oiK-ration  of 
the  trust,  and  all  the  ])ur|)oses  of  the  trust  have  faile.l,  then  his  radicil  title 
of  heir  has  not  been  extinguished."  (See  Ld.  Wats..n,  in  Ju/n,st,.ne  s„,,ra  ) 
The  amount  actually  payable  for  an  untaxed  composition  is  the  rent  of 
the  lands  sul)ject  to  certain  deductions  (Er.sk.  ii.  7.  7;  liell  Com  i  23* 
Bell,  Fvin.  72U).  Various  (piestions  have  arisen  as  to  wi.at  the  j.roiier  rent 
of  the  land  is.  It  has  been  ar-ued  that  the  casualty  shonld  amount  only  to 
a  ground-rent  {Anderson,  infra) ;  but  it  is  now  settled  that  ils  mea.sure 
when  the  lands  are  under  lease,  is  the  rent  payable,  whether  liie  "round 
be  built  on  or  not  (Hcriofs  Ro-yntal,  1715,  Mor.  7998  :  Anderson  \8'H  3  S 
3:34;  Aitehison,  1775,  Mor.  ]50G0,  5  Ur.  Sup.  Gl.'?5).  If  the  land.i  are  ili'the 
vassal's  own  possession,  the  amount  of  the  casualty  is  the  actual  value  ic 
the  rent  which  could  have  been  obtained  {Ld.  Blantijrc  v.  Dunn,  18.".8,  liO  L) 
1188).  Prospective  alterations  in  the  value  are  not  to  be  taken  intVcon- 
siileration.  After  a  piece  of  pasture  land  had  been  disponed  under  ground- 
annual  for  building,  the  casualty  was  taken,  for  the  pur])ose  of  redemption,  at 
the  agricultural  value  {Ncilston  School  Board,  1887, 15  II.  44).  If  from  their 
nature  the  subjects  have  not  a  letting  value  in  the  market,  the  Court  will 
take  means  to  ascertain  their  true  value  {Hill,  1877,  5  E.  386 ;  J/'Zarcn, 
188G,  13  K.  580).  In  IliU's  case  there  was  demanded  as  composition  for  part 
of  a  line  of  railway,  its  value  as  ascertained  for  assessment  purjioses  ;  but  tlie 
Court  held  that  this  was  inequitable.  The  price  paid  for  the  land  in  question, 
less  the  additional  price  paid  in  respect  of  compulsory  purchase  and  damages 
for  severance,  added  to  the  cost  of  constructing  the  part  of  the  raihvay°on 
that  land,  was  taken  as  the  capital  value  of  the  subjects.  On  this  four  per 
cent,  was  allowed,  deductions  being  made  for  feu-duty,  i)ublic  burdens,  and 
maintenance  from  the  result  so  obtained.  Opinions  have  been  expressed 
that  the  valuation  roll  may  be  accepted  as  evidence  of  the  value  of  sucli 
subjects  as  a  lunatic  asylum  {M'Larcn,  cit.).  If  there  are  min.-rals  in  tlie 
lands  which  are  let  or  worked  by  the  vassal,  their  \-aIue  is  to  be  conii)uted 
{M'Laren,  cit.-,  Allans  Trs.,  1878,  5  E.  510).  In  the  case  of  Sivrifjht 
V.  Straif/hton  Estate  Co.  (1879,  6  R.  1208),  where  the  vassals  were  them- 
selves working  the  minerals,  the  method  followed  was  to  take  four  jter 
cent,  on  the  capital  value  of  the  minerals,  calculated  liy  taking  ten  years' 
purchase  of  the  average  annual  value  of  the  minerals  for  three  years,  as 
shown  by  the  valuation  roll.  It  has  been  suggested  from  the  beiich  that 
where  minerals  are  being  worked  by  a  tenant"  it  would  also  in  general  be 
equitable  for  this  purpose  to  ascertain  the  capital  value  of  the  minerals, 
.and  take  a  percentage  thereon  (.4//a«,  siq)ra,  at  p.  522).  But  it  has  been 
found  that  where  minerals  let  for  a  fixed  rent  were  being  very  slightly 
worked,  the  fixed  rent  should  be  taken  as  their  yearly  value  (Stinrock, 
1880,  7  11.  799).  In  ascertaining  the  amount  of  the  rent  for  the  purpose  of 
payment  of  a  casualty  only  those  hxtures  arc  considered  part  of  tlie 
subjects  which  wouhl  go  to  the  landlord  in  a  question  with  Ids  tenant. 
Thus  rent  effeiring  to  trade  fixtures  is  not  computed  {Marshall,  18SG,  13  IJ. 
1042).  The  value  of  shootings  must  be  included  not  oidy  if  they  are  let,  but 
also  if,  though  unlet,  they  are  of  such  value  that  they  might  bring  a  rent 
{Stewart,  1881,  8  li.  381).  No  rule  has  been  formulated  for  tlie  estimation 
of  their  value  in  the  latter  case.  An  average  of  the  rents  for  the  ])reccding 
seven  years  has  been  accepted  as  the  value  of  grass  lands  and  salmon 
fishings  which   were  annually  let  {Marjs.  of  Lirerness,  1771,  Mor.  9300). 


170  SUrEKIOEITY 

If  lands  have  been  sub-feued  for  a  fair  return,  the  coni])osition  payable 
from  them  is  the  feu-duty  payable  by  the  sub-vassal,  or  that  feu-duty 
tof^etla-r  with  interest  on  any  grassum  paid  to  the  vassal  for  the  sub-feu. 
No  allowance  is  made  for  bygone  untaxed  entries ;  but  it  is  undecided  what 
would  be'the  eflect  of  a  composition  being  demanded  by  the  over-superior 
for  tlie  year  in  which  a  casualty  fell  due  to  the  mid-superior  (lioss,  G  June 
1815,  F.  C;  atfd.  1820,  6  Pat.  G-40 ;  Camj^hell,  1832,  10  S.  734;  see 
Camphdi,  22' S.  L.  E.  292 ;  Menzies,  526).  Before  1874,  if  the  sub-feu  was 
terminated  by  consolidation,  the  vassal  became  liable  for  the  full  rents  of 
the  lands,  but  since  the  commencement  of  the  Conveyancing  Act  no  con- 
solidation' can  extend  or  in  any  way  affect  the  rights  of  over-superiors 
(37  &  38  Vict.  c.  94,  s.  7).  When  a  tenant  under  lease  purchases  the  lands 
in  which  he  is  tenant,  the  lease  falls  confusionc,  and  thereafter  the  amount 
payable  as  composition  is  not  the  rent  under  the  lease,  but  the  actual  value 
of  the  lands  {Id  BlanUjrc,  1858,  20  D.  1188). 

The  casualties  of  relief  and  composition  may  be  taxed.  A  taxing  clause 
is  properly  introduced  as  a  qualification  of  the  reddendo  in  the  vassal's  title, 
but  may  be  made  a  Imrden  on  the  title  of  the  superior  {Lrar month,  infra). 
Under  a  taxative  clause  in  the  form,  "  doubling  the  said  feu-duty  the  first 
year  of  the  entry  of  each  heir  or  singular  successor  to  the  lands  as  use  is  of 
feu-farm,"  or  in  words  of  similar  import,  the  new  vassal  will  only  pay, 
above  the  current  year's  feu-duty,  the  amount  of  one  feu-duty.  But  he 
is  liable  for  two  extra  feu-duties,  if  the  clause  be  conceived  in  tlie 
form,  "doubling  the  said  feu-duty  the  first  year  of  the  entry  of  each  heir 
or  singular  successor  to  the  lands,  besides  paying  the  feu-duty  of  the  year 
in  which  such  entry  shall  take  place,"  or,  "  paying  a  duplicand  of  the 
said  feu-duty  over  and  above  the  feu-duty  of  the  year  on  the  entry  of  each 
heir  or  singular  successor"  (Bell,  Let.  635;  cf.  L'heyne,  5  S.  L.  T.  No.  38). 
A  taxing  clause  is  construed  strictly  in  the  superior's  favour,  and  will  not 
benefit  singular  successors  unless  it  clearly  includes  them  (Bell,  Frin.  ^iTi  ; 
Lines,  1822,  1  S.  518).  If  it  bear  to  be  in  favour  of  "assignees,"  it  has 
Iteen  held  not  to  extend  to  disponees  after  infeftment  (Bell,  Lrin.,  supra  ; 
Bell,  Let.  1149  ;  Menzies,  600).  A  more  liberal  interpretation  prevailed  in 
a  recent  case,  but  only  on  the  terms  of  the  deed  in  question  {D.  Montrose, 
1887,  14  R  378).  A  "taxed  entry  is  generally  made  payable  not  only  on 
the  death  of  each  entered  vassal,  but  on  the  entry  of  each  heir  or  singular 
successor.  If,  in  conjunction  with  such  a  taxing  clause,  there  is  a  stipu- 
lation that  heirs  and  singular  successors  shall  be  infeft  and  entered  within 
a  given  time  after  succession  or  purchase,  fenced  by  an  irritancy,  the 
casualty  will  be  demandaljle  from  each  new  vassal  though  the  preceding 
vassal  is  alive  {Bbh  Lander,  1890,  17  R.  320).  It  has  not  been  decided 
whether  the  superior  could  succeed  if  he  had  to  depend  on  the  obligation 
to  enter,  unfortified  by  an  irritant  clause  {Dick  Lauder,  sujmi;  cf.  Morrison, 
5  li.  800,  where  this  point  was  not  raised).  A  prohibition  of  subin- 
feudation, though  fenced  with  an  irritant  clause,  does  not  make  a  casualty 
payable  on  each  transmission,  as  under  the  old  law  a  new  vassal  could  not 
have  been  compelled  to  enter  till  his  predecessor's  death  {Morris,  1877,. 
4  R.  515). 

Belief  is  a  dchitum  fundi  in  any  case  (Ersk.  ii.  5.  50);  but  it  is 
doubtful  whether  composition  is  so,  except  wlicn  it  is  taxed  {Morrisoii'.'< 
Trs.,  1878,  5  B.  800;  Steicart,  1880,  8  B.  270).  Before  1874  this  was 
not  of  so  great  significance,  since  it  was  hardly  possible  for  a  vassal 
to  be  entered  without  paying  his  casualty,  and  no  casualty  was  due 
from  one  who  remained  unentered.     But  in  Morrisons  2Vs.  {sujyra),  it  was. 


SUrEUIOKlTY  177 

decided  that   where  two  vassals  had  been   iiiipHedly  entered  under  the 

Conveyanciiiff  Act  without  a  composition   Imviut,'  been  paid,  the  sui  ■ 
was  eulillcd  to  poind  the  grouml  in  the  iiands  of  the  second  va-    -^  '   :  is\,j 
casualties.     The  feu-contract  in  question  expressly  made  the  ta:-  mliy 

a  deUtam fundi,  and  the  judgment  proceeded  largely  on  that  ground;  but 
the  opinions  expressed  were  such  as  to  imply  that  by  means  of  implied 
entries  under  the  Act,  casualties  wiiich  are  dchita  fundi,  and  c<tn>-e(iuenily 
relief  duties,  may  accumulate  as  real  Ijurdens,  though  the  vassal  in  pobses- 
sion  is  personally  liable  for  one  casualty  only  {swpra). 

Superiors  were  never  obliged,  except  under  express  stipuhiiion,  to 
enter  corporations  {Ilill,  17  Jan.  1815,  F.  C;  Campbell,  184:'.,  5  I).  1273- 
Learmonth,  1854,  IG  I).  580),  or  a  body  of  trustees  having  perpetual 
succession  (Bell,  Z^^d.  ii.  114G).  If  they  did  so,  they  lost  their  ri"ht  to 
casualties  in  perpetuity,  even  after  singular  successors  became  entered 
under  the  Conveyancing  Act  of  1874  {IFcriot's  Trust,  1890,  17  II.  937; 
E.  Lauderdale,  1897,  24  E.  914).  "When  a  corporation  or  a  body  of 
trustees  desired  to  be  entered,  some  arrangement  was  usually  n)ade  for 
})aymcnt  of  casualties  (Menzies,  816  ;  Bell,  Led.  ii.  114G).  As  under  the 
Conveyancing  Act  it  is  impossible  for  superiors  to  prevent  the  entry  of 
corporations,  the  following  provision  has  been  made  by  that  statute  f<*r 
cases  in  which  there  has  been  no  express  stipulation  on  this  point  (37 
&  38  Vict.  c.  94,  s.  5).  (1)  Corporations  or  bodies  of  trustees  are,  in 
cases  where  a  casualty  is  only  due  on  the  death  of  the  last  vassal  who 
has  paid  composition,  to  pay  a  composition  {a)  when  one  would  have 
fallen  due  if  the  Act  had  not  been  passed ;  and  {h)  every  twenty-Hfth  year 
thereafter,  so  long  as  the  lands  are  vested  in  them.  (2)  Where  a  taxed 
composition  is  stipulated  for  on  each  transfer  of  the  property  as  well  as  on 
the  death  of  each  vassal,  corporations  or  bodies  of  trustees  are  to  pay  a 
composition  {a)  on  their  acquiring  the  property,  and  (b)  every  fifteenth 
year  thereafter  so  long  as  the  lands  are  vested  in  them.  (3)  "Where 
corporations  or  bodies  of  trustees  cease  to  be  proprietors  after  having  paid 
composition  in  terms  of  the  section,  {a)  their  successor  who  is  infeft  at  the 
end  of  twenty-five  or  fifteen  years,  as  the  case  may  be,  from  the  last  ]>ay- 
ment,  shall  tiien  pay  a  composition,  and  {h)  the  casualties  shall  thereafter  be 
payable  as  if  the  corporation  or  body  of  trustees  had  never  been  infeft  in 
the  lands.  The  same  section  provides  that  where  a  taxed  composition  is 
payable  on  the  occasion  of  each  sale  or  transfer  of  the  property  as  well  as 
on  each  death,  then  in  case  of  two  persons  having  interest  as  liferenter  and 
fiar  respectively,  or  as  successive  liferenters,  becoming  entered  under  the 
Act,  a  composition,  or  in  the  case  of  parties  interested  irro  indiiiso  a  rateable 
proportion  thereof,  shall  be  due  from  each  person  who  takes  benefit  under 
the  implied  entry  as  he  comes  to  take  the  benefit  comi)etent  to  him. 

The  casualties  of  all  feus  created  prior  to  the  commencement  of  the 
Conveyancing  Act — i.e.  all  casualties  in  the  proper  sense — may  be  redeemed, 
(a)  by  agreement,  and  (h)  compulsorily  at  the  instance  of  the  proprietor  of 
the  feu  or  estate  of  mid-superiority  in  respect  of  which  they  are  payable 
(37  &  38  Vict.  c.  94,  ss.  15-19).  In  the  Litter  case  they  are  redeemable 
by  the  proprietor  of  the  feu  in  respect  of  which  they  are  payable  on  the 
following  terms:  (1)  where  exigible  only  on  the  death  of  a  vassal,  for 
the  amount  of  the  highest  casualty  estimated  as  at  the  date  of  redemption, 
with  an  addition  of  fifty  per  cent.;  (2)  where  exigible  on  each  sale  or 
transfer  of  the  property  as  well  as  on  the  death  of  the  vassal,  for  two  and 
a  half  times  the  amount  of  the  casualty  estimated  as  above;  (3)  where 
consisting  of  a  sum  calculated  as  a  certain  annual  sum  for  r  i-''  v.-ar  since 

S.  E. — VOL.  XII.  ^^ 


17S  SUrEKlOlUTY 

the  last  eiitry,  for  eighteen  times  the  amount  of  that  sum.  Eedemption 
applies  only  to  "  future  and  prospective  casualties."  Ijofore  redemption 
can  be  olVected,  except  by  agreement,  any  casualty  due  at  the  date  of 
redemption,  and  in  the  case  of  annual  sums,  the  amount  of  these  sums 
since  the  last  payment,  must  have  been  paid  (s.  15).  On  payment  or  tender 
of  the  redemption  money,  the  superior  must  grant  a  discliarge,  which  on  being 
ref^isteied  in  the  Itegister  of  Sasines  operates  a  full  discharge  of  the  casualties 
(s.'^lG  and  Sch.  F).  When,  before  discharging  his  casualties,  the  superior 
has  "ranted  a  heritable  security  o\  cr  the  superiority,  it  is  enacted  that  no 
discharge  of  casualties  shall  be  efiectual  without  the  consent  of  the  creditor 
in  the  security  (s.  16).  Tiie  fetters  of  an  entail  are  no  bar  to  redemption 
(s.  18).  In  the  supeiior's  option  the  redemption  money  may  l)e  commuted 
into  an  annual  payment.  Tliis  transaction  must  be  recorded  in  a  memo- 
randum which  requires  to  be  signed  by  the  parties  or  their  agents  and 
registered  in  the  Eegister  of  Sasines  at  the  expense  of  the  party  redeeming, 
whereupon  the  annual  sum  is  to  form  an  addition  to  the  existing  feu-duty, 
with  all  the  legal  qualities  of  feu-duty  (s.  17).  The  consent  of  heritable 
creditors  on  the  superiority  is  not  required  for  commutation.  A  vassal 
infeft  in  the  lands  is  entitled  to  the  benefit  of  the  section,  though  he  has 
never  paid  a  casualty,  so  lung  as  one  is  not  exigible  {Morris,  1877,  4  E. 
515).  A  successor  of  the  vassal  in  part  of  a  feu  may  redeem  the  casualties 
applicable  to  his  own  part,  on  the  basis  of  the  rental  of  that  part  {Edinburgh 
liopcrie  Co.,  1877,4  E.  1032;  affd.  1878,6  E.  (H.  L.)  1),  but  the  vassal 
cannot  redeem  the  casualties  applicable  to  part  of  an  undivided  feu 
{Leslie's  Trs.,  1898,  35  S.  L.  E.  855). 

Liferent  Escheat. — This  casualty  was  common  to  the  tenures  of  Ward, 
Blench,  and  Feu-farm.  The  term  Escheat  means  a  falling  or  forfeiture,  and 
was  originally  applied  to  all  forfeitures  of  the  vassal's  feu  to  his  superior, 
whether  by  recognition,  disclamation,  purpresture,  or  other  breach  of  feudal 
duty  (Ersk.  ii.  5.  53  ;  Menzies,  511).  It  is  now  used  only  of  Single  Escheat 
and  Liferent  Escheat.  The  former  is  a  forfeiture  in  favour  of  the  Crown, 
By  the  latter  a  vassal,  on  denunciation  as  rebel  in  a  criminal  charge  or 
on  escape  after  receiving  sentence  of  death,  except  for  treason,  in  wdiich  case 
the  fee  of  the  estate  falls  under  the  single  escheat,  forfeits  the  liferent  of  his 
lands  during  his  life  to  the  superior,  or  respective  superiors,  if  more  than  one, 
of  whom  he  holds  them  (Ersk.  ii.  5.  57  and  66 ;  Menzies,  526).  Formerly 
the  casualty  also  fell  on  denunciation  for  civil  debt,  but  this  has  been 
abolished  (20  Geo.  ii.  c.  50,  s.  11).  The  liferent  returns  to  the  superior 
subject  to  all  burdens  completed  by  sasine  before  the  vassal's  denunciation 
(Ersk.  ii.  5.  78-9  ;  Menzies,  621). 

Irritancy  of  the  Feu. — Any  stipulation  in  a  feu-charter  may  be  enforced 
by  a  conventional  irritancy,  or  clause  to  the  effect  that  in  the  event  of  a 
breach  the  charter  shall  become  null  (Ersk.  ii.  5.  25).  But  a  legal  irritancy 
is  peculiar  to  the  tenure  of  feu-farm.  It  was  introduced  by  the  Statute 
1597,  c.  250,  by  which  "all  vassals  by  feu-farm  failing  to  pay  their  feu-duty 
for  two  years,  haill  and  together,  are  declared  to  lose  their  right  in  the 
same  manner  as  if  an  irritant  clause  had  been  specially  engrossed  in  their 
charter"  (Ersk.  ii.  5.  26).  A  distinction  used  to  be  drawn  between  the 
effect  of  a  conventional  and  that  of  a  legal  irritancy,  but  this  difference  no 
longer  exists,  at  least  in  connection  with  feus  (Ersk.  ii.  5.  27;  Tailors  of 
Ahcrdeen,  1840,  1  Eob.  296  at  p.  316;  Bell,  Erin.  701).  All  irritancies 
must  be  enforced  by  actions  of  declarator  (Bell,  Prin.  ih. ;  Bell,  Lect.  625), 
and  since  the  passing  of  the  Conveyancing  Acts  Amendment  Act,  1887, 
may  be  purged  till  an  extract  of  the  decree  has  been   recorded    in  the 


SUPEiaOJUTY  179 

appropriate  Eegister  of  Sasines  (oO  &  51  Vict.  c.  GO,  s.  4).  Vr'utr  to  that 
Act  ill!  irritancy  could  not  bo  i)ur^cd  after  extract  (Hell,  J'rin.  ib.; 
Bcllcnclcn,  17U2,  ^lor.  7252).  Lii  order  to  purj^e  an  irritancy  a  •  ' 
need  not  pay  up  arrears  of  feu-duty  accrued  before  the  superior  d-  ;. . 
ing  the  irritancy  became  sujierior,  and  it  is  (juestionable  if  he  need  pay 
arrears  due  to  that  superior  before  he  became  vassal  {Maancell's  Trt., 
1893,  20  E.  958).  There  is  no  decision  of  the  Court  of  Session  ns  to 
whether,  when  interest  on  feu-duty  is  stipulated,  it  must  l)e  paid  for  this 
purpose  {Maxwell's  Trs.,  cit.).  ^Vi^e^e  the  feu-duty  has  fallen  two  years 
in  arrears,  an  action  of  removing  is  competent  in  the  Sherilf  Court  if  the 
value  of  the  subjects  docs  not  exceed  £25  (IG  &  17  Vict.  c.  80,  s.  .'-52),  itnd  also, 
subject  to  removal  by  the  defender  to  the  Court  of  Session  if  the  value  docs 
not  exceed  £50  (40  &  41  Vict.  c.  50,  ss.  8-10).  The  superior  reac(iuire3 
the  feu  free  of  all  burdens  (Ersk.  ii.  5.  70 ;  IJell,  Frin.  701)  and  sujj-feus 
{Cassels,  1885,  12  11.  722;  Sandeman,  1883,  10  11.  614;  rev.  1885,  12  U. 
(H.  L.)  67)  ;  but  must  renounce  all  arrears  of  feu-duty,  the  ratio  being  that 
these  have  not  been  paid  {Hr  Vicar,  1748,  Mor.  15095;  Napier,  1831,  9  S. 
655;  Mags,  of  Edinburgh,  1834,  12  S.  593).  He  is,  on  the  contrary,  entitled 
to  a  composition  due  before  the  irritancy  {Mags,  of  Edinburgh,  supra). 

Such  arc  the  rights,  as  modified  by  modern  IcL^islation,  which  are  either 
essential  or  natural  to  the  feudal  relation  and  so  arise  to  the  supeiior 
without  any  stipulation.  But  in  practice  it  is  almost  invariable  for  the 
legal  position  of  the  parties  to  be  modified  by  the  terms  of  the  feu-right. 
(1)  The  superior  may  reserve  to  himself  the  property  of  part  of  the  estate 
which  would  otherwise  pass  to  the  vassal.  (2)  IJights  nuiy  be  created  on 
either  side  by  stipulation.  (3)  The  superior  may  grant  to  the  vassal  part 
of  his  estate  of  superiority. 

(1)  Beservations,  as  derogations  from  the  granter's  own  deed,  are 
strictly  construed.  A  clause  the  terms  of  wiiich  may  be  .satistied  by 
a  lower  right  will  not  be  held  to  reserve  a  right  of  property  {Heid, 
1891,  18  K.  744).  The  most  common  and  important  reservation  is  that  of 
minerals.  There  should  be  reserved,  first,  the  property  of  the  minerals, 
and  second,  a  right  to  work  them  and  carry  them  away  (Bell,  Led.  i.  009 ; 
Duff,  70  ;  Jurici.  Styles,  i.  18).  The  vassal  is  properly  entitled  to  everything 
svithin  his  boundaries  a  centra  ad  coelum ;  therefore  only  those  subjects  are 
reserved  to  the  superior  which  are  expressly  covered  by  the  clause  {Mcnztcs, 
10  June  1818,  F.  C. ;  afl'd.  1822,  1  Sh.  App.  225;  Duke  of  Hamilton, 
1841,3  D.  1121;  Forth  &  Clyde  Navigation  Co.,  1848,  11  ^D.  122).  The 
meaning  of  the  general  expression  "mines  and  minerals"  has  been  dis- 
cussed in  connection  with  the  Waterworks  and  Railways  Clauses  Acts 
(Mar/istrates  of  Glasgow,  1887,  14  R  346 ;  rev.  1888,  15  W.  (H.  L)  94  : 
Euabon  Brick,  etc.,  Co.,  [1893]  1  Ch.  427 ;  see  Bell,  Frin.  740).  Though 
it  is  a  mistake  not  to  reserve  the  property  expressly,  a  reservation 
of  full  power  to  work  will  be  construed  as  a  reservation  of  ownership 
{Graham,  1869,  7  M.  976;  rev.  1871,  9  M.  (H.  L.)  98;  Duke  of  IL'  '' 
1884,  11  K.  963;  affd.  1885,  12  E.  (H.  L.)  65).  Similarly,  an  t...  . 
reservation  of  power  to  work  the  minerals  should  always  be  inserted, 
though  this  right  would  probably  follow  a  reservation  of  the  property 
{Eankine  on  Landoumership,  160). 

If  a  vassal  works  minerals  which  have  been  reserved,  the  superior  is 
entitled  to  their  market  value,  less  the  cost  of  working,  thou<,di  he  could 
not  himself  have  worked  them  profitably  {David.^07is  Trs.  189o,  23  E.  4o). 
The  superior,  if  he  reserves  the  minerals,  is  liable,  like  all  subjacent  pro- 
prietors, for  the  support  of  the  surface  (see  Minks  and  :\riNKU.\i>s). 


ISO  SUrElilOlUTY 

The  superior  holds  the  reserved  minerals  on  Lis  superiority  title,  and 
may  dispone  them  with  the  superiority  or  separately.  They  do  not,  how- 
eveV,  necessarily  pass  as  a  pertinent  of  a  superiority  in  the  absence  of  a 
reservation  clause :  for  the  Court  will  consider  the  context,  to  discover 
whether    the    minerals    were    meant    to    be    comprehended   {Orr,   1893, 

20K.  H.  L.27).  ,  ^.      ^,      , 

A  personal  privilege  ordinarily  connected  with  the  ownership  of  land, 
for  example,  that  of  fishing,  may  also  be  reserved  {D.  Richmond,  1867,  5  M. 
310).  A  reservation  of  the  deer  that  may  be  found  on  the  lands  is  equally 
competent,  but  has  been  found  not  to  imply  a  right  to  stalk  them  {Hemming, 
1883,  11  K.  93). 

(2)  Conditions. — Collateral  personal  agreements,  binding  on  the  parties 
thereto  and  their  representatives,  may  be  introduced  into  any  conveyance  of 
land ;  but,  except  in  the  case  aftermentioned,  they  do  not  pass  to  singular 
successors  in  the  lands  unless  by  special  assignation  {Home,  1841,3  D.  435  ; 
rev.  1842,  1  Bell's  App.  1,  1  Koss'  L.  C.  55).  On  the  other  hand,  real 
money  burdens  and  real  conditions  run  with  the  lands  (see  Keal  Burden  ; 
Building  Condition).  A  real  burden  in  favour  of  the  granter  of  a  deed, 
whether  an  original  grant  or  a  disposition,  gives  him  a  real  action  against 
the  lands  in  w^hosesoever  hands  they  may  be  {supra).  A  real  condition 
gives  to  the  person  in  right  of  it  a  personal  action  against  the  person 
undertaking  it,  his  personal  representatives  (see  Macrae,  1891,  19  K.  138), 
and  his  singular  successors  in  the  estate  in  the  titles  of  which  it  appears 
{Tailors  of  Aberdeen,  infra). 

The  rules  as  to  the  constitution  of  real  conditions  as  between  granter  and 
grantee  of  ordinary  conveyances  are  laid  down  in  the  case  of  the  Tailors  of 
Aberdeen  (1840,  1  Eob.  296).  But  stipulations  which,  whether  by  force  of 
law  or  by  stipulation,  enter  into  and  form  part  of  the  feudal  contract  as 
such,  though  not  made  real  in  the  ordinary  way,  transmit  against  the 
singular  successors  in  the  superiority  or  property,  as  the  case  may  be,  of 
the  party  undertaking  them,  and  also,  without  special  assignation,  to  those 
of  the  party  in  right  of  them.  As  regards  legally  inherent  conditions, 
reference  may  be  made  to  wdiat  has  been  already  said.  In  the  case 
of  Lennox  (1843,  5  D.  1357,  1  Boss'  L.  C.  95)  a  superior  bound  himself 
by  feu-charter  to  warrant  the  feu  from  all  future  augmentations  of  stipend. 
In  subsequent  charters  by  progress  this  undertaking  was  omitted ;  yet 
more  than  forty  years  after  the  first  omission  the  superior  was  found  liable 
in  relief  to  a  singular  successor  in  the  feu,  on  the  ground  that  the  superior 
"  made  the  obligation  to  relieve  from  augmentations  a  part  of  his  obligation 
as  superior  "  (see  also  Wilson,  1831,  9  S.  357 ;  Clark,  1850,  12  D.  1047).  In 
contrast  to  the  case  o(  Lennox  is  that  of  /S''i7ic/«raV(1844,  6  D.  378  ;  rev.  1846, 
5  Bell,  353,  1  lioss'  L.  C.  70),  in  which  the  circumstances  were  that  a  Lord 
Breadalbane  had  entered  into  a  contract  of  sale,  binding  himself  to  grant  a 
charter  containing  a  clause  of  relief  from  augmentations  of  stipend,  and 
thereafter  granted  a  charter  referring  to  the  obligations  in  the  contract. 
Thereafter,  when  the  superiority  had  passed  to  a  singular  successor,  an 
heir  and  successor  in  the  property  brought  an  action  of  relief,  not  against 
the  superior  at  the  time,  but  against  the  personal  representatives  of  the 
granter  of  the  charter.  In  these  circumstances  the  question  whether  the 
obligation  had  been  imported  into  the  charter  so  as  to  bind  singular 
successors  in  the  superiority  could  not  be  tried ;  and  it  was  found  that 
the  pursuer's  title  did  not  sufficiently  connect  him  with  the  personal 
contract  which  he  pleaded.  The  case  of  Lennox  {cit.)  was  followed  in 
similar  circumstances  in  Stewart  (1860,  22  D.  755;  affd.  1863,  4  Macq.  449, 


surEiaoiaiY  jg^ 


1  M.  (H.  L.)  25).     In  that  case,  which  went  to  the  whole  Court,  the  juduea 

f.jnniiij,'  the  majority  roHtod  tlieir  opinion  on  tlie  <;rouii(l  that  an  obligation 
to  warrant  teinds  free  of  fiitnre  augmentations  was  "a  counterpart  to  the 
obligation  undertaken  by  the  vassal  "  (22  J),  at  p.  781).  and  so,  in  a  (luestiou 
between  superior  and  vassal,  did  not  need  si)ecial  assignation,  and  this  view 
was  indorsed  by  the  House  of  Lords.  Ld.  Kinloch  pointed  out  that  had  the 
defender — the  superior — been  liable  only  as  jjersonul  rej.rescnlative  of  the 
<,M'anter  of  the  charter,  the  pursuer  would  not  have  hail  a  title  to  sue. 
Finally,  a  singular  successor  in  the  superiority  has  been  found  liable  under 
a  similar  clause  of  relief  to  a  singular  succes.sor  in  the  property,  thou'di  the 
obligation  had  not  entered  the  records,  so  that  the  superior  had  no  warnin" 
of  its  existence  {Hope  v.  Hoj^r,  1864,  2  M.  070  ;  see  also  D.  nf  Montrose,  LSH?", 
14  E.  387).  In  the  case  of  Morrison's  Trs.  (1878,  5  If.  800),  though  the  point 
at  issue  was  decided  on  the  terms  of  the  deed  in  question,  the  general  nature 
of  the  superior's  rights  was  discussed.  Ld.  J.-Cl.  ^roncreilf-said :  "If  they 
are  part  of  the  reddendo  of  the  contract,  and  arc  of  the  substance  of 
the  feudal  relation  constituted  by  it  .  .  .  they  did  not  require  to  be 
constituted  real  burdens  in  the  sen.se  applicable  to  collateral  personal 
stipulations."  But  where  such  obligations  are  not  contained  in  a  fcu-right 
but  in  an  obligation  to  feu  (Durie's  Tr.^.,  1889,  IG  li.  1104),  or  in"  a 
disposition  (Home,  supra;  Sjwttisivoode,  1853,  15  D.  458;  see  also  1  lio.ss' 
Z.  C.  50  ct  seq.),  they  do  not  transmit  without  assignation.  A  stipulation  in 
a  feu-right,  binding  as  between  superior  and  vassal,  confers  no  right  on 
disponees  of  other  parts  of  the  superior's  lands  who  are  not  successors  in 
the  superiority  {Stevenson,  1896,  2o  1{.  1079;  see  Moricr,  1895,  2:'.  W.  07). 

The  rights  and  obligations  undertaken  by  superior  and  vas.=al  in  a  feu- 
right  can  only  be  altered  by  charter  of  novodamus,  or  a  chatter  by  progress 
with  a  clause  of  novodamus  (Bell,  Led.  739;  but  see  Lds.  Meilwyn  and 
Murray  in  Graham,  infra,  4  I),  at  p.  491).  A  reservation  not  contained  in 
the  original  right  could  not  be  introduced  by  insertion  in  the  writs  by  pro- 
gress, nor  could  one  contained  in  an  original  right  be  abrogated  by  omission 
from  them  for  any  length  of  time.  When  an  original  charter  contained  a 
reservation  of  minerals,  the  sujierior  was  found  entitled,  on  granting  an 
entry,  to  reinsert  it  after  it  had  been  omitted  from  charters  by  progres.s  for 
a  century  {Hutton,  1863,  2  M.  79).  Again,  when  the  writs  by  progTCSs  had 
contained  a  reservation  in  the  superior's  favour  not  in  the  original  grant  for 
almost  the  same  time,  this  was  found  to  give  the  superior  no  title  to  the 
subject  reserved  {Gralmm,  1842,  4  D.  482;  Thrieptand,  1848,  10  D.  1079; 
cf.  Jamicson,  1870  (H.  L.),  14  S.  L.  R.  198).  In  these  cases  of  reservation 
it  was  observed  that  effective  possession  for  the  prescriptive  period  by  the 
person  having  an  ex  facie  good  title  would  have  given  an  indefeasible  right. 
The  benefit  of  a  taxing  clause  in  a  charter  in  favour  of  "  heirs  and 
assignees"  was  found  not  to  be  extended  to  disponees  after  infeftmcnt, 
though  a  subsequent  charter  of  confirmation  and  novodamus  was  conceived 
in  favour  of  "  heirs  and  assignees  whomsoever  excluding  assignees  before 
infeftnient,"  because  it  did  not  appear  tliat  the  charters  of  novodamus  were 
intended  to  change  the  entry  of  heirs  or  singular  succcs-ors  {Mafju.  of 
InverJceithinr/,  1874,  2  E.  48;  see  also  Hankinc,  1890  (0.  II.),  28  S.  L  B. 
594).  Implied  entry  under  the  Conveyancing  Act  of  1874  "shall  not 
be  held  to  confer  or  confirm  any  rights  more  extensive  than  those  con- 
tained in  the  original  charter  or  feu-right  of  the  lands,  or  in  the  last 
cliarter  or  other  writ  by  which  the  vassal  was  entered  therein  "  (37  &  38 
Vict.  c.  94,  s.  4  (2)).  The  opinion  has  been  expre.'^sed  by  Ld.  Kinnear 
that  under   this  subsection  "  the  implied  entry   must  ...  be   subject  to 


182  SrrKRIOIUTY 

all  the  conditions  and  reservations  by  wliich  a  superior  would  have  been 
entitled  to  quuhfy  an  express  entry  by  progress"  {Lord   Advocate,  1894, 

21  E.  553). 

Various  conditions  in  favour  of  superiors  which  used  to  be  common, 
have  now  come  to  be  of  very  slight  importance,  or  been  made  incompetent. 
Vassals  have  always  had  right,  in  the  absence  of  special  agreement,  to 
prevent  the  superior's  interjecting  another  superior  or  si)litting  the 
superiority,  but  the  superior  may  reserve  power  to  do  so.  The  vassal's 
ri"ht  of  objection  in  either  case  may  also  be  lost  by  his  acquiescence  or  by 
a  contrary  prescription  of  forty  years.  Since  1874  the  vassal  has  little 
interest  to  oppose  the  interjection  of  a  superior ;  but  it  would  still  cause 
him  inconvenience  in  payment  of  his  feu- duties  if  the  superiority  were 
divided  (Bell,  Led.  ii.  753-4). 

Formerly  the  superior  could,  by  a  clause  de  non  alicnando  sine  consensu 
siqjcrioris,  stipulate  that  the  vassal  should  not  have  power  to  alienate  his 
feu  at  will,  but  such  clauses  are  now  incompetent  and  of  no  force  in  any 
feu  whenever  constituted  (20  Geo.  ii.  c.  50,  s.  10).  It  is  thought  that  the 
superior  may  still  reserve  a  right  of  pre-emption  (Bell,  Led.  1.  612;  Ersk.  ii. 
.">.  13;  Ld.  Corehouse  in  Tailors  of  Aherdeen,  1840,  1  Eob.  at  312;  Preston, 
1805,  Mor.  App.  "Personal  and  Eeal,"  No.  2,  3  Eoss'  L.  C.  289;  Earl 
of  Mar,  1838,  1  D.  IIG;  Christie,  1898  (0.  H.),  6  S.  L.  T.  No.  320,  under 
appeal).  Clauses  prohibiting  subinfeudation  are  incompetent  in  feus 
created  since  the  commencement  of  the  Conveyancing  Act,  1874  (37  &.  38 
Vict.  c.  94,  s.  22),  but  still  effective  in  those  constituted  prior  to  that  date 
(ss.  22  and  4  (2)).  The  provisions  of  the  Conveyancing  Act  as  to  implied 
entry  M-ill  not  validate  any  sub-feu  which  has  been  competently  prohibited 
(s.  4  (2)).  All  conditions  to  the  effect  of  securing  a  monopoly  or  privilege 
to  superior's  agents  in  the  preparation  of  deeds  in  connection  with  a  feu, 
whether  made  before  or  after  the  commencement  of  the  Conveyancing  Act, 
are  now  of  no  effect  (s.  22). 

(3)  A  .superior  may  renounce  his  casualties  in  favour  of  his  vassal.  The 
more  approved  method  of  doing  so  is  for  the  superior  to  dispone  the  casualty 
which  he  has  agreed  to  forego,  in  favour  of  his  vassal,  either  in  the  original 
charter  or  in  a  charter  of  novodamus  (Bell,  Led.  627;  M' Vicar,  1749,  Mor. 
4180,  10251).  The  superior  may  also  grant  a  renunciation,  which  should 
be  recorded  (BeW,  Lect.,sup7'a);  or  the  discharge  may  be  made  a  real  burden 
on  the  superiority  by  being  so  declared  in  a  disposition  of  the  superiority 
{Learmonth,  1854,  16  D.  580).  It  has  been  doubted  whether  a  simple 
discharge  of  casualties,  not  made  public  by  registration,  would  be  binding 
on  singular  successors  in  the  superiority.  This  question  was  raised  in  the 
case  of  Nasmith  (1748,  Mor.  5722),  and  was  answered  in  the  negative, 
but  the  case  was  finally  decided  in  the  opposite  sense  on  the  ground  that 
the  feu-light  containing  the  discharge  had  been  excepted  from  warrandice 
in  the  disposition  of  the  superiority.  These  rules  apply  to  casualties  of 
positive  value.  The  casualty  of  irritancy  may  be  discharged  by  a  clause  of 
renunciation  (Bell,  Lcct.  1.  625). 

L>isposition  of  Superiority. — The  j)lcnum  dominium  cannot  be  divided  by 
dispositions  separately  disponing  the  dominium  directum  and  tlie  dominium 
utile,  but  only  by  charter  and  infeftment  constituting  a  feu  {Norton,  6  July 
1813,  F.  C,  1  Eoss'  L.  C.  31;  see  Williams  S:  James,  1872.  10  M.  362). 
After  separation  of  the  estates  the  superiority  may  be  alienated  in  favour 
either  of  the  vassal  or  of  a  third  party,  but  only,  in  the  absence  of  special 
agreement,  so  that  it  be  not  divided,  nor  a  new  mid-superiority  created 
(Ersk.  ii.  5.  4 ;  Menzies,  663,  667  ;  Bell,  Lect.  ii.  753-4).     The  delivery  of  a 


SUPEUVISIOX  OKDKK  jg^j 

disposition  of  the  superiority  to  the  vassiil  implies  a  dis.l.ur-e  of  1 
feu -duties  {Earl  of  Anjyll,  1G7G,  Mux.  ^\'l,  supra).  A  dini. 
of  superiority  differs  from  a  disposition  of  property  in  the  fol! 
particulars:  the  i^rraiiter  is  described  as  superior  instead  of  lierital.h. 
proprietor  ot  the  lands;  the  feu  or  blench  duties  and  casualties  are  assinned 
in  place  of  rents ;  and  the  feu-rij;hts  under  which  tiie  lands  are  lield  are 
excepted  from  the  warrandice  (liell,  Led.  ii.  752-3).  The  better  form 
in  which  to  dispone  the  superiority  of  lands,  is  to  dispone  the  lands 
themselves^  and  except  the  feu-ri-hts  from  warrandice  (Ersk.  ii.  5.  41; 
IJell,  Lcct.  755).  It  was  formerly  held  that  one  who  was  nut  infuft  in  the 
lands  themselves  could  not  pursue  an  action  of  declarator  of  non-entry 
{Park,  16  May  1816,  R  C),  and  it  was  doubted  if  he  could  enforce  an 
irritancy  or  accept  a  resignation  (Ersk.  supra;  Bell.Zrd.  ii.  755;  IlamiKon, 
infra).  But  it  is  now  settled  that  an  infeftnient  in  the  douiinhnn  ilircdum 
or  right  of  superiority  is  practically  equivalent  to  an  infeftment  in  tlie 
lands  under  exception  of  the  feu-ri^hts  {Hamilton,  23  Feb.  1819  V  C 
1  Koss'  L.  C.  22;  Gardner,  1841  3  D.  534;  M'Kenzie,  1822,  2  S.  81 ;  /////' 
1828,  6  S.  1133;  see  Laird  of  Lar/rf,  1624,  M.  13787).  A  disposition  of 
the  superiority,  though  in  form  a  disposition  of  the  lands,  does  not 
necessarily  comprehend  everything  reserved  from  the  property;  see 
Disposition,  XL).  The  superiority  may  also  be  burdened  by  heritable 
security  (Meiizies,  667 ;  Bell,  Lect.  753).  Trofessor  A.  M.  Bell  says,  on  the 
authority  of  an  old  case,  that  in  a  security  over  a  superiority  the  lands  siiould 
be  disponed  (Bell,  Led.  ii.  1160;  ILome,  1794,  Mor.  15077);  but  there  is  no 
apparent  reason  why  redeemable  dispositions  should  not  be  governed  by 
LLamilfoii  {supra).  The  consent  of  heritable  creditors  is  required  to  the 
redemption  of  casualties,  and  the  allocation  of  feu-duty  {supra).  They 
can  have  no  higher  right  than  superiors  (Bell,  Leet.  754;  Home,  1794, 
M.  15077),  and  so  cannot  raise  an  action  of  maills  and  duties  {Prudential 
Lnsur.  Co.,  1884,  11  R  871;  Nelso7i's  Trs.,  1896,  23  B.  1000),  nor 
demand  payment  of  feu-duties  which,  as  against  the  superior,  the  vassjil 
Mould  be  entitled  to  retain  {ArnotCs  Trs.,  1881,  9  B.  89).  A  right  of 
superiority  falls  under  the  Courtesy  of  Lands  (Bell,  Lcct.  852),  but  not 
under  terce  {ib.  855). 

Consolidation. — The  superiority  may  l)e  reunited  with  the  Yrt'operty  by 
consolidation,  so  that  the  two  estates  become  one,  as  if  the  property  had 
never  been  feued  out  (see  Consolidation;  Disposition,  III.). 

Supervision  Order. — Eeference  is  made  to  Joint  Stock  Com- 
panies, vol.  vii.  p.  157-158.  A  supervision  order,  pronounced  under  the 
Companies  Act,  1862,  ss.  147  et  scq.,  is  specially  valuable  in  Scotland, 
because,  while  in  England  the  Court,  -under  the  Companies  Act,  1862, 
ss.  133  and  138,  restrains  action  and  diligence  against  a  company  in  voluntary 
liquidation  {Thurso  Gas  Co.,  1889,  42  C.  D.  485,  and  prior  cases),  the  same 
view  has  not  been  taken  in  Scotland  ;  and  in  Sdcuard  v.  Gardner,  1870,  3 
R  577,  the  Court  held  that  neither  these  sections  alone,  nor  in  combination 
with  sees.  85,  87,and  163,  authorised  the  Court  to  stay  proceedings  by  creditors 
against  a  company  in  voluntary  li([uidation.  But  a  supervision  order  confers 
that  power  (s.  151).  Accordingly,  for  that  purpose,  and  in  order,  under 
the  Companies  Act,  1886,  s.  3,  to  equalise  diligence  begun  within  sixty  days 
before  liquidation,  it  is  necessary  for  the  protection  of  the  general  body  of 
creditors  to  apply  for  a  supervision  order,  and  this  is  frequently  made  an 
instruction  to  the  li([uidator  in  the  winding-up  resolution.  Applications  at 
the  instance  of  the  company  and  li-piida'tor,  or  of  creditors,  are  granted 


184  SLTEKVISIOX  OKDER 

almost  as  a  matter  of  course  (Christie,  1876,  3  R.  623;  MonUand  Co.,  1886, 
14  li  *M2-  Lairson  Seed  Co.,  1886,  14  R  154;  Drysdale  and  Gilmour,  1890, 
18  E.  9S;'Aitkcn,  1888,  26  S.  L.  R  129 ;  Macquisien,  1896,  23  R.  910);  but 
this  leaves  tlie  discretion  of  the  Court  under  the  87th  section  unaffected 
(Solana  Co.,  1891,  29  S.  L.  R.  290).  In  special  circumstances  orders  were 
refused  in  Mitchell,  1888,  10  R.  117,  and  granted  in  Gcirdncr  and  Hughes, 
1883,  10  R  1138. 

Tlie  superNasion  order  does  not  alter  the  date  of  the  commencement  of 
the  winding  up,  which  continues  to  be  the  date  of  the  extraordinary 
resolution,  or,  in  the  case  of  a  special  resolution,  the  date  of  the  confirmatory 
resolution  (Act  1862,  s.  130;  ]Veston,  1868,  4  Ch.  20;  West  Cnmherland  Co., 
1889,  40  C.  D.  361).  This  is  the  rule  also  in  Scotland,  though  apparently 
there  is  no  decision  (see  Athole  Hydro.  Co.,  1886,  13  R.  818). 

Ejfect  of  a  Supervision  Order. — Prior  to  the  Companies  Act,  1886,  it  Avas 
only  attachments,  executions,  etc.,  put  in  force  against  the  estate  of  the 
company  after  the  commencement  of  the  winding  up  that  were  void  (Act 
1862,  s.  163);  hence  arrestments,  whether  on  the  dependence  or  in 
execution,  laid  on  heforc  that  date,  even  although  within  sixty  days  of  it, 
were  sustained  {Bcnhar  Co.,  1883,  10  R.  558).  Now,  under  the  Companies 
Act,  1886,  s.  3,  it  is  provided  (1)  that  a  winding  up  by  or  under  the  supervision 
of  the  Court  shall  (like  a  sequestration)  be  equivalent  to  completed  diligence, 
viz.  quoad  moveable  estate,  arrestment  in  execution,  and  decree  of  forth- 
coming, or  executed  poinding ;  and  quoad  heritage,  decree  of  adjudication, 
subject  to  valid  preferable  rights,  and  the  right  to  poind  the  ground  as  there 
defined;  {2)  i\\e ptunctum  temjjoris  is  fixed,  in  the  case  of  a  winding  up  by 
the  Court,  to  be  the  commencement  thereof,  i.e.  the  date  of  the  presentation  of 
the  petition  ;  and,  in  the  case  of  a  winding  up  under  supervision,  the  date 
of  the  presentation  of  the  petition  on  which  the  order  is  pronounced  (some- 
times a  winding-up  petition  is  amended  and  a  crave  for  a  supervision  order 
inserted);  and  (3)  it  is  provided  that  no  aricstment  or  poinding  executed 
on  or  after  the  sixtieth  day  prior  to  these  respective  dates  shall  be 
effectual. 

In  construing  sec.  163,  it  has  been  held  that  the  compearance  of  a 
creditor,  after  the  commencement  of  a  winding  up,  in  a  poinding  executed 
before  it,  was  not  struck  at  {Clarlc,  1884,  12  R.  347);  nor  an  action  of 
poinding  the  ground  where  the  summons  was  served  after  the  winding  up 
Ijcgan  {Athole  Hydro.,  1886,  13  R  818)— a  decision  doubted  by  Ld.  Young 
in  N.  IJ.  Propty.  Co.,  15  R.  885,  where  it  was  held  that  a  collector  oi 
poor-rates  was  preferable  to  a  heritable  creditor,  who  had  obtained  decree 
in  an  action  of  poinding  the  ground. 

The  Act  of  1886  applies  to  the  equalisation  of  diligence,  but  doubt  has 
been  expressed  in  the  profession  whether  the  voluntary  alienations  struck 
at  by  the  Act  1696,  c.  5,  may  be  set  aside  if  liquidation  supervenes  witliin 
sixty  days  after.  A  different  view,  however,  was  expressed  obiter  by  Ld. 
Shand  in  tlie  case  of  Clark,  1884,  12  R.  347,  who  said  that  he  saw  no  reason 
to  doubt  that  a  company  might  be  made  notour  bankrupt,  "  so  as  to  regulate 
the  equalisation  of  diligences,  and  to  enable  creditors  to  reduce  preferences  struck 
at  by  the  Statute  of  16b6  "  (p.  353).  See  Bankrupt  Act,  1856,  ss.  4,  7,  8,  and 
12 ;  also  article  Debentuke,  etc.,  vol.  iv.  p.  104. 

The  Companies  Act,  1862,  s.  151,  defines  the  effect  of  a  supervision 
order,  and  is  read  along  with  sec.  87.  Accordingly,  if  by  diligence  prior 
to  the  sixty  days  preference  has  been  secured,  the  creditor  would  be  in  a 
favourable  position  for  obtaining  the  leave  of  the  Court  to  complete  the 
diligence,  and  in  any  case  would  have  his  rights  reserved  {Bcnhar  Co.,  1883, 


SUri'LEMKNT,  LETTKKS  (jF  185 

10  R.  558;  Gardner  and  IFifffhcs,  1883,10  K.  li:',8;  Xiw  (Hcndtij)hUl  Co., 
1882,  10  li.  .'!72).  If  au  action  were  in  dei)enclL'iice,  the  Court  might  in  its 
discretion  allow  it  to  proceed  for  the  purpose  of  constituting  a  claint,  all  the 
more  if  an  ellectual  arrestment  on  the  dependence  had  heen  used.  lUit  a,s 
in  l)aiikru})tcy  a  claim  in  the  sequestration  is  the  recognised  mode  of 
constituting  a  debt,  the  Conrt  would  only  allow  the  action  to  proceed  if  it 
appeared  in  the  circumstances  a  more  expedient  course  (Companies  Act 
1886,  s.  4;  Fhosj^hate  Se%vagc  Co.,  1874-76,  1  li.  840,  o  \{.  (H.  L)  77). 

Under  these  sections,  actions  l)y  creditors,  over  whom  the  Scottish  Court 
had  jurisdiction,  raised  in  a  foreign  country  against  the  comjiany  or  a 
trustee  for  it,  were  restrained  {Pacijic  Co.,  1880,  lo  11.  81 G;  Cali/uriiia 
Ixcdwood  Co.,  1886,  13  II.  1202) ;  but  an  order  was  refused  where  one  of  the 
plaintiffs  in  the  foreign  action  was  n(^t  subject  to  the  jurisdiction  of  the 
Scottish  Court  {California  Bed  wood  Co.,  1886,'  13  H.  810). 

Under  sec.  151  the  li(|uidator  has  a  general  authority,  subject  to  any 
restrictions  imposed  by  the  Court,  to  exercise  his  powers,  as  in  a  voluntary 
winding  up.  Eestrictious  are  not  in  practice  imposed.  But  from  the  terms 
of  the  latter  part  of  the  section,  by  which  for  all  i)urposes  a  supervision 
order  is  to  be  deemed  a  winding-up  order,  the  practice  is  to  obtain  the 
sanction  of  the  Court  to  all  important  steps  in  the  winding  up,  e.g.  settling 
the  List  of  Contributories,  making  calls,  adjudicating  upon  and  ranking 
claims,  and  paying  dividends;  while  sees.  159  and  160  specially  require  the 
s  motion  of  the  Court  to  compromises  with  creditors  and  contributories. 
Although  sec.  161,  under  which  reconstruction  schemes  are  carried  out, 
applies  only  to  a  purely  voluntary  liquidation,  still,  in  a  liquidation  under 
supervision,  a  sale  of  the  property  or  undertaking  to  another  or  reconstructed 
company  may  be  carried  out  under  sec.  95,  with  the  sanction  of  the  Court, 
and  by  the  aid  of  the  Companies  Act,  1870,  uuder  which  a  three-fourths 
majority  of  creditors  ma}^  bind  the  minority. 

If  the  liquidation  continues  for  more  than  a  year,  annual  meetings 
should  be  convened  by  the  liquidator  under  the  Act  1862,  s.  139  ;  and  as 
so')n  as  the  affairs  of  the  company  have  been  fully  wound  up,  the  liquidator 
must,  under  sec.  142,  make  up  an  account  and  convene  a  meeting  of  the 
members  for  the  purpose  of  having  the  accounts  laid  before  them  and  hearing 
any  explanation  thereanent.  The  meeting  must  be  convened  on  a  month's 
inducia\  The  meeting,  if  satisfied,  will  ajiprove  of  the  accounts  and 
authorise  the  liquidator  to  apply  to  the  Court  for  api)roval  thereof,  f(.r 
fixing  his  remuneration,  and  for  dissolution  of  the  company.  Under  this 
api)lication  the  Court  will  remit  to  a  professional  man  to  audit  the  accounts 
of  the  liquidator's  intromissions,  and  to  the  Auditor  of  the  Court  to  tax  the 
law  agent's  business  accounts,  and  will  fix  the  li([uidator's  remuneration 
after  such  inquiry  l)y  remit  or  otherwise  as  is  thought  expedient.  Un- 
claimed dividends  will  be  directed  to  be  dejiosited  in  a  bank,  and  the 
deposit  receipt  to  be  lodged  in  process  and  transmitted  by  the  CU^rk  of 
Court  to  the  Accountant  of  Court,  to  be  dealt  with  in  conformity  with  the 
bankruptcy  (Scotland)  Act,  1856.  Thereafter  an  order  will  be  pronounced 
discharging  the  liquidator  and  dissolving  the  company,  and  also,  under  sec. 
155,  authorising  the  liquidator,  on  the  exj.iry  of  a  year  from  the  dis.solution, 
to  destroy  the  books,  accounts,  and  documents  of  the  company  and  of  tb.- 
liquidator. 

Supplement,  Letters  of.— Letters  of  Supplement  derive 
their  name  from  the  fact  that  in  certain  circumstances  "  they  supj.ly  the 
want  of  jurisdiction  in  an  inferior  judge  liy  the  interposition  of  tlie  Sui.reme 


ISu  SriTLEMEXT,  LETTEES  OF 

aud  Uuiversal  Court,"  the  Court  of  Session  (Ersk.  Inst.  i.  tit.  6,  s.  21). 
Their  use  nowadays  has,  in  the  majority  of  instances,  been  rendered 
unnecessary  by  various  statutory  enactments. 

Formerly,  \vhen  it  was  desired  to  cite  a  person  living  in  Scotland  to 
appear  before  an  inferior  Court  as  party  or  witness,  and  the  party  or 
witness  was  domiciled  outwith  the  jurisdiction  of  the  judge  of  the  inferior 
Court,  it  was  necessary  to  apply  to  the  Court  of  Session,  whose  jurisdiction 
extended  over  the  whole  kingdom,  for  Letters  of  Su})plement,  which  were 
alwavs  granted  as  matter  of  course.  These  letters  contained  a  warrant  to 
cite  the  party  or  witness  before  the  judge  of  the  territory  where  the  action 
was  brought  (Ersk.  Inst.  bk.  i.  tit.  2,  s.  17 ;  Ross's  Lectures,  i.  282,  ii.  531). 

This  procedure,  however,  while  still  competent,  has  been  rendered  un- 
necessary by  Act  1  &  2  Vict.  c.  119,  s.  24,  which  enacts  that  it  shall  be 
competent,  in  any  civil  or  criminal  action  in  any  Sheriff  Court,  to  cite  all 
persons  within  Scotland  as  parties,  when  amenable  to  the  jurisdiction  of  the 
Court,  or  as  witnesses,  by  the  warrant  of  such  Sheriff  Court,  and  "  all  such 
warrants  shall  have  the  same  force  and  effect  in  any  other  sheriffdom  as  in 
that  in  which  they  were  originally  issued,  the  same  being  first  indorsed  by 
the  sheriff  clerk  of  such  other  sheriffdom,  who  is  hereby  required  to  make 
and  date  such  indorsation,  and  such  citation  made  shall  be  due  and  regular 
citation."  In  a  very  limited  number  of  cases  the  necessity  for  such  indorsa- 
tion has  been  abolished  by  Act  39  &  40  Vict.  c.  70,  s.  12;  namely,  where 
the  defender  is  subjected  to  tlie  jurisdiction  of  the  Sheriff  by  sees.  4G  and 
47  of  the  Act  (cases  concerning  persons  carrying  on  business  within  the 
county,  and  actions  of  furthcoming  and  multiplepoinding).  It  is  thought 
that  the  Citation  Amendment  Act,  1882,  which  introduced  citation  by 
registered  letter,  does  not  extend  the  jurisdiction  of  the  Sheriff  to  the  effect 
of  abolishing  the  necessity  of  indorsation  (see  Dove  Wilson,  Shcrijf  Court 
Practice,  p.  120,  and  cases  noticed ;  Bird  v.  Broicn,  1  White,  495 ;  Mackay, 
Manual,  p.  11). 

Where  a  ])arty  to  a  suit  was  furth  of  Scotland,  he  could,  when  amenable 
to  the  Sheriff's  jurisdiction,  be  cited  to  appear  by  Letters  of  Supplement. 
Such  letters  contained  a  warrant  to  cite  the  defenders  at  the  office  of  the 
Keeper  of  Edictal  Citations  in  Edinburgh.  By  Act  39  &  40  Vict.  c.  70,  s.  9, 
it  is  provided  that  any  warrant  of  citation  granted  by  a  Sheriff  against  any 
person  furth  of  Scotland  may  now  be  executed  edictally.  There  is  no  means 
of  citing  witnesses  furth  of  Scotland  to  the  Sheriff  Court,  for  the  provisions 
of  Act  17  &  18  Vict.  c.  34  apply  only  to  proceedings  in  the  Supreme 
Court. 

The  above-mentioned   Acts  do  not  apparently  affect  the  procedure  in 
inferior  Courts  other  than  the  Sheriff  Court  (Campbell  on  Citation,  p.  133). 
Letters  of  Supplement  were  formerly  sometimes  used  for   intimation 
and  requisition  of  payment  of  a  heritable  bond,  but  have  been  superseded 
by  the  changes  made  by  Act  10  &  11  Vict.  c.  50. 

They  are  still  in  use  for  intimating  assignations  when  the  debtor  or 
debtors  are  furth  of  Scotland. 

For  Form,  see  Jurid.  Styles,  vol.  iii.  p.  379  ;  Bell,  Lectures  on  Conveyanc- 
ing, vol.  i.  pp.  314,  315 ;  Gloag  and  Irvine,  Rvjhts  in  Security,  p.  484). 

Letters  of  Su])plement  may  also  be  used  for  intimating  a  resignation  of 
trustees  when  the  party  to  whom  intimation  should  be  made  cannot  be 
found  {Jurid.  Styles,  vol.  iii.  p.  381).  It  is,  however,  now  provided  by  the 
Trusts  (Scotland)  Act,  1867,  30  &  31  Vict.  c.  97,  s.  10,  that  such  intimation 
may  be  given  edictally  in  usual  form. 
See  CiTATiox. 


SUri'OKT  ,y- 

Supply,    Commissioners    of.— See    Commissioneiis    of 

Suri'Lv. 

Support.— The  right  of  support  from  adjc.ining  soil  niuy  be  claiine.l 

in  respt-LL  ol'  land  iii  its  natural  state,  or  of  land  suhjeetL-d  to  urtilicial 
pressure,  by  the  erection  thereon  of  buildings  or  other  structures.  Further 
a  riglit  of  support  may  l)e  claimed  for  a  building  from  adjoining  building  or 
buildings.  Many  questions  have  also  arisen  as  to  the  degree  of  care  to  be 
used  in  regard  to  the  withdrawal  of  support,  and  the  liabihty  of  a  pro- 
prietor for  such  operations  on  the  ground  of  chJjki  ;  but  these,  though 
intimately  connected  with  the  law  of  neighbourhood,  form  y.nX,  of  the 
general  law  of  negligence,  and  do  not  fall  to  be  here  considered.  The  general 
principles  which  govern  the  right  of  support  are  the  same  in  both  Kn<'li.sh 
and  Scots  law^  (Ld.  Chan.  Cranworth,  Caledonian  Bvy.  Co.,  185G,  li  Macq.  449, 
at  4G1 ;  Ld.  Chan.  SeIl)()rno,  Andrew,  1873, 11  M.  (11.  L.)  1:5,  at  IG) ;  though 
these  systems  differ  in  several  particulars.  Eeference  has  accordingly  been 
made  to  English  authority,  more  especially  where  such  is  not  available  with 
us.     The  subject  is  treated  under  the  following  heads: — 

A.  Natural  support  to  land. 

B.  Support  to  buildings  from  adjoining  land. 

C.  Support  to  buildings  by  buildings. 

As  is  Iiereafter  stated,  there  is  no  valid  distinction  to  l)e  drawn  l»etwccn 
the  riglit  of  support  from  adjacent  or  from  subjacent  land.  The  two  cases 
are  therefore  considered  together  in  what  follows. 

A.  Natural  Support  to  Land. 

1.  Natural  Eight  to  SupiJort  from  Adjacent  or  Sidijaccnt  Soil :  an  Incident 
of  OwncraJiii). — The  natural  right  which  the  owner  of  lands  has  to  its 
support  by  adjacent  or  subjacent  land  affords  a  good  exanqJe  of  the 
principle  upon  which  the  right  of  ownership  comes  to  ]je  limited  by  the  law 
of  neighbourhood:  in  wliich  the  one  maxim,  (^?ri  utitur  jure  su.o  ncmineni 
Imdit,  is  controlled  by  the  other,  Sic  utcre  tuo  ut  alicnum  non  la'das.  It  is 
plain  that  unless  some  restriction  upon  the  absolute  rights  of  ownership 
could  be  thus  imposed,  there  would  be  no  guarantee  for  the  security  of  pro- 
perty. The  withdrawal  of  all  lateral  support,  for  instance,  by  an  adjoining 
proprietor,  would  at  once,  in  many  cases,  cause  the  unprotected  surface  of 
his  neighl)0ur  to  fall  in. 

Accordingly,  in  all  cases  in  which  the  owner  of  land  has  not,  by  the 
erection  of  buildings  or  otherwise,  increased  the  lateral  or  vertical  pressure, 
it  may  be  stated  as  a  general  proposition  that  such  owner  has  a  right  to 
such  support  for  his  land  from  the  adjoining  soil  as  shall  be  sullicient  to 
retain  it  in  its  natural  state.  And  this,  not  by  way  of  servitude,  but  as  a 
natural  incident  to  his  right  of  property  in  the  land  (Jlinnphricx,  1848,  \'2 
Q.  P..  739,  20  L.  J.  Q.  ?,.  10;  Mlioit,  18G3,  10  II.  L.  Ca.  333,  29  L.  J.  Ch. 
808  ;  Caledonian  I!in/.,  r.s. ;  L'onomi,  18G1,  D  II.  L.  Ca.  503  ;  1859,  El.  K  &  K 
G22, 646  ;  Ld.  Clian.  Selborneand  Ld.  lUackburn,  Anf/i'..%  1881,  G  App.  Ca.  740, 
at  791,  808  ;  White,  1883,  10  E.  (H.  L.)  45  ;  see  Pountney,  188:1,  11  Q.  15.  D. 
820,  52  L.  J.  Q.  15.  5GG  ;  Att.-Gcn.  v.  Conduit  Colliery  Co.,  [1895]  1  Q.  P..  301. 
per  Collins,  J.,  at  311).  This  natural  right  of  sujiport  has  becnjil  ■■"••■l  to 
the  right   of  a  riparian  owner  in  a  river  or  stream  (Pollock,  C.  P»..  .^  ■', 

1859,  4  H.  &  N.  585,  at  598 ;  Willes,  J.,  Bonomi,  1859,  El.  P.  i<:  E  022.  at 
654).  The  right  of  support  exists  in  respect  of  adjoining  soil,  subjacent  as 
well  as  adjacent,  so  that,  where  in  course  of  time  the  surface  and  the  sub- 
jacent soil  come  to  l)e  vested  in  diflerent  owners,  the  owner  of  the  former 


188  SUITOET 

is  entitled  to  support  at  the  hands  of  the  latter  {Humphries  and  other 
cases,  supra).  The  same  holds  as  between  upper  and  lower  niineowners 
{Hurld  Alum  Co.,  12  D.  704;  affd.  7  Bell's  App.  100;  J/««fZy,  1882,  23 
Ch.  D.  81). 

2.  Extiiit  of  Natural  riijlit  and  its  Effect. — The  right  does  not  imply 
that  the  whole  or  any  part  of  the  adjacent  or  subjacent  soil  must  l)e  left  in 
its  natural  state ;  it  is  simply  a  right  not  to  have  one's  huul  injured  by  any 
operations  of  the  adjoining  owner  in  sua,  however  carefully  these  may  be 
executed.     It  follows  from  this,  that  the  obligation  to  support  may  in  some 
cases  lead  to  the  entire  negation  of  the  right  to  work  subjacent  minerals. 
For  "  the  only  reasonable  support  is  that  which  will  protect  the  surface 
from  subsidence,  and  keep  it  securely  at  its  ancient  and  natural  level " 
(Campbell,  C.  J.,  Humphries,  v.s.,  at  745) ;  and  so,  if  the  soil  be  of  so  friable 
a  character  that  the  subjacent  mines  cannot  be  worked  w'ithout  causing 
the  surface  to  subside,  then  the  mines  cannot  be  worked  at  all  ( Wakefield, 
1866,  4  Eq.  613,  36  L.  J.  Ch.  763;    Hcxt,   1872,  7  Ch.  App.    699,   41 
L.  J.  Ch.  761 ;  see  Love,  1884,  10   Q.  B.  D.  558,  52  L.  J.  Q.  B.  290,  9 
App.  Ca.  286,  53  L.  J.  Q.  B.  257).     A  similar  result  may  follow  in  the  case 
of  undergroimd  water  (see  Ld.  Chan.  Hatherley,  Grand  Junction  Canal,  1871, 
6  Ch.  App.  483,  at  488).     Accordingly,  no  definite  limit  can  be  set  to  the 
extent  of  the  olAigation  of  support  attaching  to  adjoining  lands  (Jessel, 
M.  E.,  Corpor.  of  Birmingham-,  1877,  6  Ch.  D.  284,  at  289).     It  is  in  each 
case  a  question  of  circumstances,  depending  upon  the  nature  of  the  soil,  and 
so  forth  (Ld.  Chan.  Cran worth,  Ccdcdonian  Ilu'y.,T.s.,  at  451).     The  obligation 
only  affects  so  much  of  the  adjoining  land  as  is  necessary  to  sustain  the 
property  in  its  natural  state  ;  and  therefore  the  ow-ner  alleging  injury  can- 
not obtain  damages  from  the  proprietor  of  non-contiguous  lands  if  it  be 
shown  that  no  damage  would  have  resulted  to  him  from  the  defender's 
actings  but  for  the  excavation  of  the  intervening  land.     The  burden  of 
support,  in  short,  cannot  be  increased  by  the  act  of  the  intermediate  owner 
{Corpior.  of  Birmingham,  1877,  6  Ch.  D.  284,  46  L.  J.  Ch.  673  ;  cf.  Solomon, 
v.s.).     The  same  result  follows,  upon  another  principle,  if  the  actings  of  the 
complainer  himself  can  be  shown  to  have  in  any  way  contributed  to  the 
injury  (see  infra,  s.  18).     The  onus  is  on  the  complainer  to  prove  that  the 
same  effect  would  have  resulted  independently  of  his  own  operations  (see 
Durham,  1871,  9  M.  474). 

3.  When  Right  of  Action  emerges :  Bemedics. — The  natural  riglit  of  support 
being  a  right  to  the  ordinary  enjoyment  of  the  land  (Ld.  Cranworth,  Bonomi, 
1861,  9  H.  L.  Ca.  503,  at  512),  it  also  follows  that,  until  that  ordinary 
enjoyment  is  interfered  with,  a  proprietor  has  nothing  of  which  to  com- 
plain. The  mere  withdrawal  of  support,  as,  for  example,  by  excavating  the 
adjacent  land,  or  w^orking  out  the  minerals  below  the  surface,  is  not  ^>fr  se 
wrongful,  nor  will  it  give  a  cause  of  action.  A  cause  of  action  only  emerges 
when  the  condition  of  the  complainer's  land  has  been  in  fact  appreciably 
changed  or  substantially  interfered  with  by  the  withdrawal  of  the  support, 
lateral  or  vertical  (Ld.  Chan.  Westl)ury  and  Ld.  Cranworth,  Bonomi,  v.s.,  at 
512  ;  Brett,  M.  11.,  Barley  .Vain  Colliery  Co.,  1884,  14  Q.  B.  D.  125,  at  130, 
IVnven  and  Fry,  L.  JJ.,  ih.,  at  137,  140;  but  cf.  Cockburn,  C.  J.,  Ba^nb, 
1 878,  3  Q.  B.  D.  389,  at  402).  Each  distinct  subsidence,  though  possibly 
caused  Ijy  tlie  same  excavation,  affords  a  fresh  cause  of  action  (Barley  Main 
Colliery  Co.,  1886,  11  App.  Ca.  127;  Cruvdjie,  [1891]  1  Q.  B.  503).  Pre- 
scription only  begins  to  run  from  the  time  that  the  injury  arising  from  the 
witlidrawal  of  support  makes  itself  felt,  althougli  the  cause  may  be  workings 
of  some  years'  standing  {Bonomi,  v.s.;  Pollock,  B.,  Angus,  1881,  6  App.  Ca. 


SUITOIIT  ,sn 

740,  at  745).  Tlii.s  docs  not,  of  courso,  lucau  th.a  the  Kuifaoe  owner  luuMt 
in  all  cases  stand  by  until  lii.s  land  actually  subsides.  He  i.s  eiilitled  U>  the 
protective  remedy  of  interdict  a«^'ainst  tlie  mineral  owner  or  tenant,  if  iho 
latter  is  in  course  of  working  these  in  a  way  wliicli  in  calculated  to  produce 
injury  (Ld.  Mure,  Uliitc,  1881,  9  li.  375,  at  389);  or  where  it  can  be 
shown  that  the  oi)erations  pi'oposed  by  the  mineowner  must  nc  ■  My 
result  in  letting  down  the  surface  (Jcssel,  ^I.   11.,  Corpumiion  </  J.  j. 

ham,  1877,  0  Ch.  D.  284,  at  287).  He  has  two  distinct  remedies.  An 
action  of  damages  for  any  injury  that  may  be  occasioned  by  the  workiiij^'s; 
or,  as  the  act  itself  when  done  is  a  w-rong  rendering  the  doer  liable  in 
damages,  and  "  as  prevention  in  such  a  case  is  a  Ijetter  remedy  than  uny 
damages,  the  Court  would  be  justified  in  granting,  and  probably  could  bo 
called  upon  to  grant,  an  mterdict "  (Ld.  Chan.  Selborne, -4»(/7-«?r,  1873,  11  M. 
(H.  L.)  13,  at  IG ;  Siddons,  1877,  2  C.  V.  D.  572 ;  see  BilioH,v.s.-  Jfcxt,  187*'' 
7  Ch.  099). 

4.  Necessity  for  Froof  of  Actual  Da maffc. — Upon  the  (piestion  how  far 
proof  of  actual  damage  is  necessary  to  support  an  action,  it  has  been  said 
that  "  the  right  of  su})port,  though  absolute  in  the  sense  of  not  admitting  of 
degrees,  is  not  absolute  in  the  sense  of  giving  rise  to  a  right  of  action  when 
no  appreciable  damage  has  been  sustained,"  because  "  it  is  the  damage  which 
is  done  by  subsidence  that  first  gives  a  right  of  redress"  (llankine,  Land- 
ownership,  p.  341).  If  this  means  only  that  there  may  be  cases  in  which 
ihQ  x\x\q  oi  de  minimis  non  curat  p)ra:tor  rnixj  prevent  a  successful  applica- 
tion to  the  Court,  no  exception  can  be  taken  to  it ;  but  if  it  means,  as 
apparently  it  does,  that  damage  is  the  basis  of  the  right  of  redress,  and 
proved  damage  therefore  the  condition  of  success,  it  is  submitted  to  be 
imsound  in  principle  and  contrary  to  authority. 

It  is  the  fact  of  subsidence  following  upon  the  actings  of  the  defender, 
not  the  pecuniary  loss  accompanying  it,  which  founds  the  right  of  action 
(see  cases  supra,  s.  3),  and  which  constitutes  the  injuria  upon  which  action 
may  be  brought.  This,  indeed,  follows  from  the  cases  to  be  immediately 
noticed  {infra,  s.  5),  in  which,  upon  proof  that  the  erection  of  buildings  has 
not  contributed  to  the  subsidence,  the  value  of  such  buildings  mav  be  re- 
covered  by  way  of  damage  consequent  upon  such  injuria.  For  in  such 
cases  the  fall  of  the  buildings  themselves  can  afford  no  right  of  action, 
there  being  no  obligation  to  support  them.  Proof  that  the  unencunjbered 
surface  would  have  subsided  establishes  the  wrong,  from  which  the  damage 
to  buildings  flows  as  a  consequence ;  and  this  although  it  be  not  proved 
that  any  pecuniary  damage  whatever  would  have  resulted  had  the  buildings 
been  absent  (see  Collins,  J.,  Att.-Gcn.  v.  Conduit  Colliery  Co.,  [1895]  1  (^  1'. 
301,  at  312;  Chapman,  1883,  47  L.  T.  705;  but  see  Smith,  ISGli,  1  C.  l\ 
564). 

It  is,  moreover,  settled  law  that  the  natural  right  of  support  is  an 
incident  of  ownership  (supra,  s.  1);  and  there  seems  no  reason  why  inva.'^ion 
upon  one  natural  incident  of  property,  namely,  the  right  in  llowing  water, 
which  is  \indoubtedly  actionable  whenever  a  sensible  alteration  has  been 
produced  in  the  flow,  and  without  the  necessity  of  proving  actual  damage 
(see  Morris,  18G4,  2  M.  1082, 4  M.  (H.  L.)  44  ;  Fmhrei/,  1851,  G  Ex.  353  ;  and 
other  authorities,  Eivkh,  s.  6),  should  be  attended  with  different  rcFulls 
from  the  case  of  invasion  upon  a  similar  incident  to  ownership,  namely, 
the  right  to  support.  The  former  view,  which  seems  to  be  based  upon  the 
erroneous  view  that  damage,  and  not  the  fact  of  subsidence,  actual  or 
potential  and  imminent,  is  'the  gist  of  the  right  of  action,  is  accordingly 
submitted  to  be  not  good  law. 


190  surroET 

5.  Riijht  to  Support  may  Continue,  thouc/h  Ground  built  upon. — The  natural 
ritrlit  to  support  is  not  lost  by  the  fact  that  buildings  are  erected  upon  the 
sifrface  where  the  surface  sinks,  not  in  consequence  of  the  additional  pres- 
sure so'caused,  but  owing  to  the  adjoining  owner's  operations,  and  would 
have  so  sunk  had  no  such  buildings  existed.  The  onus  of  proving  this, 
liowever,  Hes  upon  the  owner  of  the  surface.  And  damage  to  the  buildings 
mav  be  recovered  as  a  conseiiuence  of  the  wrong  done  {Hamilton,  1867,  5 
M  lOSG  ■  see  Lds.  Deas  and  Ardmillan,  pp.  1099,  1100  ;  Broicn,  1859,  4 
H  &  N  186  28  L.  J.  Ex.  250  ;  Stroyan,  1861,  6  H.  &  N.  454,  30  L.  J.  Ex. 
102  ;  Siddons,  1877,  2  C.  P.  D.  572,  46  L.  J.  C.  V.  795 ;  Love,  1884,  9  App. 
Ca.  286,  53  L.  J.  Q.  B.  257 ;  cf.  Smith,  1866,  1  C.  P.  564 ;  infra,  s.  17). 

6.  Support  from  Underground  Water. — It  has  apparently  been  decided  in 
England  that  the  surface  owner's  right  to  support  does  not  extend  to  the 
support  which  is  afforded  by  the  hydrostatic  pressure  of  underground  water, 
or  enable  him  to  prevent  the  owner  of  the  inferior  strata  from  draining  his 
property,  the  presence  of  such  water  being  an  accidental  circumstance  on 
which  the  surface  owner  is  not  entitled  to  rely,  that  is,  not  a  circumstance 
from  which  any  grant  of  a  right  of  support  can  properlv  be  implied  {Elliott, 
1863,  10  H.  L.  Ca.  333,  see  pp.  359,  365 ;  29  L.  J.  Ch.  808,  at  812  ;  Popj^le- 
?/r//,  1869,  L.  Pt.  4  Ex.  248,  38  L.  J.  Ex.  126).     An  earlier  Scots  decision  in 
which  this  point  occurred  has  been  thought  to  run  counter  to  these,  and  to 
be  of  doubtful  authority.     Here  a  proprietor  feued  out  lands  on  which 
buildings  were  erected,  reserving  the  minerals.     The  buildings  at  the  time 
of  the  feu  stood  above  coal  wastes  filled  with  water,  which  water  did  in  fact 
support,  and  was  known  to  the  grantor  of  the  feu-right  to  support,  the  sur- 
face of  the  lands  feued  out  by  him.     The  grantor  subsequently  leased  the 
remanent  minerals,  and  the  lessees,  by  pumping  out  the  water,  caused  a  sit, 
injuring  the  surface  and  the  buildings.     It  was  proved  that  had  ordinary 
precautions  been  taken,  any  such  injury  miglit  have  been  prevented.     In 
an  action  by  the  feuar,  both  the  grantor  of  the  feu  and  the  mineral  tenants 
were  found  liable  for  the  damage  caused  {Bald,  1854,  16   I).   870).     The 
fallacy  of  the  decision  has  been  said  to  lie  "  in  applying  to  a  case  of  sever- 
ance of  the  surface  and  the  minerals  subsequent  to  excavation  and  flooding, 
the  rules  applicable  to  severance  prior  to    the   drowning  of   the  mine" 
(Rankine,  Landowner  ship,  p.  430).     This  is  certainly  not  so.     An  ap])lica- 
tion  of  the  latter  principles  wouhl,  in  the  view  of  the  Court,  have  infallibly 
led  to  absolvitor  (see  Ld.  Pres.  M'Xeill,  ih.,  p.  875).     It  would  seem,  on 
examining   these   cases,  however,  that   they  are   quite   reconcilable.      In 
Popplewell's  case  {v.s.),  C.  J.  Cockburn  said :  "  Although  there  is  no  doubt 
that  a  man  has  no  riglit  to  withdraw  from  his  neighbour  the  supi)ort  of 
•adjacent  soil,  there  is  nothing  at  common  law  to  prevent  his  draining  that 
soil,  if  for  any  reason  it  becomes  necessary  or  convenient  for  him  to  do  so. 
It  may  be,  indeed,  that  where  one  grants  land 'to  another  for  some  special 
purpose,  for  Iniilding  purposes,  for  example,  then,  since  according  to  the  old 
maxim  '  a  man  cannot   derogate  from  his  own  grant,'  the  grantor   could 
not  do   anything   whatever    witli    his    own    land    which  might    have    the 
effect  of  rendering  tlie  land  granted  less  fit  for  the  special  purpose  in  ques- 
tion than  it  otherwise  might  liave  been"  {ih.,  p.  251).     The  exception  here 
pointed  at  seems  to  precisely  cover  and  explain  the  principle  of  the  judg- 
ment in  Bald's  case.     In  addition  to  this,  it  may  be  observed,  the  element 
"f  neglect  of  ordinary  precautions  for  the  safety  of  the  surface,  found  in 
fact  by  the  jury,  formed  a  good  ground  of  liability  against  the  defenders. 
"  The  neglect  of  the  precautions  which  ought  to  have  been  taken,  was  their 
mutual  neglect."     It  is  submitted,  therefore,  tliat  the  supposed  antagonism 


SUProKT  jf), 

between  the  Enj^lish  and  Scots  law  on  tliis  ))oint  does  n(*t  exist  and  ilmt 
each  decision  may  be  supiun-ted  in  the  h^dit  of  the  K])eeial  facts. 

7.    Variation    of  Natural^  JHf/hl    hij    Contract.— Tha    natural    ri^ht    Im 
support  frimd facie  subsists  in  all  cases;  but  the  adji lining  owner  may  b« 
relieved  from  the  obligation  to  afford  su])port,  and  the  natural  h.'gal  relation 
between   the   ])arties   be  varied,  by  contract  lietween   them,  cither  on  the 
original  severance  of  ownership  or  at  any  suliseipient  pericid,  (»r  by  fr^rce 
of  statute  {Rowhotham,  1860,  8  H.  L.  Ca.  348).     Tiie  onus,  if  such  a  term 
be  appropriate  to  what  in  such  cases  comes  to  be  really  a  question  of  con- 
struction, lies  upon   him  who  founds  ujion   the  surrender  of  the  common 
law  right  of  support  (Ld.  P.lackburn,  Wkitr,  188o,  lU  \\.  (H.  L.)  45,  at  47- 
Ld.  Chan.  Solborne,  Love,  1884,  9  App.  Ca.  28G,  at  289).     The  legality  of  such 
a  contract  was  at  one  time  doubted  (Ld.  Denman,  Ililtoii,  1844,  o  i).  li. 
701,  at  730),  but  is   now   quite   settled   (Andrew,  1873,    11    ]\1.'  dl'^L) 
13;    JF/iite,  llowhotham,  Love,  i<npr(().      In   order,   however,    to    maintain 
a  grant  in  derogation  of  the  ordinary  'dni\  primd  facie  right  to  suiijiort,  the 
contract  must  be  express,  or  the  implication  be  necessary  (Smart  1855 
5  El.  &  Bl.  30,  24  L.  J.  Q.  K  260).     "  If  A.  conveys  minerals  to  B.  reserving 
the  property  of  the  surface,  or  if  A.  conveys  the  surface  to  B.  reservin<'  the 
property  of  the  minerals  below-  it,  A.  in  tlie  one  case  retains,  and  B.  in  the 
other  gets,  a  right  to  have  the  surface  supported,  unless  the  contrary  shall 
be  expressly  provided,  or  sliall  appear  by  plain  implication  from  the  terms 
of  the  conveyance"  (Ld.  Watson,  White,  v.s.,  at  50). 

8.  Uxprcss  or  Inijylicd  Ilvjlit  to  let  down  Surface,  et  contra. — Cases  in 
which  there  is  conferred  an  express  right  to  let  down  the  surface  i)resent 
wo  (\\[^Q.\\\ty  (Andrew,  v.s.)  \  cases  in  which  the  right  to  support  has  been 
negatived   upon  a  construction  of  the  contract,  on  the  ground  of  clear 
implication,  are  less  numerous  (see  Mairhead,  1854, 16  1).  1106  ;  L'oichutham, 
V.S. ;  Duke  of  IJucclcuch,  18G9,  L.  li.  4  H.  L.  377 ;  Aspdcn,  1875,  10  Ch.  394, 
44  L.  J.  Ch.  359;  Gill,  1880,  5  Q.  B.  D.  159,  49  L.  J.  Q.  B.  262).     Thus, 
in  a  recent  case,  lands  were  disponed,  the  disponer  reserving  the  minerals 
with  power  to  work  them,  but  witliout  entering  upon  the  surface.     Certain 
portions  of  the  mineral  field  lying  under  existing  buildings  were  exce}»tcd 
from  the  reservation ;   the  disponee,  on   the  other  haml,  having  a  power 
to   purchase   additional   support   for  these  buildings,  if   such  were  found 
necessary.     The  Court  read  the  contract  as  reserving  a  riglit  to  work  the 
coal  in  the  way  in  wliich  it  was  Ijeing  worked  at  tlie  date  of  the  disposition, 
although  the  result  of  this  working  might  be  to  let  down  the  surface  (Bank 
of  Scotland,  1891,  18  R.  957).     Here  it  was  known  to  both  parties  that  the 
only  feasible  or  profitable  way  of  working  the  coal — by  long  wall — involve*! 
or  miglit  involve  tlie  reduction  of  the  surface.     There  are  also  cases  cf 
mining  leases  (see  Mixes  and  Minerals),  in  which,  upon  a  construction  of 
the  contract,  the  lessee  has  been  held  to  be  released  from  the  obligation  U^ 
support  tlie  superjacent  land  (^^uirhead,  v.s.  \   Smith,  1872,  L.  K.  7  Q.  B. 
716;  cf.  Eadon,  L.  R.  7  Ex.  379);    but,  even  in  such  leases,  there  is  no 
presumption  against  the  subsistence  of  the  right  to  sujiport.     The  rule  <»f 
law  is  the  same  as  between  grantor  and  grantee,  or  lessor  and  lessee,  except 
that  where  the  lessor  has  a  royalty  a  reason  is  alVorded  why  the  Ic-  ■  ■ 
should  be  em])owered  to  let  down  the  surface,  and  tlie  presumption  aganisL 
the   surrender   of  the  right  may  be  perhaps  less  strong  (Ld.   Blackburn. 
Davis,  1881,  6  App.  Ca.  460,  at  466 ;  Jessel,  ]\L  R.,  Aspdcn,  v.s.,  at  390). 
It   has   been   suggested  (Ld.  Chan,    llatherley,   Ld.  Chelmsford,  Duke   of 
Biicclench,  v.s.,  at  398,  411;  Ld.  Chan.  Selborne  and  Ld.  Watson,  l.oir,  r..<<., 
at  296,  298;  Mellish,  L.  J.,  Hcxt,  v.s.,  at  717)  that  one  reason  for  holding 


192  SUITOKT 

the  ri<^ht  of  support  to  be  surrendered  in  these  and  similar  cases,  was  the 
presence  of  an  absohite  and  iniquaUfied  clause  of  compensation,  so  that, 
whatever  the  extent  of  the  damage,  a  full  remedy  was  provided  by  the 
contract.     This  element,  however,  was  not  present  in  the  case  of  the  Bank 

of  Scotland,  v.s.  .        ,    ,  i 

Otlier  cases  have  all  been  in  favour  of  the  retention  of  the  common  law 
ri^'ht  even  where  the  contract  contains  clauses  providing  for  compensation 
for  surface  damage  (see  Harris,  1839,  5  M.  &  W.  GO  ;  Smart,  v.s.,  s.  7  ;  Boherts, 
1856,  G  El.  &  Bl.  G43 ;  Fraud,  18G5,  34  L.  J.  Ch.  406  ;  Davis,  1881, 6  App.  Ca. 
460  ['chapman,  ISSo',  47  L.  T.  705  ;  White,  v.s.,  s.  7  ;  Zovc,  v.s.,  s.  7  ;  Grccnu-ell, 
[1897]  2  Q.  B.  165).  So  where  a  superior,  reserving  right  to  the  minerals, 
bound  himself  to  repair  any  damage  the  feuar  should  sustain  through  the 
leadin^T  or  setting  down  of  mineral  shanks,  it  was  held  that  the  feuar 's 
right  to  support  was  not  discharged  by  the  compensatory  clause  (Bain, 
1867,  6  M.  1 ;  cf.  IFhite,  v.s.).  It  may  be  noted  that  in  such  cases  it  is 
not  incumbent  upon  the  feuar  to  call  the  mineral  lessees  of  the  superior. 
He  may  proceed  against  the  superior  alone  {Higlujatc,  1896,  23  E.  992). 

The  result  of  the  authorities  shows  that  it  is  now  "  perfectly  settled 
ground  that,  as  of  common  right,  the  surface  land  has  a  right  to  be  supported 
by  subjacent  strata  of  minerals.  Although  that  is  of  common  right,  it  may 
be  shown — the  burden  lying  on  those  who  wish  to  show  it — that  the 
person  who  has  got  the  surface  obtained  it  either  upon  terms  which  would 
give  him  no  right  of  support,  he  having  accepted  it  and  taken  it  upon  these 
terms,  or  that  before  he  got  it  the  person  from  whom  he  claims,  the  owner 
of  the  surface,  had  parted  with  the  right  of  support  from  below,  in  which 
case,  of  course,  the  owner  of  the  surface  could  be  in  no  better  position  than 
the  person  who  sold  it  to  him"  (Ld.  Blackburn,  Z'rtm,  1881,  6  App.  Ca. 
460,  at  466).  It  has  been  said  that  the  provision  of  compensation  for 
surface  damage  is  an  element  in  favour  of  a  right  to  let  down  (Jessel, 
M.  E.,  Aspden,  v.s.,  s.  7,  at  396),  but  such  a  provision  is  primarily  intended  not 
to  define  or  to  extend  the  powers  conferred,  but  to  express  the  terms  upon 
which  these  shall  be  exercised  (see  Ld.  Watson,  Lore,  1884,  9  App.  Ca.  286, 
at  299  ;  White,  v.s.,  s.  8).  If  the  compensation  clause  can  be  fairly  satisfied 
as  referable  to  damages  arising  in  the  course  of  the  proper  exercise  of  the 
rights  conferred,  tliere  is  no  room  for  an  implication  of  surrender  of  the 
right  of  support  (Ld.  Blackburn,  Davis,  v.s.,  at  468 ;  Ld.  Selborne,  Zove, 
1884,  9  xVpp.  Ca.  286,  at  293).  "  It  seems  to  be  assumed  that  if  thcreis  a 
provision  that  whatever  damage  is  done  by  the  owner  of  the  minerals  is  to 
be  compensated  by  a  money  payment,  that  gives  him  a  kind  of  authority 
or  power  to  do  any  amount  of  damage  of  any  kind.  Now,  I  am  not  aware 
of  any  authority  for  such  a  proposition  as  that.  I  do  not  know  any  case 
in  which  the  mere  provision  of  damage  in  case  a  thing  be  done  has  by 
itself  and  without  any  other  aid  from  other  portions  of  a  deed,  or  from  the 
circumstances,  been  held  to  infer  a  right  to  do  the  damage  "  (Ld.  President 
Inglis,  White,  1881,  9  E.  375,  at  385). 

9.  Bflect  of  Severance  under  Statutory  Bowers.— 'No  distinction  m 
principle  can  be  made  whether  the  severance  follows  upon  voluntary 
agreement  between  the  parties,  or  is  the  result  of  the  exercise  of  compulsory 
powers  conferred  Ijy  statute  (Elliott,  1863,  10  II.  L.  Ca.  333,  29  L.  J.  Ch. 
808);  unless  there  be  special  provisions  in  the  statutes  conferring  the 
power,  as  in  cases  under  tlie  Eailway  and  Canal  Acts. 

It  is  impossiljle  here  to  treat  with  any  detail  the  _  numerous  cases 
dealing  with  the  question  of  support  under  these  and  similar  statutes,  and 
reference  is  made  to  the  special   treatises  dealing  with  the  subject  (see 


SUPrOKT  193 

Ferguson,  iLailivaijs,  189  scq.;   Browne  and   TlioubaM,  liailu-ays,  2nd  ed 

281  sc'j. ;  Hodges,  Railwayi^,  i.  238  scq.).  liroadly  stated,  the  result" is  that 
where  lauds  are  conipulsorily  acquired  under  the  Kailwav  (" 
Consolidation  (Scotland)  Act  of  1845  (8  &  9  Vict.  c.  3:i ;  see  ss.  7' 
the  common  law  rules  are  displaced.  These  sections  ])roYide  that  railway 
companies  shall  not  be  entitled  to  the  minerals  under  the  lands  purchased, 
these  being  deemed  excepted  from  the  conveyance  unless  tin;  contrarv  is 
expressed  (see  Earl  of  Hopdonn,  1893,  20  It.  704;  cf.  Nishit-Ilamilton, 
1886,  13  R.  454);  notice  of  working  of  the  minerals  must  be  given  by  the 
mineowners  (see  Glasgoir  &  S.-W.  Rwy.  Co.,  1893,  21  11.  134;  Wm.  Dixon 
Ltd.,  1879,  7  R.  21G,  7  R.  (H.  L.)  IIG),  the  company  having  the  right,  if 
injury  is  likely  to  arise  therefrom,  to  veto  the  working  upon  laying 
compensation.  Should  the  company  refuse  to  do  so,  the  mineowners  may 
work  out  the  minerals  in  the  usual  and  proper  way  (see  Railways).  It 
has  been  held,  as  a  result  of  the  cases  under  the  statute,  that  the  policy 
of  the  Act  is  to  create  a  different  relation  between  vendor  and  purchaser 
than  would  result  at  common  law  (see  Esher,  M.  R.,  in  re  Lord  d'crard, 
[1895]  1  Q.  I).  459,  at  4G4) :  the  company,  on  the  one  hand,  liaving  the 
benefit  of  l»eing  enabled  to  acquire  the  surface  without  compulsory  purchase 
of  the  minerals ;  the  mineowner,  on  the  other  hand,  being  advantaged  by 
getting  his  mine  free  from  the  obligation  of  support  which  the  common 
law  would  impose  upon  a  seller  disponing  the  surface  under  reservation  of 
the  minerals.  Where,  accordingly,  the  company  do  not  purchase  the 
minerals,  the  mineowner  is  at  liberty  to  work  them,  even  from  the  surface, 
and  to  the  effect  of  letting  down  the  ground  (G.  IF.  liny.  Co.  v.  L'cnnctt^ 
1867,  L.  R.  2  E.  &  I.  App.  27,  36  L.  J.  Q.  B.  133;  G.  W.  Rwy.  Co. 
V.  Fletcher,  1859,  5  H.  &  N.  689,  29  L.  J.  Ex.  253;  L.  &  N.-W.  liny.  Co., 
1862,  31  L.  J.  Ch.  588 ;  FMaho7i  Brick  Co.,  [1893]  1  Ch.  427.  See  f..r 
illustrations  under  Canal  Acts,  Lane,  ct  Yorks.  Favy.  Co.,  14  App.  Ca.  248 ; 
Birmingham  Canal  Co.,  1879,  11  Ch.  D.  421 ;  Stourhridfjc  Navigation  Co., 
1860,  3  EL  &  E.  409,  30  L.  J.  Q.  B.  108  ;  Fudley  Canal  Co.,  1830, 1  B.  &  Ad. 
59).  It  would  seem  that  the  same  result  follows  although  there  has  been 
a  severance  of  the  surface  and  minerals  before  the  railway  company  comes 
into  the  field  {Fountney,  1883,  11  Q.  B.  D.  820,  52  L.  J.  Q.  R..  566),  in 
which  case  also  it  was  held  that  a  purchaser  of  superfluous  lands  from  a 
railway  company  takes  no  higher  right  than  his  vendor,  and  that  the  right 
of  support  does  not  revive.  On  the  other  hand,  where  the  servient 
tenement  is  acquired  in  virtue  of  compulsory  powers,  the  rule,  in  the 
absence  of  special  provisions  in  the  Act,  is  that  this  operates  extinction  of 
servitude  rights  constituted  over  it  (see  7W?i  Council  of  Oban,  1892. 
19  R.  912  ;  Macgrcgor,  1893,  20  R.  300).  The  (luestion  in  each  case  is 
whether  the  provisions  of  the  particular  statute  indicate  an  intention  tliat 
the  right  primd  facie  existing  in  all  cases  as  between  the  owner  of  land 
and  the  adjoining  owner,  adjacent  or  subjacent,  is  to  be  affected  (see 
L.  &  N.-  TV.  Rwy.  Co.,  [1893]  1  Ch.  16,  62  L.  J.  Ch.  1 ;  G.  W.  Fucy.  Co.,  [1894] 
2  Ch.  157,  63  L.  J.  Ch.  500).  If  this  view  be  negatived  upon  a  construction 
of  the  statute,  the  ordinary  rules  apply  (see  Ccdcdonian  Rwy.  Co.,  1856, 
2Macq.  449;  Ccdcdonian  Rwy.  Co.,  1857,  3  Macq.  56 ;  Elliott,  1863,  10 
H.  L.  Ca.  333,  which  all  turned  upon  the  construction  of  special  Acts  prior 
to  the  Railway  Clauses  Act  of  1845  ;  see  also  Aitkens  Trs.,  1894,  22  R.  201. 
case  under  Road  Act). 

10.  Construction  of  Comjjcyisatory  Clauses:  Surface  Fa7nage.—^yhcrc  there 
is  a  clause  providing  for  compensation  for  surface  damage,  it  is  always  a 
question  of  construction,  looking  to  the  circumstances  of  the  case  and  the 

S.  E. — VOL.  XTT. 


194  SUPrOET 

fUr  meaning  of  the  stipulation,  Nvliat  is  to  be  held  covered  by  the  term. 
The  naturaf  meaning  of  the  term  has  been  said  to  be  such  damage  as  pre- 
vents the  ordinary  agiicultural  use  of  the  subject  (Ld.  Pres.  Inghs, 
Galhraith's  Trs.,  1868,  7  M.  167,  at  172).  Actual  damage  to  crops  and  plan- 
tations would  natm-ally  come  within  its  scope,  but  not  injury  to  amenity, 
from  smoke  or  vapour  emitted  in  the  process  of  calcining  ironstone 
(Galhraith's  Trs.,  r.s.,  Ld.  Deas,  at  171).  Damage  arising  from  subsidence 
of  the  ground  will  more  naturally  fall  under  a  clause  providing  for  compen- 
sation for  injuries  to  buildings  (see  Allaway,  1859,  4  H.  &  K  681).  On  the 
other  hand,  the  term  may  have  a  much  wider  meaning.  So  where  a 
mineral  lease  prohibited  the  working  of  minerals  under  the  mansioii-house, 
but  gave  an  unreserved  power  of  working  elsewhere,  under  the  condition  of 
paying  "all  sm-face  damages  whatever  occasioned  by  these  operations,"  whether 
occasioned  to  the  grantor  of  the  lease  or  to  the  other  proprietors,  this 
clause  was  held  to  cover  damage  caused  by  underground  as  well  as  surface 
operations,  including  injuries  affecting  the  stability  of  the  mansion-house 
offices  caused  by  a  sit  of  the  ground  {Oswald,  1853,  16  D.  70 ;  see  Ld.  Pres. 
M'Xeill,  at  75).  Later  cases  have  also  construed  the  term  as  including 
generally  subsidence  of  the  surface  owing  to  mineral  w^orkings  (Gover- 
nors of  >'^tcwart's  Hospital,  1890,  17  Pt.  1077),  and  also  damage  to  buildings 
upon  the  surface  (Hallpenny,  1898,  25  E.  889;  NcilVs  Trs.,  1880,  7  E.  741). 
Some  cases  in  which  damage  to  buildings  has  been  recovered  as  a  consequence 
of  injury  to  the  surface  have  been  already  noted  (see  supra,  s.  5). 

The  same  canons  of  construction  apply  whether  the  contract  under 
consideration  be  one  between  grantor  and  grantee  (Hallpenny,  v.s.),  or 
between  lessor  and  lessee  (Governors  of  Stciuart's  Hospital,  v.s.).  A  mineral 
lease,  it  is  true,  differs  but  little  from  an  out-and-out  sale,  inasmuch  as_  it 
generally  contemplates  exhaustion  of  the  subject  of  lease  before  the  ish 
(Ld.  Pre"s.  Inglis,  Hamilton,  1867,  5  M.  1086,  at  1095);  but  upon  principles 
similar  to  those  upon  which  it  has  been  thought  that  a  right  to  let  down 
the  surface  may  be  more  easily  inferred  in  favour  of  a  tenant  than  a  grantee 
(supra,  s.  8),  so  also  a  right  to  compensation  for  damage  may  be  less 
readily  inferred  in  questions  between  landlord  and  tenant,  than  as  between 
a  mineral  lessee  and  the  disponee  of  the  surface  (see  Eankine,  Zanclowner- 
sMp,  p.  433). 

11.  Obligation  to  Siqjport:  against  wliom  anel  hy  wliom  iilcaelable. — The 
obligation  to  support  adjoining  land  transmits  against  a  disponee  of  the 
adjacent  or  subjacent  proprietor,  so  as  to  subject  him  in  liability  for  any  act 
for  which  his  author,  had  he  committed  it,  would  have  been  liable.  Accord- 
ingly, where  a  mineowner  who  had  granted  out  the  surface,  and  thereafter 
worked  an  upper  seam  of  coal  without  damaging  the  surface,  subsequently 
sold  the  lower  seam  to  a  third  party,  the  latter,  though  he  himself  had  left 
sufficient  support,  was  held  liable  for  surface  damage,  the  cause  of  this 
damage  being  the  witlidrawal  of  the  lateral  support  of  the  lower  seam,  which 
had  in  turn  caused  a  draw  in  the  upper  seam,  and  thus  affected  the  surface 
and  buildings  thereon  ( IFMe's  Trs.,  1887,  14  E.  597;  see  Ld.  Eutherfurd 
Clark,  at  603 ;  see  Broion,  1859,  4  H.  &  K  186).  But  the  mere  fact  of  a 
subsidence  happening  during  his  tenure  of  the  subjacent  land  does  not 
impose  lialjility  therefor  upon  the  owner  or  lessee  for  the  time,  if  the 
cause  of  the  subsidence  is  not  the  result  of  any  act  of  commission  on  his 
X^art,  but  is  the  result  of  the  wrongous  act  of  a  predecessor  in  title  (Green- 
xvell,  [1897]  2  Q.  B.  165). 

On  the  other  hand,  the  obligation  to  support  is  only  prestable  at  the 
instance  of  the  owner  of  the  surface,  or  those  who  represent  him,  and  cannot 


SUrPOltT  193 

be  founded  ou  by  Lhe  man  in  tlie  street,  with  whom  the  subjacent  ownei 
has  no  relation,  contractual  or  otherwise.     So,  wliere  <:jas-)ii].»-s  were  laid  in 

the  surface  soil  with  the  consent  of  the  owner,  who  thereafter  -l'-' -i  •' 

minerals,  it  was  held   that  the  gas  company,  being  mere  lice 
title  to  sue  the  subjacent  owner  for  damage  to  their  pijies,  caused  by  sub- 
sidence of  the  surface  through  the  working  of  the  nn'nerals  (Midrahlrr  Gas 
Light  Company,  1891,  18  E.  788;  cf.  Xormanton  Gas  Co.,  IHS'^  52  L  d  O  15 
€29). 

B.  SuiTOiiT  TO  Buildings  ntOM  Adjoining  Land. 

In  this  connection  also,  adjoining  is  used  in  a  sense  covering  both  land 
■which  is  adjacent  and  subjacent. 

12.  Support  to  Buildings  a  Servitude  Ei(jht :  Nature  and  Effect. When 

once  the  natural  condition  of  the  surface  is  changed,  and  the  pressure  upon 
it  has  been  artificially  increased  by  the  erection  of  buildings  and  structures, 
a  different  chapter  of  law  is  entered.  AVe  are  no  longer  in  the  rcion  of 
natural  rights  incident  to  ownership.  The  rights  of  parties  must  here 
stand  upon  contract,  that  is,  npon  a  servitude  constituted  by  grant,  express 
or  implied,  or  upon  something  which  is,  in  law,  equivalent  to  grant  (Ld. 
Chan.  Selborne,  Angus,  1881,  G  App.  Ca.  740,  at  792  ;  Cotton,  L.  J.,  ib.,  4 
Q.  B.  D.  162,  at  184).  This  distinction  has  long  been  recognised  and  acted 
npon  in  England.  "  Eights  of  this  sort,  if  they  can  be  established  at  all,  must, 
we  think,  have  their  origin  in  grant.  If  a  man  builds  his  house  at  the 
extremity  of  his  land,  he  does  not  thereby  acquire  any  right  of  easement 
for  support  or  otherwise  over  the  land  of  his  neighbour.  He  has  no  right 
to  load  his  own  soil,  so  as  to  make  it  require  the  support  of  that  of  his 
neighbour,  unless  he  has  some  grant  to  that  effect"  {Partridge,  1838,  3  M. 
&  W.  220,  Alderson  B.,  at  22^8;  see  also  Wyatt,  1832,  3  B.  c^-  Ad.  871; 
Humphries  and  Bonomi,  v.s.,  s.  1). 

The  precise  nature  of  this  servitude  right  has  been  the  subject  of  much 
controversy.  There  is  no  authority  in  Scots  law  upon  the  point ;  but  in 
England,  in  the  leading  case  of  Angus  {vide  infra,  s.  17),  opinions  were 
expressed  that  the  servitude  of  support  is  to  be  regarded  as  of  the  nature 
of  an  affirmative  or  positive  servitude,  capable  of  ripening  into  a  full  right 
by  the  mere  lapse  of  time,  where  no  interruption  of  possession  occurs 
(Lindley,  J.,  Angus,  1881,  6  App.  Ca.  740,  at  763;  see  Bowen,  J.,  at  788). 
This  view  was  concurred  in  by  Ld.  Watson,  apparently  with  special 
reference  to  Scots  law  (ih.,  at  830,  831),  and  by  Ld.  Chan.  Selborne,  who 
stated  that  "  it  is  both  scientifically  and  practically  inaccurate  to  descril>e 
the  right  of  support  as  one  of  a  merely  negative  kind.  ...  In  the  case 
alike  of  vertical  and  of  lateral  support,  both  to  land  and  Imildings,  the 
dominant  tenement  imposes  upon  the  servient  a  positive  and  constant 
burden,  the  sustenance  of  which  by  the  servient  tenement  is  necessary  for 
the  safety  and  stability  of  the  dominant  tenement.  The  burden  and  tlie 
sustenance  are  reciprocal  and  inseparable  from  each  other,  and  it  can  make 
no  difference  whether  the  dominant  tenement  is  said  to  impose,  or  the 
servient  to  sustain,  the  weight  "  {ib.,  at  793).  The  question,  however,  can 
perhaps  hardly  be  taken  as  definitely  settled  by  this  case,  for  although 
favoured  by  such  high  authority,  this  view  was  not  that  accepted  l»y  the 
majority  of  the  judges. 

Whatever  be  the  precise  nature  of  the  servitude  right,  it  is  clear  that, 
once  validly  acquired,  the  right  is  similar  in  its  character  and  governed 
by  the  same  principles  which  applv  to  the  natural  right  of  support 
(Bonomi,  1859,  El.  B.  &  E.  622).     "The  right  of  support  <•''  i""i    "ul  the 


19(3  SUITOET 

ritrht  of  support  lo  buiUliiius,  stand  upon  diflerent  footings  as  to  the  mode 
ot^actiuh-in^-  them,  the  former  hoing  pr I md  feme  a  right  of  property, 
aualo-ous  t^o  the  tiow  of  a  natural  river,  or  of  air,  though  there  may 
l^e  case^  in  which  it  woidd  be  sustained  as  matter  of  grant  (see  Calcdoman 


quire    , 

see  also  Ld.  Blackburn,  Angus,  v.s.,  at  809). 

13.  Hoio  Acquired :  Express  Grant— The  right  of  support  to  buildings 
may,  of  com-se,  be  constituted  by  express  grant.  No  case,  however,  has 
been  noted  in  which  an  express  grant  of  such  a  servitude  has  occurred 

with  u^^. 

14.  Acquired  hy  Implied  Grant— The  right  of  support  to  buildings  or 
other  structures  on  the  surface  may  also,  like  other  servitudes,  be  founded 
upon  implied  grant,  where  both  tenements,  dominant  and  servient, 
have  originally  been  in  the  possession  of  the  same  owner,  this  being  a 
condition  of  the  application  of  the  doctrine  (see  Parke,  B.,  Gay  ford,  1854, 
9  Ex.  702,  at  708 ;  Ld.  Blackburn,  Angus,  i:s.,  at  809).  Accordingly,  where 
buildings  or  other  structures  are  already  erected  upon  the  land  at  the 
time  of'' the  severance  (see  Simson,  1792,  3  Pat.  App.  238),  by  the  granting 
out  of  the  sm-face,  the  subjacent  land  being  reserved  by  the  grantor,  an 


minerals  being  reserved,  the  surface  is  granted  out  for  the  purpose 
of  building,  expressly  mentioned  or  clearly  implied,  as  where  the  feuar  is 
taken  bound  under  pain  of  irritancy  to  erect  houses  npon  the  feu 
{Hamilton,  1867,  5  M.  1086  ;  Howie,  1852,  14  D.  377 ;  Aspden,  1876, 
1  Ex.  D.  496,  per  Bramwell,  B.,  at  506),  a  servitude  of  support  will,  unless 
the  contrary  be  stipulated  (Andreio,  1873,  11  M.  (H.  L.)  13),  be  held  to  be 
impKed  in  the  grant  (see  Ld.  Adam,  Mill's  Trs.,  1880,  7  P.  741,  at  743  ; 
Ld.  Cranworth,  Ccdedonian  Rwy.  Co.,  v.s.,  at  451;  Llliott,  1863,  10  H.  L. 
Ca.  333 ;  SUldons,  1877,  2  C.  P.  D.  572  ;  Eighy,  1882,  21  Ch.  D.  559).  The 
question.  What  limit,  if  any  to  the  power  of  building  is  in  such  cases  to  be 
implied?  is  considered  below  {infra,  s.  15).  In  the  case  of  Bald  {supira, 
s.  6),  both  of  these  elements— the  existence  of  buildings  at  the  date 
of  severance,  and  the  contemplated  erection  of  further  buildings — were 
present.  The  governing  principle,  in  such  cases,  is  that  a  grantor  cannot 
derogate  from  his  own  grant.  For  an  illustration  of  this  principle  in  the 
case  of  acquisition  under  statutory  powers,  see  Corporation  of  Dudley,  1881, 
8  Q.  B.  D.  86 ;  Normanton  Gas  Co.,  1883,  52  L.  J.  Q.  B.  629. 

In  the  Scots  cases,  however,  the  essential  difference  between  the 
natural  right  of  support  to  land  and  the  acquired  servitude  of  support  to 
buildings  does  not  appear  to  have  been  distinctly  adverted  to.  In  some 
cases  in  which  the  question  of  implied  grant  might  have  been  raised 
{Hamilton,  1867,  5  M.  1086 ;  Bain,  1867,  6  M.  1  ;  NeilVs  Trs.,  1880, 
7  Pt.  741 ;  see  White's  Trs.,  1887,  14  P.  597 ;  AitUns  Trs.,  1894,  22  K. 
201),  the  Court  appear  to  have  considered  that  erections  built  upon  the 
ground  subsequent  to  severance  (in  which  case  alone,  of  course,  any 
(Ufliculty  arises)  were  entitled  to  protection  on  the  same  footing  as  the 
sm-face  (Ld.  Ardmillan,  Hamilton,  v.s.,  at  1100;  Ld.  Kinloch,  Bain,  v.s., 
at  3  ;  Ld.  Trayner,  Aitken's  Trs.,  v.s.,  at  207) ;  but  in  none  of  these  was  the 
point  as  of  implied  grant  decided,  inasmuch  as  the  Court,  upon  principles 
already  stated  {supra,  s.  5),  found  in  fact  and  proceeded  upon  the  view  that 


surruirr  i97 

the  surface  liad  been  let  down,  and  thul  the  \vei<,dit  <.f  tlio  buildiiiL's  luul 
in  no  way  coiitril.uted  to  tlii.s  resnlt  (Ld.  Vws.  Inglis,  L<1k.  Dcag  and 
Ardmillan,  IlainUton,  v.s.,  at  1095,  1090,  1100;  Xcill's  Trs.,  v.s.;  Bee 
L(l.  (;illuid,  at  749;  W/ii(r'.^  Trs.,  v.s.).  In  the  case  (.f  Bain,  alfio,  it  did 
not  appear  that  the  buildings  in  question  were  not  anterior  in  date  to  the 
severance  of  tlie  surface  and  the  minerals.  'J'here  are  dictji,  liowever,  in 
some  of  the  later  cases,  in  which  theie  had  lieen  severance  by  dJHiK.sition 
of  the  surface  reserving-  the  minerals,  which  seem  to  fomul  a  servitiule 
right  of  supi)ort  in  favour  of  the  surface  npon  something  less  than  ""rant 
express  or  clearly  implied";  indeed,  to  hold  such  a  servitude  to  be  con- 
stituted in  every  case  in  which  the  contrary  is  not  expressed.  Tlius  it  haw 
been  said  that  where  "lands  are  disponed  for  no  s])ccificd  imrpose,  and 
without  limitation  as  to  the  uses  to  which  the  surface  may  be  apj.licd, 
it  must  be  licld  to  l)e  in  the  contemplation  of  the  parties  that  the  land  niav 
be  put  to  the  uses  and  purposes  to  which  land  is  usually  and  admittedry 
put.  The  erection  of  honses  npon  land  is  certainly  one  of  the  usual  and 
ordinary  purposes  to  which  land  is  put"(Ld.  Adam,  KciU's  Trs.,  1880, 
7  K  741,  at  743).  So  also,  a  surface  owner  was  held  entitled  to  recover 
damages  for  injury  to  buildings  erected  by  him  as  against  mineral  lessees, 
because,  being  purchasers  of  the  ground,  "  there  was  no  restriction  placed 
njion  them  by  the  seller  as  to  the  extent,  character,  or  weight  of  the 
buildings  which  they  should  erect  thereon.  At  least  no  such  restriction  is 
averred  by  the  defenders,  and  restrictions  on  the  use  of  property  by  its 
owner  are  not  to  be  presumed.  .  .  .  The  pursuer  having  built  upon  his 
own  ground,  the  defenders  are  liable  for  any  damage  wrcjugfully  inflicted 
by  their  operations  on  tlie  pursuer's  property"  (Ld.  Travner,  Aif/.cn's  Trs., 
1894,  22  E.  201,  at  207 ;  cf.  Denman,  J.,  Cluqwian,  1883,  47  L.  T.  705,  at 
708).  If  these  views  be  sound,  it  would  seem  that  the  criterion  of 
the  creation  of  the  servitude  is  not  wliethcr  it  can  be  implied  in  the  title, 
but  whether  it  is  expressly  excluded  from  it.  In  other  words,  the  Imrden 
is  no  longer  npon  the  dominant  tenement  to  prove  the  constitution  of  tlie 
right,  but  npon  the  servient  tenement  to  prove  the  negative. 

15.  Extent  of  Servitude  liir/Jit  of  Support. — The  extent  of  the  servitude. 
right  thus  constituted,  or  the  limit  of  the  surface  owner's  power  to  build, 
has  not  been  definitely  decided.  It  would  seem  that  this  is  to  lie  determined 
by  what  can  be  held  to  have  been  the  intention  of  the  parties  at  the  time 
of  the  contract;  so  that  if  the  buildings  be  of  an  unusual  or  extraor<linary 
character,  clearly  outwith  the  contemplation  of  parties,  and  be  such  as  to 
substantially  alter  the  nse  of  the  surface  had  as  at  the  date  of  the 
severance,  such  buildings  will  not  be  permitted  (Ld.  J.-C'l.  MoncreilV, 
Keill's  Trs.,  v.s.,  at  749;  Ld.  Tres.  Tnglis  and  Ld.  Shand,  IJliitc,  1881.  9  It. 
375,  at  388,  3.93 :  Ld.  Trayner,  Aitkm's  Trs.,  c.s.,  at  207 :  see  also  Dnnlop, 
20  June  1809,  R  C). 

IG.  Servitude  of  Support  ly  Implied  Ecservaf ion.— V^hih  this  principle  is 
clear  in  the  case  of  alienation  of  the  surface,  the  grantor  reserving  the  minerals, 
it  has  been  settled  in  England,  that  where  the  quasi-servient  tenement  is 
severed  from  the  surface,  the  latter  l)cing  retained  by  the  grantor,  there  is  no 
implied  reservation  of  servitude  rights  in  his  favour  ( //7/rfWe?i,  1879. 12  Ch. 
D.  31,  overruling  Pi/er,  1857,  1  H.  &  N.  916,  26  L.  J.  Ex.  258;  cf.  Durfdalr, 
1857,  3  Kay  &  J.  695  ;  Riclieirds,  1853,  9  Ex.  218) ;  unless  in  cases  m  which 
the  existence  of  such  a  servitude  right  is  necessary  for  the  enjoyment  of 
the  subject  reserved,  or  is  clearly  imjilied  in  the  contract  in  order  to  give 
effect  to  the  intention  of  the  parties  (Thesiger,  L.  d..  Whccldon,  v.s.,  at  44), 
or   in   exceptional    circumstances   which    may   rai<c   the  clement  of  Imr 


198  surroKT 

ur  acquiescence  (see  Ei'sscll,  1885,  10  App.  Ca.  590).  In  a  later  case 
iThoinus,  1887,  20  Q.  15.  I>.  225),  the  rule  laid  down  in  Whcddon  was 
treated  as  being  only  a  presumption  which  may  be  rebutted,  e.g.  as  where 
the  dominant  ^tenement  is  at  the  time  of  severance  in  the  hands  of 
a  third  party  under  lease ;  but,  granting  that  the  mineral  tenant's  rights 
cannot  in  such  a  case  be  worsened  by  the  subsequent  severance  (see 
Ld.  Curriehill,  Hamilton,  1867,  5  M.  1086,  at  1090),  this  distinction  does 
not  seem  to  be  sound  upon  principle  {Barnes,  1879,  4  Q.  B.  D.  49-4;  see 
Gale,  Easements,  pp.  123  et  seq.,  where  the  whole  subject  is  discussed).  The 
only  Scots  case  in  wliich  the  question  of  the  constitution  of  a  servitude  right  of 
support  by  virtue  of  an  implied  reservation  could  have  been  raised  (Bunlop, 
20  June  1809,  Y.  C.)  merely  determined  that  the  mineowner  could  not 
restrain  the  proprietor  of  the  surface  from  building,  leaving  open  any 
questions  of  liability  for  damage  to  such  buildings,  if  erected.  Here, 
llOwe^•er,  as  in  some  other  cases  (see  Aitkens  Trs.,  v.s.),  the  compensation 
clause  covered  damage  to  buildings  as  well  as  to  the  surface  of  the  land. 
It  is  thought  that  in  such  cases  a  servitude  right  of  support  will  not 
be  held  to  have  been  constituted  where  the  contract  is  silent  (see 
Ld.  Curriehill,  Hamilton,  r.s.,  at  1096;  see  Hcxt,  1872,  7  Ch.  1).  699). 

17.^  Servitude  of  Siqu^ort  hy  Prescriptive  Possession. — A  servitude  right  of 
support  to  buildings  from  adjacent  or  subjacent  land  may  also  be  acquired 
by  enjoyment  during  the  prescriptive  period,  subject  to  the  general  condi- 
tions which  apply  to  prescrijjtive  possession.  This  has  been  long  settled 
law  in  England  (Hide,  1846,  2  C.  &  K.  250 ;  Poivhotham.,  1860,  8  H.  L.  Ca. 
348;  Humphries,  1848,  12  Q.  B.  739,  20  L.  J.  Q.  B.  10;  Bo7iomi,  1861, 
9  H.  L.  Ca.  503;  1859,  El.  B.  &  E.  622,  646 ;  Anp'.s,  infra):  and  the  same 
would  seem  to  be  the  law  of  Scotland,  and  was  apparently  assumed  as  a 
valid  basis  for  the  right  in  a  case  in  which  the  facts  raised  the  point  (see 
Ncill's  Trs.,  1880,  7  Pt.  741,  per  Ld.  Gifford,  at  747,  749).  While  the  law 
is  clear  that  prescriptive  possession  is  a  good  foundation  for  the  right,  the 
principle  upon  which  this  is  to  be  held  to  proceed  has  given  rise  to  much 
discussion.  It  has  been  stated  that  prescription  operates  by  way  of  pre- 
sumed grant  (Eankine,  Landownership,  p.  374) ;  but  this  seems  exceedingly 
doubtful,  and,  in  the  present  connection,  was  expressly  repelled  by  Ld. 
Blackburn  {Angus,  1881,  6  App.  Ca.  740,  at  817  seq.).  The  idea  lying  at 
the  base  of  prescription  is  not  the  presumption  of  a  grant ;  it  is  a  presump- 
tion of  a  right  or  of  lawful  origin  (see  Field,  J.,  ih.,  at  756 ;  Bowen,  J., 
t6.,  at  782,  787).  Prescription  is  a  matter  of  positive  law  (Stair,  ii.  12.  9) ; 
it  is  consequently  not  rebuttable  by  proving  the  non-existence  of  a  grant 
in  fact,  but  only  upon  special  conditions  introduced,  like  the  ride  of  pre- 
scription itself,  upon  grounds  of  expediency,  namely,  legal  incompetence, 
the  physical  impossibility  of  interruption,  and  the  uncertainty  and  secrecy 
of  the  enjoyment  had  (see  Thesiger,  L.  J.,  Angus,  1878,  4  Q.  B.  D.  162, 
at  175). 

The  leading  case  in  England,  in  which  all  the  authorities  were  reviewed, 
is  Angus  v.  Dalton  (1878,  3  Q.  B.  D.  85,  4  Q.  B.  D.  162 ;  1881,  6  App.  Ca. 
740).  This  was  an  action  to  recover  damages  for  injuries  sustained  by  the 
fall  of  tlie  plaintiffs  building,  caused  by  tlie  excavation  of  soil  upon  the 
adjoining  property.  Beyond  the  prescriptive  period  the  plaintiff's  prede- 
cessor had  altered  his  building  so  as  to  increase  the  lateral  pressure.  The 
cxpre.ss  assent  of  the  defendants  or  their  authors  had  not  been  obtained, 
but  the  fact  tliat  such  alterations  were  in  progress  was  open  and  patent  to 
anybody.  The  defendants  pulled  down  the  existing  building  iipon  their 
property  without  causing  damage;  but,  in  excavating  for  cellarage,  the 


phuntiir«  house  boiii^  .leprivcl  of  the  laleral  sui.,.oit  of  the  a.ljoininK 
sank  aii.l  fell.     Ihe  House  ot  J.onls  with  seven  eousult.-.l  Ju.I.m."  held    if- 
couHicting  judgments  in  the  Comb  of  Queen's  JJeneh  an.l  (\nnl  of   ^' *• 
that  the  action  was  good,  and  awarded  damages.     In  both  the  Court' 
tlie  judges  thouglit  it  clear  that  uninterrupted  enjoyment  durin.'  the  pre- 
scriptive period  was  sulhcient  to  constitute  the  riglit.     They  (Hirercd  how 
ever,  as  to  the  principle  on  which  this  was  to  be  based.     Tlie  maiurity  ..f 
the  Court  of  Queen's  Bench  held,  that,  upon  the  tlieory  of  a   preKuiucl 
grant,   this   presumption   being   not   a  presumptio  juris  et   de  jure    wa.s 
rebuttable,  and  could  not  subsist  in  the  face  of  proof  or  admission  that  no 
grant  or  assent  was  in  fact  made  or  given  (see  Cockburn,  C.  J.,  3  0,  B  ]) 
at  113,  118).     On  appeal  this  judgment  was  reversed  by  a  majoritv''on  tlie 
ground  that  the  presumption  of  a  grant,  although  rebuttable,  was  of  the 
nature  of  "an  estoppel  by  conduct,  which,  while  it  is  not  conclusive  so  as 
to  prevent  denial  or  explanation  of  the  conduct,  presents  a  bar  to  nnv 
simple  denial  of  the  fact,  which  is  merely  the  legal  inference  drawn  fr-.-i, 
the  conduct."      Mere   proof  of  non-assent  was  therefore  insuflicient  ( 
Thesiger  and  Cotton,  L.  JJ.,  ib.,  4  Q.  B.  D.  at  173,  187).     The  House  of 
Lords,  with  seven  consulted  judges,  unanimously  affirmed  the  judgment  of 
the  Court  of  Appeal,  but  on  widely  divergent  grounds  (cf.  I'olhjck,  B.,  G 
App.  Ca.  at  747,  and  Lindlcy,  J.,  at  765).     Opinions  were  stated  by  otliers 
of  the   judges  (see  supra,  s.  12)  to  the  effect  that  the  riglit  was  of  the 
nature  of  a  positive  servitude,  which  could  stand  either  upon  grant,  express 
or  implied,  or  upon  prescription ;  that  it  was  capalile  of  interruption,  so 
that  if  not  interrupted  it  would  ripen  by  the  mere  lapse  of  time  into  a  full 
right  of  support.     In  the  result  the  House  of  Lords  held,  that  the  enjoy- 
ment of  a  right  of  support  from  adjacent  or  subjacent  land  had  during  tlie 
prescriptive  period,  would,  if  open  and  of  right  and  not  interrupted,  either 
at  common  law,  or  on  the  doctrine  of  implied  grant,  or  on  tlie  ground  of 
prescription,  confer  the  right  to  have  the  support  continued;  that,  further, 
the  presumption  of  a  legal  right  cannot  be  rebutted  merely  by  evidence 
that  no  grant  was  in  point  of  fact  made;  and  that  the  progress  <jf  buildings 
is  of  itself  sufficient  notice  that  the  servitude  right  is  in  process  of  acquisi- 
tion, so  as  to  put  the  servient  owner  on  his  enquiry.     The  earlier  view  (see 
Parke,  B.,  Hide,  1846,  3  C.  &  K.  250,  at  255)  mus't  accordingly  be  supple- 
mented, and  the  servitude  held  to  be  constituted  by  i)rescription  where  "  it 
was  known,  or  oiujht  to  have  been  knoivn"  to  the  defender,  that  his  land 
supported  the  plaintiffs  house  (but  see  Brain  well,  B.,  ^Wcwt*;*,  1850,  4  H. 
&  K  585,  at  602). 

It  has  already  been  pointed  out  that  where  it  can  be  proved  that 
(1)  the  surface  would  have  sunk,  and  (2)  damage  resulted  therefrom,  owing 
to  the  operations  of  the  defender,  independently  altogether  of  the  i)resoiu'e 
of  buildings  upon  the  complainer's  land,  action  will  lie,  and  that  damage 
to  buildings  may  be  recovered  as  being  damage  immediately  consequent 
upon  the  injury  to  the  land  (see  cases  supra,  s.  5;  cf.  Ilurd,  18G0,  29 
L.  J.  Ch.  785,  Wood,  V.  C,  at  788). 

18.  Increase  of  Burden. — Once  a  servitude  right  of  support  to  buildings 
has  been  acquired,  the  general  rule  of  servitude  law  aj'plies,  that  the 
dominant  tenement  can  do  nothing  at  his  own  hand  whereby  the  burden 
upon  the  servient  tenement  shall  be  increased.  It  follow.s  from  this,  that 
every  such  act  must  run  a  prescriptive  course  of  itself.  Upon  this 
principle,  also,  where  damage  sustained  by  a  Ituilding  woidd  not  have 
happened  l)ut  for  such  operation  of  the  pursuer,  the  pursuer  has  no  action. 
although  the  building  might  have  stood  in  the  absence  of  excavation  "''  >b.- 


200  SUITOET 

adjacent  or  subjacent  land  by  the  servient  owner ;  because  the  continued 
existence  of  the  buildmg  was  only  secured  by  the  increased  support 
afforded  by  the  servient  tenement,  which  increase  of  support  it  was,  ex 
hypothcsi,  under  no  obligation  to  afford  (Gale,  Easements,  p.  ooo).  The  case 
of  increase  of  burden  by  the  act  of  third  parties  has  been  already  noticed 
{supra,  s.  2). 

C.  Support  of  Buildings  by  BuiLDixns. 

Cases  as  to  a  servitude  of  support  to  be  afforded  by  one  building  in 
favour  of  another,  adjoining  or  discontiguous,  are  infrequent ;  most  of  the 
(juestions  arising  in  such  cases  involving  other  considerations.  Thus  the 
law  applicable  to  flatted  houses,  known  as  the  law  of  the  tenement,  though 
apparently  closely  allied  to  the  law  of  servitude  rights  (Stair,  ii.  7.  6 ;  Ld. 
Chan.  Cranworth,  Caledonian  Rwy.  Co.,  1856,  2  Macq.  449,  at  450),  is  more 
properly  dealt  with  under  the  head  of  Common  Interest.  See  CoMJiON 
Interest.  As  between  adjoining  houses,  the  law  of  mutual  gable  is  that 
most  ordinarily  involved.     See  Common  Gable. 

19.  Servitus  oneris  ferencli:  scrvitus  tigni  immittendi. — There  are  two 
servitudes,  however,  relating  to  the  support  of  buildings  by  buildings  which 
have  come  down  to  us  from  the  civil  law,  the  servitus  onera  vicini  sustinendi, 
and  the  servitus  tigni  immittendi  {Inst.  ii.  3.  1 ;  Vinn.  Inst.  2,  de  serv.  nrh.  3). 
Though  the  distinction  was  not  noted  in  our  earlier  law  (see  Stair,  ii.  7.  6  ; 
Ersk.  ii.  9.  7,  8 ;  Bank.  ii.  7.  7),  it  has  been  pointed  out  that  the  latter 
cannot  be  considered  as  a  proper  servitude  of  support,  but  only  as  a  mere 
right  to  immit  or  thrust  a  beam  or  other  structural  part  of  the  dominant 
tenement  across  the  boundary  of  one's  own  land,  the  circumstance  of  the 
encroaching  part  being  de  facto  supported  by  the  wall  of  the  servient  tene- 
ment being  accidental  to  the  right  itself  (see  liankine.  Landowner  ski}), 
p.  573).  It  is  true,  that,  unlike  the  servitude  oneris  fcrcndi,  the  servitude 
tigni  immittendi  does  not  carry  with  it  an  obligation  upon  the  servient 
tenement  to  repair  the  supporting  structure ;  but  the  general  law  of 
servitude  gives  the  dominant  tenement  access  to  the  servient  tenement  to 
repair  at  his  own  hand  when  this  becomes  necessary,  and  there  seems  no 
reason  why  this  servitude  should  be  exceptionally  treated  (Bell,  Prin. 
s._984;  Stair,  v.s.;  Bank.  ii.  7.  7,  8 ;  see  Cohhcck,  1897,  1  Q.  B.  D.  234, 
45  L.  J.  Q.  B.  225).  If  this  be  so,  the  right  certainly  approaches  very 
nearly  to  a  servitude  of  support.     See  Oneris  ferendi. 

20.  Servitude  Bight  of  Support  from  Building :  Eoio  Acquired. — It  seems 
clear  that  a  servitude  right  of  support  by  one  building  to  another  might  be 
constituted  by  express  grant  (see  Brown,  1830,  1  C.  &  J.  20),  or  by  implied 
grant,  where  the  necessary  conditions  for  the  application  of  that  doctrine 
are  present  (see  Thesiger,  L.  J.,  Angus,  1878,  4  Q.  B.  D.  162,  at  167; 
^Yhreldon,  1879, 12  Ch.  D.,  Thesiger,  L.  J.,  at  59  ;  Dugdale,  1857,  3  Kay  &  J. 
695).  In  Solomon  (1859,  4  H.  &  N.  585),  where,  however,  the  houses 
were  also  discontiguous,  the  element  of  prior  common  ownership  before 
severance  was  not  present,  and  judgment  went  against  the  right  of  support. 
A  temporary  easement  constituted  by  express  agreement  between  the 
lessees  of  adjoining  houses  who  hold  under  the  same  lessor,  will  not,  upon 
the  subsequent  purchase  from  the  lessor  of  the  servient  tenement,  be  held 
converted  into  a  permanent  servitude  of  support  upon  the  principle  of  an 
implied  reservation  (see  Hoivarth,  1897,  13  T.  L.  E.  529). 

As  regards  the  prescriptive  acquisition  of  such  a  servitude  (Ersk.  ii.  9.  8), 
the  difficulty  is  to  determine  under  what  circumstances  the  possession  had 
by  the  dominant  tenement  can  Ije  said  to  have  been  open,  of  right,  and  not 


SUKKOliATl  M  -jOi 

clandestine.     Where  one  of  the  ltuil(lin<4s  has  slipi^tMl  in.iii  iht.-  jh-i  • 
so  as  to   be  ohviuusly  leaning  npon  its  nei<.;hli()ur,  tliiB  nji;^h' 
condition  (hut  see  liramwell,  B.,  Solomon,  1850,4  \\.  k  N. 
Again,  it  seems  to  be  not  easy  for  the  servient  owner  to  rt'sist  tlje  acquisi- 
tion of   the  servitude,  short  of  iiulling  down  his  house  during  the  currency 
of  the  prescriptive  period,  which    seems    an    unreasonable  condition  (pet- 
Fry,  L.  J.,  Anrius,  1881,  6  App.  Ca.  740,  at  V75).     If  the  reasoning  up.. n 
which  the  case  of  Awjus  was  decided,  however,  be  cajtable  of  being  extended  to 
the  case  under  consideration,  mere  neglect  to  alter  the  status,  and  8ut 
of  the  burden  during  the  prescriptive  period,  would  ajtparcntly  coi 
the  right;  and  this  has  been  so  held  in  England.     So,  where  the  •  .  .  .;. 
wall  of  the  plaintilfs  tenement  had  for  the  prescriptive  period  de])ended  on 
and  enjoyed  the  support  of  the  defendant's  western  wall,  this  fact  being 
within  the  knowledge  of  the  defendant,  it  was  held  that  an  easement  liad 
been  ac<piired  by  prescription,  the  possession  having  been  o])en,  peaceable, 
and  of  right  {Lcmaitrc,  1881,  19  Ch.  D.  281;  see  Tone,  1883,  24  Ch.  IJ. 
739). 

Stirrogatum.^ — Tiie  doctrine  of  surrogatum  is  contained  in  the 
maxim,  Sarroijulum  sapit  naturam  surrogati  (a  thing  substituted  j.artakes 
of  the  nature  of  that  for  which  it  is  substituted).  The  maxim  may  K* 
illustrated  as  follows  : — 

1.  Husband  and  Wife. — In  marriages  entered  into  before  the  Married 
Women's  Property  (Scotland)  Act,  1881,  the  wife's  moveable  estate,  l»ul 
not  her  heritable  estate,  belongs  to  the  husband ;  where,  however,  her 
heritable  estate  is  converted  into  moveable  stante  matrimonio,  then  the 
latter  forms  a  surrogatum  of  the  former,  and  does  not  pass  to  the  husband 
unless  it  appears  that  there  is  no  intention  on  the  wife's  part  to  reinvest 
it  heritably :  in  which  event  it  passes,  but  subject  to  revocation  (Fraser, 
H.  &  IF.  ii.  703  et  seq. ;  Walton,  II.  &  W.  138).  Where  heritable  estate  of  a 
wife  situated  abroad  has  been  converted  into  moveable,  such  moveable 
estate  is  the  surrogatum  for  the  heritable  estate,  but  the  rights  of  the 
spouses  therein  are  determined  by  the  lex  loci  rci  sita:.  of  the  heritage,  ami 
not  by  the  lex  loci  domicilii  of  the  parties  {Welch,  1891,  18  W.  (II.  L. )  72). 

2.  Succession. — Where  a  share  of  estate  has  been  forfeited  by  oiu' 
claiming  his  legal  rights,  it  becomes  7??'o  tanto  the  surrogatum  of  that  paid 
away  (lloss,  189G,  23  R.  1024;  see  also  Election,  vol.  iv.  390).  Where 
one  bequeaths  what  is  another's,  believing  it  to  be  his  own,  the  legatee  is 
neither  entitled  to  the  legacy  nor  to  a  surrogatum  out  of  estate  for  its 
value;  but  where  a  bequest  of  what  is  ariother's  is  made  knowingly,  then, 
if  subject  of  legacy  cannot  be  acquired  for  him,  the  legatee  is  entitletl  to  a 
surrogatum  {Traquair,  1872,  11  M.  22;  see  also  Legacy,  vol.  vii.  369). 

3.  Trustees,  etc. — The  nature  and  character  of  property  for  the  j.uri'oses 
of  succession  is  as  a  general  rule  determined  at  date  of  tleath.     ^^  here, 
however,  trustees,  curators,  tutors,  or  other  administrators  sell  the  heritable 
property  of  one  in  life,  they  cannot  alter  the  nature  and  character  of  that 
property;  any  conversion  is  held  as  being  merely  for  administrative  i»ur- 
poses,  and  the  proceeds  are  treated  as  the  surrogatum  of  the  esta" 
{Macfarlane,  1895,  22  R.  405).     But,  while  this  is  so,  a  minor  may  '.■ ...  •■ 
freely  with  such  surrogatum  as  if  it  were  moveable :  he  may  dispose  of  it  by 
will  or  otherwise  {Broicns  Tr.,  1897,  24  R.  962).    Where  trustees  had  to  sell 
a  part  of  the  heritable  estate  in  order  to  pay  certain  debts,  etc.,  which  wcr-- 
primarily  payable  out  of  the  moveable  estate,  and  where  nioveabb-  •-'  *• 
was  subsequently  recovered  sufficient  for  that  jmri^oso.  held  that  n; 


202  SUliltOGATUM 

a  suiii  equal  to  that  obtained  by  the  sale  of  heritage  fell  to  be  invested 
in  lands  as  a  surrogatum  of  those  sold  (Sfainton's  2'rs.,  1868,  6  M.  240). 
Where  creditors  sell  the  debtor's  heritable  estate  under  a  process  of 
judicial  sale,  any  surplus  remaining  is  surrogatum  and  heritable  {Gardiner, 
1770,  Mor.  730,  and  comments  thereon  in  Macfarlanc,  ut  supra,  where  it  is 
distinguished  from  the  case  of  a  compulsory  sale).  Where  a  factor  immixes 
the  funds  of  his  principal  with  his  own,  then,  if  they  are  ear-marked,  the 
doctrine  of  surrogation  applies,  and  such  immixed  funds  will  be  in  bonis  of 
principal  (Allison,  1765,  Mor.  15132).  Where  the  price  of  principal's 
goods  is  taken  payable  to  agent,  or  where  the  agent  takes  a  bond  or  bill  for 
the  price  in  his  own  name,  then  sucli  price,  bond,  or  bill  is  still  in  bonis  of 
principal  {Hai/,  1707,  Mor.  15128;  Street,  1609,  Mor.  15122;  Baird,  1744, 
^lor.  7737 ;  see  also  Thomson  on  Bills  of  Exchange  (Dove  Wilson's  ed.),  541 
et  scq.).  Where  one  of  two  creditors  in  a  bond  sold  the  security-subjects 
to  himself,  the  other  creditor  having  been  called,  but  died,  and  his  heirs 
not  sisted :  held  that  the  part  of  price  effeiring  to  second  creditor  belonged 
to  his  representatives  as  surrogatum  of  lands  sold,  and  that  their  right  was 
not  a  mere  personal  action  for  repetition  {Cockbiirn,  1725,  Mor.  15120). 

4.  Involuntary  Sales. — {a)  Fee -Simple  Proprietors. — Where  lands  are 
taken  from  a  fee-simple  proprietor  by  the  act  of  the  general  law,  whether 
such  proprietor  is  sui  juris  or  not,  there  is  no  room  for  the  doctrine  of 
surrogatum.  Thus  where  teinds  belonging  to  an  insane  person  were  com- 
pulsorily  acquired  by  heritors,  tlie  proceeds  were  held  to  be  moveable,  and 
went  to  the  insane's  executors  {Graham,  1798,  Mor.  5599 ;  see  also  dicta  by 
Ld.  Benholme  in  Stuart,  1855,  i7  D.  378).  Where  lands  are  acquired  by  a 
railway  company  under  statutory  powers,  the  price  or  the  right  to  demand 
price,  where  the  transaction  has  not  been  completed,  is  moveable,  and 
cannot  be  treated  as  surrogatum  of  land  {Heron,  1856,  18  D.  917).  Again, 
where  o.  pro  indiviso  proprietor,  in  a  process  of  division  and  sale,  sells  the 
subjects,  and  where  the  other  proprietor,  who  was  abroad  at  the  time,  was 
found  to  have  died  at  a  date  subsequent  to  the  sale,  held  his  share  of 
proceeds  could  not  be  treated  as  surrogatum  for  heritable  estate  sold,  and 
that  it  fell  to  be  paid  to  heirs  in  moveables  {Macfarlanc,  ut  sujyra). 

(b)  Proprietors  with  Limited  Rights. — Owing  to  the  peculiar  character  of 
interests  involved,  statutory  provisions  have  been  made  to  regulate  the 
rights  of  such  proprietors,  and  the  price  of  lands  compulsorily  sold  is 
treated  as  surrogatum  of  such  lands,  and  must  be  reinvested  to  compensate 
for  what  has  been  taken  away  (see  Lands  Clauses  Act,  1845,  ss.  67  c^  seq. ; 
Entail  Amendment  Act,  1848,  ss.  25  et  seq. ;  and  Entail  Amendment  Act, 
1853,  s.  8).  In  Garland,  1841,  4  D.  1,  the  proceeds  of  a  compulsory  sale 
were  held  to  be  surrogatum  for  the  lands  sold,  but  the  character  of  the 
proceeds  here  were  regulated  by  a  private  Act.. 

5.  For  further  illustration,  see  Murray,  Bro.  Syn.,  h.f.,  where  a  widow, 
who  was  liferented  in  a  certain  house  which  was  taken  down,  held 
entitled  to  liferent  of  new  house  as  being  surrogatum  of  the  former ; 
Herons  Trs.,  19  R.  922,  where  children  were  entitled  one  year  after  the 
death  of  their  father,  and  if  they  survived  him,  to  a  certain  sum  of  money 
secured  over  lands,  and  where  the  father  becoming  bankrupt,  the  rights  of 
children  were  valued :  held  that  price  received  was  to  be  held  by  trustees 
as  coming  in  place  of  Ijond,  and  that  neither  the  capital  nor  the  income  fell 
to  be  paid  to  beneficiaries.  Where,  however,  a  liferent  is  valued,  the 
capital  value  would  be  paid  to  liferenter,  and  not  merely  the  interest. 

The  cargo  of  a  ship,  which  is  on  its  immediate  return  from  a  port  where 
it  had  lauded  contraband  of  war,  is  not  to  be  held  as  surrogatum  of  the 


SUliVKYUi:  ^yj 

contraband  cargo  and  lialjle  to  forfeiture  (The  Frederick  Molhr  Tuddr'.s  I    (' 
Merc.  1011;  also  i7>.,  p.  990).  '  '    *     ' 

[See  Morrison,  Didiuaary,  h.t.\  Kanies,  Hijuil//,  29:j;  J;im,m,_  ,  ■  - 

Thomson  on  Bills  of  Exchange,  1st  ed.,  p.  770;  M.m:i\k  In^ii 
viii.  '2o9.] 

Surveyor. — A  surveyor,  in  the  broadest  significaneu  ui  lii.r 
is  a  person  who  has  or  professes  to  liave  skill  in  measuring  and  \... 
land  and  buildings,  in  tlie  management  and  laying  out  of  estates,  build;, 
or  rural  road-making,  land  drainage,  and  the  various  otlier  works  incidti.- 
thereto.      There  is  no  legislation   dclining  or  regulating  the   1'     '  i,\ 

surveyor  in   its   ordinary  sense,  and  it  seems  to  be  a  matter  ...   ....id  r 

whether  such  persons  require  appraisers'  licences  under  40  Geo.  in.  c.  1  ■. 
ss.  4  and  7;  8  &  9  Vict.  c.  76,  s.  1.  In  certain  cases  it  is  uecc8.Siiry  tn 
employ  a  qualified  surveyor  to  value  land  or  dilapidations,  e//.  under  sec.  58 
of  the  Lands  Clauses  Act,  1845  (8  &  9  Vict.  c.  19).  Surveyors  have  all 
the  privileges  and  liabilities  of  persons  professing  skill.  They  are  entitled 
to  payment  for  their  services  either  quantum  valcat  or  under  agreement. 
They  are  bound  to  indemnify  their  clients  in  respect  of  loss  sustained 
through  their  negligence.  The  business  of  surveyor  proper  has  come  Itv 
custom  to  be  divided  into  two  niain  branches.  First,  the  valuin*'  <if 
property,  either  land  or  buildings,  of  whatever  class  or  denomination. 
Second,  what  is  know^i  as  quantity  surveying.  This  latter  brancli  does 
not  admit  of  a  very  strict  definition,  but  may  generally  be  characteri.^td 
as  "  taking  out  in  detail  the  measurements  and  quantities  from  }»lans  ol  a 
building  prepared  by  an  architect,  for  the  purpose  of  enabling  builders  to 
calculate  the  amounts  for  which  they  would  execute  the  plans  "  (per  Morris, 
J.,  in  Taylor  v.  Hall,  1870,  4  I.  E.  C.  L.  467,  at  p.  476).  The  busines.s  of 
valuing  and  quantity  surveying  has  in  modern  times,  owing  to  the  great 
extension  of  cities  and  large  towns,  become  one  of  vital  importance  t<> 
owners  of  property  and  the  commercial  classes  generally.  Tliere  are  no 
statutory  regulations  fixing  the  qualifications  necessary  for  the  profession, 
and  it  is  understood  that  any  person,  however  meagre  his  e.xi'erience  in 
the  business  of  valuing  and  measuring,  can  practise  as  a  surveyor.  The 
requirements  of  the  business,  however,  have  made  it  almost  universally 
necessary  for  persons  who  wish  to  practise  as  surveyors,  to  vnidergo  a 
professional  training  by  apprenticeship  to  a  surveyor.  In  addition  to  this 
apprenticeship  there  is  an  examination,  prescribed  by  certain  auth.)ritics 
in  Glasgow  and  Edinburgli,  for  persons  wishing  a  special  qualiHcatiun  ;  and 
admission,  in  the  case  of  Glasgow,  to  a  special  society  of  mcasurer.s,  and,  in 
Edinburgh,  to  the  title  and  dignity  of  an  Ordained  Surveyor.  In  Kdinburgh 
a  person  wishing  the  title  of  Ordained  Surveyor  presents  a  petition  either 
to  the  Sheriir  or  to  the  Magistrates  and  Town  Council,  setting  forth  his 
([ualifications  and  craving  to  be  ordained  a  surveyor.  The  applicantis 
then  remitted  to  two  surveyors  nominated  for  the  purpose,  to  examine  him 
in  his  knowledge  of  the  business.  If  their  report  be  satisfactorv  the  oatii 
defideli  is  administered,  and  he  then  receives  a  certificate  entitling  him 
to  practise  as  a  surveyor,  and  to  use  the  title  of  Ordained  Surveyor. 
Outside  such  persons  there  is  the  general  body  of  surveyors.  Tiiese  ] 
may  have  very  little  or  no  qualification.  As  a  matter  of  fact  thtj.  ;ii. 
usually  persons  who  have  either  served  in  some  cjq)acity  in  a  surveyors 
office  or  had  some  connection  with  the  building  trade,  e.;/.  buihiers"  clerkf, 
clerks  of  works,  etc. 

A  quantity  surveyor  ought  to  have  a  thorough  knowledge  not  only  of 


204  SURVEYOli 

architecture  but  of  the  Jjuikling  trade,  so  that  he  may  imderstand  the 
meaning  of  the  drawings  and  specifications  furnished  by  the  architect,  and 
may  be"  able  to  calculate  therefrom  the  amount  of  labour  and  materials 
which  the  jmrticular  items  of  work  would  require.  The  architect's 
drawiufi^s  and  specifications  thus  become  the  basis  of  elaborate  calculations. 
The  finished  work  which  the  quantity  surveyor  supplies  as  the  result  of 
liis  skill  and  calculations  is  allied  a  Bill  of  Quantities,  which  is  in  the 
form  of  a  schedule,  giving  in  detail  the  quantity  of  each  item  of  labour 
and  materials  required  to  be  done  and  provided  in  the  execution  of  a 
building  or  other  undertaking,  with  a  money  column  left  in  blank  for  the 
builder  to  fill  in  the  prices.  Quantities  are  necessary  because  of  the 
number  of  works  for  which  a  builder  is  asked  to  tender,  and  because  of  the 
intricacy  of  estimates  for  building  work. 

The  builder  is  usually  required  to  pay  the  quantity  surveyor's  charges, 
but  a  memorandum  is  indorsed  on  the  schedule  to  the  eflect  that  the 
builder  must  allow  in  his  estimate  for  these  charges  a  certain  percentage 
on  his  total  estimate.  This  percentage  ranges  from  one  to  two  and  a  half 
per  cent.,  or  even  more,  according  to  the  nature  of  the  work.  The  builder 
must  also  add  a  fixed  sum  for  lithography,  postage,  etc.,  incurred  to  the 
surveyor.     These  two  items  are  then  added  by  the  builder  to  his  estimate. 

The  quantity  surveyor  is  usually  employed  by  the  architect,  either 
with  the  express  authority  of  the  employer  or  building  owner,  or,  as  is 
more  often  the  case,  without  any  such  authority.  The  architect  has  an 
implied  authority  to  employ  a  quantity  surveyor,  and  the  surveyor  has, 
in  the  event  of  his  charges  not  being  paid  otherwise,  a  right,  in  the  absence 
of  any  special  circumstances,  to  demand  payment  from  the  building  owner 
{Blacl:,  1879,  7  E.  581). 

An  important  duty  falling  upon  the  surveyor  in  connection  with  the 
performance  of  a  building  contract  is  to  provide  certain  measurements 
to  enable  an  architect  to  certify  for  payment  of  extras  or  deviations  from 
the  contract.  It  has  been  held  (Beattie,  1882,  10  E.  226)  that  there  is  a 
custom  or  usage  of  the  building  trade  whereby,  in  works  of  a  certain 
magnitude,  the  architect  has  an  implied  authority  to  instruct  a  quantity 
surveyor  to  perform  this  work,  whose  charges  the  emplo3-er  is  liable  to  pay. 
Such  implied  authority,  either  in  the  case  of  the  preparation  of  the 
original  bill  of  quantities,  or  in  measuring  up  extras  or  deviations  during 
the  contract  or  at  its  completion,  can  only  be  negatived  by  contrary  terms 
expressed  in  the  employment  of  the  architect.  It  may  be  that  the 
architect's  contract  is  to  undertake  the  duties  of  the  quantity  surveyor 
himself.  In  that  case  he  has  no  authority  to  employ  a  quantity  surveyor 
to  perform  his  duties,  except  at  his  own  expense.  ^Moreover,  the  archi- 
tect of  the  building  owner,  without  any  express  instructions,  sometimes 
measures  up  the  work  himself.  Per  Inglis,  Lord  President :  "  In  the  present 
instance  the  architect  employed  himself  to  measure.  This  is  not  the 
common  practice,  but  there  is  nothing  wrong  in  it  so  long  as  the  measurer 
acts  honestly  "  (JkaUie,  supra).  In  taking  out  quantities  and  measuring  up 
himself,  Uie  architect  is  only  entitled  to  charge  his  employer  direct.  He 
cannot,  without  special  authority  from  the  building  owner,  debit  the  builder 
with  his  charges,  as  this  would  place  him  in  the  position  of  certifying  for 
Ills  own  payment.  This  rule  is  supported  by  the  regulations  of  tlie  Eoyal 
Institute  of  British  Architects,  and  the  breach  of  it  brings  the  matter 
within  that  class  of  cases  where  a  defrauded  principal  is  entitled  to  recover 
secret  profits  or  commissions  obtained  by  an  agent  or  servant. 

If  the  architect  employs  ^fjuantity  surveyor  without  authority,  express 


SUKVIVANCE  IX  COMMoX  CALAMITY 


20 


or  implied,  from  the  building  owner,  he  will  Ik-  liul.le  for  the  surveyor* 
charges,  as  in  the  case  of  a  breach  of  wairaiity  of  auihuritv. 

The  general  liability  of  the  building  owner  is  sumerinies  niudilied  f.r 
altered  by  express  agreement,  or  by  special  circumstances  arising  ilurin- 
the  contract.  Thus  where  the  Imilder  prevents  the  performance  of  the 
contract,  or  a  condition  in  the  contract  u]»on  the  happening  (tf  whieh  he 
should  receive  from  the  building  owner  the  surveyor's  fees,  the  builder  will 
be  liable  to  the  surveyor  for  such  fees.  Again,  the  builder  is  liable  when 
he  directly  emi)loys  the  surveyor,  or  agrees  to  pay  him  out  of  one  of  the 
instalments  of  the  contract  price. 

If  the  building  owner  guarantees  the  accuracy  of  the  quantities,  ho  will 
be  liable  to  the  builder  in  respect  of  material  inaccuiacies.  Further,  he 
will  be  liable  if  the  quantity  surveyor  is  guilty  of  fraud  or  misrepreeenta- 
tion.  In  this  case,  however,  the  builder  must  show  that  the  owner  knew 
of  such  fraud  or  misrepresentation. 

A  surveyor,  like  all  other  professional  men,  owes  a  duty  to  the  person 
who  employs  him.  To  enable  a  building  owner  to  recover  for  inaccuracies, 
he  must  show  a  contract,  express  or  implied,  between  him  and  the  surveyc^r, 
and  the  breach  of  the  contract,  or  negligence  or  want  of  skill. 

The  builder,  in  the  ordinary  case,  is  not  entitled  to  recover  for  inaccurate 
({uautities  as  against  the  surveyor.  To  enable  him  to  do  so  he  must  prove 
a  contract,  express  or  implied,  between  himself  and  the  surveyor.  The 
English  Courts  have  refused  to  fix  liability  arising  by  custom  on  the 
surveyor  to  the  builder  for  inaccuracies  {rrlcdky,  1888,  11  (,).  B.  1).  5013). 
The  architect,  however,  if  ho  takes  out  the  quantities  lumself  ami  receives 
payment  from  the  builder,  may  be  liable  to  the  builder  if  he  cannot  show 
employment  by  the  building  owner,  express  or  in) plied. 

In  supplying  a  builder  with  quantities,  the  general  rule  is  that  there  is 
no  warranty  of  their  correctness.  Xeither  is  it  a  fraud  or  misrej)resenla- 
tion  to  state  that  they  are  correct,  if  such  statement  be  made  in  good  faith. 

The  multifarious  duties  now  imposed  upon  and  undertaken  by 
surveyors  render  a  high  standard  of  professional  skill  and  ability  necessary 
for  their  proper  performance.  It  is  somewhat  singular  that  there  have  not 
been  more  judicial  decisions  explaining  or  interpreting  the  rights,  duties, 
and  liabilities  of  surveyors,  wdiich  to  a  large  extent  have  been  established 
by  usage  and  custom.  As  the  usage  is  naturally  the  growth  or  outcome  of 
expediency  or  necessity,  it  may  be  taken  that  it  would  receive  judicial 
sanction  or  approval  if  and  when  the  Courts  are  asked  to  adjudicate 
upon  it. 

[Hudson  on  Building  Contracts;  Armour  on  Valuations;  Evans  on 
Princiiial  and  Agent.'] 

Surveyor  of  Highways. — Surveyors  are  appointed,  under  the  Local 
Government  Acts,  by  County  Councils-  to  superintend  the  making  and 
upkeep  of  public  roads. 

Surveyor  of  Taxes. — Under  43  &  44  Vict.  c.  19,  s.  17,  an  officer  is 
appointed  by  the  Treasury  to  survey  the  duties  of  land  tax  and  income  tax. 
Certain  duties  are  assigned  to  him  by  tlie  statutes  on  these  subjecta  A 
surveyor  of  taxes  holds  his  appointment  during  pleasure.  If  he  commits 
any  misdemeanour  or  offence  involving  penalties,  he  loses  his  oflice  (43  &  44 
Vict.  c.  19,  s.  18). 

Survivance  in  Common  Calamity,  Presumption 

of. — In   questions   of   succession  it   occasionally    may    be   ne^  to 

determine  which  of  two  persons  who  have  perished  in  a  commu;  .ity 


206  SUSPENSION 

(as  by  sliipwivck,  fire,  or  in  battle)  survived  the  other.  For  this  purpose 
,c--rtaiii  systems  .qf  jurisprudence,  notably  that  of  Eome,  have  elaborated  a 
series  of  presumptions  of  an  arbitrary  kind.  None  of  these  presumptions 
have  place  in  the  law  of  Scotland  (Dickson,  Ecidoice,  s.  130;M'Laren, 
mUs  and  Succession,  i.  G7,  68).  The  ordinary  rule  of  law  would,  it  is 
iliouc'ht,  hold  f'ood  in  such  a  case;  and  the  representatives  of  the  person 
who  Is  aUeiied'^o  have  survived  would  be  required  to  establish  the  fact  of 
cU^vivauce'(^i■'Laren,  'ib.).     [See  Winrj,  30  L.  J.  Ch.  Go.] 

Suspension. — "Suspension  is  that  form  of   law  by  which  the 

.effect  of  a  sentence  condemnatory  that  has  not  received  execution  is  stayed 

or  put  off  till  the  cause  be  again  considered  "  (Eisk.  iv.  3.  8).     After  decree 

has  been  pronounced,  a  party  aggrieved  or  dissatisfied  can,  unless  excluded 

l;y  statute,  obtain  redress  or  review  by  appeal,— formerly  by  advocation, — 

jor  by  suspension,  or  by  reduction ;  and  the  general  rule  regulating  the 

selection  of   these   different   forms   of   process  is  that  "prior   to  extract 

advocation  (now  appeal)  is  the  proper  form  of  review.     When  a  charge 

3^as  been  given  or  threatened  on  an  extracted  decree,  suspension  is  the 

/orm.    Wlien  these  modes  of  review  are  impossible,  reduction  is  competent " 

IBucJianan,  1837,  15  S.  958,  per  Ld.  Medwyn).     Suspension  is  said  to  owe 

its  origin  to  the  right  every  subject  had  to  appeal  for   redress  to  the 

rChanceUor  as  keeper  of  the  King's  conscience  (Ross,  Zed.  i.  360);  and  since 

its  institution  the  Court  of   Session  has   always  exercised   the   right,  on 

^ause  shown,  of  stopping  or  suspending  diligence,  or  the  threatened  use 

of  diligence ;  which  proceeded  either  on  decrees,  or  on  documents  recorded 

ifor  execution,  i.e.  on  the  decrees  of  consent  contained  in  registered  writs. 

In  the  case  of  a  decree  other  than  a  decree  of  consent,  however,  the  decree 

dnust  have  been  extracted — as  a  decree,  strictly  speaking,  means  an  extracted 

decree  {Buchanan,  snjmc).     Accordingly,  suspension  of  a  threatened  charge 

under    an   unextracted    decree   which   can   be   extracted   is   incompetent 

,(Er5k.  iv.  3.  20 ;  Turner,  1824,  3  S.  235 ;  Alexander,  1824,  3  S.  243 ;  cf. 

Tcmiykton,  1837,  16  S.  100).     Suspension  is  naturally  applicable  chiefly 

to  decrees  on  which  a  charge  can  be  given ;  but  the  Court  of  Session  Act, 

1868,  s.  24,  makes  it  also  competent  to  suspend  decrees  on  which  a  charge 

.cannot  follow,  in  certain  cases  (infra,  p.  43).     The  forms  of  this  action  are 

also  used  even  if  there  is  no  decree,  as  in  applications  for  suspension  and 

interdict  and  suspension  and  liberation  (q.v.).    As  will  be  seen  later,  with  one 

.exception  the  Court  of  Session  has  exclusive  jurisdiction  in  such  matters. 

Suspension  was  intended,  in  the  first  instance,  to  prevent  diligence  being 

.done  on  decrees  in  absence,  w^hich  in  early  times  were  obtained  sometimes 

in  cases  where  the  defender- did  not  know  that  he  was  being  sued.     It  was 

next  used  to  suspend  charges  given  under  the  decrees  of  consent  contained 

-in  registered  writs  and  protested  bills  of  exchange.     Finally,  it  was  used  in 

cases  where  the  decree  was  pronounced  in  foro  contradictorio  (Stair,  iv.  52. 

11-12,  and  13).    In  all  these  cases,  moreover,  suspension  was  competent  not 

only  when  diligence  had  been  used,  but  also  when  it  had  been  threatened. 

As  this  action  sists  diligence,  and  it  could  not  be  assumed  that  the  suspender 

had  any  riglit  to  do  this,  in  early  times,  before  the  action  could  be  begun, 

an  api»lication  or  petition  had  to  be  presented  to  the  Court  craving  leave 

to  be  allowed  to  expede,  serve,  and  call  a  summons  or  Letters  of  Suspension. 

If  this  were  granted  the  action  took  the  form  of  one  at  the  instance  of  the 

suspender  or  complainer,  as  he  is  generally  called,  against  the  person  who 

•had  obtained  the  decree,  and  who  is  called  the  charger,  because  in  former 

JLiuies  a  charge  of  horning  in  most  cases  had  to  precede  the  other  executions 


SUSi'KNSluN  207 

(Stair,  iv.  52.  8).    The  tenn  KespoiRlent  is  now,  however,  fruiut-nlly  used  in- 
stead  of  charger.     I  ii  form  it  was  thu.s  tlie  conver.se  of  an  ordinary  action,  for 
under  it  the  oiiL;inal  defender  becomes  tlie  pursuer  and  the  original  ]      ' 
becomes  the  defender.    But  in  substance  the  suspender  is  the  reiil  d<  ; 
as  he  seeks  to  avoid  being  obliged  to  imi)lenient  tlie  decree  that  h., 
obtained  against  him  ;  and  if  he  succeeds  in  the  suspensinn,  he  obtains,  strictly 
speaking,  only  a  negative  remeily.    At  the  same  time,  tlie  distinction  between 
suspensions  and  ordinary  actions  was  more  marked  in  former  times  than 
it  is  at  present.     This  was  owing  no  doubt  to  the  fact  that  in  former  times 
su.spensions  were  greatly  abused,  as  the  Statute  1584,  c.  130,  and  the  very 
numerous  Acts  of  Sederunt  pa.ssed  to  prevent  the  abuse  of  thi.s   ' 
abundantly  prove.     Nowadays,  owing  greatly   to  the  fact  that  the   ....,., 
regarding  caution  and  consignation  are  so  well  understood,  there  is  little 
orno  abuse  of  this  process,  and  it  has  required  almost  no  statutory  rculation 
since  the  Suspension  Act,  1838,  was  jiassed. 

Suspensions  in  former  times  did  not  pass  unless  the  grounds  on  which 
they  were  based  were  instantly  verified.  This  rule  came  to  be  abused  by 
suspenders  obtaining  suspensions  on  forged  ground.s,  and  in  other  ways 
(cf.  A.  S.,  9th  Nov.  1G80);  and  though  such  abuses  were  stopped,  the  rule 
ceased  in  practice  to  be  observed. 

Suspensions,  however,  are  only  sustained  on  cause  shown.  Thus  "  objec- 
tions against  the  citation,  titles,  interests  of  parties,  competency  or  relevancy 
of  the  action,  or  against  the  sufficiency  of  the  probation,  or  the  nullities  in 
not  observing  the  necessary  formalities  (Stair  Ap.  par.  8),  or  an  allegation 
that  the  decree  or  charge  has  not  proceeded  upon  a  just  and  lawful  debt,  or 
that  it  has  been  satisfied  in  whole  or  in  part,  or  that  the  diligence  used  upon 
it  has  been  carried  on  irregularly  without  observing  the  forms  required  by 
law"  (Ersk.  iv.  3.  18),  are  reasons  on  which  a  suspension  will  be  obtained. 
But  as  the  pleas  of  "  competent  and  omitted,"  and  "  proponed  and  repelled," 
apply  to  suspensions,  reasons  which  either  were  or  could  have  been  urged 
in  the  original  action,  if  there  had  been  one,  cannot  be  alleged  in  the 
suspension.  Again,  the  plea  of  res  noviter  veniens  ad  notitiam  can  only 
be  urged  as  a  reason  of  suspension  if  the  information  has  been  receivctl 
after  the  decree  (Stair,  iv.  52.  14).  Again,  a  decree  that  has  been  implementetl 
cannot  be  suspended  {Wothcrspoon,  1849,  11  D.  371),  nor  can  a  decree  in 
absence,  which  has  been  acquiesced  in  {Ewhuj,  1835,  13  S.  515).  Again, 
caution  or  consignation  is  required  in  all  cases  unless  specially  dispenseil 
with.  On  the  other  hand,  though  a  suspension  can  be  passed  in  part  and 
refused  in  part  (A.  S.,  20th  Nov.  1711),  it  is  not  competent  to  amend  the 
decree  that  is  sought  to  be  suspended.  Therefore  if  it  be  bad  the  charge 
following  must  be  suspended  {Lyon,  1874,  1  E.  512).  Finally,  susjiension. 
though  it  is  the  process  used  for  staying  diligence,  does  not  reach  all 
kinds  of  diligence.  Tims  diligence  for  probation  before  sentence  {i.e. 
such  as  a  diligence  to  recover  documents  prior  to  a  proof)  cannot  be 
suspended ;  nor  can  the  use  of  inhibition  or  arrestments.  Though  after  a 
suspension  has  been  brought,  arrestments  used  on  the  decree  wliich  h;i« 
been  suspended  may  be  loosed  on  caution.  Again,  execution  by  adjudiui- 
tion  cannot  be  suspended  (Stair,  iv.  52.  36,  37;  Miller,  1794,  Mor.  15148; 
Tod,  1707,  M.  190). 

If  the  Note  of  Suspension  be  not  passed,  the  charger  may  use  di'- - 

against  both  the  person  or  property  of  the  debtor.     In  modern  }■. 
although  imprisonment  is  still  competent  in  certain  cases  (see  SUSPENSION 
AND  Liberation),  the  usual  result  of  a  charge,  if  it  is  a  charge  to  pay 
money,  is  poinding,  in  addition  to  which  the  debtor  is  rendered  notour 


20S  Sl'SrENSIOX 

bankrupt:   if  it  is  a  charge  under  a  decree  of  removing,  the  tenant  is 
ejectL'd.     It  is  aecoidingly  to  prevent  such  consequences  that  suspensions 

are  brouglit. 

Divisions  of  Suspensions. — Suspensions  are  divided  into  :  I.  Suspensions 
of  decrees  pronounced  in  the  Court  of  Session ;  IT.  Suspension  of  decrees 
pronounced  in  inferior  Courts;  III.  Suspensions  and  interdicts  and  all 
other  kinds  of  suspensions.  This  is  the  division  given  in  the  Suspension 
Act,  1838  (1  &  2  Vict.  c.  86).  At  the  same  time,  with  the  exception  of 
suspensions  and  interdicts,  all  suspensions  are  really  of  decrees  or  of  the 
dilif'ence  or  threatened  use  of  diligence  proceeding  on  them ;  as  recording 
a  deed  or  other  ducument  for  execution  is,  strictly  speaking,  obtaining  a 
decree  of  consent  wljich  the  parties  to  the  deed  either  agree,  or  are  held  to 
afTree,  may  be  put  in  force  in  certain  events.  This  division,  however,  is 
convenient. 

I.  Suspension  of  Decrees  pkonounged  in  the  Court  of  Session. — 
(1)  Decrees  in  foro. — Decrees  of  absolvitor  never  could  be  suspended  {Find- 
lay,  1854,  10  D.  9o9,  per  Ld.  Ivory),  but  formerly  it  was  thought  that  all 
other  decrees  pronounced  in  the  Court  of  Session  might  be  suspended ; 
provided  the  grounds  on  whicli  suspension  was  sought  had  emerged  since 
the  decree,  or  the  suspender  had  been  unable  by  circumstances  beyond  his 
control  from  properly  defending  the  action  {Macpherson,  1863,  1  M.  973, 
per  Ld.  Barcaple).  Xow,  however,  it  seems  settled  that  no  suspension  of 
such  a  decree  can  be  brought,  and  parties  dissatisfied  with  such  decrees 
must  raise  actions  of  reduction,  if  they  can  aver  relevant  grounds  (cf. 
Hamilton,  25  Nov.  1813,  F.  C. ;  Irvine,  1782,  3  Pat.  287;  Young,  1862,  24 
D.  587).  A  decree  by  default  is  a  decree  in  foro,  and,  therefore,  cannot  be 
suspended,  even  though  the  default  occurred  by  inadvertence  {L^imsdainc, 
1834,  13  S.  215;  Macpherson,  1863,  1  M.  973;  Manic,  1879,  6  E.  44).  If, 
however,  a  charge  be  given  under  a  decree  in  foro,  the  charge  or  other 
diligence  may  be  suspended  if  the  suspension  does  not  challenge  or  affect 
tlie  decree.  Thus  it  would  be,  it  is  thought,  competent  to  suspend  a  charge 
for  payment  under  a  decree  on  the  ground  that  the  sum  contained  in  it 
had  been  paid  since  the  decree  was  obtained  (cf.  Paid,  1867,  5  M.  1120). 

(2)  Decrees  in  aiscncc. — A  decree  in  absence  is  a  decree  obtained  in  an 
action  in  which  the  defender  lodged  no  defences  (Act  1672,  c.  16,  s.  19). 
A  decree  in  absence  could  always  be  suspended.  Thus  Ld.  Stair  says, 
"  The  lords  so  easily  suspend  their  own  decreets  in  absence"  (Stair,  iv.  1.  44). 
Such  suspensions  are  now  regulated  by  1  &  2  Vict.  c.  86,  s.  5.  The 
procedure  is  to  lodge  a  note  of  suspension  in  the  Bill  Chamber,  and  to 
consign  the  expenses  decerned  for.  This  being  done  the  note  is  passed 
and  ordered  to  be  served  on  the  opposite  party.  After  the  lapse  of  fifteen 
days  it  may  be  enrolled  before  the  Lord  Ordinary  who  passed  the  note ;  or 
tlie  Court  may  transfer  the  cause  to  another  Lord  Ordinary.  Thereafter 
the  cause  proceeds  in  common  form. 

It  is  to  be  noted  that  such  suspensions  pass  only  on  consignation  of  the 
expenses.  But  if  consignation  be  made  they  must  be  passed.  The  effect 
of  this  provision  is  greatly  lessened  by  the  procedure  introduced  by  the 
Court  of  Session  Act,  1868,  ss.  23  and  24.  Sec.  23  provides  that  within 
tea  days  of  the  date  of  a  decree  in  absence,  the  defender,  if  he  pursue  the 
procedure  there  set  forth,  will  be  allowed  to  have  the  decree  recalled,  and 
the  action  will  thereafter  proceed  as  if  defences  had  been  timeously  lodged. 
Sec.  24  provides  that  certain  decrees  in  absence  shall  have  the  effect  of 
decrees  in  foro,  namely,  decrees  in  absence  obtained  after  personal 
service  of   the   summons,  or  after   the  defender  has  entered  appearance, 


I 


SUSPENSION  209 

shall,  after  extract  and  upon  the  lapse  of  sixty  dayH  after  the  expiry 
of  a  charge  not  brought  under  review  hy  susi)eiision,  he  entitled  to  thu 
privileges  of  a  decree  uifuro.  SiniiUirly  decreea  on  which  a  cliurge  in  not 
competent  obtained  in  absence  after  personal  service,  or  after  appearance 
has  been  entered,  shall  Ije  final  on  the  lapse  of  twenty  years,  unlesH  they 
have  been  set  aside  within  that  time  V)y  suspension  or  reduction.  Sus- 
pensions, therefore,  will  not  be  brought  in  the  cases  to  wliieh  sec.  23 
applies,  and  in  the  cases  to  which  sec.  2-i  ai)plies,  the  suspension  must 
be  brought  within  sixty  days  of  the  expiry  of  the  charge  in  cases  where  a 
charge  is  competent,  and  within  twenty  years  in  cases  where  a  charge  is 
not  competent.  In  addition,  1  &  2  Vict.  c.  80,  s.  5,  will,  of  course,  apply 
in  all  cases  where  there  has  not  been  personal  service,  or  tlie  defender 
has  not  entered  appearance. 

II.  Deckees  01-  Infekiok  Coukts. — In  all  cases,  unless  excluded  by 
statute  or  practice,  it  is  competent  to  suspend  decrees  pronounced  in 
inferior  Courts  whether  pronounced  in  absence  or  inforo. 

In  the  following  cases  suspension  is  excluded: — (a)  A  decree  that 
has  been  implemented  cannot  be  suspended  {Tweedel,  1840,  2  D.  808). 
(1))  When  appeal  is  competent,  suspension  is  incompetent,  as  an  apjieal 
stops  extract.  By  the  Sheriff  Court  Act,  187G,  s.  32,  an  appeal  may 
be  taken  within  fourteen  days,  during  which  time  extract  is  not  given 
out,  and  thereafter  if  the  decree  be  not  extracted,  an  appeal  may  be  Uiken 
within  six  months  of  the  date  of  the  decree.  In  the  other  inferior  Courts 
the  rule  is  the  same,  except  that  extract  is  not  given  out  for  twenty-one 
days,  during  which  time  the  right  to  appeal  is  absolute.  Therefore  during 
six  months  after  decree,  suspension  is  incompetent,  unless  the  decree  lias 
been  extracted.  After  six  months  it  is  competent,  provided  the  interlocutor 
is  reviewable,  {c)  No  interlocutor  pronounced  in  the  Sheriff  Ccnirt  in  any 
cause  not  exceeding  £25  sterling  in  value  can  be  suspended  (Sherilf  Court 
Act,  1853,  s.  22).  Nor  any  interlocutor  pronounced  in  any  other  inferior 
Court  where  the  value  of  the  cause  does  not  exceed  £12  (A.  S.,  11th  Aug. 
1787,  s.  4).  Again,  no  decree  pronounced  in  the  Small  Deljt  Court  (Small 
Debt  Act,  1837,  s.  30)  can  be  suspended,  though  irregular  proceedings 
following  thereon  may  be  suspended  (Shiell,  1871,  10  M.  58).  Again,  no 
decree  pronounced  in  the  Debts  Eecovery  Court  is  subject  to  review  by 
suspension  (Debts  Recovery  Act,  1867,  s.  17).  (d)  By  a  long  series  of 
decisions  suspension  of  a  decree  of  absolvitor,  and  of  the  decree  for  expenses 
following  thereon,  on  any  ground  involving  review  of  the  decree  of 
absolvitor,  is  incompetent.  The  reason  is  that  no  charge  can  be  given  on 
a  decree  of  absolvitor,  and,  therefore,  it  cannot  be  suspended,  and  as  the 
decree  for  expenses  is  the  result  of  the  decree  of  absolvitor  it  cannot  be 
suspended,  because  the  merits  of  the  decree  of  absolvitor  cannot  be  inipiired 
into  (Scott,  1831,  10  S.  67;  Whyte,  1835,  13  S.  470;  FiiuUay,  1854,  16  D. 
938 ;  cf.  Scoular,  1864,  2  M.  955).  "Where,  however,  the  decree  for  expenses 
can  be  reviewed  on  grounds  not  affecting  the  principal  decree,  it  may  be 
suspended  {Mcnzics,  1834,  12  S.  772). 

On  the  other  hand,  in  cases  not  falling  within  these  excepiions, 
suspension  of  decrees  of  inferior  Courts,  whether  in  foro  or  in  absence,  is 
competent,  and  is,  moreover,  in  certain  cases  the  only  mode  of  obtaining 
review.  Thus  a  decree  ad  fadiwi  2)r(€standiun  which  is  not  an  interlocutor 
that  is  appealable  under  the  Sheriff  Court  Act,  1853,  s.  24,  may  be 
suspended ;  not,  indeed,  under  sec.  4  of  1  &  2  Vict.  c.  80,  which  chiefly 
regulates  suspensions  of  Sheriff  Court  decrees,  but  under  sec.  6  of  that  Act, 
which  is  concerned  with  all  suspensions  {Wilson,  1860,  22  D.  1410). 

S.  E. — VOL.  XII.  ^^ 


210  susrExsiox 

Af^aiu,  a  decree  ad  factum  pmstandum  in  an  inferior  Court,  other  than 
that'  of  the  Slieritt;  can  be  suspended,  even  though  it  is  not  a  final 
interlocutor  {Christie,  1825,  4  S.  71 ;  Matlicson,  1829,  7  S.  449). 

Again,  in  actions  of  removing,  suspension  is  the  only  mode  in  which  the 
decree  can  be  reviewed  (Judicature  Act,  1825,  s.  44 ;  cf.  Roy,  1840,  2  D. 
1345).  Such  suspensions  may  be  before  extract  {Graham,  1843,  5  D.  1207), 
and  without  waiting  the  expiry  of  the  reclaiming  days  against  the  Sherift"s 
judfrment  {Ro^,  1833,  12  S.  200).  An  intended  removal  can  be  suspended 
{Scott,  1827,  6  S.  250).  Such  suspensions  are  competent  after  extract,  but 
not  after  the  decree  has  been  executed  {M'Bougal,  1863,  1  M.  1012  ;  cf. 
Macintosh,  1830,  9  S.  75).  Suspensions  of  decrees  of  removing  formerly 
required  the  concurrence  of  the  whole  Court  in  Session  and  three  judges  in 
vacation,  but  are  now  passed  by  the  Lord  Ordinary  alone.  See  50  Geo.  ill. 
c.  112,  s.  42;  G  Geo.  iv.  c.  120,  s.  46,  under  which  last-mentioned  section 
they  are  now  brought. 

{a)  Decrees  in  foro. — Suspensions  of  decrees  pronounced  in  fore  in 
inferior  Courts  are,  for  the  most  part,  regulated  by  sec.  4  of  1  &  2  Vict. 
c.  86,  but  when  not  competent  under  it  they  may,  in  certain  cases,  be 
brought  under  sec.  6. 

Sec.  4  deals  with  two  kinds,  namely — 

(1)  Suspensions    on    caution    not    being    suspensions   of    decreets    of 

removing. 

(2)  Suspensions  without  caution,  or  on  juratory  caution,  or  of  decreets 

of  removing. 

(1)  Suspensions  on  Caution. — It  is  competent  to  suspend  the  decree,  and 
any  diligence  or  proceedings  following  thereon,  in  cases  which  may  at 
present  be  brought  under  review  by  suspension,  by  lodging  a  note  in  the 
Bill  Chamber,  setting  forth  the  decree  sought  to  be  suspended,  and  the 
remedy  craved.  The  presentment  of  this  note  operates  as  an  interim  sist, 
and  on  such  caution  being  found  as  is  by  the  present  practice  required— 
and  also  for  the  Court  of  Session  expenses  {infra)— the  note  shall  be 
passed.  The  process  is  then  transmitted  to  the  Court  of  Session,  and  as 
soon  as  the  note  has  become  final  and  caution  found,  it  may  be  enrolled 
in  the  motion  roll  of  the  Lord  Ordinary  (cf.  31  &  32  Vict.  c.  100,  s.  90). 
The  point  to  be  noted  is  that  where  suspension  is  competent  in  this  manner, 
it  must  be  passed  if  caution  be  found. 

(2)  Suspensions  vHthout  Caution,  or  on  Juratory  Caution,  or  of  Decreets 
of  Removiivj. — In  such  cases  an  articulate  statement  of  facts  on  which  the 
suspension  is  founded,  and  a  note  of  pleas  in  law,  must  be  annexed  to  the 
note.  And  it  is  not,  as  in  the  former  case,  passed  as  a  matter  of  course ; 
but  only  if  the  Lord  Ordinary  or,  on  a  reclaiming  note,  the  Court  think 
just  (cf.  A.  S.,  11th  July  1828,  ss.  9  and  10). 

The  following  points  should  be  noted :— In  all  suspensions  of  decrees  in 
foro  the  inferior  Court  or  the  Court  of  Session  can  regulate  all  matters 
regarding  interim  possession  (1  &  2  Vict.  c.  86,  s.  4),  and  in  suspensions  of 
final  judgments  pronounced  in  inferior  Courts,  it  is  competent  for  the  Lord 
Ordinary  on  the  Bills,  or  for  the  Court,  to  remit  with  instructions ;  but  no 
such  remit  shall  be  made  except  in  the  case  of  a  suspension  of  a  decree  in 
absence,  without  hearing  counsel  or  receiving  a  written  answer  on  the  part 
of  the  respondent  (1  &  2  Geo.  iv.  c.  38,  s.  1). 

Finally,  if  suspension  cannot  be  brought  under  sec.  4  of  1  &  2  Vict.  c.  86, 
it  may,  in  certain  cases,  be  raised  under  sec.  6,  which  includes  suspensions 
of  all  kinds  {iifra,  III. ;   Wilso7i,  supra,  1860,  22  D.  1410). 

(&)  Decrees   in   absence  pronounced  in  inferior  Courts. — Suspension  oi 


SUSPENSION  211 

decrees  in  absence  pronounced  in  tlie  Shorifr  Court  can  be  brought  under 
1  &  2  Vict.  c.  8G,  s.  G,  provided  the  action  be  fur  a  kiuu  of  not  less  thun  £''.' 
as  the  Sheriff  Court  is  final  in  causes  not  exceeding  that  sum  (10  &  17  vfci 
c.  80,  s.  22).  Such  suspensions,  however,  will  only  now  be  rained  in  cases 
in  which  a  defender  cannot  get  rei)oned  in  the  SherilV  Court.  l;ci..ninK  is 
much  simpler,  and  is  now  regulated  l)y  '.',{)  &  40  Vict.  c.  7u,  a.  14. 
Suspension  can  also  be  brought  of  decrees  in  absence  i.ronounced  in  otlier 
inferior  Courts.  If,  however,  the  action  be  for  a  sum  not  exceeding  £\'j, 
the  Lord  Ordinary  refuses  the  suspension,  and,  provided  the  suspender 
consign  the  expenses,  he  remits  to  the  inferior  judge,  if  he  be  coniiKjtent 
who  hears  parties  (A.  S.,  11th  Aug.  1787).  In  cases  exceeding  £12,  th.- 
Lord  Ordinary  can  pass  or  refuse  the  note,  or  remit  it  with  instructions 
to  the  inferior  Court,  under  1  &  2  Geo.  iv.  c.  38,  s.  1.  Suspension  of  such 
decrees  in  absence  will  be  seldom  resorted  to,  as  a  party  against  whom  a 
decree  in  absence  has  been  pronounced  can  get  repoued  (A  S  T'th  Nov 
1825,  ch.  19,  s.  6). 

III.  Suspension  and  Interdict  and  all  other  Sl'spensions  not  other- 
wise provided  for  under  the  two  preceding  heads  (s.  6). — Such  suspension.^ 
will  include  suspension  and  interdict  (see  Interdict);  suspension  and 
liberation  in  cases  where  imprisonment  is  still  competent ;  and  al.'-o 
suspension,  liberation,  and  interdict  when  both  liberation  and  interdict 
are  desired ;  suspensions  of  charges,  or  threatened  charges  under  documents 
which  have  been  recorded  for  execution,  or  under  the  recorded  protest  rif  a 
bill  of  exchange,  a  warrant  to  poind,  and  many  other  kinds. 

Suspension  and  interdict,  and  suspension  and  liberation,  are  processe.s 
distinct  from  ordinary  suspensions,  but  which  use  the  procedure  applicable 
to  suspensions.  Under  them  either  interdict  to  prevent  a  legal  wrong  or 
liberation  is  sought ;  while  in  all  other  cases  it  is  the  suspension  of  diligence 
which,  unless  suspended,  might  be  used  in  due  course  of  law,  that  is  desired. 
For  example,  in  a  poinding  the  proceedings  may  be  suspended  at  any  stage, 
up  to  the  moment  when  a  warrant  for  sale  has  been  granted.  After  the 
warrant  for  sale  has  been  granted,  the  matter  passes  out  of  the  control  of 
the  Court,  and  accordingly  the  sale  can  only  be  stopped  by  an  interdict 
(Mackay,  Practice,  vol  ii.  p.  212).  Similarly,  all  other  acts  done  without 
the  authority  of  Court,  which  are  said  to  be  illegal,  must  be  stopped  by 
suspension  and  interdict  (see  Interdict). 

In  all  suspensions  under  this  section,  the  note  of  suspension  must  have 
annexed  to  it  an  articulate  statement  of  facts  and  a  note  of  pleas  in  law. 
The  Court  considers  the  matter,  and  passes  or  refuses  the  note  as  may 
seem  just.  Finally,  the  practice  as  to  caution  and  the  power  to  reclaim  to 
the  Inner  House  "shall  remain  as  at  present."  These  points  are  dtalt  with 
under  procedure. 

Procedure. — As  procedure  in  suspensions  is  siunmary,  suspensions 
always  commence  in  the  Bill  Chamber.  Prior  to  1838  the  procrdure  was 
for  the  suspender  to  present  a  short  note  or  petition  to  the  Lord  (,)rdinary 
on  the  Bills.  The  note  was  considered,  and  if  passed  it  was  a  warrant  for 
the  suspender  to  expede  Letters  of  Suspension,  which  was  a  writ  issuing 
from  the  signet,  and  which,  when  served,  stayed  execution  of  the  decree 
craved  to  be  suspended  until  the  process  of  suspension  was  discussed.  The 
Letters  of  Suspension  in  form  resemltled  a  summons,  and,  like  a  summons,  it 
was  called  in  the  usual  way  (Ersk.  iv.  3.  18-21). 

Now,  however,  since  the  passing  of  the  Suspension  Act,  1838  (1  &  2 
Vict.  c.  86),  the  practice  has  been  changed.  Instead  of  presenting  a  note 
or  petition  craving  for  leave  to  expedeLetters  of  Suspension,  a  suspender 


■212  SUSrENSION 

now  simply  pre?ents  a  note  to  the  Lord  Ordinary  on  the  Bills,  signed  by 
his  a^^ent  cravin"  for  suspension  of  a  decree  in  absence  pronounced  in  Court 
of  Se'ssion  unde?  sec.  5  (supra) ;  of  a  decree  i7i  foro  of  an  inferior  Court 
under  sec.  4  (supra) ;  or  the  appropriate  crave  in  all  other  cases  under 
sec  6  (supra).  Forms  of  these  notes  are  given  in  the  schedule  annexed 
to  the  A.  S.,  2-ith  Dec.  1838.  . 

As  we  have  seen,  this  note  must  have  annexed  to  it  an  articulate 
statement  of  facts  and  note  of  pleas  in  law  in  all  cases— except  in 
suspensions  on  consignation  of  decrees  in  absence  pronounced  in  the 
Court  of  Session,  and  in  suspensions  on  caution  of  inferior  Court  decrees, 
pronounced  in  foro  not  being  decrees  in  removings.  It  is  laid  before  the 
Lord  Ordinary,  and  a  copy  handed  to  the  Bill  Chamber  Clerk  (A.  S.,  24th 
Dec.  1838,  s.  1). 

In  the  case  of  suspensions  of  decrees  in  absence  pronounced  in  the 
Court  of  Session,  the  note  must  be  passed  if  consignation  beinade.  In  the 
case  of  suspensions  of  decrees  in  foro  pronounced  in  the  inferior  Courts, 
with  the  exception  of  judgments  pronounced  in  actions  of  removing,  the 
presentment  of  the  note,  on  being  certified  by  the  clerk,  operates  as  an 
interim  sist  of  diligence;  and  the  note  must  be  passed  if  caution  be  found 
for  the  implement  of  the  decree,  and  of  the  expenses  to  be  incm^red  in  the 
Court  of  Session.  In  all  other  cases  the  Lord  Ordinary  considers  the 
matter.  He  may  refuse  the  note,  but  if  caution  or  consignation  is 
ofiered,  the  usual  course  is  to  order  the  respondent  to  answer  it  within 
a  fixed  time,  and  during  that  time  to  sist  execution  of  the  diligence  used  ov 
threatened.  If  a  caveat  be  lodged,  the  charger  will  be  heard  before  a  sist 
is  granted. 

,Sist. — A  sist  stays  "execution  of  the  decree  craved  to  be  suspended 
till  the  process  of  suspension  be  discussed"  (Ersk.  iv.  3.  18),  that  is,  until 
the  note  be  passed  or  refused.  A  sist  begins  when  it  is  intimated  to 
the  charger.  In  the  exceptional  case  of  the  suspender  not  being  bound  to 
find  caution  or  make  consignation,  it  lasts  until  the  note  is  disposed  of. 
When  caution  or  consignation  is  necessary,  it  must  be  made  or  found 
within  fourteen  days,  unless  the  Lord  Ordinary,  on  special  cause  shown, 
prorogates  the  time.  Prorogation  of  time  in  practice  is  asked  for  on  the 
motion  roll,  and  parties  do  not  require  to  present  a  separate  note.  If  caution 
be  found,  or  consignation  be  made  in  due  time,  the  sist  continues  until  the 
note  is  disposed  of.  If  caution  be  not  found,  nor  consignation  made  within 
the  fourteen  days,  and  no  prorogation  of  time  be  obtained,  the  sist  expires, 
and  the  charger  can  proceed  with  his  diligence  as  soon  as  he  has  obtained 
a  certificate  of  no  caution  or  consignation,  which  he  will  obtain  on  applica- 
tion to  the  Bill  Chamber  Clerk  (A.  S.,  3rd  July  1677 ;  A.  S.,  1st  Nov.  1799). 
Similarly,  if  a  suspender  offer  in  the  note  to  find  caution  or  make  consigna- 
tion, he  may  obtain  a  sist  for  fourteen  days,  and  within  that  time  he  must 
find  caution  or  make  consignation,  otherwise  the  sist  expires. 

When  a  sist  has  been  intimated  it  has  the  same  effect  as  a  passed 
suspension,  and  if  the  charger  proceed  to  do  diligence  he  will  be  proceeded 
against  for  contempt  of  Court  (Staii',  iv.  52.  16). 

Thus  after  a  sist,  a  charger  cannot  execute  a  poinding  (Stewart,  1751, 
Mor.  10535),  nor  carry  out  a  decree  of  remo\^ng  (Keltic,  1828,  7  S.  208). 

The  interlocutor  sisting  execution  also  orders  answers  within  a  certain 
number  of  days.  This  means  after  caution  is  found,  if  caution  is  required. 
If  no  caution  is  required,  answers  are  due  within  the  days  fixed  after 
intimation  has  been  made. 

Caution  and  Consignation. — The  ordinary  rule  is  that  consignation  must 


SUSPENSION  213 

be  made,  or  caution  found,  in  all  cases  before  a  sist  can  be  L'ranteU  or  u 
note  of  suspension  be  passed  (Stair,  iv.  52.  24;  Ersk.  iv.  3.  19)  An  a  rule 
caution  is  sullicient,  but  consignation  of  the  sum  of  money  decerned  for  in 
required  in  the  following  cases,  namely  :—Ciiarges  by  ministers  for  t».--.- 
stipends,  by  professors  of  universities,  or  masters  of  parish  hcIiooIh  for  i 
salaries,  or  directors  of  hospitals  for  tlieir  rents  (St.  1GG9,  c.  G;  lOO'J 
c.  14),  or  by  the  collector  of  the  widows'  fund  of  the  Church'  of  Scotland 
against  contributors  (19  Geo.  in.  c.  20,  s.  55).  In  addition,  as  we  !•  ■  — 
seen,  consignation  of  the  expense  decerned  for  must  be  made  in  suspen 
of  decrees  in  absence  pronounced  in  the  Court  of  Session  under  1  &  2  Vict, 
c.  86,  s.  5.     It  may  also  be  required  in  any  case  on  cause  shown.     A  cond'  ' 

in  a  bond,  however,  that  it  is  only  to  be  suspended  on  consignation, ~ 

not  prevent  the  Court  from  suspending  on  caution  {Gilmov.r,  1831,  9  S.'907). 
On  tiie  other  hand,  caution  itself  may  be  dispensed  with  in  all  cases,  except 
suspensions  of  decrees  of  inferior  Courts  brought  under  1  &  2  Vict.  c.  8G, 
s.  4  {siqna,  209).  Formerly  this  privilege  of  dispensing  with  caution' 
could  only  be  granted  if  the  suspension  were  passed  in  jrrcsmtia,  or  by 
three  or  two  judges  in  vacation  (A.  S.,  29th  Jan.  1G50;  A.  S.,  10th 
Aug.  1776).  Now,  however,  only  one  judge  is  required  (G  Geo.  iv.  c.  120 
s.  46). 

Of  course,  caution  can  only  be  dispensed  with  on  cause  shown.  AVhat 
is  sullicient  is  a  question  of  circumstances.  For  example,  where  the 
acceptor  of  a  bill  denied  that  the  signature  was  his  {Kcchans,  1893,  21 
It.  75),  and  where  a  firm's  signature  to  a  bill  was  appended  after  dissolution 
{Goodivin,  1890,  18  li.  193),  no  caution  was  required  (cf.  Simpson,  1888, 
15  R  716,  and  Eenwick,  1891,  19  E.  163,  where  caution  required).  Again, 
caution  may  not  be  required  if  the  note  refer  the  matter  to  the  charger's 
oath  (Larl-ins,  1823,  2  S.  114).  As  a  rule,  however,  a  sist  is  only  granted 
and  a  note  is  only  passed  if  caution  be  found.  Caution  takes  the  form  of 
a  bond  which  must  be  lodged  with  the  Bill  Chamber  Clerk  before  the 
expiry  of  the  sist,  or  the  time  allowed  for  finding  caution.  Under  it  the 
cautioner  becomes  bound  to  pay  both  the  sum  contained  in  the  charge  ami 
also  the  expenses  of  the  suspension  (A.  S.,  23rd  Nov.  1613).  The  Bill 
Chamber  Clerks  are  in  the  first  instance  responsible  for  the  solvency  of  the 
cautioner,  who  must  be  habit  and  repute  solvent,  sufficient  for  the  sum  in 
the  charge,  and  subject  to  the  jurisdiction  of  the  Court.  "When,  however, 
the  sufficiency  of  a  cautioner  is  objected  to,  the  Bill  Chamber  Clerk  must 
see  that  the  bond  is  attested.  Attestation  is  attesting  the  sufficiency  of 
cautioner,  and  is  done  by  an  attestor  signing  the  bond,  and  so  becoming 
cautioner  for  the  cautioner  (Ersk.  iii.  3.  71;  A.  S.,  27th  Dec.  1709).  The 
attestor  had  formerly  the  benefit  of  discussion  (Stair,  iv.  52.  25 ;  A.  S.,  27th 
Nov.  1709),  and  may  still  stipulate  for  it  (19  &  20  Vict.  c.  GO,  s.  8).  A 
new  cautioner  may  also  be  required  if  the  cautioner  become  bankrujit  (A.  S., 
nth  July  1828,  s.  118).  Again,  cautioners  are  liable  under  their  obligation 
though  the  suspender  do  not  enrol  the  case  within  the  time  allowed,  and 
even  although  the  charger  obtain  and  extract  protestation  for  not  enrolling 
and  insisting  (6  Geo.  iv.  c.  120,  s.  47).  Again,  under  a  bond  of  cautionry  in 
suspensions,  each  cautioner,  when  there  is  more  than  one,  is  liable  if  he 
sign.  In  tliis  respect  it  differs  from  ordinarv  cautionry,  where  none  arc 
liable  unless  all  sign  (Sijnpson,  1800,  22  D.  679).  Fina'lly,  the  septennial 
limitation  of  cautionary  obligations  does  not  apply  to  judicial  cautionci-s 
(B.  Fr.  602 ;  Hope,  1715,  Mor.  11009). 

Juratory  Caution.— The  general  rule  that  suitable  or  sufiicient  caution 
must  be  found  in  suspensions  has  from  the  earliest  times  been  subject  to 


•ju  SUSPENSION 

the  exception  that  a  suspender  who  is  in  poor  circumstances  can  offer 
juratory  caution,  "  i.e.  such  security  as  the  suspender  swears  is  the  best  he 
can  'nve  "  (Ersk.  iv.  3.  19).  Formerly  the  suspender  in  such  circumstances 
had  to  frrant  a  disposition  omnium  honorum  in  favour  of  the  cliarger,  but 
that  is  no  longer  necessary.  When  such  caution  is  tendered  the  procedure 
is  for  the  suspender  to  lodge  an  inventory  of  his  effects ;  swear  to  the  truth 
of  his  statements  before  a  commissioner  appointed  by  the  Court  to  take  his 
oath  ;  give  up  all  vouchers  of  debts  due  to  him ;  and,  if  required,  dispone 
his  heritage  to  the  charger  (Stair,  iv.  52.  26  ;  A.  S.,  14th  June  1799 ;  A.  S., 
28th  July"l828,  s.  3).  Whether  juratory  caution  should  be  accepted,  is  in 
all  cases  a  question  of  circumstances,  but  as  a  rule  it  will  be  accepted  if  the 
Court  consider  that  injustice  might  be  done  if  it  were  refused  {Livingstone, 
1890,  17  Pt.  702;  Logan,  1870^  8  M.  1009).  It  has  been  accepted  in  a 
suspension  of  a  decree  of  removing  {Marshall,  1850,  12  D.  946).  It  was 
refused  in  Marshall,  1860,  22  D.  926;  McGregor,  1862,  24  D.  1006. 

Passing  or  Bef  using  the  Note. — If  answers  are  lodged  within  the  time  fixed 
in  the  interlocutor  ordering  intimation  of  the  note,  or,  as  all  interlocutors  in 
the  Bill  Chamber  are  after  consideration  {Arthur,  1866,  4  M.  705),  even 
if  no  answers  are  lodged  on  the  expiry  of  the  time  allowed  for  answers,  the 
Lord  Ordinary  considers  the  case.  If  no  caution  be  found  when  caution 
has  to  be  found,  the  note  is  refused ;  but  if  caution  be  found,  the  Lord 
Ordinary  considers  the  matter  on  the  merits,  and  passes  or  refuses  the  note 
in  whole  or  in  part  (A.  S.,  20th  Nov.  1711).  As  to  expenses,  he  may  give 
expenses  to  the  charger,  if  answers  have  been  given  in,  but  he  cannot  give 
expenses  to  the  suspender  (A.  S.,  19th  Dec.  1778;  Nairnes,  1824,  3  S.  228). 
When  notes  are  refused,  the  certificate  of  refusal  is  not  issued  until  forty- 
eight  hours  after  entry  in  the  minute  book ;  and  when  notes  are  passed,  the 
interlocutor  does  not  take  effect  for  forty-eight  hours,  except  as  a  con- 
tinuance of  the  sist.  In  cases,  again,  where  caution  has  to  be  found  after 
passing  the  note,  the  note  only  takes  effect  when  caution  is  found. 
Until  then,  the  note  is  not  out  of  the  Bill  Chamber  (A.  S.,  1838,  s.  8). 

Review. — It  is  competent  to  reclaim  against  the  interlocutor  passing  or 
refusing  a  Note  of  Suspension.  When  reviewing  Bill  Chamber  interlocutors, 
liowever,  the  Inner  House  sits  as  a  branch  of  the  Bill  Chamber  (Mackay, 
Practice,  i.  69).  The  peculiarities  of  such  reclaiming  notes  are  that  they 
must  be  boxed  within  fourteen  days  of  the  interlocutor  passing  or  refusing 
the  note ;  that  they  must  be  intimated  to  the  agent  of  the  opposite  party ; 
and  that  such  reclaiming  notes  "  shall  neither  prevent  the  Clerk  to  the  Bills 
from  issuing  the  passed  note,  or  a  certificate  of  refusal  as  the  case  may  be, 
nor  hinder  the  interlocutor  submitted  to  review  from  being  carried  into 
effect  by  the  opposite  party,  unless  the  Lord  Ordinary  on  the  Bills  shall,  as 
heretofore,  stay  proceedings  on  special  cause  shown  by  a  note  for  the  party 
by  prohibiting  the  delivery  of  the  note,  or  the  issuing  of  the  certificate  on 
such  terms  and  conditions  and  during  such  time  as  he  may  judge  reasonable 
for  enabling  the  party  to  obtain  a  review  of  the  interlocutor"  (1  &  2 
Vict.  c.  86,  ss.  4  and  6  ;  A.  S.,  24th  Dec.  1838,  s.  5).  Passing  or  refusing  a  note 
was  always  the  important  step  in  suspensions,  as  after  a  note  is  passed  the 
case  is  considered  on  its  merits.  Since  1868  this  result  is  attained  as 
soon  as  the  interlocutor  passing  the  note  has  become  final,  and  caution  or 
consignation  has  been  found  or  made  if  either  has  been  ordered.  This 
liappens  fourteen  days  after  its  date  or  the  conditions  it  contains  as  to  the 
caution  or  consignation  have  been  fulfilled.  When  the  interlocutor  has 
become  final,  the  cause  becomes  for  all  purposes  an  action  depending  on  the 
Court  of  Session  (Court  of  Session  Act,  1868,  s.  90). 


SUSPENSION  oir 

It  may  here  Ijg  iiotea  that  Bill  Cliiiiiiber  work  is  done  by  Bill  ChamW 
officials,  and  as  the  extractor  is  not  a  Bill  Clianihor  ollicial,  interlocutors  in 
the  r>ill  Ciiamber  are  not  extracted,  and  instead  of  extracts  the  clerkH  give 
certified  copies  (A.  S.,  24th  Dec.  1838).  The  reclaiming  note  may  he  presented 
to  either  the  First  or  Second  Division  in  the  reclaimer's  option  ;  as  the  rules  as 
to  marking  a  case  to  a  ])articular  Division  only  ap]tly  to  Court  of  Session  not 
to  Bill  Chamber  cases  {Graham,  1849,  11  D.  1105)." 

When  a  reclaiming  note  has  been  heard,  the  Division  may  either  refuse 
the  reclaiming  note,  or  may  remit  to  the  Lord  Ordinary  to  pass  or  refuse 
the  suspension ;  or  if  the  reclaiming  note  is  against  an  interlocutor  in  a 
suspension  of  an  inferior  Court  decree,  it  may  remit  to  the  inferior  judge 
with  instructions,  and  any  interlocutor  of  the  Division  refusing  the  re- 
claiming note,  or  of  the  Lord  Ordinary  on  a  remit  from  the  Court,  shall  be 
final  (G  Geo.  iv.  c.  120,  s.  46).  Under  this  section  the  old  theory  regarding 
Bill  Chamber  reclaiming  notes  was  kept  in  view.  The  Inner  House  c<in 
refuse  a  reclaiming  note,  but  it  never  passes  or  refuses  the  note  of 
suspension.  It  remits  to  the  Lord  Ordinary  to  do  the  one  or  the  other. 
Accordingly,  the  case  is  always  remitted  to  the  Lord  Ordinary  when  his 
interlocutor  is  reversed.  In  addition  to  this,  when  expenses  are  given,  and 
these,  as  w^e  have  seen,  can  be  given  against  but  not  to  a  suspender  (A.  S.. 
19th  Dec.  1778),  the  Inner  House  remits  to  the  Lord  Ordinary  to  refuse  with 
expenses  in  the  case  when  his  interlocutor  passing  the  note  of  suspension 
has  been  recalled.  The  Inner  House  must  also  remit  to  the  Lord  Ordinary 
when  it  refuses  a  reclaiming  note  against  an  interlocutor  refusing  to  pass  a 
note  of  suspension,  if  it  intends  to  give  additional  expenses.  The  general 
form  of  interlocutor  in  such  cases  is  to  "refuse  the  reclaiming  note,  find 
additional  expenses  due,  and  remit  to  the  Lord  Ordinary  to  modify  and 
discern  fur  the  same."  These  rules  were  sanctioned  in  the  case  of  Mo7Hson, 
1842,  4  D.  563. 

Appeal  to  the  House  of  Lords. — An  appeal  is  competent  to  the  House  of 
Lords  against  an  interlocutor  of  the  Inner  House  passing  or  refusing  a 
note  of  suspension  {Fleming,  1839,  Macl.  &  li.  547 ;  Beveridge  on  Bill 
Chamher,  119). 

Second  Notes  of  Si'.sjMnsioji. — (a)  Under  the  A.  S.,  1838.  —  Besides 
reclaiming  notes,  second  notes  of  suspension  are  competent  in  certain 
cases.  Thus  in  a  case  where  a  note  of  suspension  has  been  refused  in 
respect  that  caution  has  not  been  offered  or  found  or  on  any  ground  other 
than  the  merits ;  or  again,  in  a  case  where  a  note  has  been  passed  and  "  a 
certificate  of  no  caution  or  consignation "  or  other  condition  attached  to 
the  passing  of  the  note  has  been  issued,  a  second  note  may  be  presented 
on  payment  of  previous  expenses  (Allan,  18r»4,  16  I).  917).  To  this  right, 
however,  there  is  the  following  exception :  Where  a  note  has  been 
presented  without  caution  or  on  juratory  caution  or  on  consignation,  it  is 
competent  for  the  suspender  to  amend  the  note,  and  ofler  juratory  caution 
or  full  caution  in  place  of  no  caution ;  or  full  caution  or  consignation  in 
place  of  juratory  caution ;  or  the  note  may  be  again  amended  under 
conditions  as  to  paying  expenses  or  finding  caution  within  a  certain  time, 
as  may  be  fixed  in  the  interlocutor  allowing  the  amendment.  But  if  the 
suspender  take  advantage  of  these  provisions  and  the  note  as  amended  is 
refused  on  the  ground  of  no  caution  or  consignation,  a  second  note  of 
suspension  cannot  be  brought  (A.  S.,  24th  Dec.  1838,  ss.  4  and  7 ;  cf. 
Ta^/lor,  1852,  15  D.  14). 

(b)  At  Common   Law. — As  we  have  seen,  the  pleas  of  competent  and 
omitted,  proponed  and   repelled,  apply  to  suspensions  (Stair,  iv.  52.  14). 


216  SUSPENSION" 

Therefore  no  second  note  is  competent  at  common  law  unless  circumstances 
have  changed  since  the  first  note  was  refused.  At  the  same  time,  if  the 
circumstances  of  parties  change,  a  new  note  of  suspension  by  the  same 
suspender  is  not  a  second  note  in  the  sense  of  the  A.  S.,  and  is  competent, 
and  can  be  passed  even  without  caution  or  consignation  being  found  or 
made  {M'Kenzie,  1831,  10  S.  24).  Thus  a  suspension  and  lil)eration  can 
be  brought  although  a  suspension  of  the  charge  on  which  the  suspender 
was  incarcerated  has  been  refused  {Barr,  1850,  13  D.  305).  Again,  a 
suspension  and  interdict  to  stop  a  poinding  has  been  held  competent 
although  a  suspension  of  the  charge  on  which  the  creditor  afterwards  was 
proceeding  to  poind  had  been  refused  on  the  ground  of  no  caution  (Steivart, 
1841,  3  D.  66S). 

TJiird  Azotes  of  Suspension. — In  former  times  third  notes  were  apparently- 
brought  and  considered  by  simply  offering  caution.  Such  a  mode  of 
procedure  is  not  competent  under  A.  S.,  1828,  s.  15  {Corsan,  1830,  8  S. 
114).  Though  not  competent  under  the  A.  S.,  such  notes,  it  is  thought, 
may  still  be  brought,  if  not  barred  by  the  pleas  of  competent  and  omitted 
or  proponed  and  repelled,  and  if  circumstances  have  again  changed  since 
the  second  note  was  brought. 

Turning  the  Charge  into  a  Libel. — In  suspensions  of  decrees  an  ancient 
mode  of  procedure  is  thus  described  :  if  it  shall  appear  to  the  Court  that  the 
decree  suspended  is  defective  as  to  form,  though  the  debt  due  to  the  charger 
may  be  just,  they  frequently  turn  the  charge  into  a  lild,  the  meaning  of 
which  is  that,  though  the  charge  given  is  to  have  no  longer  the  effect  of  a 
proper  charge,  yet  to  save  the  expense  to  the  creditor  of  bringing  a  new 
action  for  the  debt,  it  is  held  as  equivalent  to  a  citation  given  by  him  to 
his  debtor  upon  a  summons,  so  that  the  debtor  or  suspender  must  offer  his 
defences  against  the  debt  tanquam  in  lihello  as  if  he  had  been  cited  in  a 
common  action  (Ersk.  iv.  3.  22).  This  procedure  was  commonly  adopted 
if  the  charge  was  manifestly  irregular  {M'Ready,  1715,  Mor.  11984),  or  even 
null  {Gordon,  1822, 1  S.  318),  but  not  if  the  warrant  on  which  the  charge  was 
given  were  bad  {Fleming,  1823,  2  S.  446).  It  was  usually  asked  for  by  the 
charger  when  the  Court  suspended  the  charge.  It  is  still  competent  at  least 
until  the  record  in  the  passed  note  has  been  closed  {Campbell,  1827,  5  S. 
412).     This  procedure  is  now,  it  is  believed,  never  taken  advantage  of. 

Reference  to  Oath. — It  is  generally  competent  in  an  action  to  refer  the 
matter  in  dispute  to  the  oath  of  the  defender.  Such  procedure  is  also 
competent  in  suspensions.  The  reference  to  oath  may  be  made  in  the 
note  itself,  or  it  may  be  made  by  minute  subsequent  to  the  presentation 
of  the  note  {Macdonald,  1848,  10  D.  740).  If  the  oath  is  affirmative  of 
the  reference,  the  note  will  be  passed.  If  it  be  negative,  the  note  will  be 
refused.  In  either  case  the  interlocutor  of  the  Lord  Ordinary  can  be 
reclaimed  against.  In  addition,  if  a  suspender  fail  to  proceed  with  the 
reference  and  a  decree  by  default  is  pronounced,  it  is  competent  to  reclaim 
in  order  to  be  reponed,  and  it  is  not  necessary  to  present  a  second  note  of 
suspension,  although  it  would  be  competent  in  such  circumstances  to 
present  a  second  note  of  suspension  {Law,  1853,  15  D.  481). 

If  circumstances  change  after  a  reference  to  oath  has  been  made,  the 
suspender  may  retract  the  reference  even  though  a  sist  was  obtained  on 
account  of  it.  But  a  suspender  can  only  do  so,  it  is  thought,  on  payment 
of  such  expenses  as  the  reference  and  its  retraction  have  caused  the 
charger.  It  has  been  doubted  if  this  statement  is  correct,  but  if  a  reference 
can  be  retracted  on  cause  shown  only,  the  suspender's  remedy  will  be  to 
X^resent  a  second  note  of  suspension,  wliich  is  clearly  comjietent  {Jameson, 


SUSrEN.SIOX  217 

1853,  15  D.  414;   A.   S..  1838.  s.    7).     When   the   referem.  .th  m 

contained  in  the  note  itself,  caution,  as  a  rule,  is  not  reouired  (Larkxn  18'>3 
2  S.  114).  '  • 

Procedure  after  the  Note  of  Suspension  has  hcen  passed. — Wlu-n  answers 
are  lodged  by  a  respondent  in  any  process  of  suspension,  the  reconl  shnll 
be  made  up  in  the  same  manner  as  in  an  ordinary  action  (Court  of  Session 
Act,  1850,  s.  9).  This  is  the  leading  ])rovision  regarding  suspensions  in 
the  Court  of  Session.  But  there  are  one  or  two  points  regidatcd  I'V  -r.iruie 
or    A.    S.    to    whicli    reference    may    be    made.       Thus    the    rt-  :it, 

and  not  the  suspender,  has  the  right  to  fix  the  Lord  Ordinary  nn«l 
Division  to  which  the  case  will  belong  in  all  cases,  excojit  where  the  noto  of 
suspension  has  been  reviewed  by  either  Division  before  it  was  jias-ed. 
When  that  has  happenctl,  the  case  is  marked  to  that  Division.  The 
respondent  must,  however,  exercise  this  right  within  twelve  days  of  the 
date  of  the  interlocutor  passing  the  note,  or  in  the  case  of  a  suspension  of 
a  decree,  within  twelve  days  of  the  service  of  the  interlocutor  passing  the 
note,  upon  the  respondent;  otherwise  the  suspender  can  fix  the  Lord 
Ordinary  and  Division.  During  the  period  of  twelve  days  tlie  Bill 
Chamber  shall  retain  possession  of  the  process  and  shall  not  lend  it  up  to 
either  of  the  parties  (s.  33;  and  Court  of  Session  Act,  1808,  s.  90). 
V  Again,  when  the  suspension  is  of  the  decree  of  an  inferior  Court  in  a 
cafee  where  a  record  has  been  made  up  and  a  proof  led,  the  Lord  Ordinary 
need  not  himself  issue  a  judgment,  but  must,  on  the  motion  of  either  of 
the  parties,  report  the  cause  to  the  Inner  House.  The  party  who  has 
moved  the  Lord  Ordinary  has  in  the  first  instance  to  pay  the  expense  of 
printing  the  record,  proof,  and  other  papers  which  are  boxed  for  the  Court 
(s.  32).  Again,  prior  to  1838  the  expede  letters  of  suspension,  and  from 
1838  to  1868  the  passed  note  of  suspension,  were  duly  called.  Calling  is 
now^  unnecessary,  and  as  soon  as  the  interlocutor  has  become  final  and 
caution  or  consignation  if  ordered  has  been  found  or  made,  the  case  may 
be  enrolled  by  either  party  in  the  motion  roll  of  the  Lord  Ordinary  to 
whom  it  is  marked  (Court  of  Session  Act,  18G8,  s.  90). 

This  privilege  of  enrolling  a  case  enables  a  charger  to  force  on  the 
discussion  of  a  suspension,  as  of  course  the  enrolment  can  be  for  any 
purpose,  and  has  therefore  practically  superseded  the  right  which  a  charger 
possessed  of  putting  up  a  protestation  after  the  expiry  of  fifteen  days  after 
an  interlocutor  passing  a  note  had  taken  ehect.  The  right,  however,  still 
exists  (A.  S.,  1838,  s.  12). 

Finally,  the  process  shall  be  transmitted  from  the  Bill  Chamber  to  the 
clerk  to  the  process  in  the  Outer  House  as  soon  after  the  interlocutor 
passing  the  note  has  taken  effect  as  the  party  leading  in  the  process  may 
require  (A.  S.,  1838,  s.  13). 

In  other  respects  the  case  is  disposed  of  in  the  same  manner  as  an 
ordinary  action. 

When  the  charge  is  finally  suspended,  the  suspender  may  obtain  tlie 
Court  of  Session  but  not  the  Bill  Chamber  expenses.  AVlicn  the  decree 
finally  finds  that  the  charge  has  been  orderly  proceeded,  the  charger  can  of 
course  proceed  to  use  diligence  against  the  suspender  to  recover  jtayuicnt 
of  the  sum  mentioned  in  the  charge,  or  to  remove  a  tenant,  or  to  secure 
implement  of  whatever  the  charge  warranted  him  to  demand.  To  do  this 
he  is  entitled  to  do  diligence  either  on  the  extracted  decree  in  the  sus- 
pension or  on  the  old  charge;  but  as  it  does  not  include  the  expenses  of 
the  suspension,  it  is  necessary  to  charge  on  tlie  extracted  decree  in  that 
process  if  they  have  been  awarded  (Ivory,  Forms  of  J'/'oass,  i.  2G'M 


218  SUSPEXSIOX 

JiD'isdiction  in  Suspensions. — The  Court  of  Session  has  exclusive  juris- 
diction in  all  cases  of  suspension  except  that  an  action  of  suspension  of  a 
charge  under  a  registered  writ  for  a  sum  not  exceeding  twenty-five  pounds 
can  be  raised  in  the  Sheriff  Court.  It  is  to  be  noted  that  such  jurisdiction 
only  exists  when  there  has  been  a  charge,  not  when  there  has  only  been 
a  threatened  charge ;  and  that  the  Sheriff  has  no  jurisdiction  when  the 
charge  is  under  a  decree  either  in  absence  or  in  foro.  When  the  Sheriff, 
moreover,  has  jurisdiction  he  can  only  suspend  on  caution  (1  &  2  Vict, 
c.  119,  s.  19). 

Suspension  and  Interdict  (see  Interdict). 

Suspension  and  Liberation. — In  former  times  a  person  imprisoned  for 
debt  might  obtain  liberation  by  means  of  cessio  honorum  or  by  letters 
of  suspension  containing  a  command  to  the  jailer  to  set  him  at  liberty 
(Ersk.  iv.  3.  15.  26).  Owing,  however,  to  changes  in  the  law  relating  to 
civil  imprisonment  and  bankruptcy,  cessio  honorum  is  not  now  a  means 
of  obtaining  liberation,  and  is  simply  a  method  of  obtaining  sequestration. 
Letters  of  suspension,  or  as  the  process  would  now  be  called,  note  of 
suspension  and  liberation,  is  now  tlie  only  method  by  means  of  which 
liberation  is  obtained  when  a  person  has  been  incarcerated  for  civil  debt. 
15y  the  ancient  law  any  debtor  who  failed  to  pay  his  debt  after  a 
charge  on  letters  of  horning  could  be  denounced  a  rebel,  and  thereafter 
letters  of  caption  on  which  he  might  be  imprisoned  were  issued.  By  the 
Personal  Diligence  Act,  1838,  s.  6,  the  procedure  was  changed.  Instead  of 
obtaining  letters  of  horning,  the  charger  recorded  the  charge,  and  an  extract 
of  this  with  the  words  Fiat  ut  petit ur  written  on  by  the  Bill  Chamber 
Clerk  was  the  warrant  on  which  imprisonment  followed.  This  Act  is  still 
in  force,  but  imprisonment  for  debt  is  entirely  abolished,  except  in  the 
following  cases  and  under  the  following  conditions — namely,  persons  may 
still  be  imprisoned  (1)  for  any  period  not  exceeding  twelve  months  for 
failure  to  pay  taxes,  fines,  or  penalties  due  to  Her  Majesty ;  (2)  for  any 
period  not  exceeding  six  weeks  for  failure  to  pay  any  rates  and  assessments ; 
(3)  for  periods  of  not  more  than  six  weeks  at  a  time  at  intervals  of  not 
less  than  six  months,  for  failure  to  pay  any  sums  decerned  for  as  aliment, 
provided  the  debtor  has  possessed  or  been  able  to  earn  the  sums  decerned 
for  as  aliment ;  for  failure  to  implement  decrees  and  oh\iga,tions  ad  factuin 
prccstandum ;  or  against  any  debtor  as  being  in  meditatione  fugcc :  but  as 
to  this  last  case,  see  Kidd,  1882,  9  E.  803  (Debtors  Act,  1880,  s.  4;  Civil 
Imprisonment  Act,  1882,  ss.  4,  5). 

It  will  thus  be  seen  that  suspension  and  liberation  will  now  rarely  be 
required.  When  it  is  resorted  to,  it  will  be  presented  under  sec.  6  of  the 
Suspension  Act,  1838.  It  will  take  the  form  of  a  note,  and  will  have 
added  to  it  an  articulate  statement  of  facts  and  note  of  pleas  in  law.  The 
reasons  on  which  liberation  will  be  asked  will  be  either  that  the  decree 
Itself  has  been  wrongly  obtained,  or  that  the  imprisonment  has  been 
irregularly  carried  out,  or  both  reasons  may  exist.  The  crave  in  all  cases 
is  to  suspeiid  the  proceedings,  whatever  they  are,  that  are  complained  of, 
and  liberate  the  suspender  (cf.  Wilson,  1862,  24  D.  271).  It  may  or  may 
not  contain  an  offer  to  find  caution,  and  caution  may  or  may  not  be  required 
as  a  condition  of  liberation  being  granted.  Naturally  an  incarcerated  debtor 
is^not  likely  to  lie  al)le  to  offer  more  than  juratory  caution  at  the  outside. 
When  warrant  for  liberation  is  granted,  a  certificate  of  the  interlocutor  is 
issued  at  once,  and  parties  do  not  require  to  wait  the  expiry  of  forty-eight 
hours,  as  is  required  in  other  cases  (A.  S..  1838,  s.  8). 

Suspension  and  liberation  is   to  obtain  liberation  when  a  person  has 


SUSPENSION  (CRLMLNAL;  219 

l)een  imprisoned  for  a  civil  tlebt  only.  Therefore  when  a  person  has  been 
imprisoned  for  contempt  of  Court,  or  in  the  process  of  luwljurrowH,  or  in 
criminal  proceediii;j;s  in  inferior  Courts,  or  otlierwise  illc^'idly  '  '  d,  nii 
application  for  liberation  must  be  made  to  the  High  Court  of  ".Ji.,/„.  ...ly." 

Suspension  (Criminal);  Suspension  and  Libera 

tion  (Criminal). — Susprnsiun  and  Suspension  and  J.iiMTaUun  are 
processes  cum[)L'tent  in  tlie  High  Court  of  Justiciary  by  muans  of  which  a 
conviction,  sentence,  whether  proceeding  on  a  verdict'  of  a  jury  or  nat, 
warrant,  or  other  determination  of  a  judge  obtained  in  aji  inferior  Court 
can  on  certain  grounds  be  set  aside.  Otherwise  slated,  suspension  \n  a 
process  of  review  on  account  of  reasons  or  grounds  ai)peariug  on  the  face 
of  the  proceedings.  The  other  modes  of  review  are  Advocation,  Appeal  to 
the  Circuit  Court  under  the  Heritable  Jurisdictions  Act,  1747  (20  Ceo.  ii. 
c.  43),  and  Appeal  on  a  case  stated  against  a  judge's  determination  an 
erroneous  in  point  of  law  under  the  Summary  Prosecutions  Apjicals  Act, 
1875  (38  &  o9  Yict.  c.  62).  These  different  processes  are  not  mutually 
exclusive,  and  a  party  aggrieved  may  be  able  to  select  the  one  he  chooses. 
But,  as  is  stated  on  the  following  page,  if  he  has  appealed  under  the  Act 
of  1875,  he  cannot  thereafter  present  a  suspension  or  obtain  review 
otherwise. 

In  considering  whether  suspension  is  competent,  the  following  j)oints 
should  be  borne  in  mind  : — 

(a)  Suspension  only  suspends  the  proceedings  of  inferior  Courts. 
Therefore  no  interlocutor  of  the  High  Court,  either  when  silting 
in  Edinburgh  or  on  Circuit,  can  be  suspended,  as  the  Lords  of 
Justiciary  do  not  review  their  own  sentences  by  Advocation,  Susiwnsion, 
or  Appeal.  Nor  can  criminal  sentences  pronounced  by  the  Court  of 
Session  be  suspended,  as  it  is,  equally  with  the  High  Court,  a  supreme  and 
independent  Court  (Hume,  ii.  509).  With  these  exceptions,  the  prf>ceeding8 
of  all  other  criminal  Courts  can  on  competent  grounds  be  suspended.  When 
jurisdiction,  moreover,  is  conferred  upon  inferior  judges,  it  is  construed  as 
conferring  upon  them  only  the  right  of  judging  in  the  tirst  instance,  and 
does  not  give  them  exemption  from  the  general  power  of  review  posses.sed 
l)y  the  High  Court  (Hume,  ii.  31),  unless  review  has  been  excluded 
(in/m  (h)).     (Cf.  Giles,  18-49,  J.  Shaw,  Just.  203.) 

(h)  Peview  of  all  kinds  may  be  excluded,  or  tlie  modes  of  review  that  are 
permitted  or  the  reasons  on  which  it  can  be  entertained  may  be  regulated, 
by  statute.  Thus  compare  the  Day  Trespass  Act,  1832  (2  &  3  Will.  iv. 
c.68,  s.  15),  where  another  Court  of  Peview  is  appointed,  to  wit  Quarter 
Sessions:  the  Poaching  Prevention  Act,  1862  (25  &  26  Vict.  c.  114,  s.  G); 
Excise  prosecutions  under  24  &  25  Vict.  c.  91,  or  under  cerUin  local 
police  Acts,  such  as  the  Glasgow  Police  Act,  etc.  (Porter,  1858.  3  Irv.  57; 
Mackenzie,  1890,  2  W.  589;  Schuhr,  1890,  2  W.  449;  cf.  O'Brini,  1880, 
4  Coup.  375).  It  must  at  the  same  time  be  kept  in  view  that  a  fmality 
clause  in  a  statute  has  to  be  construed,  and  does  not  exclude  all  reas-.ns  of 
^M'S,\)Q\\^\oi\  {infra.  Reasons  of  Suspension). 

{c)  Suspension  is  only  competent  in  criminal  cases.  At  one  time  it 
was  greatly  discussed  what  was  a  criminal  c<ase.  No  great  difllculty  aro^e 
in  regard  to  common  law  crimes,  but  dillicult  (luestions  arose  ui  rcpird  to 
statutorv  offences.  This  point  is  now  settled  by  the  Summary  Procedure 
Act,  1864,  s.  28,  which  enacts  that  a  case  shall  be  deemed  to  be  crnninal 
when  the  Court  can  pronounce  a  sentence  of  imprisonment,  or  where  it  is 
authorised  to  pronounce  a  sentence  of  imprisonment  in  default  of  j.-iyment 


220  SUSPENSION  (ClUMINAL) 

of  a  fine  or  disobedience  to  an  order  of  Court.  "  In  all  other  proceedings 
instituted  by  way  of  complaint  under  the  authority  of  any  Act  of 
Parliament,  the  jurisdiction  shall  be  held  to  be  civil"  (iZ^.).  In  regard  to 
this  latter  class,  review,  when  competent,  must  be  obtained  in  the  Civil 
Court. 

(d)  It  is  a  well  settled  rule  that  the  merits  of  a  conviction  cannot  be 
reviewed  in  a  process  of  Suspension.  Thus  "  if  the  verdict  is  challenged  on 
this  ground  only,  that  it  is  not  warranted  by  the  evidence  in  the  trial, 
certamly  the  Lords  can  pay  no  regard  to  such  a  plea.  To  settle  the  fact  is 
the  peculiar  province  of  every  assize,  in  what  Court  soever  the  trial  be ;  and 
in  the  process  of  review  equally  as  in  receiving  a  verdict  of  assize  in  their 
own  Court,  the  Lords  of  Justiciary  must  in  that  respect  take  the  face  of  the 
verdict  for  their  rule,  and  hold  it  to  be  the  truth  "  (Hume,  ii.  514).  Again, 
when  a  case  is  tried  in  an  inferior  Court  without  a  jury,  the  same  rule 
applies  {Rattray,  1891,  3  W.  89).  This  rule  is  so  well  settled  that  a 
suspension  on  the  ground  that  bad  law  had  been  laid  down  by  a  Sheriff  in 
a  charge  to  a  jury  was  refused  as  incompetent  (Quarns,  1866,  5  Irv.  251). 
There  is,  in  fact,  no  way  of  obtaining  a  review  on  the  merits  of  the  verdict 
of  a  jury,  but  when  a  case  has  been  tried  summarily,  without  a  jury,  though 
suspension  is  incompetent  on  the  merits,  review  may  be  obtained  by  an 
Appeal  on  a  case  stated  against  the  judge's  determination  as  erroneous 
in  point  of  law.  It  is,  moreover,  very  important  to  decide  whether  the 
process  of  Suspension  or  Appeal  should  be  resorted  to  (cf.  Glass,  1882, 
5  Coup.  160,  per  Ld.  Young;  Rattray,  1891,  3  W.  89);  because  if  an 
appeal  be  taken,  the  other  modes  of  review  are  excluded  (Sum.  Jur.  Ap. 
Act,  1875,  s.  9 ;  Walker,  1895,  1  Ad.  569).  This  is  so,  at  least,  unless  the 
Appeal  be  withdrawn  {Kay,  1876,  3  Coup.  305). 

(e)  Suspension  is  only  competent  when  a  sentence,  conviction,  or  other 
warrant  has  been  obtained.  It  is  not,  therefore,  the  process  to  obtain 
redress  in  a  case  when  a  person  has  been  illegally  detained,  unless  this  has 
been  done  under  a  decree  of  Court,  nor  if  a  person  has  been  apprehended 
without  a  warrant,  which  in  some  circumstances  is  legal  (Hume,  ii.  75). 
Eedress  in  such  cases,  it  is  thought,  would  be  by  an  appeal  to  the 
nobile  officium  of  the  Justiciary  Court  (Moncreiff,  Review  in  Criminal 
Cases,  ch.  v.).  Again,  before  a  suspension  can  be  brought,  the  warrant  must 
have  been  executed,  as  suspension  of  a  threatened  or  expected  warrant  is 
incompetent  {Jupp,  1863,  4  Irv.  355).  (In  that  case  the  warrant  has  not 
been  signed.)  AViiere,  however,  there  is  a  warrant  or  other  determination 
of  a  judge,  suspension  is  competent  at  the  instance  of  the  accused.  It  may 
also  happen  that  the  warrant,  such  as  warrant  to  imprison,  has  been 
wrongously  obtained.  In  such  circumstances  the  suspender,  in  addition  to 
obtaining  redress  in  the  High  Court,  may  have  his  remedy  in  the  civil 
Courts  {Sinclair,  1890,  2  W.  481;  MHattie,  1892,  3  W.  289;  cf.  Lcask, 
1893,  21  R  32). 

(/)  Again,  suspension  is  only  applicable  to  final  judgments  or  determina- 
tions— advocation  licing  the  appropriate  remedy  for  correcting  errors 
committed  during  the  course  of  a  trial  (Hume,  ii.  509).  After  a  trial 
is  finished,  however,  or  a  conviction  has  been  obtained,  the  regularity  of 
the  ])roceedings  can,  of  course,  be  inquired  into,  in  a  suspension. 

"What  is  sought  to  be  suspended  usually  is  the  sentence  or  the  conviction, 
and  in  support  of  the  prayer  relevant  grounds  must  be  averred.  But  any 
independent  determination  or  warrant  can  be  suspended.  Thus  search- 
warrants  can  be  suspended  {Bell,  1865,  5  Irv.  57 ;  cf.  Boyel,  1897,  25  E. 
(J.  C.)  49). 


SUSPENSION  (CKIMINAL)  221 

{(j)  Filially,  from  the  iiatuio  ul"  tlic  rcmeily  HusiKiiisiuii  is  only  c<>ini*u*nt 
at  the  instance  of  an  accused  party. 

Reasons   of  Suspension. — Suspension  is  competent   even  althou^;h  the 
warrant  has  been  executed  or  the  sentence  obtempered  (//<•//,  iSG'i.o  I rv 
57;   Russell,  1845,  2  Ur.  p.  572;   L'onthronc,  1889,  1  W.  27'J ;  Muirhmd, 
1892,  2   W.  473  (where  four  and  a  half  years'  delay  did  not  »-v.  t.  .i.,)' 
That  the  sentence  has  been  acquiesced  in  may,   however,  bur  si;  a 

{3l'Clure,  1872,  2  Coup.  177  ;   Watson,  1898,  25  li.  (J.  C.)  53). 

It  has  been  already  pointed  out  that  tlie  merits  of  a  case  c^iuuot  l>e 
inquired  into  in  a  suspension,  and  that  suspension  is  rmly  comjtctent  on 
account  of  reasons  appearing  on  tlie  face  of  the  i)roce( 'dings.  It  would 
be  impossible  here  to  classify  the  numerous  reasons  on  account  of  which 
review  is  competent.  It  is  the  more  unnecessary  as  very  few  of  them 
are  exclusively  applicable  to  suspension.  They  are,  in  fact,  all  reasons 
against  the  judgment  or  sentence,  other  than  the  reason  that  the  inferior 
judge  or  jury  has  wrongly  decided  the  case  in  point  of  fact,  or  that  bad 
law  has  been  laid  down,  or  that  the  judge's  determination  is  erroneous  in 
point  of  law  (supra  (d)). 

Among  other  reasons,  suspension,  though  it  may  be  refused,  is  com])etent 
on  the  following  averments  : — 

(1)  That  the  Court  has  no  jurisdiction,  or  want  of  competency  (Lamb, 
1892,  19  R  (J.  C.)  78). 

(2)  That  the  instance  is  bad  (R  of  Bedford,  1893,  3  W.  493). 

(3)  That  the  citation  is  bad  (Stewart,  1894,  1  Ad.  493). 

(4^  Objections  to  competency  of  the  complaint  (Clark  t&  Bcndall,  1886, 
13  rt.'(J.  C.)  86). 

(5)  Objections  to  relevancy  (Whyte,  1891,  3  W.  245  ;  Cleadinncn,  1875, 
3  Coup.  171).  But,  as  a  rule,  objections  to  relevancy  must  be  stated  in  the 
inferior  Court  (Bolto7i,  1890,  2  W.  410 ;  Steiaart,  1891,  2  W.  G27). 

(6)  Eejectiou  of  competent,  admission  of  incompetent,  evidence ;  or  re- 
fusing competent  questions  (Hume,  ii.  515  ;  Burns,  1856,  2  Irv.  571 ;  Steven- 
son, 1854,  1  Irv.  603 ;  Bruce,  1861,  24  D.  184 ;  cf.  Falconer,  1893, 1  Ad.  96). 

(7)  Oppression  (cf.  Rodgers,  1892,  3  W.  151). 

(8)  That  the  verdict  has  been  irregularly  obtained  (Hume,  ii.  515; 
MGarth,  1869,  1  Coup.  260);  or  that  it  is  ambiguous  (Graham,  1864,  4  Irv. 
504 ;  Milne,  1874,  2  Coup.  562). 

(9)  Objections  to  the  conviction — such  as  that  the  charge  is  alternative 
and  the  conviction  general  (Reaney,  1883,  5  Coup.  367). 

As  has  been  already  stated,  review  may  be  excluded  by  statute.  But  in 
addition  to  the  fact  that  certain  grounds,  such  as  want  of  jurisdiction,  must 
always  give  a  party  a  right  to  bring  a  case  under  review,  it  is  well  established 
that  finality  clauses  are  construed,  and  except  so  far  as  it  is  excluded,  review 
is  competent.  Cf.  Simjjson,  1892,  3  W.  167,  where  the  pleas  of  no  juri-^lic- 
tion,  irrelevancy,  bad  instance,  oppression,  were  considered  in  a  susj»ension 
of  a  conviction  under  a  statute  excluding  review  except  on  the  grounds  of 
corruption  or  malice  (Young,  1897,  25  E.  (J.  C.)  22). 

Procedurc.—Theve  is  no  statutory  form  for  a  Bill  of  Suspension  or  Bill 
of  Suspension  and  Liberation  where  a  sentence  of  imprisonment  }  ■-  '■■•'U 
passed ;  l)ut  forms,  modelled  on  the  forms  annexed  to  A.  S.,  12tli  1 '  S, 

are  usually  used  (see  Jurid.  Styles,  iii.  896-900).  The  bill  js  signed  either 
hj  connselov  agent  CMoncrein',  Revieio  in  Criminal  Cases,  176).     O  ly 

the  procedure  took  place  under  the  warrant  of  a  bill  passed  in  the  i  .. .  of 
Session,  but  since  1729  the  bill  has  been  always  presented  to  the  Court  of 
Justiciary.      One  judge   alone   can   grant    the    preliminary  deliverances, 


222  SWANS 

includin*^  granting:  interim  liberation,  but  a  quorum  of  tbe  Court  is  required 
to  dispose^of  the  bill  itself  (Hume,  ii.  514).     The  preliminary  stages  are— 

The  Court  of  Justiciary  always  disposes  of  the  suspension  by  the  inter- 
locutor passing  or  refusing  the  bill.  It  thus  never  allows  a  proof,  but  if 
relevant  averments  as  to  tlie  truth  of  which  it  considers  it  should  be  advised, 
it  may  remit  to  a  reporter  to  make  investigations  and  report  ( JFright,  1874, 

2  Coup.  504). 

It  can  also  remit  to  the  inferior  Court  with  instructions  (Hume,  ii. 
512;  Paterson,  1867,  5  Irv.  415;  cf.  Blair,  18G4,  4  Irv.  545).  Instead  of 
remitting,  it  can  amend,  vary,  or  alter  the  conviction  complained  of 
(Alison,  Ti.  32). 

It  can  suspend  in  part  and  sustain  the  conviction  in  part  (Snaddon, 
1862,  4  Irv.  200;  Stewart,  1891,  2  AV.  627).  But  if  the  parts  of  the 
conviction  are  not  separable,  if  one  be  bad  the  conviction  must  be  suspended 
{Boss,  1869,  1  Coup.  336). 

There  ought  always  to  be  a  respondent  in  a  process  of  suspension,  and 
the  proper  respondent  is  the  prosecutor.  But  it  may  happen  there  is  no 
prosecutor,  as  in  the  case  of  a  suspension  of  a  sentence  of  imprisonment  for 
contempt  of  Court.  In  such  cases  the  Court  will  consider  the  bill  even  if 
there  be  no  respondent  {Madcod,  1884,  11  E.  (J.  C.)  26;  cf.  Nicolson,  1861, 
4  Irv.  115). 

Finally,  if  a  sentence  of  imprisonment  has  been  passed  in  the  inferior 
Court,  and  the  suspender  has  obtained  interim  liberation,  he  must  appear 
personally  when  the  suspension  is  disposed  of.  He  may  also,  if  the 
suspension  is  refused,  be  imprisoned  for  the  remainder  of  the  sentence. 
(Summary  Procedure  Appeals  Act,  1875,  s.  10  ;  cf.  s.  3.) 

[Hume,  ii.  515  et  seri'.  Moncreiff,  Rcviciv  in  Criminal  Cases;  Brown, 
Summary  Prosecutions.'] 

Swans. — Domestic  swans  and  swans  partially  domesticated  and 
furnished  with  collars  or  otherwise  earmarked  are  private  property  (Bell, 
Prin.  1290).  Wild  swans  were  at  one  time  classed  as  inter  regalia  (Stair,  ii. 
3.  68  and  76  ;  Bankt.  i.  3.  166);  but  this  doctrine,  which  Erskine  repudiates 
(ii.  6.  15),  is  not  now  law  (see  AtJwlc,  1862,  24  D.  673).  Swans  are  not 
included  under  the  Game  Acts ;  but,  like  other  wild  birds,  they  are  protected 
by  the  Wild  Birds  Protection  Act,  1880,  and  therefore  they  may  not  be 
killed  between  1st  March  and  1st  August.  The  taking  of  their  eggs  may  be 
prohibited  in  any  county  by  the  Secretary  for  Scotland,  on  the  application 
of  the  county  council,  under  the  Wild  Birds  Protection  Act,  1894. 


Taciturnity.— See  Mora  (vol.  viii.  373). 
Tailzie. — See  Entail. 

Taxation. — 6-'t'ncra%.  —  Taxation  is  the  proceeding  by  which 
accounts  are  submitted  to  a  skilled  person  to  examine,  consider,  and  tax 
(see  Auditor).  Taxation  may  always  be  ordered  either  betw^een  litigants 
or  between  the  client  and  his  agent,  though  in  either  case  the  party  called 
upon  to  pay  may  waive  his  claim  to  taxation.  Expenses  are  taxed  either 
as  Ijctween  party  and  party  or  as  between  agent  and  client.  An  inter- 
locutor awarding  expenses  without  qualification,  implies  expenses  taxed  as 
between  party  and  party  {Fletcher's  Trs.,  1888,  15  E.  862).     The  question 


TAXATION  223 

of  the  iiieLliod  of  taxation  should  lio  .settk'd  when  cxim! 

but  if  the  Court  have  not  dealt  with  the  (luosiiou  then,  ii  

to  be  incompetent  to  raise  the  point  as  an  uigection  to  the  And; 
{Davidson's  Tr.,  1896,  23  ];.    1117).     The  preparation  and  taxation  of'  all 
accounts  for  judicial  proceedings,  whether  as  between  i»arty  and  party  or 
as  between  agent  and  client,  are  regulated  by  A.  S.,  ir.th  .lulv  187G. 

Modes  of  Taxation. — Taxation  as  between  party  and  parly  includes  onlv 
necessary  expenses,  and  these  are  determined  by  the  practice  of  the  Court 
and  of  the  Auditor's  olfice.  By  the  secoiul  method  of  taxation,  as  between 
agent  and  client,  "the  client  is  liable  for  all  expenses  reasonalijy  incurred 
by  the  agent  for  the  protection  of  his  client's  interest  in  the  Kuit,  even 
though  such  expenses  cannot  be  recovered  from  the  oi>po6ite  i)arty." 
The  expenses  allowed  to  be  charged  against  the  opposite  i»arty  are  limited 
to  proper  cx])enses  of  process,  without  any  allowance  for  i)reliniinary  investi- 
gations, subject  to  the  proviso  that  precognitions  may  be  alloweil  wjjerc 
eventually  an  interlocutor  is  pronounced  either  approving  of  issues  or 
allowing  a  proof  (A.  S.,  15th  July  1876;  Mackay,  Practice,  vol.  ii.  p.  585; 
Manual,  pp.  667-668).  Where  the  Court  has  found  an  unsuccessful  jiarty 
liable  in  expenses  as  between  agent  and  client,  the  princi})le  of  taxation  is 
not  necessarily  the  same  as  where  the  client  has  to  pay  his  agent,  and  the 
Auditor  is  entitled  to  knock  off  needless  and  excessive  charges  which  might 
be  allowed  as  against  the  client  {Walker,  1869,  7  M.  751  :  Hood,  1896,  23 
E.  675). 

In  consistorial  actions  it  appears  to  have  been  the  practice  at  one 
time  to  tax  the  wife's  expenses  as  between  agent  and  client :  but  it  was 
found  that  great  hardship  was  often  caused  to  the  husband  thereby,  and 
the  principle  applied  nowadays  is  not  as  between  agent  and  client,  or  j'arty 
and  party,  but  an  intermediate  principle,  l.)y  which  the  expenses  allowed  to 
the  wife  are  such  only  as  ought  necessarily  and  properly  to  be  incurred  iu 
conducting  the  action,  according  to  the  circumstances  of  the  case  {Kiny, 
1845,  7  D.  536;  Campbell,  1861,  23  D.  873  :  Fraser  on  Ilmland  and  Wift, 
p.  1233 ;  but  see  Mackellar,  25  Ii.  883).  Where  the  co-defender  is  found 
liable,  the  expenses  are  taxed  as  between  agent  and  client  (Conjugal  Kights 
Act,  1861,  24  &  25  Yict.  c.  86,  s.  7). 

A  client  is  always  entitled  to  have  his  agent's  account  taxed  (I/tnd<  rscm. 
1852,  14  D.  1040),  and  the  right  can  only  be  foreclosed  by  express  waiver 
{M'Laren,  1857,  20  1).  218).  This  right  of  taxation  is  competent  to  any 
person  interested  in  the  account  {M'Farhine,  1897,  24  E.  574;  Macdonald. 
1856,  18  D.  630).     The  waiver  of  a  client's  right  to  have  business  ts 

taxed  must  appear  in  explicit  terms  before  it  can  be  pleaded  aga.. ni 

l)y  the  agent;  and  the  law  is  extremely  jealous  of  any  settlementfi  of 
accounts  between  an  agent  and  his  client,  as  the  parties  do  not  meet  wyH^u 
equal  terms  {M'Laren,  1857,  20  D.  218,  per  Ld.  Deas). 

By  A.  S.,  6th  February  1806,  a  summary  method  was  introduceil  by 
which  law  agents  may  obtain  decree  against  their  clients  for  the  taxcil 
amount  of  accounts  incurred  in  conducting  proceedings  in  the  Court  of 
Session.     By  this  Act  it  is  competent,  either  for  the  agent  or  the  client,  to 

make  a  summary  application  to  the  Court  to  get  the  accoi;-'  ■■'' •'  '-y 

the  agent  remitted  to  the  Auditor  for  taxation ;  and  the  .-  ■  •> 

l)y  the  Auditor  shall  alone  form  a  charge  against  the  client.     The  form  of 
application  is  by  petition  {Cidloi,  1829,  8  S.  197;  Gou-an,  1835,  13  S.     ' 
It  is  competent  in  connection  with  all  accounts  incurred  m  -•    -• 
before  the  Court  of  Session  {Jameson,  1829,  7  S.  379),  but  is  •  -t 

as  to  factorial  claims  by  a  factor  {ITou'ison,  1832.  10  S.  630).  or  when^ 


224  TAXATION 

emploviucni  is  denied  {A(7aw,  1832,  US.  19G).     The^agent  is  entitled  to 
the  expense  of  such  a  petition  {Sprat,  1854,  16  D.  1043). 

licmit  to  Auditor. The  taxation  of  accounts  is  left  entirely  in  the  hands 

of  the  Auditor,  and  it  is  only  in  very  exceptional  circumstances  that  the 
Court  will  interfere  with  his  discretion  {Tough's  Trs.,  1874,  1  E.  879; 
Tannctt,  Widkcr,  cO  Co.,  1874,  1  K.  440);  he  has,  however,  no  power  ta 
refuse  tiie  expense  of  proceedings  which  have  been  ordered  by  the  Court 
{Stott,  1850,  18  D.  716).  The  Auditor  to  the  Court  of  Session  was  first 
appointed  by  A.  S.,  Gth  February  1806.  To  him  the  Clerk  transmits  the 
process,  and  the  agent  gives  in  the  account  of  expenses.  Of  this  account 
he  serves  a  copy  on  the  opposite  agent,  along  with  a  warrant  for  parties  to 
appear  on  a  fixed  day  for  the  purpose  of  having  the  account  taxed.  The 
Auditor  may  hear  the  agents  for  the  parties,  and  may  call  for  vouchers  of 
all  the  articles  stated  in  the  account.  If  either  party  intends  to  object  to 
the  Auditor's  report,  he  must  "  immediately  lodge  with  the  Clerk  a  note  of 
his  objections,  stating  them  shortly  and  without  entering  into  argument ; 
a  copy  of  which  note  shall  be  transmitted  by  him  to  the  agent  on  the  other 
side ;  and  the  Court,  or  the  Lord  Ordinary,  may  either  direct  the  same  to 
be  answered  in  writing  or  vivo  voce  at  the  bar,  as  the  case  may  require,  the 
expense  of  such  discussion  being  always  laid  upon  the  objector,  in  case  his 
objection  shall  not  be  sustained  "  (A.  S.,  6th  February  1806).  All  oljjections 
to  the  Auditor's  report  must  be  lodged  within  forty-eight  hours  after  the 
report  has  been  issued,  unless  special  cause  is  shown  {Steicart  &  Co.,  1893, 
20  E.  832 ;  A.  B.  v.  C.  D.,  1894,  21  E.  1083). 

For  procedure  in  remits  to  the  Auditor,  see  A.  S.,  11th  July  1828; 
Mackay,  Practice,  vol.  ii.  p.  587,  and  Manual,  p.  668. 

Where,  on  the  taxation  of  the  account  of  a  party  who  has  been  found 
entitled  to  expenses  generally,  it  appears  that  there  is  one  branch  of  the 
case  on  which  such  party  has  proved  unsuccessful,  he  will  not  be  allowed 
the  expenses  of  such  proceedings  {Bell,  1868,  7  M.  49 ;  A.  S.,  19th  Decem- 
ber 1835).  It  is  the  duty  of  the  Auditor  to  consider  whether  there  is  any 
part  of  the  case  in  which  the  successful  party  has  been  unsuccessful,  and 
also  to  consider  whether  any  part  of  the  proceedings  has  been  caused  by 
his  own  fault,  and  in  either  case  to  disallow  the  expense  (A.  S.,  15th  July 
1876  ;  MElroy,  1879,  6  E.  1119  ;  Bell,  supra  ;  see  also  Bighy,  1872,  9  S.  L.  E. 
627).  The  clause  in  the  A.  S.,  15th  July  1876,  dealing  with  this  matter 
is  expressed  thus  :  "  Notwithstanding  that  a  party  shall  be  entitled  to 
expenses  generally,  yet  if  on  the  taxation  of  the  account  it  shall  appear 
that  there°is  any  particular  part  or  branch  of  the  litigation  in  which  such 
party  has  proved  unsuccessful,  or  that  any  part  of  the  expense  has  been 
(occasioned  through  his  own  fault,  he  shall  not  be  allowed  the  expense  of 
such  parts  or  ])ranches  of  the  proceedings."  What  is  signified  by  the  word 
"  fault "  in  the  above  clause  is  open  to  conjecture  ;  it  has  been  held  that  it 
does  not  mean  that  the  party  has  stated  a  plea  which  he  ought  not  to  liave 
stated,  so  as  to  entitle  the  Auditor  to  determine  wliether  the  particular  plea 
ought  or  ought  not  to  have  been  stated  ( Welsh,  1894, 21 E.  769).  Where  the 
defenders  objected  to  the  Auditor's  report  on  the  ground  that  the  Auditor 
should  have  disallowed  the  expenses  of  a  proof,  the  Court  held  that  the  objec- 
tion was  stated  too  late  {Electric  Construction  Co.  Z/tZ.,1897,24  E.  525).  Where 
the  pursuer  was  found  entitled  to  two-thirds  of  his  expenses,  the  Court  sus- 
tained the  Auditor,  who  had  not  only  deducted  one-third,  but,  before  doing 
so,  had  disallowed  all  charges  which  had  reference  to  those  parts  of  the 
case  in  wliich  the  pursuer  had  been  unsuccessful  {Arthitr,  1895,  22  E. 
904).     It  is  the  duty  of  the  Auditor,  where  the  Court  has  awarded  expenses 


TAXATION  oor. 


SZli 


sul)JGct  to  modification,  to  tax  as  if  the  fimliiif,'  hud  been  goneriil,  und  to 
leave  it  to  the  Court  to  fix  the  niodilioatii.ii  .siihHe(|nentlv  (  U'Elroti  1870 
G  R  1119  ;  Slranii,  1882,  19  S.  L.  It.  89U).  ^         ^    •  J'  *°'''. 

The  unsuccessful  party,  as  a  general  rule,  i)ays  tiie  expense  of  taxtr 
but  if  the  amount  struck  oil"  is  excessive,  the  expense  may  be  laid  ui, 
party  entitled  to  the  account  (Dove  Wilson,  S.  C.  Practice,  4th  ed.,  I'J'J), 
or  tiie  expense  may  be  divided  between   the  parties  {Camcroit,  1835,  14*S.' 
24;  7/o^i/,  1835,  13  S.  451).     The  general  practice  has  been  to  a! !•'•■.•  •' 
expense  of  taxation  unless  one-fifth  or  more  has  been  taxed  o(r(  y> 
1850,  13  D.  303  ;  LidJlc,  1897,  5  S.  L.  T.  13). 

After  taxation  it  is  necessary  U)v  the  successful  litigant  to  niovo  ihc 
C(jurt  for  the  approval  of  the  Auditor's  rej.ort.  The  successful  jiarty  in 
entitled  to  the  expense  of  this  motion,  unless  the  unsuccessful  lilitMut 
makes  a  proper  tender  of  the  whole  amount  of  the  taxed  exp- 
{Bannatync,  1884,  11  H.  G81  ;  Muitland,  1882,  20  8.  L.  \l  :;5 ;  .Vw/is(rahs 
of  Za7A,  1882,  19  S.  L.  11.  399;  Allan,  1851,  13  D.  1270).  The  tender 
must  be  received  prior  to  the  enrolment  for  approval  (Cainpicll,  1843,  5 
D.  753).  If  objections  to  the  Auditor's  report  be  lodged,  the  exiK-uses  of 
the  discussion  are  awarded  against  the  objector  if  he  be  unsuccessful  (A.  S., 
6  Feb.  180G;  Matthew,  1844,  6  D.  1135);  but  where  the  Auditor  hinii^elf 
reports  a  point  for  the  consideration  of  the  Court,  no  expenses  are,  as  a  rule, 
allowed  to  either  party  (Nishet,  1853,  15  D.  778;  Dempster,  1834,  12  S. 
844).  When  the  motion  for  approval  is  enrolled,  the  enrolment  sliould 
state  wliether  there  are  objections  to  it,  or  reservations  by  the  Amlitor, 
or  whether  the  expenses*  fall  to  be  modified  {Broaduood,  185G,  18  D.  704 ; 
Rattray,  1855,  17  D.  484);  all  objections  should  be  stated  at  one  time 
{King,  1845,  7  D.  536).  Where  the  Lord  Ordinary  deals  with  the  Auditor's 
report,  it  is  competent  to  reclaim  against  his  Lordship's  hiterlocutor(tV«»/y/i, 
1841,  3  D.  884). 

Taxation  in  Sheriff  Court. — Taxation  in  the  Sherill'  Court  is  regulateil 
by  A.  S.,  10th  July  1839,  and  A.  S.,  4th  Dec.  1878.  In  the  ordinary 
Sherilf  Court  there  are  two  scales  of  taxation— /rs/",  for  causes  where  the 
amount  concluded  for  does  not  exceed  £25  ;  second,  for  causes  of  higher 
amount.  Whether  an  account  is  to  be  taxed  according  to  the  higher  or 
the  lower  scale  is  a  matter  for  the  Court  to  decide,  and  not  for  the  Auditor 
{Murray,  1897,  24  R.  102G).  In  the  ordinary  case  the  scale  of  taxation  is 
regulated  by  the  amount  concluded  for,  but  it  is  always  competent  for  tlie 
Sherill' to  direct  that  the  expenses  shall  be  taxed  in  accordance  witli  the 
scale  applicable  to  the  amount  decerned  for.  The  lower  scale  was  held  to 
be  applicable  where  the  sum  concluded  for  was  £24,  19s.,  even  thougli  tlie 
sum  awarded — £24, 19.s.  with  interest  from  the  date  of  cit^ition — •  <\ 

tlic  £25  required  by  A.  S.  (Dempster,  1894,  2  S.  L.  T.  413).  Objcti.  ...^^  ;o 
the  Auditor's  report  in  the  .Sherill' Court  must  be  lodged  within  forty-eight 
hours  of  the  account  being  taxed.  These  objections  should  be  statcir 
specifically.  Where  an  action  is  raised  in  the  Court  of  Session,  which 
should  have  been  raised  in  the  Sheriff  Court,  it  is  competent  for  the  Lord 
Ordinary  to  order  the  expenses  of  the  successful  i>arty  to  be  taxed  on  !!)«> 
Sherill' Court  scale  {Mnrrai/,  1885,  12  K.  945;  M'Farlane,185S,  21  D.  ' 
Wilkic,  1884,  12  R.  219,  per  Ld.  Young).  The  expenses  of  trial  by  SheiiM 
and  jury  under  the  Lands  Clauses  Act,  1845.  fall  to  be  taxed  '  v  •'" 
Auditor  of  the  Sherifl'  Court  (Deas  on  Bailu-ay.<,  Ferg.  edit..  383). 

[Mackay,  Pmc/ur,  ii.  GSo  etseq.;  Maiuuil,  Gi^o  ct  iu;/.  :  Montoith  Smith 
on  Expenses,  292  et  seq. ;  Henderson  Begg  on  Law  Agents,  158,  17I-J 

See  Expenses  ;  AuniTon. 

15 


S.  E.— VOL.  XII. 


2-2G  TAXES  .MANAGEMENT  ACT 

Taxes  Manage  me  nt  Act.— See  Income  Tax. 

Teaclier. — The  rights  and  legal  position  of  school  board  teachers 
are  dc.ili  wiih  under  the  head  of  Education.  No  speciality  attaches  to  the 
ri-^dits  or  position  of  teachers  not  under  a  school  board.  It  has  been  alleged 
tlfat  in  the  case  of  tutors  and  governesses  there  is  a  presumption  in  favour 
of  yearly  hiring ;  but  from  the  opinions  expressed  in  Motf'at  (1839,  1  D. 
408)  it  appears  that,  in  the  absence  of  special  agreement  or  of  circumstances 
showing  that  the  parties  contemplated  an  engagement  for  a  period  of  some 
duration,  the  hiring  of  a  tutor  or  governess  will  be  held  to  Ijc  during 
pleasure,  subject  to  reasonable  notice  on  either  side.  The  teacher  of  a 
school  not  under  a  school  board  is  in  the  same  i)Osition,  unless  in  virtue  of 
special  provisions  in  the  school's  deed  of  constitution  (Eraser,  Master  and 
Servant,  1882,  pp.  54,  56).  But  the  rights  of  teachers  in  all  State-aided 
schools  in  the  matter  of  retiring  allowances  have  been  afiected,  since  the 
article  on  Education  in  vol.  iv.  was  written,  by  the  passing  of  the  Elementary 
School  Teachers  (Superannuation)  Act,  1898  (61  &  62  Vict.  c.  57).  By 
the  provisions  of  that  Act  (which  applies  to  teachers  in  all  schools  "  in  re- 
ceipt of  annual  parliamentary  grants,"  and  therefore  includes  teachers  in 
"  voluntary  "  as  well  as  in  school  board  schools),  teachers  are  divided  into 
two  classes :  I.  Those  wdio  become  certificated  after  1st  April  1899,  and, 
II.  Those  who  have  been  certificated  before  that  date. 

I.  The  Education  Department  must  be  satisfied  of  the  physical  capacity 
of  a  teacher  certificated  after  1st  April  1899.  His  certificate  shall  expire 
on  his  reaching  the  age  of  sixty-five,  unless  specially  continued  by  the 
Department. 

A  teacher  while  in  service  is  to  contribute,  if  a  man,  £3,  if  a  woman, 
£2,  to  the  deferred  annuity  fund  established  under  the  Act,  or  at  such 
increased  rate  as  may  be  fixed  by  the  Treasury.  On  reaching  sixty-five,  he  will 
be  entitled,  out  of  the  deferred  annuity  fund,  to  such  annuity  in  respect  of 
his  contributions  as  may  be  fixed  by  tables  constructed  by  the  Treasury, 
and  so  framed  as  to  secure  the  fund  against  loss  (ss.  1,  4).  The  Treasury 
may  also,  if  he  has  contributed  to  the  deferred  annuity  fund  in  accordance 
with  the  Act,  and  if  he  has  been  in  service  as  a  teacher  for  not  less  than 
half  the  time  that  has  elapsed  since  he  Ijecame  certificated,  grant  him  an 
annual  superannuation  allowance  out  of  moneys  provided  by  Parliament  at 
the  rate  of  ten  shillings  for  each  year  of  service  (s.  1). 

If  a  teacher  has  served  not  less  than  ten  years,  and  not  less  than  half 
tlie  years  wliicli  have  elapsed  since  he  became  certificated,  and  has  become 
permanently  incapable  owing  to  infirmity  of  mind  or  body,  the  Treasury 
may,  subject  to  disqualifications  which  may  be  prescribed  by  them,  grant  him 
an  annual  "  disablement  allowance  "  not  exceeding,  if  a  man,  £20  for  ten  years 
of  service,  with  an  additional  poundfor  each  com  plcteadditional  year  of  service, 
and  if  a  woman,  £15  for  ten  years  of  service,  with  the  addition  of  thirteen 
shillings  and  fourpence  for  each  complete  additional  year  of  service.  Such 
disablement  allowance  must  not  in  any  case  exceed  the  total  annual  sum 
which  the  teacher  might  obtain  from  an  annuity  and  from  a  superannua- 
tion allowance  under  the  Act  by  continuing  to  serve  until  the  age  of  sixty- 
five  (s.  2).  There  are  therefore  three  kinds  of  allowances  to  teachers  under 
the  Act:  (1)  an  annuity  secured  by  the  teacher's  own  contributions,  (2)  a 
superannuation  allowance  granted  by  Government,  and  (3)  a  disablement 
allowance  granted  during  incapacity. 

II.  Teachers  certificated  Ijefore  1st  April  1899  may,  witliin  not  more 
than  one  year  after  that  date,  "  accept "  the  Act.     If  not  accepted,  it  shall 


TKixi)  (jorirr  227 

not  apply  to  such  teachers.      If  accepted,  it  upphos,  with  the  foUowiuff 
luodilicatioiis.      Tlio  rate  of  ten  sliillinc.8  upon  which  the  Kui)crannuution 
allowance  is  calculated  may  he  auf,'nicnted,  in  the  case  of  a  num,  hy  tlirec- 
pence,  and  in  tlic  (;ase  of  a  woman  hy  twopence  for  each  year'<  ' 
hefore  1st  April  1899.     If  the  teacher  has,  when  lie  aceepts  the  \'  - 
the  age  of  sixty-live  or  more,  the  date  of  such  acceptance  shall  h.  ..,1 

for  the  date  at  which  he  attained  the  age  of  sixty-live.  No  twicher  alreaily 
in  receipt  of  a  pension  from  CJovernment  is  entitled  to  an  allowance  uikUt 
the  Act. 

The  Treasury  and  the  Education  Department  are  to  make  rules  for 
carrying  the  Act  into  effect.  A  teacher,  though  not  in  service,  niay  con- 
tinue his  contributions  to  the  deferred  ainuiity  fund  iluring  any'i)erio(l  not 
exceeding  six  months.  A  teacher  ai)pointed  previous  to  1872  is  notaffeetetl 
hy  the  Act,  unless  he  has  "accepted  "  it.  A  school  hoard  is  not  entitled  Ui 
grant  a  retiring  allowance  under  the  Education  (Scotland)  Act,  1872,  to  a 
teacher  certificated  after  1st  A})ril  1899,  or  to  a  teacher  certificated  before 
tliat  date,  who  has  "  accepted  "  the  present  Act. 

Tcind  Court — This  Court  was  originally  constituteil,  under  the 
Act  of  the  Scottish  Parliament  1707,  c.  9  (lb  of  Thomson's  edition),  to  con- 
duct the  business  formerly  delegated  by  the  I'arliament  of  Scotland  to 
Commissioners.  Under  that  Act  the  whole  judges  of  the  Court  of  Session  were 
constituted  Lords  Commissioners  for  the  Plantation  of  Kirks  and  Valuation 
of  Teinds.  The  judges  of  the  Inner  House  and  the  second  Junior  Ix)nl 
Ordinary  are  the  present  Lords  Commissioners  for  Teinds  (2  &  3  Vict,  c  30, 
s.  8) ;  and  the  Court  of  Session  Act,  18G8,  s,  9,  provided  that  any  five  judges, 
being  Lords  Commissioners  for  Teinds  (of  whom,  excc]tt  in  case  of  indis- 
position or  absence  from  other  necessary  cause,  the  Lord  Ordinary  in  Teind 
Causes  shall  be  one),  shall  constitute  a  quorum  of  the  Court  of  Commi-ssioners 
for  Teinds.  P^y  the  same  section  the  Court  is  a])pointed  to  meet  once  a 
fortnight  on  Monday  during  the  sitting  of  the  Court  of  Session,  at  such 
hours  as  shall  be  convenient.  The  Court  now  meets  fortnightly  on  Fridays 
at  ten  o'clock,  although  the  new  causes  continue  to  he  called  fortnightly  on 
Mondays  preceding.  Tlie  Lord  Ordinary  usually  calls  his  roll  on  Fridays, 
(See  Teinds  ;  see  also  Introduction  to  Elliot's  Erection  of  J'arishcs  qinxul 
sacra  and  the  Feuing  of  Glebes  for  statement  as  to  changes  on  the  Court 
from  1707  to  1868.) 

The  functions  of  the  Teind  Court  include  the  following: — 

L  ISIinisterial  and  discretionary  actions,  to  be  dealt  with  by  the  Tein»l 

Court,    viz.:    1.    Augmentation     modification    and    locality    (»f 

stipend.     2.  Approbation  of  a  sub-valuation,  i.e.  of  a  rei)ort  by 

Sub-commissioners.     3.  Division  of  cumulo  valuation  of  teinds. 

4.  Disjunction  of  lands  from  one  parish  and  annexation  to  another. 

5.  Disjunction  and  erection  of  a  parisii  <juoii'l omnia.     G.  I'nitin'j 
parishes.     7.  Transportation  of  cliurches  and  manses. 

IL  Judicial  actions,  which  may  be  dealt  with  hy  the  Court  of  Sfji^iuu 
in  one  of  its  Divisions,  who  are  held  a  quorum  of  t'  T  -.Is 
Commissioner's  for  these  actions  (G  Ceo.  iv.  c.  120.}*.  -'-.: 

1.  Valuation  of  teinds.     2.  Sale  of  teinds.     3.  Valuation  and  sale, 
4.  Eeduction  (1)  of  a  locality,  or  (2)  of  a  valuatinn.  ^  5.  De- 
clarator connected  with  teimls — all  tln>sc  arc  r 
Lord  Ordinary  on  Teinds  in  the  first   instaneo.     '  ■   ^  - 
tenor  (see  Trinds^)  :  l)ut  if  of  a  sul)-valuation.  it  is  necc,<«wry,  after 
the  tenor  is  held  proven,  that  the  approbation  come  from   tl>e 


ooc  TEINDS 

Teind  Court,  and  not  the  Court  of  Session,  which  has  no  authority 
under  the  above  section  to  deal  with  approbations. 

III.  Actions  dealt  with  by  Teind  Court  under  Xew  Parishes  Act,  1844 

(7  &  8  Vict.  c.  44),  viz:  1,  Disjunction  and  erection  of  parishes 
quoad  sacra  with  districts  attached.  2.  Disjunction  and  erection 
of  Gaelic  churches  without  a  district.  3.  Disjunction  and 
erection  of  parliamentary  churches.  The  last  of  these,  Pluckton 
and  .Shieldaig,  were  erected  19th  February  1897.  4.  Disjunction 
of  lands  from  one  parish  and  annexation  to  quoad  sacra  parish.  Case 
of  Kdmnhaugh,  14th  July  1893.  5.  Transportation  of  churches 
and  manses  of  quoad  sacra  parishes ;  and  6.  Changing  securities 
wlien  found  necessary  in  cases  under  this  Act. 

IV.  Actions  dealt  with  under  the  Glebe  Lands  (Scotland)  Act,  18GG. 

This  Act  authorises  the  letting  on  lease,  feuing,  or  selling  glebe 
lands  in  Scotland.     Under  this  Act  one  hundred  and  six  glebes 
have  been  operated  upon  (see  Glebe). 
V.  AppUeations   under   Small   Stipend  Acts,  50  Geo.  iir.  c.  84,  and 
5  Geo.  IV.  c.  72  (see  Stipends  (Small)). 
Under  the  Local  Government  (Scotland)  Act,  1889,  various  changes 
have  been  made  by  the  Boundary  Commissioners  and  the  Secretary  for 
Scotland,  chiefly  on  the  boundaries  of  parishes  (see  Paeish).     The  Act  ex- 
pressly provided,  however,  sec.  96,  that  such  alteration  should  not  affect 
teinds  or  any  ecclesiastical  arrangements  or  jurisdictions.     This  provision  is 
extended  by  the  Local  Government  (Scotland)  Act,  1894,  s.  46.     The  only 
exception  that  has  been  made  is  that  conveyances  of  teinds  fall  to  be  re- 
corded in  the  register  of  the  county  in  which  the  lands  are  now  situated 
(see  Ptegistration  of  Certain  AYrits  (Scotland)  Act,  1891,  s.  1,  subs.  3). 

For  forms  of  summons  and  other  initial  writs,  see  Jurid.  Styles,  3rd 
ed.,  iii.  217  ct  seq.  and  863  et  seq.\  Elliot's  Teind  Court  Procedure,  pp.  38 
et  seq.). 

There  is  a  right  of  appeal  to  the  House  of  Lords  against  judgments  of 
this  Court  (Scott,  1714,  Macqueen's  Aj'pellate  Jurisdiction,  p.  293). 

Teinds,  as  tithes  have  long  been  designated  in  Scotland,  were 
originally  the  tenths  of  certain  produce  which  were  uplifted  from  the  fields, 
and  from  usage  certain  other  articles  came  to  be  included.  As  we  shall 
have  occasion  to  notice,  teinds  have  been  much  affected  and  altered  in 
complexion :  (1)  througli  the  grants  made  about  the  period  of  the  Eeforma- 
tion  to  landowners  and  others,  called  titulars  (see  Benefice),  which  con- 
ferred heritable  rights  to  teinds;  and  (2)  through  the  valuations  and 
sales  of  teinds — the  latter  also  conferring  heritable  rights — which  were 
commenced  in  the  reign  of  King  Charles  i.  Under  the  valuation  proceed- 
ings teinds  have  been  gradually  fixed  on  the  basis  of  rental.  And  even 
where  teinds  are  still  unvalued,  they  are  taken  for  most  purposes  at  a  fifth 
of  the  current  rent,  thus  superseding  the  necessity  for  drawing  the  teinds 
in  kind,  called  teinding  (see  Drawn  Teind). 

There  apjtears  to  be  no  evidence  tliat  the  claim  to  tithes  was  made  by 
the  Christian  ministry  before  the  fourth  century,  TJie  earliest  claims 
wliich  have  been  ascertained  are  stated  to  have  been  made  by  St.  Ambrose 
and  St.  Augustine  (Selden,  ed.  1618,  p.  53).  These  instances  have  l)een 
verified  by  the  Earl  of  Selborne,  who  had  gone  fully  into  the  subject 
{Ancient  Facts  and  Fictions  concerning  Churches  and  Tithes,  p.  46).  The 
civil  power  did  not  interpose  till  778-779,  when  Charlemagne,  whose 
extensive  dominions  on  the  Continent  gave  wide  range  to  his  authority, 


TEINDS  229 

made  an  ordinance  in  a  general  assembly  of  his  Eslatcs,  Bpiritual  and 
tem])oral,  to  this  ell'ect: — 

"  Concerning  tithes,  it  is  onhiined  tliat  every  m,ui   -in.-  ,,,-    :  ^^^ 

tliat  they  be  dispensed  according  to  the  hishoii.s' coiiima  r" 

{ib.,  p.  50). 

In  England  tithes  ap])ear  to  liavc  been  i)aid  to  bish(j}.s  aH  early  as  747 
(see  Earl  of  Selboriie's  Defence  of  the  Chuirh,]).  ]'2\)).  The  1i»8H  (»f  «,'arly 
records  has  probably  deprived  ns  of  anthentic  information  as  to  ihc  earlicKt 
payment  of  tithes  in  Scotland.  The  oldest  writ  in  the  shape  of  a  charter 
connected  with  Scotland  is  dated  abont  1094  (Innes,  Lectures,  p.  29).  The 
first  payments  were  no  doubt  of  the  class  callc(l  parsonage  tciiid 
Decim.k  kectoki.k);  the  later  class,  vicarage  teintls  (see  Dkci.m.i:  x" 
denoting  that  vicars  were  being  employed  to  do  work  in  certain  \>  ~ 

Wliile  there  is  reason  for  supposing  that  Christianity  had  been  intro- 
duced into  Scotland  at  an  earlier  period,  tlie  earliest  date  of  which  there  is 
any  certainty  is  about  the  year  397  (see  Ciiuucii;  see  also  iJr.  ForJjcs' 
Introduction,  p.  xxvi,  Life  of  St.  Ninian :  ffistorians  of  Scotland,  vol.  v.). 
This  was  during  the  Eoman  occupation  of  Great  Jlritain,  which  did  not 
terminate  till  about  the  year  426.  For  several  centuries  little  ]>rngrc88 
was  made  in  settlins;  tlie  Church:  and  while  there  can  be  no  doidit  tliat  the 
clergy  received  their  maintenance  from  the  people,  we  have  little  inftirma- 
tion  as  to  the  manner  in  which  it  was  rendered. 

The  building  of  churches  has  claimed  attention  as  a  means  of  showing 
that  the  Church  was  being  gradually  settled.  The  limited  number  of 
churches  at  first  gave  the  parish  a  wide  district.  Thus,  in  England,  when- 
ever the  word  2'^CLrochia  is  used,  it  is  for  a  diocese,  not  a  parish  (Selborne, 
Ancient  Facts,  etc.,  p.  127).  In  Ireland,  also,  the  word  used  for  a  diocese  is 
jiarorhia  (Dr.  Eeeves  in  St.  Coluniba's  Life:  Scottish  Historians,  vi.  ]>.  257). 
Likewise,  in  Scotland,  the  parish  was  at  first  appropriated  to  the  diocese  of 
a  bishop,  and  in  1179  it  is  used  as  synonymous  with  diocesis,  and  even  the 
word  shire  is  often  equivalent  to  parish  (see  Mr.  Cosmo  Innes'  Introduction 
to  Origines  Parochialcs,  p.  xx).  The  larger  districts  were  in  the  couree  of 
time  split  up  by  the  bishops  into  smaller  ]-»arishes  (see  exam] ties  noted  by 
Dr.  liaukine,  History  of  the  Church  of  Scotland,  edited  by  Dr.  Story,  ii. 
p.  275).     Thus  churches  came  to  be  served  by  vicars  or  stipendiaries. 

The  parish  of  Ednam  is  generally  accounted  the  oldest  \vi\'\&\\  n\ 
Scotland,  taking  its  rise  from  a  grant  by  a  patron,  which,  though  undated, 
appears  to  have  been  made  in  the  reign  of  Xing  Edgar,  1098-1107  (Coimell, 
i.  33).  The  granter  had  built  a  cliurch,  and  he  gave  it,  with  certain  property, 
to  the  Priory  of  Coldingham,  which  had  been  founded  by  that  king  in  1008 
(see  Gordon's  Monasticon,  jj.  363).  This  charter  allbrds  an  example  of  how 
a  parish  became  associated  with  a  religious  house  and  the  sub.'^equent 
employment  of  stipendiaries.  The  words  i)arson  and  vicar  had  not  lieen 
observed  in  any  charter,  according  to  Sir  James  Dalrymple.  l>efore 
the  time  of  David  i.  (see  Connell,  i.  24).  The  reign  of  King  David  I 
1124-1153,  contributed  largely  to  the  settlement  of  religinus  I ■■"--  ^^'th 
appropriations  of  churches  (Connell,  i.  35),  with  their  teinds,  ju:  :id 

vicarage.  Some  early  examples  are  furnished  of  writs  issued  in  name  of 
King    William    the    Lion    (1165-1214)    to    enforce   payment  of   t 

(Thomson's  ed.  Acts  of  Pari  lament  of  Scotland,  i.  W).     X" -  "^   ■ 

were  promulgated  bv  the  Provincial  Comicils  regulating  tb'    .    .  ■'« 

appropriation  of  teinds  before  the  lleformation.  The  tcinds  were  mfwe  llie 
subject  of  taxation,  along  with  other  Church  revenues,  by  the  1  'M-^  >"  l-'-| 
(see    Dr.  Joseph    Pobertson's   Concilia   Scotia:,  and   also    I'l.lacc   lo   llml 


230  TEIXDS 

work,  p.  Ixv,  in   regard   to  the   celebrated   15oiamunds   Roll  made  up  in 

1275). 

The  latest  case  which  has  come  under  the  writer's  notice  of  the  erection 
of  a  parish  and  its  endowment  with  teinds,  with  manse  and  garden,  before 
the  Eeformation,  is  that  of  the  parish  and  parish  church  of  Desk- 
ford,  by  charter  of  erection  by  "WilHam,  Bishop  of  Aberdeen,  dated  l;"th 
Oetol»er  1543.  The  charter  narrates  that  Alexander  Ogilvy  of  that  Ilk 
rebuilt  the  chapel  of  Deskford,  had  it  adorned  with  ornaments  and  priestly 
vestments,  and  procured  its  dedication  and  cousecration  into  a  church. 
Thereupon  he  applied  to  the  bishop,  by  petilion,  to  have  the  chapel  erected 
into  a  parish  church,  on  the  ground  that  the  parish  church  of  Fordyce  was 
too  remote  for  many  of  tlie  parishioners  for  their  attendance  on  Lord's 
days  and  festival  days,  especially  in  inclement  weather,  and  the 
inhal)itants  were  too  numerous  for  one  pastor,  while  the  residents 
in  the  barony  of  Deskford  had  to  travel  to  the  said  church  by  desert  ways. 
The  charter  bears  that,  after  sixty  days'  notice  of  the  petition  having  l.iccn 
given  to  all  parties  havmg  interest  by  public  edict,  the  bishop,  with  consent 
of  his  chapter,  erected  the  chapel  into  a  parish  church,  with  all  the  privileges 
and  immunities  belonuing  of  right  or  custom  thereto,  with  bell-tower  and 
bells,  baptismal  font,  cemetery  and  right  of  sepulture,  and  of  ministering 
and  bestowing  all  other  sacraments  of  the  Cluu-cli  on  the  parishioners  within 
the  bounds  of  the  barony  of  Deskford,  to  be  called  in  all  time  coming  the 
Parish  Church  of  St.  John  of  Deskford.  It  further  bears  that  the  dean 
and  cliapter  were  to  present  a  fit  man  to  be  ordained  as  priest,  and  were  to 
provide  out  of  the  teinds  of  the  church  of  Deskford  a  yearly  stipend  of  £8 
Scots.  It  is  also  stated  that  said  Alexander  Ogilvy  had  granted  a  garden 
and  manse  suitable  thereto  in  perpetual  alms.  To  which  proceedings,  by 
notarial  instrument,  Sir  John  Piobertson,  perpetual  vicar  of  the  church  of 
Fordyce,  for  himself  and  his  successors,  gave  his  consent.  Thus  we  have  not 
only  a  parish  erected,  but  what  was  at  that  time  considered  a  suital»le  pro- 
vision made  for  it  out  of  teinds,  in  addition  to  a  manse  and  garden.  (Si  e 
Sir  William  Fraser's  Report  on  the  ]\ISS.  of  Countess  Dowager  of  Seafield, 
nktorical  MSS.  Commission,  1804,  pp.  232,  233.) 

The  character  of  the  parish  also  had  a  distinct  bearing  upon  the  teinds. 
At  the  period  of  the  Eeformation  there  were  940  parochial  benefices,  of 
wliich  262  were  designed  imtronate,  the  incumbent  being  appointed  by  the 
patron,  and  678  as  patrimonial,  because  they  were  parts  of  greater  benefices 
Ijelonging  to  bishops  or  appropriated  to  abbeys  and  other  religious  houses. 
In  the  patronate  the  incumbent  was  styled  rector  or  parson,  and  had  right 
to  the  whole  teinds.  He  sometimes  granted  a  tack  to  the  patron  or  other 
])0wcrrul  heritor  for  a  limited  tack  duty.  An  example  of  this  is  found  in 
the  AiHiandale  Papers.  Mr.  James  Livingstone,  parson  of  IMoffat,  granted  a 
tack,  on  17th  January  1544,  to  John  Johnstone  of  tliat  Ilk,  liis  lieirs  and 
assignees,  of  his  whole  parsonage  and  vicarage  of  his  kirk  of  ]\Ioffat  for 
three  years  following  Whitsunday  next,  "  with  all  and  sundry  teynd  schavis, 
toynd  lamliis,  teynd  woU,  stirkis,  geise,  grise,  hay,  afferandis,  eniolunientis, 
fiuitis,  and  recbtuis  ])ertincnts,"  for  payment  of  a  rent  of  £100  Scots  (see 
Sir  William  Fraser's  Peport,  1807,  Historical  MSS.  Commission,  p.  19).  In 
the  patrimonial  parislies  the  teinds  belonged  to  the  l>ishop,  abl>ey,  or  religious 
bouse,  and  the  benefice  was  served  by  a  vicar,  stipendiary,  or  a  member  of 
the  corporation,  who  received  his  stipend  out  of  the  teinds,  sometimes  only 
a  very  small  part  of  the  vicarage  teinds.  Where  tlie  bishop  had  right  to 
the  teinds,  the  church  was  called  a  nionsal  churcli,  as  the  revenue  was 
destined  to  the  supply  of  the  bishop's  table.     The  other  churches  were 


I 


TKINDS  231 

called  coiniiioii  cliurciios,  1)eeause  Lliu  rovemifs  wore  .  1  to  the  ineiubtM  s 

of  tlie  elia])ter  and  certain  others  in  eonmion.     Thei<-  u<  i.-  nmnv  '  '        'of 

ease  whicli  liad  not  heen  erected  into  jiari.sh  chunheK  at  the  Itefoi: 

Altliougli  the  rector  anil  vicar  and  otiier  authorities  of  the  Church  of 
Home  were  swept  away  at  the  Reformation,  as  jMiinted  out  hy  Mr.  ('..hhjo 
Inncs  {Scotch  Lc(j(d  Anliquilirii,  ]>.  200),  yet  the  old  ])ORKesRor8  were  alhiwed 
to  retain  two-thirds  of  the  rentals  of  henefices,  and  the  reformefj  .l.-.-v 
only  obtained  a  small  portion  of  the  remaining  third  (see  Aksumit. 
Thirds;  see  also  Benefice).     The  Commission  of  I'latt  dealt  with  Ktii>end8 
till  the  year  IGOG,  when  bishops  were  restored.     I'nder  the  Act  of  lG17,c.  3, 
a    Commission    was   appointed  for  a    limited  ])eriod   to  augment  Ktijx'ndH 
out   of   teinds   (see  Augmentation).     Soon  after   the  accession   of    King 
Charles  i.   in   IGlT),  be  took  measures  for  receiving  surrenders  of  Church 
lands  and  teinds  which  had  been  improperly  alienated   in  previous  reigiia. 
The  primary  object,  so  far  as  teinds  were  concerned,  was  to  secure  a  revenue 
therefrom  (see  Annuity).     Four  different  sul)missions  to  His  Majesty  were 
executed  in  1G28  and  1G29  by  those  who  had  benefited  by  grants  of  teinds 
or  were  interested  in  teinds,  namely  :  (1)  by  Lords  of  Erection,  titulars,  etc.; 
(2)  by  archbishops,  bishops,  and  clergy ;  (3)  by  Inirghs,  and  (4)  by  certain 
tacksmen.     The  king  pronounced  his  decreets-arbitral  therct»n  in   1G29,  by 
which  provision  was  made  for  the  annuity.     Teinds  belonging  to  titulars 
were  appointed  to  be  valued  at  "  the  fifth  part  of  the  constant  rent  which 
each  land  payeth  in  stock  and  teind  where  the  same  are  valued  jointly," 
and  where  they  were  valued  apart,  it  was  left  to  the  Commissioners  and  .Sub- 
commissioners  to  declare  the  value.     Sometimes  there  arose  a  dilliculty  on 
account  of  contracts  with  titulars  for  the  conversion  of  teinds,  in  order  to 
avoid  teinding,  and  under  whicli  they  agreed  to  pay  fixed  annual  suni.s  of 
money,  or  to  deliver  certain  rental  bolls,  as  they  were  chilled,  and  thcne 
annual  payments  were  frequently  much  higher  than  the  actual  value  of  the 
teind.     The  decision  in  some  cases  was  to  take  a  fourth  of  the  stock,  but  in 
others,  including  the  latest  case,  the  Court  of  Teinds  added  the  stock  and 
teind  together  and  took  a  fifth  of  the  whole  for  teind  {Cri<f,  0th  Dec.  1812, 
Teind  llccorcls). 

The  teinds  were  to  be  sold  by  titulars  to  heritors  at  nine  years'  jmr- 
chase  (Act  1633,  c.  17),  under  deduction  of  one-fifth  for  king's  ease;  but  they 
were  only  to  be  purchased  so  far  as  not  devoted  to  stipend  or  ]aous  uses, 
and  heritors  were  to  relieve  titulars  from  payment  of  the  annuity.  Teinds 
destined  for  pious  uses  are  still  unsaleable  {Duhc  of  Bvxckuch,  14th  June 
18G7,  Teind  Records).  Where  the  teinds  belonged  to  titulars  qva  i«itron8. 
they  must  be  sold  at  six  years'  purcliasc  (Act  1G90,  c.  23),  under  the  same 
deductions  as  in  the  cases  of  ordinary  titulars,  liishoj/s  teinds  were  t.nly 
to  be  valued  under  certain  conditions,  and  were  not  to  be  sold  or  diminisljod 
in  amount.  They  ultimately  fell  to  the  Crown  on  the  abolition  of  Epjsco- 
pacy,  and  were  not  allowed  to  be  sold  (Act  1G93,  c.  23).  They  can.  however 
now  be  purchased  from  the  Commissioners  of  Her  ^fajesty  s  ^^  oods  ami 
Forests,  in  virtue  of  recent  Acts  of  l»arlianient,  at  such  prices  as  may  W 
arranged.  .    . 

A  large  amount  of  work  was  accomplished  by  the  Comnus.'^ioners  ami 
Sub-commissioners  under  the  dilTeivnt  Commissions  ai-pointod  '-  n,e 
Scottish  Farliament  in  1G33,  1G41,  1G44.  an.l  1G47.     l»urmg  the  >  :>- 

wealth  and  aftnr  the  Restoration  little  teind  busine.'^s  aj^poars  to  have  l»een 
transacted,  although  there  were  several  Commissions  prior  to  the  n 

1707,  when  the  business  was  transferred  to  the  Court  of  Sc.'v^on  (bcv    i i» 

Coukt). 


232  TEIXDS 

Augmentations  of  stipend  out  of  teinds  Nvere  contemplated  by  the  Act 
of  IQ'o'o,  c.  19,  after  "  the  closing  and  allowance  of  the  valuations."  Numerous 
stipends  were  settled  by  the  Commissioners,  and  in  some  cases  there  is 
evidence  that  the  king  specially  authorised  them  to  deal  with  the  stipend. 
The  above  provision  was  not  inserted  in  the  Act  of  1661,  c.  61,  nor  subse- 
quently (see  Duke  of  lioxhurgh,  12th  Dec.  1744,  Kilkerran  Teinds,  Xo.  3; 
see  Council,  i.  344-345). 

"S'arious  questions  have  arisen  as  to  the  rights  to  teinds  acquired  about 
the  period  of  the  Eeformation  (see  Benefice)  ;  and  sometimes  the  mistake 
was  made  not  to  have  them  valued,  in  the  belief  that  a  good  dccimcc  induscc 
right  was  held,  which  has  since  turned  out  insufficient  i^Fotheriwjham,  1870, 

9  M.  172,  43  Jur.  90  ;  see  Cum  decimis  inclusis). 

The  removal  of  the  whole  records  of  Scotland  by  order  of  Cromwell 
about  1650  or  1651,  and  the  loss  of  the  greater  portion  of  them  by  shi])- 
wreck  in  the  course  of  being  returned  in  1660,  and  the  further  destruction 
of  the  Teind  liecords  by  a  fire  in  the  Parliament  Close  in  1700,  all  con- 
tributed to  place  the  valuation  of  teinds  and  other  proceedings  in  an  un- 
satisfactory position.  By  the  Act  of  1707,  c.  9,  the  Teind  Court  was 
authorised  to  make  up  a  register  to  supply  the  lost  registers,  by  recording 
authentic  extracts  that  might  be  brought  in,  and  "  upon  such  evidence  and 
adminicles  as  they  shall  see  cause,  to  make  up  the  tenor  of  such  decreets  in 
manner  above  mentioned  whereof  extracts  are  amissing  and  the  registers 
lost  in  the  said  fire."  Five  volumes  have  been  made  up  of  such  extracts  to 
supply  lost  registers,  and  in  numerous  instances  the  tenor  has  been  proved 
of  others  that  were  lost.  The  Court  have  allowed  the  tenor  to  be  proved  of 
writs  lost  by  the  shipwreck  as  well  as  by  the  fire  (see  Earl  of  Wemyss,  1883, 

10  E.  1084). 

"Where  reports  of  Sub-commissioners  were  not  approved  of  before  1707, 
it  has  been  held  competent  for  the  Court  of  Teinds  to  do  so  {Murray,  1746, 
M.  15746  ;  see  Teind  Coukt). 

Tlie  effect  of  the  various  dealings  affecting  teinds  has  been  that  heritors 
now  have  very  generally  heritable  rights  to  such  surjilus  teinds  of  their 
lands  as  are  left  after  providing  a  suitable  stipend  to  the  minister  of  the 
parish ;  and  where  it  is  otherwise,  these  surplus  teinds  belong  to  the  Crown 
or  other  titulars.  These  surplus  teinds,  generally  called  free  teinds,  can 
only  be  encroached  upon  by  future  augmentations  of  stipend  through  the 
Teind  Court  (q.v.).  In  523  out  of  880  parishes  the  teinds  have  been  ex- 
hausted, both  parsonage  and  vicarage.  Indeed,  most  of  the  vicarage  teinds 
have  been  lost.  When  the  clergy  were  restricted  to  limited  stipends,  they 
had  no  right  to  recover  more.  And  unless  vicarage  teinds  were  included  in 
a  decree  of  locality  or  a  valuation  of  teinds,  they  were  lost  by  desuetude. 
In  former  times  it  was  not  unusual  for  a  titular  to  award  teinds  as  stipend 
from  another  parish  than  that  in  which  the  lands  from  which  the  teinds 
were  drawn  were  situated,  it  being  of  no  consequence  to  liiiu  from  wliat 
part  of  his  teinds  the  provision  was  made.  Several  examples  of  tliis  are 
found  in  Forfarshire,  where  the  teinds  had  belonged  t(j  the  Aljljey  of 
Arbroath.  The  rule  dccima:  dchcntur  2^arocho  {q.v.),  however,  is  now  strictly 
applied,  and  teinds  may  be  recovered  from  another  parish  when  it  has 
surplus  teinds  of  its  own.  It  has  been  proposed  that  stipends  should  now 
be  converted  into  money,  on  an  average  of  a  certain  number  of  years'  fiars 
prices,  and  when  that  has  Ijeen  done,  that  the  liars  prices  should  be  super- 
seded. This  proposal  would  greatly  simplify  all  teind  questions,  and  enable 
a  permanent  teind  roll  to  be  made  up. 

[See  Forbes  on  Tithes,  1705  ;  Connell  on  Tithes,  2nd  ed.,  1830  ;  Buchanan 


TENANT  233 

oil    Trinds,   18G2;  and   Elliul's   Tciml  Court  r,;>calurc,  1893;  Bee  the  Uujt 
as  to  Second  Teinds  and  lUsliop's  (Quarter  Tciiids/J 

Tcinds,  Valuation  of— Tliis  is  an  action  raised  before  tlie 
Lord  Urdinary  on  Teinds  wliere  the  teinds  of  lands  have  not  been  already 
valufd  \)y  the  Commissioners  under  the  Teinds  Cunmiissions  conii!  •  'in 

the  reiy;n  of  King  Charles  i.,  or  by  the  Teind  Court  suhsecjui-nt  to  ...  t.-ee 
Teinds),  For  form  of  summons,  see  Jurid.  HtylcH,  8rd  ed.,  iii.  p.  222.  'J'hu 
pursuer  is  the  titular  or  proprietor  of  the  lands  with  a  C(inii»leled  title,  but 
the  action  may  be  insisted  in  by  the  minister  of  the  parish.  The  del*'  " 
are  the  minister  of  the  parish  and  the  titular,  but  in  case  of  a  vacan.  _,  i.;- 
Moderator  of  the  Tresbytery  is  called.  The  pursuer's  title  and  the  h-ases,  if 
any  are  founded  on,  must  be  produced  (see  Act  of  Sederunt,  12th  NovemUT 
1825,  ss.  4-11).  When  deductions  arc  claimed  in  the  suninions,  the  accounts 
and  vouchers  for  the  deductions  are  lodged  in  ])rocess,  and  the  pursuer  adduco.s 
oral  evidence  in  support  of  the  conclusions  of  the  libel.  After  allowing' 
such  deductions  as  are  admissible,  one-fifth  of  the  clear  rent  is  taken  as  the 
teinds,  parsonage  and  vicarage.  As  to  the  deductions  and  ]>rocedure 
generally,  see  Elliot's  Tciiul  Covrt  Procedure,  p]».  89  cl  soj.  1'he  Ix>rd 
Ordinary's  judgment  may  be  reclaimed  against  to  one  of  the  iJivisiuns  of 
the  Court  of  Session,  who  are  held  a  quorum  of  the  Lords  Commissioners 
for  Plantation  of  Kirks  and  Valuation  of  Teinds,  for  certain  actions  (G  Geo.  iv. 
c.  120,  s.  54). 

Tcind  Clerk.— See  Clerk  of  Teinds. 

Telegraph  ;   Telephone.— See  Tost  Office. 

Tenant. — The  term  "  tenant "  in  Scotland  is  applied  only  to  the  lessee 
under  a  contract  of  lease.  In  England  the  word  has  a  much  wider  significa- 
tion, and  denotes  anyone  who  holds  or  possesses  lands  or  tenements  by 
any  kind  of  title,  in  fee,  for  life,  for  years,  or  at  will  (Stephen,  Com.  i. 
338;  AVilliams'  Jiced  Property,  Llackstone,  ii.  19G).  As  to  the  capacity 
of  a  pupil,  minor,  married  woman,  lunatic,  trustee,  or  corporation  to  be  a 
tenant,  and  as  to  the  meaning  and  nature  of  joint  tenancy,  see  under 
Lease. 

A  sitting  tenant  can  only  be  dispossessed  by  jirocess  of  removing  or 
ejection.  Neither  interdict  nor  suspension  and  interdict  is  an  ajipropriate 
remedy.  Hence  in  the  case  of  bankruptcy  of  tenants,  it  is  not  coniiKJtent 
to  interdict  them  and  their  trustees  from  occupying  the  subjects  {Pmnkin, 
1864,  3  M.  128;  Borroics,  1852,  14  D.  701  ;  rev.  1  Maoj.  G!»l  :  Jo/msion, 
1877,  4  li.  8G8).  Where,  however,  after  being  ejected,  a  tenant  returns  or 
threatens  to  return  to  the  subject,  interdict  is  the  appro]>riate  remedy 
(BosioeUs  Trs.,lSS6,  24:  S.L.Il.o2). 

Removing:  Ordinarij,  Extraordinary. — Uemoviiig  may  be  eiiinr  "Miii.iiy 
or  extraordinarv.  The  former  refers  to  the  removal  of  tenant-^  at  the 
termination  of  their  contract  of  lease ;  the  latter  to  their  removal  pending 
the  currency  of  the  lease,  on  their  having  incurred  an  irritiuuy.  legn^l  or 
conventional.  For  a  consideration  of  the  circumstnnces  nnd'  ■  '  n 
irritancies  occur,  and  for  the  regulations  as  to  removal  of  tenaiii-  t  ,  ^i, 

see    under  Iiikitancjes,  and  llankine,  Leases  (2iid  ed.),  470- i  V  i* 

present  article  it  is  not  proposed  to  give  more  than  a  brief  outhne  of  the 
regulations  under  which  ordinary  removings  arc  conducted. 

Title  to  Sue  a  Ecmoving.—\[  the  party  suing  is  the  !-■  -•'  '--..df  ho  is 


234  TEXAKT 

enlitled  to  sue,  no  matter  how  defective  his  title  may  be  (St.  ii.  9.  41 ;  iv. 
1*0.  S  ;  Ersk.  ii.  6.  51 ;  York  Buildings  Co.,  17G4,  M.  4054  ;  Hamilton,  1583, 
M.  13784,  14023).  This  rule  applies  where  the  lessor  is  principal  tenant 
{iJiinlopd-  Co.,  1876,  4  II.  11;  see  King,  1858,  20  D.  960  (bankrupt  lessor 
left  in  possession)).  It  is,  however,  competent  for  tlie  tenant  to  show  that 
the  lessor's  title  to  sue  has  been  lost  by  a  divestiture  of  the  subjects  {Traill, 
1873,  1  I{.  61  ;  Wilson,  1859,  21  D.  309  (right  not  lost  by  a  mere  assigna- 
tion of  the  rents);  see  Sinclair,  1887,  14  K.  792).  Where  tlie  landlord 
.suing  the  removing  is  not  the  lessor,  he  must  be  infeft  as  stated  in  Erskine 
(ii.  6.  51).  "If  a  projmetor  is  to  insist  against  tenants  or  possessors  who 
derive  their  right  from  others,  sasine  is,  by  our  customs,  a  necessary  title 
in  removing  "  {Scott,  1832,  10  S.  284).  To  this  rule  there  are  two  excep- 
tions. First,  where  the  pursuer  derives  his  title  by  judicial  sale  {Ld.  Adv., 
1773,  5  B.  8.  571);  and,  second,  where  the  conclusion  for  removing  is 
subordinate  to  a  declarator  {Tcnnant,  1836,  14  S.  976).  An  original  defect 
in  title  is  cured  by  infeftment  before  the  case  is  called  {Camphcll,  1808,  M. 
Appx.  "  Picmoving,"  No.  5),  and  probably  during  the  course  of  the  action 
{Scott,  1832, 10  S.  284 ;  see  St.  ii.  9.  41 ;  Ersk.  ii.  6.  51 ;  iii.  8.  58  ;  Calderwood, 
1626,  M_.  13272;  Mackenzie,  1853,  16  D.  158  (as  to  heir's  title)). 

Special  rules  apply  where  the  landlord's  title  is  restricted  by  concurrent 
right.  Thus  where  there  are  several  joint  owners,  all  must  concur,  no 
matter  how  snrdl  the  interest  of  any  may  be  (Ersk.  ii.  6.  53 ;  Stewart,  1842, 
4  D.  622 ;  Grozicr,  1871,  9  M.  826 ;  see  Murdoch,  1679,  3  B.  S.  297  (implied 
mandate  in  one  of  several  joint  owners)).  Trustees,  however,  may  proceed 
by  a  majority  (24  &  25  Vict.  c.  84,  s.  1 ;  M'Laren,  Wills,  ii.  185) ;  so  too  any 
co-adjudger  may  proceed  if  he  is  ready  with  a  more  solvent  tenant  {A.  v. 
B.,  1680,  M.  2448).  Fiar  and  liferenter  must  concur  in  a  removing  if 
the  lease  be  granted  by  them  or  their  common  author  {Buclianan,  1831,  9 
S.  843,  lis.  682).  As  to  the  necessity  of  a  widow  kenning  to  her  terce 
before  concurring  in  a  removing,  see  Eraser,  H.  &  W.  1108.  For  the  power 
to  remove  of  a  tutor,  see  Eraser,  P.  &  Ch.  258  ;  of  injudicial  factor,  Thomson, 
1757,  M.  4070 ;  of  a  Minor,  Ersk.  i.  7.  16  ;  of  an  Adjudger,  St.  ii.  9.  41 ;  iii. 
11.  24;  iv.  26.  8;  31  &  32  Vict.  c.  101,  s.  60 ;  37  &  38  Vict.  c.  94,  s.  4;  of 
lessee  removing  sub-tenant,  Mllreavin,  1810,  Hume,  851;  Winans,  1883, 
10  E.  941.  Eor  a  discus.sion  of  the  cases  illustrating  title  to  sue,  see 
Rankine,  Leases  (2nd  ed.),  461-7. 

Defenders. — Where  a  lease  is  held  jointly  or^^ro  indiviso  by  two  or  more 
tenants,  all  have  to  be  called  who  are  to  be  removed,  but  certain  of  the  jno 
indiviso  tenants  may  be  removed  while  the  others  are  allowed  to  remain  in 
possession  (St.  ii.  9.  43  ;  iv.  26.  10  ;  Macdonald,  1843,  5  D.  1253).  Where  an 
assignee's  right  has  been  intimated,  or  a  sub-lessee  has  been  recognised 
by  the  landlord,  he  is  tlie  proper  party  to  be  brought  as  defender  (Boss, 
llcmovin/j,  98;  Ly.  Lauriston,  1632,  M.  13810).  If  the  landlord  has  not 
got  intimation  of  an  assignation,  or  has  not  recognised  a  sub-tenant,  decree 
against  the  principal  tenant  is  effectual  against  the  sub-tenant  (A.  S.,  1750, 
8.  3;   Wilson,  1839,  2  IJ.  232). 

Procedure  in  Removinejs:  Act  1555,  c.  39.— Under  this  statute  the 
procedure  to  be  adopted  with  reference  to  removings  from  "  lands,  mills, 
fishings,  and  possessions  whatsoever"  was  regulated.  The  provisions  of  the 
statute,  which  are  now  obsolete,  required  that  warning  should  l^e  given  to 
the  tenant  by  precept  from  the  landlord,  executed  against  the  tenant  per- 
sonally or  at  his  dwelling-house,  and  also  on  the  ground  of  the  lands 
ami  at  the  parish  church,  forty  days  before  Whitsunday  of  the  year  in 
which  the  lease  was  to  expire  (St.  ii.  9.  38.  40  ;  Ersk.  ii.  6.  45  ;  Bell,  Prin.  1 267  : 


TENANT  235 

rjiiiildne  on  Leases,  502  sc<j.;  Jdis.s  on  Joniori)i>/,  34.  Gl  ;  Jfurlir^f  of 
JUirdiWili,  1715,  M.  i:583G;  I'J.  of  ^f<(rr/l,  II'A,  M."  1:;h4:'.  ;  CawjJnll,  IT'.K'.. 
]\r.  lo<S4!)).  Following  u])oii  tlio  warning,  action  ol"  removing  was  raiKc-il 
I'iliicr  in  the  Sherifl"  Court  (»r  in  Court  of  Session  ;  and  the  decree  wn« 
carried  into  ininiediato  ericct  l)y  ])rGcc])t  of  ejection  in  llie  former  case,  and 
in    the  latter   by  charge    {Stamkill,  1075,  M.    138'J4;   J'rinyle,  17:'.'.»,   M. 

i;;894). 

Act  of  Sederunt,  1-ith  Decemher  175G. — I'rocedurc  in  rcmovings  was 
consideral)ly  sini})lilied  hy  this  Act  of  Sederunt.  l*»y  the  lirst  section 
thereof,  where  the  tenant  is  under  obligation  to  remove  wilhdut  warning, 
the  landlord  might  obtain  hitters  of  horning,  and  charge  the  tenant  thercMU 
forty  days  before  Whitsunday  of  the  last  year  of  the  lease  to  remove.  Such 
a  charge  constituted  a  good  warrant,  on  the  production  of  which  the  SherilF 
was  bound  within  six  davs  after  the  term  of  removal  to  eject  the  tenant 
(St.  iv.  20.  14;  Dell,  Frm.  1208;  2  Hunter,  L.  &  T.  25  scri.  ;  JJankine  on 
Leases,  408  scq.,  and  cases  there  cited).  An  obligation  to  remove  may  be 
contained  in  the  lease  itself,  in  a  separate  writing,  or  may  be  proved  by  tlie 
oath  of  the  debtor.  When  contained  in  the  lease  itself,  as  is  invarialtly  tljc 
casein  formal  leases,  the  clause  runs:  "And  the  tenants  bind  ami  olilige 
themselves  and  their  foresaids  to  Hit  and  remove,  themselves,  their  wives, 
bairns,  families,  servants,  goods,  and  gear  furth  of  and  from  the  subjects 
hereby  let  at  the  expiry  of  this  lease,  and  that  without  any  previous  warn- 
ing or  process  of  removing  to  be  used  against  them  to  that  ellect."  An 
addendum  to  the  eilect  that  the  tenant  is  to  pay  an  increased  rent  for 
occupation  beyond  the  prescribed  term  is  read  in  the  landlord's  favour,  and 
not  as  conferring  a  licence  upon  the  tenant  {Camjihcll,  1814,  Hume,  804 ; 
Gold,  1870,  8  M.  1000). 

By  the  second  section  of  the  Act  of  Sederunt  it  was  provided,  in  the 
case  of  tenants  who  had  not  bound  themselves  to  remove  without  lawful 
warning,  that  the  landlord  should  either  adopt  the  procedure  of  the  Act 
of  1550,  or,  alternatively  raise  an  action  of  removing  before  the  Judge 
Ordinary  of  the  county  in  which  the  lands  lie.  Such  action  being  called  in 
Court  forty  days  before  the  term  of  Whitsunday,  was  held  ecpiivalent  to  a 
warning  executed  in  terms  of  the  Act  1555.  The  Sheriff  then  proceeded 
to  decern  in  the  removing,  his  decree  being  followed  up  wiih  a  precept  of 
ejection  within  forty-eight  hours  (Carridhcrs,  1704,  M.  138G8;  Stevenson, 
1821,  1  S.  88). 

Sheriff  Courts  Act,  1853  (IG  &  17  Vict.  c.  80).— F.y  the  20th  section  of 
this  statute  it  is  provided,  as  regards  actions  of  removing  in  the  SheriH 
Court,  that  it  shall  be  competent  to  raise  such  actions  at  any  time  j.rovided 
a  period  of  at  least  forty  days  elapse  between  the  date  of  the  execution  of 
the  sunnnons  and  the  term  of  removal,  or  tlie  lirst  ish  where  there  is  a 
separate  ish  as  for  lands  and  houses  or  otherwise.  V>y  the  30th  section  of 
the  same  statute,  where  "lands  or  heritages  are  held  under  a  ].r(«bative 
lease,  specifying  a  term  of  endurance,  such  lease,  or  an  extract  thereof  from 
the  books  of  any  Court  of  record,  shall  have  the  same  foice  and  cdect  ni 
every  respect  as  any  extract  decree  of  removing  obtained  in  any  ordinary 
action  of  removing  at  the  instance  of  the  party,  granter  of  such  lease  or  in 
the  right  of  the  granter  of  such  lease,  against  the  party  in  jx.ssession  under 
such  lease,  whether  such  party  be  the  les.see  named  in  such  Jease  or  not. 
A  lease  such  as  is  there  contemplated,  or  an  extract  thereof,  is,  along  with 
a  written  authority  signed  by  the  landlord,  his  agent  or  factor,  to  be 
snllicicnt  warrant  to  a  shcrilV-ofhcer  or  messenger-at-arms  within  the 
county  in  which  the  lands    are  situated  to  eject  the  jurty  in  possession 


236  TENANT 

from  the  laiuls  on  elapse  of  the  specifie'l  term.  Notice  to  remove  in  the 
form  prescribed  iu  SclieJule  I  of  the  Act  must  be  given  through  a  sherilf- 
otlicer,  at  least  forty  days  before  the  termination  of  the  lease,  to  the  tenant 
pereonally,  at  his  dwelling-house  or  through  the  post ;  and  a  certificate  iu 
terms  of  Schedule  J  is  written  on  the  lease.  Eemoval  or  ejection  following 
upon  the  provisions  of  tlie  above  section  must  take  place  within  six  weeks 
after  the  expiry  of  the  term  of  endurance  of  the  lease.  Sec.  31  of  the 
Act  gives  the  same  force  and  effect  mutatis  mutandis  to  a  letter  of 
removal. 

For  the  form  of  an  action  of  removing  which,  except  under  tlie  Act 
1555,  must  be  brought  in  the  Sheriff  Court  (Bell,  Prin.  1268),  see  Lees, 
Sheriff  Court  Styles.  Decree  in  the  action  may  be  extracted  within  forty- 
eight  hours  (A.  S.,  lOtli  January  1839,  s.  113);  and  the  extract  orders  the 
tenant  to  remove  on  a  charge  of  forty-eight  hours  (A.  S.,  27th  January 
1830).  Failing  his  removal  within  the  period  of  charge,  the  decree 
grants  warrant  to  ollicers  of  law  to  eject  the  tenant  (see  under  Ejection). 
Sec.  34  of  A.  S.,  11th  July  1839,  provides,  "in  actions  of  removing  and  in 
summary  applications  for  ejection  the  defender  shall  come  prepared  with 
a  cautioner  for  violent  profits  at  giving  in  his  defences  or  answers,  unless 
he  instantly  verify  a  defence  excluding  tlie  action  "  (see  under  article  on 
Violent  Profits).  The  judgment  of  a  Sheriff  in  an  action  of  removing 
cannot  be  brought  under  review  of  the  Court  of  Session  by  an  ordinary 
appeal,  but  only  by  a  suspension  (6  Geo.  iv.  c.  120,  s.  44;  Clarh,  1890,  17 
II.  1064). 

_  Agricultural  Holdings  Act,  1883. — The  provisions  of  the  28th  section  of 
this  Act  affect  procedure  in  removings  under  leases  to  which  the  Act  applies. 
It  is  there  provided  that  notice  of  the  intention  of  either  party  to  bring  the 
tenancy  to  an  end  must,  in  leases  for  three  years  or  upwards,  be  given  not 
less  than  one  and  not  more  than  two  years  before  the  expiry  of  the  lease ; 
and  in  yearly  leases  or  leases  of  less  than  three  years'  duration,  not  less 
than  six  months  before  said  date  (Uankine,  Leases,  501;  L.  Macdonald, 
1884,  12  li.  228).  For  cases  to  which  tlie  provisions  of  this  Act  do  not 
apply,  see  article  on  Agricultural  Holdings  Act. 

liemoving  from  Urban  Tenements. — llemoval  from  urban  tenements  is 
regulated  by  custom  (Ersk.  ii.  6.  47).  The  ordinary  practice  in  burghs  was 
that  a  burgh  officer,  in  presence  of  one  witness,  chalks  the  most  patent  door 
of  the  building  forty  days  before  the  term  of  removing,  which  is  usually 
Whitsunday.  The  proper  evidence  of  the  warning  is  the  execution  sent  in 
by  the  officer,  which  should  be  in  writing  or  print,  or  partly  in  botli  (Eoss 
on  liemoving,  119 ;  Rolh,  1859,  21  D.  277).  Ciialking  is  probably  sufficient 
without  other  intimation  to  the  tenant.  Warning  made  in  the  sliop  to  tlie 
tenant^ of  a  house  and  shop  is  good  as  to  both  subjects  {Scott,  1886,  24  S. 
L.  R.  34.  For  the  nature  of  intimation  see  Glov.mj,  1865,  4  M.  1 ;  Morris, 
1839,  ID.  667).  At  common  law  an  acknowledgment  by  the  tenant  tliat 
intimation  had  been  made  to  him  timcously  is  equivalent  to  chalkiuL'. 
And  now,  under  sec.  6  of  the  Eemoval  Terms  (Scotland)  Act,  1886  (49  & 
50  Vict.  c.  50),  notice  of  removal  "  from  a  house,  other  tlian  a  dwelling- 
hou.se  or  l)uilding  let  along  with  land  for  agricultural  purposes,  may  here- 
after be  given  by  registered  letter,  signed  by  the  person  entitled  to  give 
such  notice  or  by  the  law  agent  or  factor  of  such  person,  posted  at  any  post 
office  within  the  United  Kingdom  in  time  to  admit  of  its  being  delivered 
at  the  address  thereon  on  or  prior  to  tiie  last  date  upon  which  by  law  such 
notice  of  removal  must  be  given,  addressed  to  the  person  entitled  to  receive 
such  notice,  and  bearing  the  particular  address  of  such  person  at  the  time, 


TENANTS.  KINDLY.  KKNTALLEKs  Ul    !.()(  11Ma|,|.N       237 

if  tlic  same  be  known,  or,  il'  Ihu  siinu'  be  not  known,  Llieii  the  hist  km-wn 

address  of  .snch  person." 

The  customary  period  of  \variiiii<^  is  forty  days,  j;y  mi-.  ^  ,,; 
above  Act  it  is  provided:  "  Wiiere  a  liouse  (oilier  than  a  dwellin-'-li 
or  building  let  along  willi  land  for  agricultural  purpo.se8)  i.s  let  for  any 
period  not  exceeding  four  calendar  niontlis,  notice  of  removal  llierefn.ni 
sliall,  in  the  ab.sence  of  express  slijiulation,  be  given  as  many  days  before 
the  date  of  isb  as  shall  be  ecjuivalent  to  at  least  one- third  of  tlie  fid! 
period  of  duration  of  llie  lease." 

The  terms  for  entry  and  removal  from  hou.scs  are  fixed  as  the  2Hlh 
May  and  l'8tb  Noveni])er,  but,  notwithstanding  the  date  of  the.'^c  terms  it 
is  necessary,  where  warning  bas  to  l)e  given  forty  days  before  a  term 'of 
Whitsunday  or  Martinmas,  that  sucb  warning  should  be  given  forty  davs 
before  15th  May  and  11th  Novendjer  respectively  (49  &  50  Vict  c  50 
s.  4).  '      ' 

Bemoving  from  Small  Holdings. — liy  1  &  2  Vict.  c.  119,  s.  H,  it  is  pro- 
vided that  "  where  houses  or  other  heritable  subjects  in  Scotland  are  let  for 
any  shorter  period  than  a  year,  at  a  rent  of  which  the  rate  shiUl  not  exceed 
thirty  Y>oin\ds  jJcr  annum,  it  shall  be  competent  for  any  person  authorised 
by  law  to  pursue  a  removing  therefrom,  to  present  a  sunnuary  com]ilaint  to 
the  Sheriff  of  the  territory,  who  shall  order  it  to  be  served  and  the  defender 
to  appear  on  such  day  as  he  may  in  each  case  think  proper,  in  the  form  or 
to  the  effect  of  Schedule  (A)  annexed  to  this  Act."  The  citation  and 
further  procedure  is  tlie  same  as  is  provided  for  small  debt  causes  (s.  11; 
Lees,  Small  DcU  Handbook,  pp.  129  seq.).  Decree  pronounced  in  a  removing; 
under  this  statute  is  final ;  and  not  subject  to  review,  either  in  the  Circuit 
Court  of  Justiciary  or  in  the  Court  of  Session.  Provision  is  also  made  for 
reponing  (s.  9);  adjournment  (s.  12);  and  the  giving  in  of  written  an.swers 
by  the  defender  upon  finding  caution  (s.  13). 

Ilcmoviiui  where  Defender  no  Legal  Title. — Where  anyone  possesses  with- 
out legal  title,  an  application  may  be  made  by  the  proprietor  of  the  subjects 
to  have  such  person  summarily  removed  without  any  notice  or  warning 
being  given  {Maedonald,  18G0,  22  D.  1075;  HaUy,  18G7,  5  M.  951; 
Macdonald,  ISSo,  10  K.  1079;  liankinc,  Landoicncrship,  ]ip.  9  .sr^^.).  The 
heir  of  a  liferent  tenant  is  not  entitled  to  remain  after  the  death  of  his 
author  ;  and  may  be  summarily  removed  as  a  vitious  possessor  (St,  ii.  9,  38  ; 
Tennent,  17G0,  ]\L  13845;  Gordon,  1794  (heir  of  minister  who  held  lease 
during  his  incumbency)).  In  such  cases  the  heir  is  entitled  to  the  crop 
sown  l)y  his  author,  in  accordance  with  the  maxim  Messis  semcntcm  ^quitnr 
{Stewart,  l'J'd^,M.  13853;  M.  Ticecddale,  184G,  8  D,  411;  rev.  G  i:.  App. 
125). 

Tenants,   Kindly;    Rentallers  of  Lochmabcn.- 

A  rental  was  a  species  of  tack  set  to  rentallers  or  kindly  tenants,  who  were 
the  successors  of  the  ancient  possessors  of  the  land  {natiri),  or  to  tliose 
whom  the  ])roprietor  desired  to  favour  as  such.  This  tenure  was  ri"--  -'ly 
freiiuent  and  widespread,  but  is  now  generally  obsolete,  excei)t  in  i  >  t 
Towns  of  Lochmaben  in  Dumfriesshire,  where  it  still  almost  universally 
prevails,  but  hi  a  peculiar  form.  It  was  analogous  to  what  became  known 
as  copyhold  in  England.  Under  kindly  tenancy  were  i^resorved  those 
ancient  customary  rights  to  the  soil  which  it  was  found  dilix  ult  to  ntlapt 
to  the  feudal  system"^  (Ersk,  ii.  6.  37;  Stair,  ii,  9.  15;  Koss,  Ixct.  ii.  479; 
Hunter,  Landlord  &  Tenant,!.  423,  ii.  122;  Eankine  on  Leases,  pp.  14n-47). 
It  is  uncertain  whether  the  tenant's  right  was  originally  a  temi»orary 


238      TENANTS,  KINDLY;  KENTALLER8  OF  LOCHMABEN 

possession,  or  a  heritable  right  (Craig,  i.  11.  24) ;  but  on  a  tenant's  death  the 
rif'ht  came  to  be  generally  renewed  to  his  heir  (usually  on  payment  of  a 
"rassum),  especially  on  the  lands  of  the  Crown,  the  Church,  and  tlie  great 
lords  (Bell  on  Leases,  i.  89,  note).  Eentallers  had  no  charters  or  other 
feudal  right,  but  they  were  enrolled  in  the  rental  books  of  the  tenantry. 
Their  rents  required  to  be  certain  or  ascertainable ;  but  these  were  usually 
li^'ht,  and  included  agricultural  services  until  their  abolition  in  1747. 
From  the  nature  of  the  right,  residence  was  necessary.  Eental  rights 
were  constituted  by  writ,  which  might  be  either  a  formal  lease  (which 
was  alone  good  against  singular  successors  (Bell  on  Leases,  i.  p.  89)),  or  the 
entry  in  the  landlord's  rental  ])ook  (Alton,  Mor.  7191).  Mere  allegiance 
and  payment  of  rent  for  a  period  of  years  were  not  enough  (Cassilis,  Mor. 
15183).  Such  rights  being  granted  from  favour  to  the  tenants,  assignation 
and  subletting  were  prohibited  (Stair,  ii.  9.  21).  Any  breach  of  this  implied 
condition  was  void,  including  an  excambion  between  rentallers  {Galloivay, 
Mor.  7193;  Maxwell,  Mor.  7197);  and  an  assignation  or  sublease  of  the 
whole  or  more  than  half  of  the  subject  made  the  whole  rental  right  void 
{Craigie  Wallace,  Mor.  7191). 

Just  before  the  Pteformation,  these  rights,  especially  on  Church  lands, 
were  so  generally  transformed  into  feus,  sold,  or  alienated  in  anticipation  of 
the  coming  storm,  that  the  Legislature  had  to  pass  an  Act  for  the  temporary 
relief  of  kindly  tenants  of  Church  lands  (1563,  c.  77),  by  which  feuars  or 
holders  of  long  tacks  were  forbidden  to  remove  kindly  tenants  of  Church 
lands  for  the  next  three  years  without  the  consent  of  the  Crown.  Eentals, 
as  a  rule,  contained  no  definite  ish,  and  the  Courts  of  the  Eeformation  at 
first  sustained  them  only  for  a  year ;  but  they  afterwards  came  to  be  recog- 
nised as  enduring  for  a  lifetime,  if  without  mention  of  heirs,  and  for  the 
life  of  the  rentaller  and  the  first  heir,  if  heirs  were  mentioned  (Eoss,  Lect. 
ii.  480-81 ;  Stair,  ii.  9.  19  ;  Galloicaij,  Mor.  7194 ;  Ahanay,  Mor.  15191).  In 
1587  a  statute  was  passed  (11  James  vi.  c.  69)  by  which  it  was  declared  that 
all  Crown  rentals  should  have  the  effect  only  of  "naked  liferents,"  and 
this  meaning  was  in  time  applied  to  other  than  Crown  rentals,  where  there 
was  no  mention  of  heirs. 

Lochmahen. — The  successors  of  the  king's  kindly  tenants  of  the  Four 
Towns  of  Loclnnaben  (Smalholm,  Hitae,  Heck,  and  Greenhill)  still  hold  their 
lands  by  a  tenure  differing  in  several  points  from  other  kindly  tenancies. 
These  tenants  were  originally  the  vassals  on  the  lands  of  Eobert  the  Bruce's 
Eoyal  Castle  of  Lochmal)en,  and  subsequently  royal  w\arrants  were  issued 
by  later  sovereigns  for  their  i^rotection,  viz.  in  1592,  1602,  and  1664.  The 
House  of  Lords  accordingly  held  that  though  they  possessed  neither  on  cliarter 
nor  sasine,  they  had  such  a  right  of  property  in  the  lands  that  they  could 
not  be  removed,  and  might  assign  their  tacks  to  strangers  {Tenants  of 
Lochmahen,  Mor.  15195 ;  affd.  1  Pat.  77).  The  Statute  of  1587,  therefore, 
did  not  apply  to  Loclnnaben.  Though  the  subjects  may  be  Iturdened  and 
transmitted  without  infeftment,  they  are  capable  of  being  feudalised,  and  a 
bondholder  infeft  on  the  sasine  in  a  bond  over  such  a  rental  was  preferred 
to  a  creditor  who  arrested  the  price  on  a  sale  {Irving  and  Jojtp,  Mor.  10316) 
It  has  also  Ijeen  held  that  a  rental  riglit  may  be  pledged  ]jy  writ  with 
delivery  of  earth  and  stone  on  the  lands,  without  recording  or  intimation 
to  the  landlord,  or  entry  in  his  books  {Mounsey,  30  November  1808,  F.  C). 
The  Lochmaben  rentallers  are  liable  for  teind  duty  for  minister's  stipend, 
the  dorniniuvi  utile  of  their  laods  being  legally  and  validly  dissolved  from 
the  Crown  {Queensberry,  16  S.  439).  It  was  observed  in  that  case,  "The 
defenders  are  thus  proprietors  of  the  subjects  occupied  by  them  according 


TENDER  .,.jg 

to  every  criterion  l.y  whicli  j.rcperty  can  i.e  uHcertuined."  It  w  nreHuiiR^ 
tliiit  the  proscription  upplicaMe  to  tliene  lioldin-H  would  be  the  Ion-  utv 

scripLiun  of  forty  years.  ^  * 

Tender.— A  party  in  a  liti;,'ation  who  desires  to  do  so.  may  seiile  it 

eilher  extn.judicially  or  judicially.  A  judicial  olVer  i.s  called  a  tender  A 
tender  is  accordiii<rly  a  judicial  oiler  by  a  i)iirty  to  y.iy  a  j. art,  of  llie  Mini 
asked  for  by  his  adversary  after  the  action  is  raised  (7i'<f///.s<;y,  1HG4   •>  M 


UCH 
1 


for  advising  acceptance  of  the  tender  (rhiUip,  1852,  15  8.  228),  the  liuei 
of  extract  {Scott,  18G0,  22  D.  922);  but  not  the  expense  of  diligence  useu 
on  the  dependence,  as  this  is  not  allowed  against  a  defender  in  anv  case 
(Black,  1887,  14  11.  078).  ^ 

The  object  of  a  tender  is  to  entitle  the  party  making  it  to  ask  for 
expenses  of  the  litigation  from  its  date ;  and  these  he  is  entitled  to,  provided 
the  opposite  party  does  not  recover  more  than  the  sum  contained  in  the 
tender  {Gunn,  188G,  13  li.  573).  On  the  other  hand,  a  tender  for  less  than 
the  amount  recovered  is  of  no  avail  {Wchstcr,  1859,  21  1).  1214).  Jlut  this 
rule  is  not  absolute,  as  the  giving  or  refusing  expenses  is  always  within  the 
discretion  of  the  Court  {Laioson,  1866,  38  Sc.  Jur,  528;  cf.  Aitchison,  1804 
3  ]M.  81).  Strictly  speaking,  tenders  are  of  two  kinds.  A  defender  may,  on 
the  one  hand,  come  into  Court  admitting  that  a  part  of  the  sum  sued  for 
is  due,  or  he  may,  on  the  other  hand,  while  disputing  liability,  tender  a  sum 
for  the  sake  of  peace.  In  the  former  case  the  ordinary  coiii-se  is  to  make 
the  offer  on  record  by  inserting  it  in  the  defences.  In  the  latter  case  it 
was  formerly  unusual  to  adopt  that  course,  the  usual  course  in  such  cases 
being  to  make  the  tender  in  a  minute  lodged  in  process  {laimsay,  18G4,  3 
M.  81).  In  practice,  however,  this  distinction  does  not  seem  to  l>e  much 
attended  to  now,  and  tenders  of  all  kinds  are  made  indillerently  either  on 
record  or  by  minute.  As  a  rule,  a  tender  by  minute  is  to  bj  jtreferrcd,  as  it 
is  less  likely  to  attract  notice.  There  is  no  special  form  of  tender.  It  must 
include  expenses  up  to  its  date,  and  it  must  also  meet  the  demand.  If 
it  be  by  minute,  it  will  take  the  usual  form  of  a  minute.  Thus,  "  A.,  fnr 
defender,  hereby  tenders  tlie  sum  of  .  .  ."  This  will  be  signed  by  counsel. 
But  in  order  to  meet  the  demand,  it  must  in  defamation  cases  include 
an  apology  and  the  fullest  retractation.  The  reason  of  this  is  that  in  such 
cases  an  offer  to  pay  a  sum  of  money  is  not  one  a  pursuer  is  IkduihI  to 
accept.  He  is  entitled  to  have  his  character  cleared  ;  but  if  the  calumny  Ikj 
retracted,  the  question  is  reduced  to  one  of  money  damnges,  and  in  such 
a  question  a  tender  comes  to  be  important  {Faulks,  1854,  17  IX  247). 
Whether  an  apology  is  necessary  is  a  question  of  circumstances ;  but  ns  in 
the  ordinary  case  a  nominal  verdict  in  a  case  of  defamation  may  carry 
expenses,  a  tender  ought  to  include  an  apology  (cf.  Anderson,  1835,  14  S. 
54;  M'Intosh,  1851,  14  1).  133). 

It  would  appear  that  in  such  an  action  as  an  action  for  breach  of 
promise  of  marriage,  which  may  or  may  not  be  raised  for  the  vindication  of 
character,  it  is  a  question  of  circumstances  whether  exjtenses  arc  given 
to  a  defender  when  the  verdict  is  for  less  than  the  sum  tender«d  <  /.».  .>.u, 
1866,  38  Sc.  Jur.  528). 

When  a  tender  is  made,  it  must  be  accepted  tinieously  (Macrae,  1885, 
23  S.  L.  R  185  ;  Bciincf,  1868,  40  Sc.  Jur.  334).     Again,  a  tender  may  be 


240  TENDEII  (LEGAL) 

anieiuled  and  a  subsequent  one  put  in  {Shear,  18G3,  2  ^L  142).  There 
can  be  no  doubt  that  a  tender  can  be  withdrawn.  Finally,  when  a 
verdict  is  returned  for  a  sum  less  than  the  tender,  and  the  defender  is 
awarded  expenses  from  its  date,  the  Court  may  supersede  extract  of  the 
sum  contained  in  the  verdict  until  the  defender  has  obtained  decree  for 
expenses  {Fri/,  1882,  10  1!.  290). 

Akin  to  tenders  are  extrajudicial  offers  to  settle.  The  rules  regarding 
them  appear  to  be  these : — 

An  extrajudicial  ofl'er  to  settle  not  repeated  on  record,  if  it  exceeds  the 
sum  ultimately  found  due,  only  entitles  the  defender  to  a  finding  of  no 
expenses.  It  does  not  entitle  him  to  expenses.  If,  however,  it  be  repeated 
on  record,  though  it  does  not  become  a  tender  unless  accompanied  by  an 
offer  of  expenses  up  to  date  {A.  B.,  1836,  15  S.  306),  yet  nevertheless  it  may 
entitle  the  maker  of  it  to  expenses.  It  thus  closely  resembles  a  tender 
(Critchlcy,  188-4,  11  B.  475;  Gunn,  1886,  13  E.  573;  Mavor  &  Coulson, 
1892  19  Ft.  868).  A  tender  does  not  affect  the  subsequent  course  of  a 
liti<'ation.  and  ought  not  to  be  considered  until  after  the  case  has  been 
decided.  Thus  a  judge  ought  not  to  look  at  it  until  he  has  decided  the 
case  and  in  no  case  ought  a  jury  ever  to  know  that  a  tender  has  been  put 
in.  'a  new  trial,  in  particular,  will  not  be  granted  on  account  of  a  state- 
ment by  a  jury  who  have  given  a  verdict  for  a  sum  less  than  a  tender, 
that  if  they  had  known  of  the  tender  they  would  have  given  a  verdict  for 
a  larger  sum  {Fullarton,  1882,  10  E.  70).  What  would  happen  if  a  jury 
werel,old  that  a  tender  of  a  certain  amount  had  been  made,  there  has  not 
yet  been  occasion  to  decide  (Mackay,  Manual,  638). 

Lands  Clauses  Consolidation  Act,  1845. — This  statute  contains  special 
rules  as  to  offers  by  "promoters"  to  pay  compensation,  which  more  or  less 
resemble  tenders.  Thus  in  cases  submitted  to  arbitration  the  promoters 
shall  bear  the  expenses  of  the  arbitration  unless  they  have  offered  a  sum  at 
least  equal  to  the  sum  awarded,  in  which  case  each  party  shall  bear  his 
own  expenses  (s.  32).  In  cases  tried  before  a  jury,  which  must  contain  an 
offer  of  the  sum  the  promoters  consider  just  (s.  37),  they  have  to  pay  the 
expenses  of  the  trial  unless  the  sum  contained  in  the  verdict  is  not  greater 
than  that  contained  in  their  offer,  in  which  case  one-half  of  the  promoters' 
expenses  shall  be  defrayed  by  the  party  obtaining  it  (s.  50). 

Tender  of  Amends.  —  When  a  party  has  committed  any  irregularity, 
trespass,  or  other  wrongful  proceeding  in  the  execution  "of  this  or  the 
special  Act,"  and  makes  "a  tender  of  sufficient  amends"  by  paying  a  sum 
of  money  into  Court  before  any  action  is  brought  in  respect  thereof,  or  with 
leave  of  the  Court  after  it  is  brought,  but  before  the  record  is  closed,  "  such 
proceedings  shall  be  had  as  in  other  cases  where  defenders  are  allowed  to 
pay  money  into  Court."  When  a  tender  of  this  kind  is  made,  the  money 
must  be  jtaid  into  Court  and  not  merely  tendered.  But  if  it  be,  and  less  is 
recovered  in  the  action  than  the  amount  paid  in,  the  party  so  paying  will 
receive  expenses  as  in  other  cases  of  tender  (s.  129).  The  rule  is  taken 
from  the  law  of  England  (cf.  Archbold,  Practice,  350;  HucJdon,  1879,  4  llx. 
I).  174). 

Tender  (Legal).— See  Money. 

Tenor. — See  Froving  of  the  Tenor. 

Tenures.— See  Superiority;  Burgage;  Feu  Charter;  Feudal 
Sy.ste.m;  Booking  (Tenure  of). 


TEUCK  241 

Tcrce  is  one  of  the  le^al  liferents  recognised  in  tin.'  law  of  Scotland. 
Analogous  in  its  form  to  u  real  luirden,  it  is  in  ellect  a  legal  provihion  (if  a 
liferent  in  favour  of  a  widow  of  one-third  of  any  c'state  in  which  a  hiiHUmd 
has  died  infeft  as  of  fee.  It  is  said  to  he  founded  on  "the  (ih!-  • 
incumhent  on  a  landed  proprietor  t(j  make  reasDnalile  pruvisimi  i 
widow  suitahle  to  his  circumstances  and  condition  in  life"  (M'ljucn,  U'llh 
and  Succession,  vol.  i.  SO;  Craig,  ii.  22,  2."..  For  the  origin  and  history  of 
the  right,  cf.  Fraser,  Jl.  &  W.  1079,  etc.). 

Who  arc  entitled  to  Tercel — Generally  speaking,  it  is  a  condition  of  a 
widow  being  entitled  to  terce  that  her  hushand  shall  have  died  infefl  in  a 
right  of  fee  in  heritable  property  which  is  from  its  nature  subject  to  terce, 
as  hereinafter  explained.     At  common  law,  where  the  marriage  was  dis- 
solved within  a  year  and  a  day  from  its  date  without  a  living  child  having 
been  born,  terce  was  not  exigible  by  the  widow.     By  the  Moveable  Succes- 
siou  Act,  1855  (18  Vict.  c.  23),  it  is  provided  (s.  7)  that  "  where  a  marriage 
sliall  be  dissolved  before  the  lapse  of  a  year  and  day  from  its  date,  Ijv  the 
death  of  one  of  the  spouses,  the  whole  rights  of  the  survivor  and  of  the  re- 
presentatives of  the  predeceaser  shall  be  the  same  as  if  the  marriage  hat! 
subsisted  for  the  period  aforesaid";  and  although  doubts  have  been  expressed 
whether,  regard  being  had  to  the  scope  of  the  Act,  this  jirovision  apjilics 
to  terce  (Bell,  Zed.  vol.  ii.  847),  the  weight  of  authority  is  in  favour  of 
the  view  that  it  does  (Fraser,  if.  &   W.  1083).      Under   the   Scots  Act 
1573,  c.  55,  upon  divorce  for  desertion  the  innocent  i»arty  is  to  enjoy  his 
or  her  provisions  as  if  the  marriage  had  been  terminated  by  death  of  the 
guilty  party,  and  the  principle  has  been  extended  to  divorces  on  the  grounti 
of  adultery  (Stair,  i.  4.  20;  Johnstonc-Bcattic,  1807,5  M.  340,  0  M.  33:» ; 
Hancy,  1870,  9  M.  971 ;  1872,  10  M.  (H.  L.)  26).     Broper  legal  provisions 
become  exigible,  just   as   do   conventional  provisions,  upon  decree  l»cing 
pronounced   (Tkom,  14   D.  8G1 ;  M'Laren,   W.  &   S.  89).     Formerly  t 
widows  who  were   Aliens  were   excluded  from  terce  as  fnmi  other   i^... 
rights;  but  by  the  Aliens  Act  (7  &  8  Vict.  c.  66,  s.  16)  it  is  provided  that 
"any  woman  married  or  who  shall  be  married  to  a  natural  born  subject  i>r 
person  naturalised,  shall  be  taken  to  be  herself  naturalised,  and  shall  have  . 
all  the  rights  and  xa-ivilcges  of  a  natural  born  subject."     A  widow  other-  ' 
wuse  entitled  to  terce,  will  be  delwrred  therefrom  provided  she  has,  in  full 
and   fair   knowledge   of  her  rights,  accepted  a  conventional  provision  in 
lieu   of  and   without  reservation  of  her  right  to  terce  (Act  1681,  c.  10; 
Fraser,  //.  <&   W.  1112-3).     And  of  course,  as  with  other  legal  rights,  the 
widow  may  be  put  to  her  election  between  accepting  provisions  under  a 
settlement   and   her   claim   to   terce.      A   plea   of   bar   founded   on  soch 
acceptance  or  election  may  be  competently  considered  by   the  Sheriff  in 
an   inquest   on   a  brieve  {Clarl;  1891,  9  B.  339,  per  Ld.  M'Liren,  3431 
(See  Election.) 

The  conditions  of  an  entail  (or  even,  probably,  of  an  ordinary  fcc-smi]'Ie 
title  not  flowing  from  the  husband  himself)  may  exclude  terce,  and  ^ 
exclusion  will  be  effectual  (Bell,  Frin.  1597;  Ncnton,  1806,  5  ^\.  U'-f- 
1870,  8  M.  (ir.  L.)  66).  .   . 

EtJeet  of  State  of  Hushnnd's  Title  on  J:i>/ht  to  Tf m'.— Wlnle  it  is  uvccBmry 
that  the  husband  should  be  infeft  as  of  fee  in  order  that  the  widow  may 
be  entitled  to  terce,  an  equitable  relaxation  of  the  rule  has  been  re- 
entitling  her,  in  a  question  with  his  heirs,  to  claim  terce  although  h:.  ....  •-- 
ment  mav  have  been  invalid  upon  some  ground  which  culd  ha\c  iwn 
cured  by  himself  in  his  lifetime  (Fraser,  //.  d'-  /!'.  10^0  and  ca.^^ 
there  cited).     And  in  one  case  a  widow  was  even  held  entitled  to  maintain 

S.  E. — VOL.  XII. 


242  TKRCE 

a  i)er3onal  claim  ai^ainst  her  husband's  father  in  respect  of  terce  from 
land-s  in  which  the  father  had  in  her  marriage  contract  become  bound  to 
infeft  his  son,  but  in  which  no  infeftuient  had  been  taken  before  the  son's 
death  (Stair, 'ii.  G.  16;  Ersk.  ii.  9.  46;  Fraser,  ^.  cf;  W.  1094).  It  may 
be  doubted,  however,  whether  this  decision  did  not  go  too  far  {Carruthcrs, 
1 706,  Mor.  1584G,and  Eraser,  loc.  cit.).  Where  trustees  are  infeft  in  the  estate 
for  behoof  of  the  husband,  a  distinction  falls  to  be  drawn  between  the  case 
where  their  title  is  derived  from  a  stranger  and  that  in  which  they  hold 
upon  a  conveyance  granted  by  the  husband  himself,  as  a  proprietor  already 
infeft.  In  the  latter  case  they  are  regarded  as  holding  in  his  right,  and 
terce  is  due ;  whereas  in  the  former  case  it  is  otherwise  (M'Laren,  /r.  c£-  *S^. 
91-9l').  Where  a  proprietor  has  granted  a  trust  deed,  qualilied  by  a 
back-bond  under  which  he  has  the  substantial  right  to  the  fee,  terce  is 
also  due  {Bartlctt,  21  Feb.  1811,  F.  C;  M'Laren,  W.  &  S.  91).  A  similar 
distinction  to  that  just  noticed  also  obtains  where  the  proprietor  is  merely 
infeft  in  the  liferent,  with  a  power  of  disposal,  terce  being  due  where  he 
himself  is  the  granter  of  the  conveyance  under  which  he  has  the  liferent 
{Cumming,  1756,  Mor.  15854;  2  Br.  Sup.  843),  but  not  otherwise  {Morris, 
H.  of  L.,  27  Jur.  546,  and  other  cases  cited,  M'Laren,  IF.  &  S.  91).  But  in 
any  case,  where  a  party  holds  lands  on  an  infeftment  to  himself  in  liferent 
and  his  children  nascituri  in  fee  (or  other  similar  destination  importing  a 
fee  in  the  nominal  liferenter),  terce  is  of  course  due.  So  too  where  a  pro- 
prietor has  divested  himself  of  his  estates  intuitu  mortis,  with  a  reserved 
power  to  revoke  or  alter  ("M'Laren,  loc.  cit.  91).  One  of  the  most  singular 
results  of  the  application  of  the  rule  as  to  infeftment  is  that  where  the 
deceased  husband  has  sold  the  lands,  and  has  granted  a  conveyance  under 
which  the  purchaser  has  not  taken  infeftment  at  the  date  of  the  seller's 
death,  the  widow  of  the  latter  is  entitled  to  her  terce  out  of  the  lands 
sold  (Fraser,  H.  &  W.  1095).  On  principle,  it  would  seem  that  where  such 
a  transaction  has  been  carried  through  and  the  price  has  been  paid,  and  so 
forms  a  part  of  the  husband's  moveable  estate,  the  widow,  if  her  jus  relictm 
has  not  been  effectually  excluded,  should  be  entitled  to  a  third  of  the  price, 
in  which  case,  of  course,  she  would  be  barred  from  taking  terce  in  addition. 
The  old  case  of  Camphell  (1776,  5  Br.  Sup.  627)  is,  however,  an  authority  to 
the  contrary  effect ;  and  though  very  meagrely  reported,  it  has  recently  been 
approved  in  Rosshorough's  Trs.  (1888,  16  R.  167).  In  the  latter  case  a 
bondholder  having  before  his  death  sold  the  security  subjects  to  a  purchaser 
who  proved  unalile  to  carry  through  the  purchase,  the  widow  was  held  not 
to  be  entitled  to  one-third  of  the  capital,  but  only  to  terce  out  of  the  sum 
secured. 

Where  a  husband  has  made  a  conveyance  deliberately  in  defraud  of 
terce,  or  has  unduly  delayed  in  taking  infeftment,  while  terce  will  be 
defeated  in  a  question  with  third  parties,  it  appears  that  tlie  wife  may,  as  a 
personal  right,  be  entitled  to  redress  or  relief  (Bell,  Prin.  1600,  and  cases' 
there  cited;  Ijut  cf.  contra,  Fraser,  H.  &  W.  1094,  where  the  question  is 
discussed). 

Edaicfrom  vjhich  Terce  is  due. — Subject  to  what  lias  already  been  said, 
terce  is  due  from  the  heritaljle  estate  of  the  husband,  whether  acquired  by 
him  by  succession  or  singular  title — in  this  didering  from  courtesy.  At 
Common  Law,  terce  was  not  exigible  from  lands  held  in  Burgage  tenure. 
Tlie  Conjugal  Biglits  Act,  1861  (24  &  25  Vict.  c.  86,  s.  12),  provided  that 
"  the  widow  of  any  person  who  shall,  after  the  passing  of  this  Act,  die  infeft 
in  property  held  by  burgage  tenure  shall  be  entitled  to  terce  therefrom ; 
and  the  like  proceedings  as  to  service  and  kenning  before  the  Sheriff  shall 


TERCK  243 

be  competent  in  such  a  case  as  are  com  potent  witli  reference  to  property  in 
respect  of  which  tcrce  might  have  been  churned  prior  to  l\ui  •  ,jf  ihiK 

Act."     This  section  has  indeed  been  repeahnl  by  th<!  Statute  1-iu  j;  ■, 

Act  of  1892;  but  in  view  of  the  provisions  of  the  ConveyaiK  :•■ 
1874,  which  practically  abolish  all  distinction  Itetween  burgage  .. 
tenure,  this  repeal  seems  to  be  merely  formal;  so  that  terce  la  now  due 
from  all  lands,  whether  formerly  held  burgage  or  not  (Ctuivoyaji  ' 
land)  Act,  1874,  s.  25).  L'nlike  courtesy,  terce  is  not  due  from  hu]..  ,  r,  ,l..  -. 
either  in  respect  of  the  regular  duties  or  of  casualties,  nor  is  it  due  from' 
mere  rights  of  servitude.  It  appears  not  to  be  proi)erly  due  from  real 
l)ardens  by  reservaii(tu  (Hell,  J'rin.  1598),  and  it  seems  far  from  cleur  that 
there  is  any  distinction  to  be  drawn  in  the  case  where  such  burdciiv  •  '  , 
constitution  (Fraser,  //.  cC-  W.  1088;  Bell,  Led.  848).  A  widow  is  ■  .  . 
to  terce  out  of  heritable  securities  constituted  by  infeftment ;  and  if  the.sc  are 
paid  up,  she  seems  entitled,  as  a  condition  of  her  consent  to  the  discharge,  to 
have  one-third  of  the  proceeds  invested  for  herself  in  liferent  and  the 
husband's  heirs  in  fee  (cf.  Eossborowjlis  Trs.,  mqira,  as  t(t  her  rights  if  the 
loans  have  been  called  up  prior  to  the  husband's  death).  Where  the  security 
is  by  way  of  absolute  disposition  qualified  by  a  back-bond,  the  terce  is 
limited  to  cme-third  of  the  amount  secured.  Conversely,  where  lands 
which  are  the  subject  of  terce  are  burdened  with  heritable  securities, 
the  widow's  terce  suffers  a  rateable  reduction.  This  seems  to  be  (he 
case  even  where  the  security  is  by  way  of  absolute  conveyance  and 
back-bond,  the  claim  extending  to  a  liferent  of  one-third  of  tlie  reversion 
(^I'Laren,  W.  &  S.  vol.  i.  loc.  cit.).  Eights  of  reversion  are  not,  however, 
in  general  su1)ject  to  terce  ;  nor  are  leases,  heritable  estate  held  on  a 
personal  title,  teinds,  —  unless  feudalised  in  the  husband's  j>erson, — 
l)atronage,  nor  minerals.  Where  minerals  have  been  worked  in  tlje  portion 
of  the  estate  allocated  to  the  widow,  she  seems  entitled  to  continue  the 
working  for  her  own  supply.  A  mansion-house  is  not,  in  general,  Uiken  into 
account  in  estimating  terce ;  but  where  there  is  more  than  one,  the  widow 
is  entitled  to  a  liferent  of  the  second  one.  llesidential  properties  which  are 
let,  yield  terce  (Fraser,  II.  &  W.  pt.  iv.  cli.  vii.). 

Estates  held  under  entail  are  liable  to  terce  unless  the  right  is  specially 
excluded  by  the  terms  of  the  entail.  AViiere  not  excluded,  a  bond  of  annuity 
may  be  granted  for  an  amount  within  the  terce.  In  practice,  however, 
the  widow's  rights  are  generally  provided  for  by  the  terms  of  the  entail 
(Fraser,  loc.  cit.). 

Completion  of  the  Right  to  Tcrcc. — The  right  to  terce,  thougli  elleetual  by 
mere  survivance,  does  not  give  any  active  right  to  occupation  of  the  lands 
until  a  title  thereto  has  been  made  up  by  the  widow.     Until  this  is  •; 
she  may  indeed  receive  payment  of  the  rents  to  the  extent  of  her  terce,  ..i,-. 
her  receipt  will  be  a  good  \lischarge  therefor  ;  but  she  cannot  sue  IcnanUs  ; 
and  it  has  been  held — although  the  decision  has  been  doubted — that  if  she 
dies  without  service,  she  does  not  transmit  to  the  executors  the  i 
recover  arrears  of  rents  not  ingathcred  by  her  (see  Bell,  Tnn.  1602,anu« 
cited). 

The  appropriate  method  of  completing  title  formally  is  by  (,/7rs/)  Scrv i  ■ 
followed  by  {second)  Kenning  to  the  Terce.  Service  proceeds  on  a  bri.  ••  • 
from  Chancery  directed  to  the  Sheriff  within  whose  juri.'-'; 

lie,  or  to  the  SlierilV  of  Edinburgh  if  the  lands  are  in •- 

(or  sometimes  to  a  special  individual  nominated  as  SherilF  for  tJu'  puriKJSc). 
The  inquest  is  by  a  jury,  who  are  directed  to  incpnro  (1)  AMi't  lor  t  ..• 
claimant  was  the  lawful  wife  of  the  deceased— this  being  presumed  ii  she 


244  TEEM 

was  habit  and  repute  his  wife;  and  (2)  Whether  the  husband  died  infeft  in 
the  lauds— this  beiug  proved  by  production  of  his  sasines  or  recorded  titles. 
The  brieve  is  not  retourable,  the  jury  merely  arriving  at  a  verdict,  to  which 
the  Sheriir  iuterpones  authority  and  decerns.  Appeal  to  the  Court  of 
Session  is  competent  at  any  stage  at  which  advocation  would  formerly  have 
been  competent  {Craik,  1891,  19  R.  339,  per  Ld.  Pres.  Eobertson,  p.  341). 
It  is  improper,  however,  for  the  Sheriff  to  sist  process  merely  on  an 
assertion  of  intention  to  have  objections,  which  if  established  would  be 
fatal  to  terce,  tried  elsewhere.  The  widow's  right  to  be  served  is 
peremptory,  and  can  only  be  barred  by  objections  instantly  verifiable 
{Craik,  ih.).  The  Sherii'l"  may,  however,  competently  consider  a  plea  of 
exclusion  of  right  by  acceptance  of  a  conventional  provision  {ih.,  per  Ld. 
M-Laren,  p.  343).  By  service  the  widow  is  vested  with  a  right  of  possession 
of  the  sulijects  pro  indiviso,  with  all  benefits  of  the  landlord's  hypothec, 
and  she  may  demand  a  third  of  the  rents  and  interests  on  hcritalde  debts. 
liy  the  secondary  process  of  kenning,  pursued  before  the  Sherill'  (for  pro- 
cedure in  which,  see  Kenning),  she  obtains  a  proper  liferent  infeftment  in 
one-third  of  the  estate.  (Stair,  iv.  3.  11 ;  Ersk.  ii.  9.  50;  Fraser,  B.  &  IF. 
1101.) 

In  practice,  however,  both  service  and  kenning  are  superseded — the 
widow's  rights  being  commonly  settled  by  agreement  or  by  submission,  in 
which  the  arbiter  assigns  to  her  a  portion  of  the  estate  or  a  fixed,  sum 
out  of  the  rents — either  being  properly  secured  against  creditors  of  the 
heir  (Boi/d,  1805,  Mor.  15874  :  Bell,  Frin.  1601).  (For  details  of  procedure, 
reference  is  made  to  Fraser,  H.  &  W.  pt.  iv.  ch.  vii.  1101,  etc.) 

Security  arjainst  Waste  ly  Tercer. — This  is  provided  for  by  the  Scots  Acts, 
1491,  c.  25,  and  1535,  c.  15.  In  the  case  of  Bell  (1827,  6  S.  221)  the  pro- 
cedure under  the  Acts  was  applied,  opinions  being  expressed  that  a  com- 
plainer  must  adopt  the  remedies  provided  by  the  Acts.  Tlie  grounds  of 
action  must  be  such,  however,  as  would  at  connnon  law  warrant  interdict, 
i.e.  injury  already  done  and  apprehension  of  further  injury  (Fraser,  H.  &  W. 
1109-1110). 

Lesser  Terce. — The  fact  of  an  existing  right  of  terce  in  favour  of  a  widow 
does  not  exclude  the  widow  of  a  succeeding  proprietor  from  all  claim  to 
terce.  She  is  entitled  to  one-third  of  the  balance  of  the  rents  remaining 
after  satisfaction  of  the  existing  right.  This  is  called  lesser  terce.  Upon 
the  pre-existing  right  being  terminated,  the  second  widow  takes  one-third 
of  the  full  rents  (Fraser,  loc.  cit.). 

Term. — See  Circumduction. 

Terms. — The  "term,"  in  the  ordinary  sense  of  the  word,  is  the  day 
on  wiiicli  rent  is  jiayable.  The  leyal  terms  are  Whitsunday,  15th  May,  ami 
^farlinmas,  11th  November.  The  Itenioval  Terms  (Scotland)  Act,  1886, 
49  &  50  Vict.  c.  50  (which  repealed  the  liemoval  Terms  Act,  1881),  enacts 
(s.  4)  that— 

"  Where  uiitler  any  lease  entered  into  after  the  passing  of  this  Act,  the  term  for  a 
tr-nant's  entry  to,  or  removal  from,  a  liou.se  shall  be  one  or  other  of  the  terms  of 
WhitsuiKlay  or  Martinmas,  tlie  tenant  shall,  in  the  absence  of  express  stipulation  to  the 
contrary,  enter  to,  or  remove  from,  the  said  house  (any  custom  or  usage  to  the  contrary 
notwithstanding)  at  noon  on  the  twenty-eighth  day  of  May,  if  the  term  l)e  Whitsunday, 
(jr  at  noon  on  the  twenty-eightli  day  of  November,  if  the  term  be  ^Martinmas,  or  on  the 
fallowing  day  at  the  same  liour,  wlien-  the  said  terms  fall  on  a  Sunday.  Notwithstanding 
anything  in  this  Act  contained,  in  all  cases  in  which  warning  is  reipiired  forty  days 
before  a  Whitsunday  or  Martinmas  term  of  removal,  such  warning  shall  be  given  forty 


Til  KIT  245 

days  before  the  fifleunlli  day  of  May  and  tl.e  eleventh  day  of  Nuvend.. ,   ,..,-.. ,:..!,. 

Sec.  5.   Uliore  a  hoiiso,  other  than  a  d\v.-llinj,'hoU8e  or  l.uilding  let  ah  r 

agricultural  jjurjinsus,  is  let  lui-  any  pcriutl  not  excccdjiiff  f„iir  cal. 

of  removal  theiefroui  shall,  in  the  altsence  of  express  htipidation,  1 

l)ff.)re  the  date  of  ish  as  shall  be  equivalent  to  at  least  one-third  of  the  lull  period  of 

tluratiuu  of  the  lease.  "  ' 

r.y  sec.  3,  "  house"  means  a  clwilliiiLj-lK.uso,  shop,  or  oih«-r  hiiildinw  „,„| 
their  appnrleiiaiices,  and  inchuh's  a  dwellhi.^'-housc  or  huildiuj,'  let  alon- 
with  hind  fur  a^rieullural  or  other  ])urposes:  "  hur^li  "  means  royalh-:'" 
parliamentary  burgli,  or  any  popuh)Us  jjhice,  tlie  houmhiries  whe'reof  , 
been  fixed  and  ascertained  under  the  General  I'olice  and  Improvement 
(Scotland)  Act,  1SG2,  and  subsequent  Acts:  "lease"  includes  tack  and  het. 
and  aj.plies  to  any  lease,  tack,  or  set,  whether  constituted  by  writing,'  or 
verbally,  or  by  tacit  relocation,  and  of  whatever  duration  :  "  tenant  "  Uiuaiia 
a  tenant  under  any  lease  as  defined  by  this  Act. 

As  to  Conventional  terms,  see  Kent. 

Testament.— See  Will. 

Testament  in  Roman  Law.— See  Succe.ssion  in  Ku.man 

Law. 

Testing  Clause.— See  Deeds  (Execution  of)  (vol.  iv.  137). 

Theft. — See    Habit    and    Repute;    Housebueakixg  ;     Lockfast 

Tlaces  ;   Plagium  ;   Reset  ;   Robp.eiiy. 

Theft  is  the  felonious  taking  away  and  appropriation  of  the  proi»erty  of 
another  without  his  consent. 

Tiiere  can  be  no  theft  of  anything  unless  it  be  a  sultjeet  either  of 
public  or  of  private  property.  Accordingly,  there  cannot  be  theft  of  any 
portion  of  the  water  of  the  sea,  or  of  the  atmosphere,  or  of  any  wiKl 
animal,  or  of  any  human  being  above  the  age  of  pul)erty.  As  regards  wild 
animals,  there  may  be  theft  of  them,  if  by  slaughter,  or  capture,  or  enclosure 
they  have  been  made  subjects  of  private  proj^erty  ( irZ/.s-ox,  1872,  2  Couj). 
183,  Hume,  i.  81-2,  Alison,'  i.  279-80).  Thus  a  libel  for  theft  of  lish  was  sus- 
tained where  an  accused  had  cut  away  from  a  fisherman's  boat  a  net  in  which 
a  ([uantity  of  herring  were  enclosed  (Iluie,  1842,  1  Broun,  383).  By  statute, 
the  taking  of  oysters  or  mussels  from  beds  which  are  private  j)roperly, 
and  sulllciently  marked  out  to  be  carnible  of  idenlilication,  is  theft  (3  &  4 
Vict.  c.  74;  10  ct  11  Vict.  c.  92;  Thomj^sun,  1S42,  \  Broun,  475  ;  (,'aii,tt, 
ISGG,  5  Irv.  259;  Chisholm,  1871,  2  Coup.  49).  It  is  held  by  some  that 
a  similar  provision  in  regard  to  game  would  be  the  best  solution  of  all 
(|uestionR  under  the  game  laws. 

Whilst  the  thing  taken  must  be  projicrty,  it  does  not  matter  whether 
it  is  public  or  private  pro})erty,  whether  it  belongs  to  an  individual  or  to 
a  community,  or  whether  the  owner  be  known  or  not  (Hume,  i.  77,  7 
Alison  i.  277).  Felonious  abstraction  of  lost  property  is  theft,  in.- 
statement  by  Hume  (i.  62)  that  it  is  not  theft  if  a  landowner  appropriit.'^- 
an  animal  which  has  been  fomid  straying  on  his  lands,  or  if  the  1. 
of  a  pocket-book  with  the  owner's  naine'upon  it  on  the  highway  njipro- 
l>riates  it  to  his  own  use,  is  certainly  not  now  law.  It  does  not  matter  in 
whose  possession  the  article  a]i]iro]iriated  may  be  at  the  time  at  which  it 
is  abstracted  (Hume,  i.  78;  Alison,  i.  273).  Even  if  the  goods  he  in  th«- 
hands  of  someone  wliose  possession  is  wrongful,  it  is  theft  to  Uke  iheui 


24G  THEFT 

for  the  purpose  of  appropriating  tliem  feloniously  {irood,  1842,  Bell,  Notes, 
23;  Bci/s,  1846,  Ark.  215:  Smith,  1833,  2  Swin.  28).  It  seems  to  be 
doubtful  wliether  it  is  theft  if  a  man  dishonestly  recovers  possession  of 
his  own  property,  with  the  possession  of  which  he  has  parted  under  a 
contract  suoli  as  pledge.     In  such  a  case  a  charge  of  fraud  is  probably  more 

appropriate. 

The  question  was  at  one  time  very  keenly  argued  as  to  what  constituted 
theft  as  distinct  from  a  mere  lireach  of  trust.  This  question  has  lost  its 
practical  importance  owing  to  tlie  provision  of  sec.  59  of  the  Criminal 
Procedure  Act,  1897,  under  whicli  a  verdict  for  either  of  these  offences  may 
be  returned  under  an  indictment  which  charges  the  other.  The  decisions 
are  not  altogether  consistent :  and  the  law  has  advanced  a  good  deal  since 
Baron  Hume  laid  it  down  that  for  a  person  to  appropriate  an  article  he 
was  carrying  out  of  a  burning  house,  or  for  a  cabman  to  appropriate  a 
parcel  left  in  his  cab,  was  not  theft  (Hume,  i.  02). 

On  a  re\'iew  of  the  authorities,  the  present  state  of  the  law  appears  to 
be  as  follows.  It  is  theft  to  appropriate  any  article,  even  though  it  be  in 
the  custody  of  the  party  appropriating  it,  unless  he  had  some  such  title 
or  colom-able  title  of  property  in  it  as  exonerated  him  from  an  unqualified 
obligation  to  return  the  article  in  forma  spcciftca.  Thus  it  is  theft  to 
appropriate  an  article  borrowed  or  liired,  or  left  for  repair.  But  it  is 
not  theft  to  appropriate  an  article  possession  of  which  has  been  acquired 
under  a  hondfidc  contract  of  sale  or  return. 

The  abstraction  of  a  dead  body,  though  a  criminal  offence  (Hume,  i.  85), 
appears  not  to  be  theft  (see  Dead  Body).  But  the  wrongous  appropriation 
of  a  skeleton  or  any  other  part  of  a  body  forming  a  medical  specimen,  or 
a  curiosity  such  as  a  mummy,  would  undoubtedly  be  theft. 

Theft  is  complete  if  the  thief  takes  possession  of  the  article,  even 
although  he  fails  to  remove  it  from  the  premises  or  the  person  in  whose 
custody  it  is.  Thus  it  is  theft  to  remove  goods  in  a  shop  from  the  shelves, 
although  the  thief  is  interrupted  and  leaves  them  on  the  counter ;  and  it  is 
theft  to  snatch  a  watch  out  of  the  pocket  of  the  wearer,  although  the  chain 
holds  and  the  thief  fails  to  detach  it  or  the  watch  from  the  person  (Hume,  i. 
70-3).  But  it  is  not  theft  merely  to  lay  the  hands  upon  a  thing,  if  the  act 
be  interrupted  before  the  article  is  actually  removed  from  its  position. 

To  constitute  the  crime  of  theft  there  must  be  felonious  intention  in  the 
appropriation.  It  is  not  theft  to  take  unauthorised  use  of  another  man's 
horse,  or  bicycle,  or  farm  implement,  provided  that  there  is  throughout  an 
intention  of  returning  it.  There  is  an  onus,  no  doubt,  upon  the  wrong-doer 
to  sliow  that  there  was  no  intention  dishonestly  to  appropriate,  which  may 
be  greater  or  less  according  to  the  circumstances  of  the  case.  If  the  article 
be  one  ordinarily  let  for  hire,  it  may  be  fraud  to  take  a  surreptitious  use  of 
it,  although  it  does  not  amount  to  theft.  Hume  treats  of  the  case  of  a 
landowner  driving  his  neigli hour's  cattle  on  to  his  own  land  for  the  purpose 
of  impounding  them,  and  then  fraudulently  claiming  payment  for  releasing 
them.  In  the  learned  autlior's  opinion  this  is  not  theft  (Hume,  i.  73),  but 
the  contrary  would  now  probably  Ijc  held. 

Although  the  abstraction  must  l)e  felonious,  it  is  not  necessary  that 
there  should  l)e  any  element  of  cupidity.  It  is  theft  although  the  article  is 
removed  from  motives  of  malice  or  revenge,  and  is  forthwith  destroyed,  or 
Jiidden,  or  cast  adrift.  It  is  necessary,  how^ever,  that  the  article  should  be 
removed  by  tlie  offender.  It  is  not  theft  to  destroy  it  where  it  is  found 
(Hume,  i.  75),  or  to  uidooseit  and  let  it  wander  away,  as  a  cow  ;  or  lly  away, 
as  a  bird ;  or  drift  away,  as  a  boat. 


1  iiiJ-  1  o.|Y 

Art   and   Part. — Tlio   uccessory    in    tliel'L    i»    LMiuiiUy  guilty    wifli    tV.. 
principal,  and  accession  may  be  inferred  even  tliouf,'li  the  alle]j;ed  a- 
may  not  know  all  that  is  done.     Thus,  for  example,  if  two  people  agree  to 
pick  a  person's  injckct,  hotli  are  guilty  althnugh  (jnly  one  actually  al^' 

the  article,  and  the  other  does  not  know  what  he  has  got.     The  .sain- 

probably  be  held  if  two  persons,  acting  in  concert,  mingled  with  a  cr<»wd  for 
the  purpose  of  pocket-jjicking,  though  here  the  proof  might  he  diflicult.     It 
has  even  been  suggested  that  when  a  gang  <if  thieves  are  at  work  in  concert 
in  a  town,  all  are  guilty  of  every  theft  connnitted  by  any  one  of  th<-     "  ■' 
Certainly,  whoever  assists  or  abets  in  any  way,  as  by  watching,  orst. 
or  rushing  off  with  the  stolen  property  immediately  it  is  seized,  is  guilty  of 
theft.     "Whore  a  child  steals,  a  person  sending  it  out  for  the  pur 
guilty  of  theft.     It  appears  to  ])C  necessary,  however,  in  every  car:.    ; 
there  should  be  guilty  knowledge  jjrior  to  the  commisson  of  the  dt .  . 
accession  after  the  fact  not  being  sullicient  to  constitute  the  crime  of  theft 
(IMacdonald,  45,  46). 

Aggravations. — Plagium  or  child-stealing,  theft  by  housebreaking,  theft 
by  opening  lockfast  places,  theft  by  a  habit  and  rejiute  thief  (all  which 
sul)jects  are  dealt  with  under  separate  heads),  theft  by  a  police  otlicer  on 
duty  (Ferrie,  1831,  Bell,  Notes,  34),  theft  of  animals,  theft  of  young  children's 
clothes,  theft  from  churches  (see  Sackii.eoe),  theft  from  bleachlicMs  (IS 
Geo.  II.  c.  27,  and  51  Geo.  in,  c.  41),  are  all  regarded  as  aggravated  forms  of 
the  crime. 

Evidence  of  Theft. — The  possession  of  stolen  articles  within  a  short 
period  after  the  theft,  without  being  able  satisfactorily  to  account  for  the 
circumstance,  is  evidence  of  theft,  and  xcarrants  the  jury  in  convicting  of 
theft  without  any  further  evidence.  It  does  not,  however,  raise  such  a 
legal  presumption  of  guilt  as  to  require  the  jury  to  convict  of  theft  rather 
than  of  reset  (Dickson  on  Evidence,  157;  Hume,  i.  111). 

Attem^^t  to  Steal. — As  in  the  case  of  other  oHcnces,  so  in  the  case  of 
theft  an  accused  may  be  convicted  of  the  attempt  under  an  indictment  or 
complaint  which  charges  the  full  offence  (Criminal  Procedure  Act,  1887, 
s.  61).  Where  attempt  is  charged,  the  accused  may  be  convicted  although 
the  full  crime  is  proved  by  the  evidence  (ih.).  It  is  no  answer  to  a  charge  of 
attemj)t  that  there  was  nothing  to  steal,  as,  for  example,  where  the  accused 
has  rifled  the  pockets  of  some  person  who  had  nothing  in  his  pockets.  In 
a  recent  case  on  Circuit  it  was  held  by  Ld.  Low  that,  under  sees.  59  and  Gl 
of  the  1887  Act,  under  an  indictment  for  robbery  an  accused  might  be  con- 
victed of  attem])t  to  steal. 

Tntcrchangcabilitjj  of  Crimes  of  Dishonesty. — The  section  of  the  Criminal 
Trocedure  Act,  1897,  which  makes  it  competent  to  convict  of  one  form  of 
dishonesty  under  an  indictment  which  charges  another  form,  provides  as 
follows : — 

"  59.  Under  an  indictment  for  roljbery,  or  for  theft,  or  for  breach  of 
trust  or  embezzlement,  or  for  falsehood,  fraud,  and  wilful  imposition,  a 
person  may  be  convicted  of  reset;  under  an  imlictmcnt  for  robbery,  or  f<'r 
breach  of  trust  and  embezzlement,  or  for  falsehood,  fraud,  ami  ""'. 
imposition,  a  person  accused  may  be  convicted  of  theft ;  under  an  in.!: 
for  theft  a  person  accused  may  be  convicted  of  breach  of  trust  and  embozzle- 
ment,  or  of  falsehood,  fraud"!  and  wilful  imposition,  or  may  be  coi 
of  theft  although  the  circumstances  proved  may  in  law  amount  to  n 

It  will  be  observed    that  to  the  interchangcability  of  these  . 
there  is  tliis  exception,  that  a  person  cannot  be  convicted  of  r<ibbcry  except 
under  an  indictment  which  charges  that  crime. 


248  TIIELLUS^^ON  ACT 

Punishment. — Theft  was  never  a  capital  offence  in  Scotland  in  the  sense 
that  a  single  act  of  theft  necessarily  implied  a  capital  sentence.  Trivial 
thefts  were  not  so  punished.  But  a  death-sentence  might  be  intiicted  even 
for  a  siu'de  act  wlien  the  theft  was  of  a  serious  chaYnctei-  (fart um  grave), 
and  in  particular  when  horses,  cattle,  or  sheep  had  been  stolen.  Aggra- 
vations, such  as  housebreaking  or  previous  convictions,  might  render  the 
ollence  capital.  Apart  from  these  special  cases,  there  does  not  appear  to 
have  been  any  very  sharp  dividing  line  between  thefts  which  were  capital 
and  others  which  inferred  only  an  arbitrary  punishment,  and  the  result  of 
a  careful  examination  of  precedents  by  Baron  Hume  is  rather  inconclusive 
(Hume,  i.  86-92).  No  form  of  theft  is  now  capital  (1887  Act,  s.  50),  and 
the  punishment  may  be  fine,  imprisonment,  or  penal  servitude.  In  the  case 
of  theft  of  oysters  or  mussels  from  the  seashore,  the  punishment  is  limited 
to  twelve  months  for  the  completed  act  and  three  months  for  the  attempt 
(3  &  4  Vict.  c.  74,  and  10  &  11  Vict.  c.  92). 

ThelluSSOn  Act.— The  Thellusson  Act  (39  &  40  Geo.  iii.  c.  98) 
enacts  as  follows  :  "  Whereas  it  is  expedient  that  all  dispositions  of  real  or 
personal  estates,  whereby  tlie  profits  and  produce  thereof  are  directed  to  be 
accumulated  and  the  beneficial  enjoyment  thereof  is  postponed,  should  be 
made  subject  to  the  restrictions  hereinafter  contained  ...  be  it  enacted 
.  .  .  that  no  person  or  persons  shall  after  the  passing  of  this  Act  by  any 
deed  or  deeds  .  .  .  settle  or  dispose  of  any  real  or  personal  property  so  and 
in  such  manner  that  the  rents  issues  or  profits  thereof  shall  be  wholly  or 
partially  accumulated  for  any  longer  term  than  the  life  or  lives  of  such 
grantor  or  grantors  settler  or  settlers  or  the  term  of  twenty-one  years  from 
the  death  of  such  grantor  settler  devisor  or  testator  .  .  .  and  in  every  case 
where  when  any  accumulation  shall  be  directed  otherwise  than  as  aforesaid 
such  direction  shall  be  null  and  void  and  the  rents  issues  profits  and 
produce  of  such  property  so  directed  to  be  accumulated  shall,  so  long  as  the 
same  shall  be  directed  to  be  accumulated  contrary  to  the  provisions  of  this 
Act,  go  to  and  be  received  by  such  person  or  persons  as  would  have  been 
entitled  thereto  if  such  accumulation  had  not  been  directed." 

The  Act  applies  where  the  direction  to  accumulate  is  made  in  terms  and 
also  where  accumulation  is  the  necessary  consequence  of  the  direction  given 
{Lord  V.  Calvin,  1840,  23  D.  Ill;  Zorjcm's  Trs.,  1896,23  E.  848).  For 
example,  where  there  is  a  failure  of  the  trust  purposes  to  which  income  is 
directed  to  be  paid  (Lord  v.  Colvin,  supra),  or  where  annuities  directed  to  be 
paid  do  not  exhaust  the  revenue  of  the  estate  (Logans  Trs.,  supra),  there  is 
held  to  be  an  implied  direction  to  accumulate  which  is  struck  at  by  the  Act. 

In  no  event  (save  by  the  interposition  of  a  liferent)  will  those  entitled  to 
the  beneficial  enjoyment  of  the  trust  estate  be  deprived  of  that  benefit  for  a 
longer  period  than  twenty-one  years  from  the  date  of  the  testator's  death  by 
any  direction  to  accumulate.  So,  where  a  truster  directed  his  trustees  to  pay 
the  liferent  of  his  estates  to  his  wife  and  on  her  death  to  accumulate  for  a 
specified  time,  and  the  widow  survived  for  thirty-two  years,  the  trustees  were 
held  bound  to  pay  over  the  income  to  the  persons  entitled  to  receive  it  on 
the  death  of  the  liferentrix  {Camplcirs  Trs.,  1891,  18  E.  992). 

The  Act  has,  however,  no  effect  in  accelerating  vesting  of  a  beneficial 
interest :  "  If  the  fund  directed  to  be  accumulated  is  not  tlie  subject  of  a 
present  gift  the  right  of  the  eventual  Ijeneficiary  will  not  Ijc  accelerated  or 
ari.se  at  the  term  of  twenty -one  years,  but  the  heir-at-law  in  mohilihus  will 
take  it  as  intestate  succession.  But  if  there  be  a  present  gift  of  the  fund 
itself,  and  the  direction  to  accumulate  be  only  a  burden  on  the  gift,  then 


'II  in:  LACK  249 

the  burden  will  terminate  at  tlic  cml  of  twenty-one  yenrs.  and  iho  {^ift  will 
become  al)solute  in  the  jieison  (if  the  donee"  (\)vy  lA.  .I.-Cl.  MoimuilV  in 
Maxwell'^  Trs.,  1877,  o  It.  \k  250). 

The  (luestion  of  where  the  rents  go  between  the  ])oint.s  of  time  when 
accumulation  stops  and  payment  of  the  fee  is  made,  is  clearly  explained  by 
Ld.  Kincairnoy  in  Campbell's  case.  His  Lordship  says :  "On  this  ijuestion 
there  have  been  two  distinct  classes  of  decisions, — in  the  ftne  class,  wlieic  it 
has  been  held  that  there  was  a  good  gift  of  the  estate,  the  revenue  of  wliieli 
was  directed  to  be  accumulated,  the  direction  to  accumulate  has  been  held 
to  be  a  burden  on  the  gift  of  the  estate  and  the  person  to  whom  the  estate 
was  destined  has  been  held  entitled  to  it  umdTected  by  the  direction  t(» 
accumulate  so  far  as  in  excess  of  the  period  allowed  ;  and  in  the  other, 
where  there  has  been  no  prior  gift  of  the  estate,  the  revenue  directed  to  bo 
accumulated  has,  so  far  as  aflected  by  the  Act,  been  regarded  as  undisposed 
of  and  as  falling  to  the  testator's  heir  in  heritage  or  moveables.  To  tin; 
former  class  of  cases  belong  Of/ilvie's  2'rs.,  1840,  8  D.  1229  ;  Mackenzie, '[i^l 7, 
■4  E.  9G2  ;  Maxwell's  Trs.,  1877,  5  E.  248.  To  the  latter,  KcitKs  Trs.,  1857, 
19  1).  1040  ;  Lord,  1860,  23  D.  Ill ;  Cathcarl's  Trs.,  10  R.  1205." 

ThirlagC. — Thirlage  is  the  name  given  to  the  obligation  under 
which  the  occupiers  of  specified  lands  were  astricted  to  a  specified  mill, 
i.e.  bound  to  have  their  grain  ground  at  the  mill  of  the  thirl.  The  subject 
is  mainly  of  historical  interest,  as  the  commutation  of  thirlage  rights  under 
39  Geo.  III.  c.  55  has  been  almost  universal  (see  below).  It  is  dealt  with 
in  Scots  law  as  a  pradial  servitude  (Slolbs,  1873,  11  M.  530). 

Nature  of  the  Eight  and  History. — While  for  practical  purposes 
thirlage  is  to  be  considered  a  servitude,  its  real  nature  is  essentially 
different.  It  really  was  a  trade  monopoly  of  the  same  character  as  the 
exclusive  rights  of  trading  within  burghs.  As  the  power  to  grant  exclusive 
trading  rights  was  in  the  Crown,  but  was  sometimes  delegated  to  subject- 
superiors  (Ersk.  Inst.  i.  7.  64,  note  260),  so  the  power  of  astricting  to  a 
mill  was  inherent  in  the  Crown  as  regards  Crown  lands,  and  could  be 
conveyed  by  feudal  investiture  on  a  barony  title,  or  on  a  title  containing 
the  clause  cum  molcndinis  ct  multuris.  Similarly,  at  one  time  the  right  to 
erect  the  smithy— and  apparently  the  power  to  astrict  to  a  smithy— depended 
on  the  charter  containing  the  clause  ciim  fabrilihns  (Craig,  li.  JJieg.  8,  s.  25  ; 
cf.  Ycaman,  1770,  Mor.  14537).  While,  however,  this  is  true  of  the  origin 
of  the  right,  in  later  times  the  right  to  erect  mills  was  regarded  as  iidiercnt 
in  the  right  of  ownership,  and  therefore  cajiable  of  being  exercised  by  any 
heritor  whose  lands  were  not  already  astricted.  The  modern  view  in  favour 
of  freedom  is  illustrated  by  the  case  of  Skene,  1775,  Mor.  1G0G2,  Hailes,  075. 
in  which  the  Court  refused  to  recognise  astriction  to  the  kiln  attached  to 
a  mill,  as  being  a  servitude  unknown  to  the  law. 

The  origin  of  this  species  of  local  monopoly  is  clear  enough.  At  the 
time  of  the  introduction  of  water-mills,  expenditure  on  a  mill  wouhl  be 
undertaken  only  if  there  was  a  certainty  that  it  would  be  useil  so 
extensively  as  to  ensure  an  adeciuate  return.  Accordingly,  when  a  land- 
owner erected  a  mill,  he  required  all  his  tenants  to  bring  tiieir  grain  to  it 
to  be  ground,  and  prohibited  the  use  of  hand-mills  (querns).  The  area  thus 
astricted  to  the  mill  was  called  the  thirl  or  the  sucken  (q.r.),  and  the 
possessors  of  the  lands  astricted  were  the  suckeners.  The  price  of  grinding 
was  exacted  in  kind,  and  was  called  ]\Iultures  (^.r.):  that  paid  by  the 
suckeners  being  known  as  iusucken  or  in-town  multures,  while  the  smaller 
payments  by  strangers  who  resorted  voluntarily  to  the  mill  were  known  as 


250  TIIIIiLAGP: 

outsucken  or  out-town  multures.  (For  liistory,  see  E.  of  Hopdoiin,  1753, 
Mor.  16029.) 

If  lauds  were  efilectually  astricted  to  a  mill,  tbey  could  be  released  ouly 
by  consent  of  tlie  proprietor  of  tbe  mill.  As  mills  in  many  cases  became 
separate  tenements  (see  Mill),  and  were  often  disponed  separately  from 
other  parts  of  tlie  same  estate,  thirluge  became  a  burden  which  entered 
titles  and  was  of  importance  in  conveyancing.  But,  as  Stair  points  out, 
(iv.  15.  2),  the  obligation  affects  only  the  possessors  of  the  ground,  to  whom 
the  crop  belongs,  and  is  rather  a  burden  upon  the  fruits  than  upon  the 
ground.  It  is  really  nothing  more  than  a  personal  obligation  of  the 
possessor  of  the  ground  prestable  in  virtue  of  bis  occupancy.  The  relation 
is  pnedial ;  the  obligation  is  personal.  The  riglits  emerging  resemble  those 
of  a  mutual  contract.  If  the  suckener  al)stracts  his  grain  (takes  it  else- 
where to  grind),  he  is  liable  in  damages  or  to  a  decree  ad  factum 
jincstandiim.     If  the  mill  fails,  the  mill-owner  loses  his  multures. 

It  is  thus  obvious  that  thirlage  is  not  properly  a  servitude.  There  are 
indeed  what  may  be  called  dominant  and  servient  tenements.  But,  on  the 
side  of  the  servient,  there  is  something  more  than  a  mere  derogation  from 
the  complete  rights  of  ownership  or  possession,  something  more  than  the 
mere  disability  characteristic  of  servitudes.  There  is  a  compulsitor  on  the 
suckener  to  do  something  positive ;  and  thus  thirlage,  being  more  than  a 
mere  burden  jyatiendi,  sins  against  the  brocard  scrvitiis  infacicndo  consistere 
luquit  (Bell,  Prin.  s.  1016;  Eankine,  Landowner  ship,  3rd  ed.,  363-4). 
Accordingly,  it  is  sometimes  called  a  pseudo-servitude. 

Constitution  and  Piioof  of  Tiiiklage. — It  is  important  to  distinguish 
between  the  constitution  of  thirlage  and  the  proof  of  constitution — matters 
which  are  frequently  confused  with  each  other  in  the  reported  cases. 

(1)  Constitution. — Lands  can  be  astricted  only  by  the  act  of  tbe 
proprietor  (^.  0/ J/z<rray,  1621,  Mor.  10851;  Dundas,  1706,  Mor.  35,  and 
15994).  Whatever  obligations  of  thirlage  a  tenant  may  undertake,  they 
remain  personal  and  do  not  permanently  burden  the  lands,  unless  the 
landlord's  consent  is  obtained.  It  seems  clear  that  writ  was  not  in  every 
case  necessary  to  constitute  the  obligation.  It  was  not  necessary  in  the 
thirlage  of  king's  lands  to  a  king's  mill  (Steuarf,  1662,  Mor.  10854  and 
15974),  of  kirk  lands  to  a  kirk  mill  (Maoncell,  1740,  Mor.  16017,  5  B.  S.  687  ; 
Miller,  1809,  Hume,  742),  or  of  barony  lands  to  the  mill  of  the  barony 
(E.  of  Hopetoun,  supra;  Walker,  1755,  5  B.  S.  839;  cf.  Nicolson,  1662, 
Mor.  10856).  Various  explanations  of  this  are  given,  but  the  true  one 
seem.s  to  be  that  given  by  Ld.  Deas  {Harris,  1863,  1  M.  833,  at  p.  845), 
that  in  old  days,  before  writing  was  common,  thirlage  "  was  constituted  by 
a  mere  verbal  order  of  the  baron,  followed  by  usage."  It  was  a  simple 
act,  requiring  no  solemnity,  for  a  heritor  to  thirl  his  own  lands  to  his  own 
mill.  But  in  all  other  cases  thirlage  required  writing  for  its  constitution. 
Mere  resort  to  a  mill,  no  matter  how  long  continued,  will  not  constittde 
thirlage.  Nunquam  prmscribit  jus  astrictionis  {Ofjilvic,  1541,  Mor.  10849 ; 
Mcnzirs,  1635,  Mor.  1815;  Buntin,  1682,  Mor.  10872  and  15986;  Coltart, 
1/74,  2  Put.  App.  332).  Among  writings  constituting  thirlage  may  be 
instanced  the  titles  of  the  dominant  property  or  the  titles  of  the  servient, 
or  a  bond  of  thirlage. 

(2)  Proof  of  Constitution. — In  the  case  of  king's  lands,  kirk  lands,  and 
barony  lands,  astricted  respectively  to  the  mills  of  these  lands,  the  only 
proof  required  was  fjroof  of  resort,  and  of  payment  of  insucken  multures 
for  the  prescriptive  period,  in  the  absence  of  any  proof  of  contrary  intention 
or  right  {Doq,  1635,  Mor.  10853,  and  cases  above  cited).     So  in  lands  thus 


Tim;  LACK  251 

astrictetl,  a  new  tenant  is  subject  to  the  thirlage  though  his  lease  m  silent 
on  the  point  ( IFalkcr,  1755,  5  K  S.  839).     Even  in  other  caBes  written  j.roof 
iiii^ht  not  be  ie(|uiiO(l;  ].in(.f  of  payment  of  dry  iiiiilture  {i.e.  paid  whether 
tlie  jjjrain  be  ground  or  not)  for  forty  years  is   hehl   conchisive   Uiat   the 
ol)ligation  of  thirlage  has  been  duly  constituted,  because  no  one  would  make 
such  a  payment  miless  he  was  under  legal  obligation  to  do  so  (Kinnainl, 
1G75,  Mor.^  108G2;  see  also  L'rown,  1740,  Mor.   1G018;  Mim-ai/,  1745,  Klch.' 
"  Thirlagc,"  No.  2).     There  is  conclusive  written  ])roof  of  thirlage  where  th<! 
astriction  is  found  in  the  titles  (jf  the  lands  tiiirled  (as  where  it  is  con- 
stituted liy  reservation  in  the  disposition,  or  by  an  express  provisi(»n  of 
thirlage).     In  such  a  case  no  proof  of  possession  is  required,  for  vfist^als 
cannot  prescribe  an   innnnnity  contrary  to    the   terms   of   their   charters 
{M'Leod,   1727,   Mor.    1U772;    Simpson,   1774,   ]\Ior.   1074G,  JIailes,  55:;). 
Again,  a  probative  bond  of  thirlage  is  conclusive  against  the  parties  thirled 
and    their    heirs    {Magistrates   of   Cujmr,    1771,   Mor.    IGOGl,   and   Aj^p. 
"  ThirLigc,"  No,   1).     Also  a  decree  declaring  thirlage,  which  stood   un- 
(luestioned  for  forty  years  and  was  not  "taken   ofi""   by   prescription   of 
liberty,  was  held  sufficient  proof  of  thirlage  {Pitlarro,  1G7G,  Mor.  10803). 
In  other  cases,  however,  the  written  title  must  be  fortified  liy  proof  of 
possession.     So  a  probative  bond  of  tliirlage  followed  by  possession  (not 
necessarily  for  the  prescriptive  period)  is  good  against  singular  successors 
in  the  land,  if  "  the  creditor  of  the  bond  acquired  jiossession  conform,  before 
the  singular  successor's  right"  {Pittarro,  1G73,  Mor.  14503;  Peter,  1G8G, 
Mor.  14515  ;  Blair,  1712,  Mor.  14505).     Where  the  written  title  is  infeft- 
ment  in  a  mill  with  the  multures  of  specified  lands,  possession  must  also 
Ije  proved  in  order  to  establish  thirlage  {Halkcrston,  1708,  ^lor.   15097). 
Infeftment  in  a  mill  with  a  general  clause  cum  multuris,  etc.,  followed  by 
possession  of  insucken  multures  for  the  prescriptive  period,  is  adequate 
proof  of  thirlage  {Macalester,  1831,  9  S.  763).     But  the  nature  of  the  pos- 
session necessary  to  be  proved  varied  in  dillerent  circumstances.     Where 
the  title  to  tlie  mill  was  derived  from  one  who  had  no  power  to  astrict  the 
lands,  rigorous  proof  of  uninterrupted  possession  was  required  {Henderson, 
1G77,  Mor.  10867;  Sinclair,  1694,  4  B.  S.  210).     A  less  complete  proof 
would  be  required  where   the  lands   and  the  mill  had  belonged  to   one 
proprietor  at  the  time  of  the  astriction.     Again,  an  act  of  the  Baron's  Court 
thirling  the  lands,  followed  by  possession  for  the  prescriptive  period,  proves 
astriction  {Mill,  1614,  j\Ior.  10850;  Forrest,  1671,  2  B.  S.  542;  Balmcrino, 
1G78,  Mor.  10870).     The  case  of  Balmcrino  is  instructive,  because  in  it 
thirlage  was  held  to  be  established  in  this  manner  even  against  feuars  who 
had  a  right  freeing  them  from  the  servitude  of  older  date  than  the  act  of 
Court.     A  decree  for  abstracted  multures  followed  by  forty  years'  ]»osses- 
sion   was   suificient   to   instruct  thirlage  (Montijonicry,  1GG5,  Mor.  10857; 
MPherson,  1681,  Mor.  15985).     A  Crown  charter  to  a  burgh,  of  which  the 
tenenclas  specified  mills,  multures,  etc.,  was  lieM  a  sullicient  title  for  jirescrib- 
ing  thirlage  on  forty  years'  possession  {Magistrates  of  Cupar,  1771,  Mor. 
1G062,  and  App.  "Thirlage,"  No.  1).     A  charter  to  a  royal  burgh  with  the 
clause  una  cum  molcnclinis,  etc.,  was  found  to  constitute  a  thirlage,  but  the 
town  was  required  to  prove  possession,  in  order  to  exclude  the  negative 
prescription  {Magistrates  of  Eclinhurgh,  1710,  ]\Ior.  8899). 

What  is  not  Proof  of  Astriction. — Mere  habit  to  resort  to  the  mill  even 
for  payment  of  insucken  multures  does  not  prove  thirlage  {ITumilton,  1680, 

Mor,  15988,  3  B,  S.  655;  ,  2  July  1742,  5  B.  S.  723:  and  cases  cited 

supra  under  CONSTITUTION).     It  is  not  legitimate  to  attribute  to  compulsion 
what  may  have  been  merelv  voluntary  and  a  matter  of  convenience.     Again, 


252  THIKLAGE 

a  mere  ]»ei-soiial  conti-act  to  come  to  the  mill  will  not  astrict  the  lands 
(Adair,  1G80.  Mor.  ioOS'^;  Scott,  1770,  5  B.  S.  627).  Where  a  heritor  dis- 
poned the  mill  funi  mti.ltii.ris, etc., and  subsequently  disponed  lands  which  were 
in  iiis  t»\vn  {)ossession  at  the  time  of  disponing  the  mill,  the  latter  were  held  not 
to  be  thirled,  on  the  principle  res  sua  nemini  scrvit  (Kincarrachy,  1686,  JMor. 
15987).  Again,  if  a  heritor  feus  lands  without  astricting  them,  and  sub- 
sequently dispones  the  mill  with  the  multures  of  these  lands,  thirlage  is  not 
constituted,  since  the  astriction  is  a  iion  Jiabcntc potcstatcm  (IIopprui(/lc,  15GG, 
Mor.  15959:  Bardincr,  1G72,  1  B.  S.  G63 ;  Buntin,  1682,  Mor.  10872; 
Dinulas,  1706,  Mor.  35  and  15994;  Stuart,  1739,  5  B.  S.  672;  Harrowers, 
1750,  Mor.  16026:  Coltart,  17G8,  Mor.  16058,  Hailes,  262;  1774,  2  Tat. 
App.  332). 

How  TiiiKLAGE  IS  Extinguished  (for  Commutation,  ride  infra). — 
Thirlage,  like  other  written  obhgations,  can  be  extinguished  by  w^ritten  dis- 
charge or  release.  Lands  astricted  are  liberated  if  they  are  disponed  with 
a  clause  cum  molendinis,  etc.  (even  in  the  tencndas  if  from  a  sul)ject-superior, 
only  when  in  the  dispositive  clause  if  from  the  Crown),  provided  that  the 
disponer  is,  at  the  time  of  disponing,  in  right  of  the  mill  {Stuart,  1662,  Mor. 
10854:  Ahlot  of  Kinross,  1676,  2  B.  S.  5 ;  M'Pherson,  1681,  Mor.  15985; 
Graham,  1705,  Mor.  15992;  Halkerston,  1708,  Mor.  15997;  Eusscl,  1723, 
Mor.  1G014;  Wedderlurn,  1741,  Mor.  16020;  D.  of  Boxhurgh,  1785,  Mor. 
16070,  Hailes,  977).  A  clause  in  the  disposition  of  land  conferring  power 
to  build  a  mill  also  infers  immunity  to  the  extent  of  freeing  the  vassal 
"  from  the  thirle  of  such  corns  as  can  be  grinded  at  his  own  mill,"  but  no 
further  {Xeiomains,  1797,  J\Ior.  10726).  Immunity  may  Ije  prescribed,  as 
by  the  absence  of  proof  of  use  of  a  barony  mill  during  the  prescriptive  period 
{Macdowal's  Trs.,  1783,  Mor.  16068),  or  by  proof  of  open  and  persistent 
disregard  of  a  thirlage  constituted  scrijjto  (Feuars  of  Gaitmilk,  1688,  Mor. 
10770).  But  where  a  thirled  tenement  had  different  mailings,  some  of  which 
had  never  resorted  to  the  mill,  the  latter  could  not  prescribe  immunity  so 
long  as  any  part  of  the  tenement  came  to  the  mill  {Bruce,  1741,  Elch. 
"  :\Iultures,"  No.  7). 

Immunity  is  not  inferred  by  mere  disjunction  of  lands  from  a  barony 
{Chicshj,  1697,  Mor.  15989),  nor  is  thirlage  necessarily  extinguished  by  the 
temporary  union  of  the  mill  and  the  thirled  lands  in  one  proprietor  {Smyth, 
1789,  Mor.  16072).  And  where  lands  already  thirled  to  the  disponer's  mill 
are  feued  for  a  reddendo  pro  omni  alio  onere,  but  without  a  clause  cum 
molendinis,  etc.,  there  is  no  li])eration  from  the  astriction  {NevAiston,  1629, 
Mor.  10852  and  15968,  as  explained  in  Stair,  ii.  7.  17;  Oliphant,  1631,  Mor. 
15969;  Montcith,  1716,  Mor.  16009:  Stewart,  1731,  Mor.  IGOIG;  E.  of 
Hopetoun,  supra;  Bruce,  1769,  :\Ior.  16061,  Hailes,  288). 

Extent  and  Nature. — "There  are  three  kinds  of  thirlage  known  to 
the  law.  In  the  first  place,  a  thirlage  of  grana  cresccntia ;  secondly,  a 
tiiirlage  of  grindalde  corn;  and  thirdly,  a  thirlage  of  invecta  et  illata  .  .  . 
But  these  three  terms  are  not  voces  signatcc,  and  the  relative  extent  and 
nature  of  each  of  them  may  be  extended  or  limited  by  usage"  (per  Ld. 
Deas  in  Harris,  1863,  1  M.  833).  The  first  of  these  imported  a  thirlage 
of  all  corns  growing  on  the  lands ;  the  second  was  limited  to  such  corns 
as  the  tenants  actually  ground  or  required  to  grind,  and  the  third  to  corns 
in-brouyht.  In  doubtful  cases  (as  in  servitudes)  the  lightest  is  presumed, 
but  proof  of  usage  is  the  unfailing  test  {e.g.  Simson,  1824,  3  S.  225).  Such 
]»r<jof  may  even  increase  the  burden,  as  where  a  thirlatie  of  grindable  corns 
IS  proved  by  usage  to  mean  a  thirlage  of  omnia  grana  cresccntia  {vide  infra). 
But  usage  is  not  admitted  to  diminish  the  burden,  because  custom  to  pay 


Till  i:  LACK  on.j 


only  a  part  of  the  stipulated 


Y  a  part  of  the  stipulated  multures  could  not  take  away  the  ohlitration 
to  i)ay  the  whole  {Wawjhlon,  1G:55,  Mor.  11l':;0).  The  iik'uiumjt  of  an 
astrictiou  used  and  wont  is  to  be  ascertained  liy  j.ruof  as  to  a  C(inii.clciit 
nuniljer  of  years,  not  necessarily  forty  years  {Kincarrachy,  IG.Sti,  Mor. 
15987).  But  proof  for  the  prescriptive  period  is  reipiired  when'  UKage 
is  pled  to  the  ell'ect  of  increasing  the  burden  (6'rc/V/,  1781,  Alor. 
1606S).  Usage  was  admitted  to  prove  that  the  astrictiou  did  nnt 
include  wheat  {M.  of  Abercorn,  1798,  ^lor.  1GU74;  Dahjlcish  18 1'^  Hume 
743). 

"Whatever  was  the  extent  of  the  thirlage,  it  never  operated  as  a  re- 
straint on  the  mode  of  cultivation.  The  possessor  of  thirled  lands  was 
not  compelled  to  grow  corn:  he  might  crop  ihem  as  he  pleased,  so  lon<f 
as  he  did  not  act  in  fraudcm.  He  might  lay  then)  down  wiiolly  in  grass, 
thus  escaping  payment  of  multures  {M'Fadzcn,  1731,  Mor.  IGOIG;  Grant 
1755,  Mor.  1G034 ;  but  see  Stncart,  1704,  4  B.  S.  582).  So  absolute  was 
the  possessor's  discretion  in  this  respect,  that  even  the  proprietor  of  mill 
and  thirled  lands,  who  had  let  the  null  on  tack  and  subse(piently  resumed 
possession  of  part  of  the  thirled  lands,  was  held  not  barred  from  laying 
these  down  in  grass,  though  he  thus  injured  his  own  mill-tenant  {SloVan, 

1765,  Mor.  16052  ;  Chalmers,  17G9,  Mor.  IGOGO).  An  occupier  who  jnit 
his  lands  into  grass  might  freely  buy  meal  for  his  use,  but  if  he  bought 
corn  to  be  ground  for  his  use  he  had  to  pay  insucken  nmltures  for  it  {Tuwn 
of  Musselburgh,  1743,  Mor.  1G021,  Elch.  "Multures,"  No.  11).  Tenants, 
however,  cannot  sell  corn  and  import  meal,  free  of  multures  {ih.). 

The  peculiarities  of  the  three  kinds  of  thirlage  are  as  follows: — 
(1)  The  thirlage  of  omnia  grana  cresrcntia  means  a  thirlage  of  all  the 
corns  growing  on  the  lands  thirled  except  seed  and  horse-corn,  which  are 
exempted  because  without  them  the  cultivation  of  the  land  could  not  be 
carried  on  (L.  Macleod,  1788,  Mor.  16070,  Hailes,  1025  and  1047).  Thirlage 
of  "lands"  means  astrictiou  of  omnia  grana  crcsccntia  {KUhcrran,  1755,  5 
B.  S.  830;  Ycaman,  1759,  Mor.  16044),  because,  as  explained  in  Waugliton, 
supra,  astrictiou  of  "  terras  siias  "  means  thirlage  of  "  segctcs  crcsccntcs  super 
tcrris  suis."  Thirlage  of  all  grindable  corns  was  interpreted  by  u.sage  to 
mean  omnia  grana  crcsccntia  in  Grcig,  1781,  JNlor.  1G0G8;  Milne,  1787, 
Hume,  728;  L'cattie,  1787,  Hume,  729  ;  and  Stohbs,  1873,  11  .Al.  530.  The 
same  interpretation  was  given  to  multures  "used  and  wont"  in  Maxive II, 

1766,  Mor.  16057,  Hailes,  106.  When  the  feu-duty  or  rent  (ferm)  was 
payalde  in  victual  not  converted,  and  the  landlord  was  owner  al.so  of  the 
mill,  multures  were  not  due  on  the  icnn-xicUidl  {Fcuars  (f  Uaitmilk,  lijSS, 
Mor.  10770  ;  Gairden,  1697,  Mor.  15990).  So  the  amount  of  a  grain-rent 
due  to  the  Crown,  for  which  money  was  accepted,  was  held  free  of  multures 
(L.  Macleod,  supra).  But  multures  were  clearly  due  where  the  rent  was 
])ayable  in  meal  (ib.),  or  where  the  grain  -  rent  was  payable  to  another 
than  tiic  heritor  of  the  mill  {Pittarro,  1676,  Mor.  10863).  There  was  no 
deduction  from  multures  in  respect  of  hind-bolls  {M'lJou-al,  1684,  Alor. 
15987)  or  in  respect  of  public  burdens  {Nicolson,  1662,  Mor.  15974  and 
10856).  When  "the  right  of  the  teind  was  not  in  the  heritor's  person," 
multures  on  teind  were  not  due  {Gairden,  1007,  ^ivi:  1591)U),  and.  indeed, 
teinds  were  helil  to  be  free  of  multures  dc  suet  natura  {Inncrwick,  1G35, 
]Mor.  15972;  rittarro,  supra).  But  teinds  might  be  expressly  astric'ed 
{Xcirmains,  1797,  INIor.  1072G),  or  tlieic  might  be  proof  of  prescriptive  ]>ay- 
ment  on  teinds  {Grierson,  1G81,  ]\lor.  lU87i).  And  if  the  teind  is  ]iaid 
in  money  or  meal  (even  though  exigible  in  grain),  multures  must  be  paid 
on  it  {Nicolson,  su2)ra;  Grierson,  supra;  Buff,  1682,  Mor.  15986;  Maxwell, 


254     •  TIIIULAGE 

176ij,   Mor.    16057,   Huilos,   lOG).     Oa    the    question   of    deductions,   sec 
UalL-crston,  170S,  Mor.  15997,  at  pp.  15999  d  scq. 

(2)  The  thirlage  of  griuduble  corn  {grana  molihilia)  meant  astriction 
of  so  much  of  the  corns  growing  on  the  lands  as  was  used  or  needed  for 
consumption  within  the  thirl.  Any  surplus  might  be  freely  exported 
(Fiuars  of  Dandaff,  1709,  Mor.  1G006 ;  Laic,  17-42,  Mor.  1G021,  Elch. 
"  ^lultures,"  No.  9).  It  included  all  corns  which  the  possessors  happened 
to  frrind  for  any  purpose  whatever  {Lodchart,  1736,  Mor.  16016,  Elch. 
"Multures,"  Ko.  2),  e.g.  when  the  rent  was  paid  in  meal  (Lockhart,  1731, 
Mor.  16015;  MilUr,  1740,  j\Ior.  1G019,  P:ich.  "  IMultures,"  No.  6).  The 
occupier  could  not  evade  this  thirlage  by  selling  his  corn  and  buying  meal 
{Toicn  of  Musselhnrgh,  siqyi^a).  If  he  had  no  corn  growing,  he  might  buy 
meal  free  of  multures ;  but  if  he  bought  corn  to  be  ground  for  consumption, 
he  must  have  it  ground  at  the  mill  of  the  thirl  {Cochhurn,  1686,  ]Mor. 
15988). 

(3)  The  thirlage  of  inveda  d  illcda  was  specially  ap})licable  to  towns, 
applying  as  it  did  to  corns   brought   into    the    thirl.     Its   nature   varied 
according  to  the  terms  of  the  astriction,  and  also  according  to  the  custom 
of  the  thirl.     A  general  astriction  of  a  barony,  including  a  burgh  of  barony, 
to  the  barony  mill,  ordinarily  imported  thirlage  of  grana  cresccntia  in  the 
landward  part,  and  of  inveda  d  illata  in  the  burgh  {liichardson,  1588,  ]\Ior. 
15960  ;  E.  of  Wigton,  1736,  Elch.  "  Multures,"  No.  3  ;  E.  of  Hopdoun,  1753, 
Mor.  16029).     The  question  arose  whether  in  such  a  case  corns  grown  in 
the  landward  part  which  had  paid  a  multure  of  grana  cresccntia,  and  were 
afterwards  imported  into  tlie  burgh,  were  there  liable  for  the  multure  on 
inveda  d  illata.     It  was  decided  that  they  were  not  liable  in  the  double 
multure  by  the  case  of  Steeclman,  1722,  Mor.  16013,  reversing  Eamsai/,  1678, 
Mor.  15981,  3  B.  S.  612.     A  thirlage  of  houses  with  kail-yards  was  held  to 
include  astriction  of  inveda  d  illata,  in  so  far  as  brought  in  and  consumed 
within  the  thirl  {Hamilton,  1717,  Mor.  16012).     Tliirlage  of  the  feuars  of 
a  town  was  held  to  mean  astriction  of  malt  in-brought  and  consumed — 
probably  on  proof  of  usage  {Mackie,  1746,  Mor.  16024,  and  see  Elch.  Notes, 
p.  486,  "  Thirlage,"  No.  1).     In  the  interpretation  of  an  astriction,  "  tholing 
fire   and   water "   means   only   "  kilning   and  cobling,"   not   brewing   and 
baking  {E.  of  Cassilis,  1682,  Mor.  15984).     Where  there  is  a  thirlage  of 
inveda  et  illata,  the  extent  of  it  depends,  apart  from  special  stipulation,  on 
usage.     It  covers,  ordinarily,  all  corn  brought  into  the  thirl  and  ground  and 
consumed  there  {E.  of  Wigton,  siqjra).     It  also  applies  to  corn  brought  in, 
then  ground  elsewhere  than  at  the  mill  of  the  tliirl,  and  afterwartls  re- 
imported  (Gray  &  Clark,  1749,  Mor.  16024;  Bakers  of  Perth,  1749,  Mor. 
16025) ;  and  to  corn  bought  outside  the  thirl  by  inhabitants  of  the  thirl, 
ground  by  them  outside  the  thirl  and  then  imported  {E.  of  Fife,  1807,  IMor. 
App.  "  Thirlage,"  No.  3).     In  these  cases  there  was  clearly  an  attempt  at 
evasion.     On  proof  of  usage  it  was  held  to  cover  thirlage  of  malt  brewed 
in  the  thirl,  though  not  malted  there  {FMmsay,  1680,  Mor.  15984;  Brew- 
home,  1741,  Mi>Y.  16020,  Elch.  "Multures,"  No.  8);  and  of  corn  kilned  and 
cobled  within  the  thirl,  and  re-exported  as  malt  unground  {Cuthbert,  1637, 
Mor.    15973  ;   Forhes,  1663,  Mor.  15974).     But  apart  from  proof  of  such 
usage,  this  thirlage  sidjjects  only  in  luullures  of  what  is  groimd  within  tlie 
tliirl  {Ki'iUi,  1621,  M(ir.  15963),  and  does  not  strike  at  corn  imported  to  Ijc 
made  into  malt  and  resold  mv^vowml  {^PKenzic,  1624,  Mow  15965).     As- 
triction for  inveda  d  illata  does  not  all'ect  malt  or  Hour  imported  in  its 
ground  state  (Ileriot's  Hospital,  1707,  Mor.  15994;    M.  of  Ahercorn,  1798, 
Mor.  16074;  and  cases  of  M'Kenzic,  E.  of  Wigton,  ami  JJakcrs   of  Perth, 


TlIIi:LAr.K  .    255 

supra),  nor  does  it  afTect  ale  l)i-e\ve(l  oulside  ami  iiiiiM)it..<l  inl.j  ilu;  ihirl 
(Artiot,  1757,  Mor.  10035),  or  bread  which  lias  been  luauufactured  ouLsi.lu 
the  thirl  out  of  corn  bought  by  iidiabitants  of  tiie  thirl  {Bakers  of  Dundee 
2:5  Feb.  181;;,  17  K.  C.  21.S).  Such  a  thirlage  does  not  cover  corn  only 
stacked  within  tlie  thirl  (Blackburn,  l(j'J.H,  Mor.  l.V.)G(j).  In  eulculatiii" 
tlie  amount  of  thirlage  on  malt  a  deduction  was  allowed  for  the  nml't 
duties  (Majistratcs  of  Forfar,  1808,  Mor.  App.  "  Thirlage,"  No.  3 ;  Meiklc- 
oohn,  1815,  18  F.  C.  185). 

LiAmLiTiES  OF  THE  TiiiUL. — The  suckeners  w.tc  liable  in  Mukures, 
Sequels,  and  Services. 

(1)  Multures. — The  payment  for  grinding  consisted  originally  of  a 
fixed  propoi'tion  of  the  corns  ground,  known  as  Multures  (?«o//^r/Y(f).  They 
were  lixetl  at  two  rates,  {a)  Tlie  competition  value  of  the  services  rendered 
was  the  outsucken  or  out-town  multure,  which  was  paid  by  thijse  wh«j  used 
the  mill  without  being  under  any  obligation  to  do  so.  lleports  mention 
the  2-4th  curn  or  the  32nd  cum  as  common  amounts,  {h)  Those  who  were 
astricted  to  the  mill,  being  debarred  from  going  elsewhere,  were  as  a  rule 
chiirged  a  larger  amount,  known  as  iiisucken  or  in-town  multure — "  the 
monopoly  price  of  'grinding'"  (Bell,  Prm.  s.  1018).  A  common  rate  was 
a  peck  in  the  boll,  i.e.  one-sixteeuth  (cf.  Bruce,  1741,  Elch.  "Multures,"  No. 
7).  One  peck  of  multure  for  five  firlots  meant  one  peck  out  of  five  firlots, 
i.e.  one-twentieth,  not  one  twenty-first  (Lockharf,  1730,  P^lch.  AVcs,  \>.  294, 
"  Multures,"  No.  2).  There  might  be  thirlage  for  multures  at  the  outsucken 
rate  {Halkerston,  supra).  In  some  cases  a  fixed  quantity  was  paid  aninially, 
for  which  the  suekener  was  free  of  the  astriction  ;  this  was  known  as  dry 
multure  {Caskihen,  1012,  Mor.  15903).  It  should  represent  tlie  dillerencc 
between  the  insucken  rate  and  the  outsucken  rate.  In  iJorj,  1017,  ^lor. 
15903,  it  was  held  that  forty  years'  "  use"  to  pay  a  dry  multure  for  bear 
freed  from  the  obligation  to  bring  bear  to  the  mill.  On  the  other  hand, 
forty  years'  payment  of  dry  multure  proves  the  constitution  of  tliirlage 
{supra,  Conditation).  See  Multukes ;  Insucken  Multures;  Outsucken 
Multures. 

(2)  Sequels  were  payments  due  to  the  servants  engaged  in  the  work  of 
the  mill.  The  statute  of  William  (xxxv.  Thoms.  Acts,  i.  59)  reqiured  every 
mill  to  have  a  master  and  two  servants.  The  payment  to  the  first  was  called 
Knaveship;  the  payments  to  the  servants  were  Bannock,  and  Lock  or  ( lowpen. 
These  payments  were  held  to  be  necessarily  implied  in  the  obligation  of 
thirlage  {Malcolm,  1097,  Mor.  d5990),  and  they  were  due  in  addition  to  the 
stipulated  multure  {Campbell,  1072,  Mor.  15978).  Also  they  were  due 
whether  the  corns  were  ground  or  abstracted,  because  ihey  were  i)ayments 
for  servants  whom  the  mill-tenant  was  obliged  to  keej)  for  the  use  of  the 
mill  {Adamson,  1028,  Mor.  15905,  1  B.  S.  221).  On  the  other  hand,  one 
who  is  freed  from  thirlage  by  infeftment  cum  vwlendinis,  etc.,  canimt 
subsequently  be  astricted  by  his  sujjcrior  to  pay  sequels  {Caskihen,  1012, 
Mor.  15903).  But  there  might  be  an  astriction  for  knaveship  and  bannock 
only  {E.  of  Cassilis,  1007,  Mor.  15977).  The  amount  dejtended  on  usage 
(/iWsrty,  1738,  Mor.  10017).    See  Sequels;  KN.WEsiiir:  Bannock;  Lock; 

GOW'PEN. 

(3)  Services. — 1'he  suckeners  were  also  liable  in  certain  personal  services, 
vi/.  bringing  home  mill-stones,  cleaning  and  repairing  the  dams  and  mill- 
lead,  carrying  material  for  repairing  the  mill-hnuse,  and  furnishing  Ihiitch 
for  it.  These  services  were  naturally  inii)lied  in  thirlage  {Xeu-H.^fiui,  1029, 
Mor.  10852) ;  so  that  where  there  was  astriction  by  writ,  liability  for  tliese 
services   followed   by.  the  very  nature  of   the   right,  and  they  could  be 


256  THir.LAGE 

demanded  immediately  after  the  constitution  of  the  thirhige  {Maitland, 
1(568  Mor  15978;  ZofAVwr/,  1730, Elch." Multures,"  No.  2  ;  Mdlcr,  17-10  and 
Bruce  Stuart,  17-11,  Mor.  16019).  If  services  were  due,  the  whole  of  them 
were  due ;  it'  was  irrelevant  to  plead  that  only  some  had  hoen  in  use  to  be 
<Tiveu.  in  the  matter  of  the  quantum  of  services,  the  brocard  tantum 
prwscriptum  quantum  possessum  had  no  application  (Mercer,  1725,  Mor. 
16015-  Crawford,  1732,  Mor.  1G016).  Liability  for  services  followed  on 
even  the  lif,ditest  astriction  by  writ,  cj.  a  bond  of  thirlage  for  molibilia  {Dou\ 
1096,  ^Mor.'^loOSg).  If,  however,  the  nature  of  the  thirlage  was  ascertained 
bv  proof  of  usage,  it  might  be  helil  that  there  was  "  a  thirlage  of  multures 
without  services',  but  not  of  services  without  multures"  (/i'okr^6c>?i,  1744,  5 
B.  S.  740).  It  seems  to  follow,  logically,  that  immunity  from  liability  for 
services  might  be  prescribed  {Maitland,  supra,  and  Lochhart,  supra). 

Ke.medies  available  to  the  Dominant  Tenement. — If  the  existence  of 
the  obligation  was  denied,  the  remedy  of  the  heritor  of  the  mill  was  found 
in  an  action  of  declarator  of  astriction  brought  in  the  Court  of  Session,  and 
directed  against  the  proprietor  of  the  lands  said  to  be  thirled  as  well  as 
against  the  tenants,  the  proprietor  being  the  proper  contradictor  (X.  Wardis, 
1628,  Mor.  2201).  A  declarator  of  astriction,  it  was  held,  "stopped  the 
septennial  prescription  even  quoad  a  singular  successor  as  to  a  possessory 
judgment  in  mill-mnltures  "  {Stuart,  1698,  Mor.  15991).     See  Astpjction. 

If  the  existence  of  the  obligation  w^as  not  disputed,  but  the  occupiers  of 
the  thirled  lands  failed  to  bring  their  grain  to  be  ground  at  the  mill  of  the 
thirl,  the  remedy  was  an  action  of  Abstracted  Multures  {q.v.),  competent 
either  in  the  Sheriff  Court  or  in  the  Court  of  Session.  At  one  time  when 
a  suckener  was  taken  in  the  act  of  abstracting,  the  lord  {domuius)  took  the 
horse,  and  the  miller  the  sack  and  corn,  but  in  1635  this  was  declared  to 
be  in' desuetude  {Menzies,  Mor.  1815).  The  action  of  Abstracted  Multures 
was  competent  to  the  proprietor  or  the  tenant  of  the  mill.  If  the  thirlage 
was  already  constituted,  it  was  not  necessary  to  call  the  heritor  of  the 
tliirled  lands,  unless  for  his  interest  {Balmerino,  1678,  Mor.  10870,  reversing 

^  1628,  1  B.  S.  221).     But  action  was  sustained  against  a  heritor  who 

ordered  his' tenants  to  abstract  {Murray,  1697,  4  B.  S.  359  ;  contrast  E.  of 
Cassilis,  1667,  Mor.  15977).     For  tlie  averments  required  in  the  action,  see 

N  V  Cassir,  1627,  1  B.  S.  142;  Adamso7i,  1628,  Mor.  15905;  ,  1621, 

1  B.  S.  156;  Heritor  of  Glenasscn,  1681,  Mor.  15985;  Stolhs,  1873,  11  M. 
530  ;  Jurid.  Styles,  vol.  iii.,  2nd  ed.,  p.  83).  Sequels  may  be  sued  for  in  the 
same  action  {Adamson,  supra).  In  Bryson,  1828,  7  S.  88,  doubts  were 
expressed  whether  the  action  was  competently  brought  before  the  Judge 
Ordinary  of  thedefendcr'sdomicile,  who  wasnot  also  Judge  Ordinary  of  the 
thirl.  It  is  thought  no  such  doubts  would  now  be  entertained ;  they 
proljably  arose  from  the  old  practice  of  holding  Multure  Courts  (see  Rankin, 
1743,  5  B.  S.  730).  After  live  years,  proof  was  limited  to  the  defender's 
writ  or  oath  (1696,  c.  14). 

As  already  stated  {sup)ra,  Extent  and  Nature),  astriction  did  not  warrant 
interference  with  the  tenant's  modes  of  cultivation,  and  accordingly  tlic 
lieritor  of  the  mill  might  lose  his  multures  entirely  through  the  thirl  being 
laid  down  in  grass.  But  as  lie  had  the  exclusive  right  of  grinding  within  the 
thirl,  he  could  prevent  the  erection  of  other  mills  witliin  that  area  {Fcuars 
of  Falkirk,  1744,  Elch.  "Thirlage,"  No  1 ;  E.  of  llopetonn,  1753,  Mor.  16029). 

The  proprietor  of  thirled  lands  cannot  Ijuild  a  mill  or  use  hand-mills 
or  (|uerns  within  tlie  thirl  {Cravford,  1095,  Mor.  8898).  This  disability 
holds  even  thougii  he  has  a  clause  cum  molcndinis,  etc.,  in  his  tcncjidas,  and 
though  he  avers  that  the  mill  is  for  the  use  of  lands  not  thirled  and  for 


TiriKLAOK  257 

outsuckcn  multures;  and  il'  he  has  erected  u  luill,  an  (.nk-r  of  deni-'':'*  •• 
will  be  granted  {M'Domjal,  1G84,  Mor.  8897 ;  Urqiihart,  17o2,  Mor.  1 
Elch.  "Mill,"  No.  1).  Even  though  caution  he  olVered  not  to  infringe  the 
astrietion,  there  will  be  an  order  cither  to  deiaoli.sh  the  mill  or  Uj  nrnkc 
it  untit  for  grinding  the  grains  thirled  (f'njn/turt,  aujmi;  MaijUlmteH  of 
Glasgow,  11  Feb.  18i3,  R  C).  But  a  mill  might  bo  erected  for  grinding 
other  grains  than  those  thirled  {c/j.  making  French  barley,  or  shecling  lint- 
bows)  on  caution  being  found  not  lo  grind  the  grains  thirled  {MLnjil,  1757, 
Mor.  16037;  Lockhart,  1757,  Mor.  1G03'J).  11'  tlic  mill  was  adaj.t'cd  for 
grinding  both  the  thirled  grains  and  others,  it  must  be  either  d.-moiiKhed 
or  rendered  incapable  of  grinding  the  thirled  grains  {Milbr,  17GU,  Mor. 
16048).  The  right  to  have  the  mill  removed  might  be  barred  by  acfiuies- 
cence  and  mora  (M.  of  Ahcrcorn,  20  j\iay  1820,  F.  C). 

llEMEDiES  AVAILABLE  TO  THE  SERVIENT  TENEMENT. — The  suckcners  Were 
not  left  without  remedy  in  the  event  of  the  mill-owner  being  unable  to 
afford  the  necessary  facilities  for  grinding.  («)  If  the  mill  was  insuflicient 
{e.g.  from  want  of  water),  the  rule  was  estaldished  that  the  suckenei-s,  after 
giving  forty-eight  hours'  notice,  might  have  the  corn  required  for  their 
families  ground  elsewhere  without  being  liable  for  abstracted  multures 
{Lochhart,  1736,  Elch.  "Multures,"  2;  E.  of  Wigton,  1736,  Elch. 
"Multures,"  3;  Landal,  1745,  Mor.  16023).  But  they  are  not  entitled  to 
carry  their  grain  elsewhere  without  notice  simply  on  the  averment  that 
the  mill  is  insufficient  for  the  whole  needs  of  the  thirl  {Clark's  Tr.,  1828, 
6  S.  659).  Suckeners  were  not  required  to  bring  their  wheat  to  a  mill 
which  was  not  properly  constructed  f(tr  grinding  wheat  {Wright,  1768, 
Mor.  1G057,  Hailes,  261).  {h)  If  the  mill  be  ruinou.s,  the  obligation  is 
suspended.  The  suckeners  cannot  be  compelled  to  resort  to  another 
mill  owned  by  the  same  proprietor,  for  the  astriction  is  to  the  mill,  n(»t 
to  its  owner  {Ballardic,  1781,  Mor.  16063).  But  when  the  ruinous  mill 
is  rebuilt,  the  obligation  revives,  unless  it  has  been  extinguished  by  negative 
prescription  {Kinloch,  1830,  9  S.  244).  So  necessary  is  it  that  the  mill 
must  exist  in  order  to  justify  a  demand  for  multures,  that,  where  an  annual 
sum  had  been  fixed  by  arbitration  as  payable  by  the  suckeners  in  lieu  of 
multures,  sequels,  and  mill-services,  it  was  held  that  when  the  mill  was 
destroyed,  this  annual  payment  was  no  longer  exigible  {Forhes  Trs.,  1802. 
19  E.  1022). 

The  suckeners  were  entitled  to  require  the  miller  to  send  such  number 
of  horses  for  the  corn  as  was  used  to  be  kept  at  the  mill,  with  servants  to 
lead  them,  but  the  suckeners  had  to  load  the  horses  {I^oir,  1746,  Elch. 
"  :\rultures,"  5). 

Commutation. — The  Act  39  Geo.  in.  c.  55,  on  the  narrative  that  "  the 
servitude  of  thirlage  and  right  of  mill-services  incident  thereto  .  .  .  are 
very  unfavourable  to  the  general  improvement  of  the  country,"  provides 
for  thirlage  being  commuted  for  an  annual  payment  in  grain  fixed  by  a 
jury  of  nine  heritors  under  a  petition  to  the  Sheriff.  A  verdict  fixing  a 
certain  payment  in  "  meal  "  (though  the  statute  says  "  grain  ")  was  sustained 
{Orr,  1822,  2  S.  19).  The  verdict  is  directed  to  be  recorded  in  the  Ilegister 
of  Sasines  within  sixty  days,  and  is  protected  against  challenge  after  the 
lapse  of  three  years  from  recording.  But  failure  to  record  within  sixty 
days  does  not  render  the  verdict  null,  and  the  protection  against  challenge 
enures  three  years  after  the  rec<n-ding,  at  whatever  time  the  recording  is 
effected  {Duchess  of  Sutherland,  1881,  8  K.  514).  Provision  was  made  for 
a  thirlage  of  invecta  et  illata  being  purchased  outright  by  the  inhabitants 
of  places  subject  thereto  (s.  11 ;  see  Bakers  of  Dundee,  1804,  Mor.  16076). 

S.  E. — VOL.  XII.  1  ' 


258  TIIOLED  AX  ASSIZE 

Tholeci  an  Assize— The  plea  of  "  tholed  an  assize  "  is  a  plea  in 
liar  of  trial.  It  is  a  plea  of  res  judicata, — that  the  accused  has  already 
uuderf^one  trial  on  the  same  charge, — and  the  result  of  its  substantiation  is 
ihat  he  is  entitled  to  be  discharged  from  the  bar  {Watt,  1824,  Shaw,  113 ; 
Hosic  and  Others,  1837,  1  Swin.  507  ;  Anderson  and  Fraser,  1852,  1  Irv.  G6  ; 
Dorward,  1870,  1  Coup.  392).  The  meaning  of  the  plea  is  that  a  jury  lias 
already  taken  cognisance  of  the  charge  which  the  accused  has  been  called 
upon  to  answer.  The  point  of  time  at  which  the  assize  begins  to  be  tholed 
is  when  the  jury  is  sworn. 

The  following  points  must  be  kept  in  view  in  testing  the  validity  of 
this  plea : — 

1.  The  former  trial  must  have  been  for  exactly  the  same  crime,  proved 
by  the  same  evidence,  and  it  must  have  been  regularly  conducted.  If  the 
second  trial  is  for  wliat  is  really  another  crime,  thougli  it  appears  to  be 
connected  with  the  offence  originally  charged,  the  plea  of  "  tholed  an  assize  " 
is  invalid  {Galloivay,  1863,  4  Irv.  444;  Glen,  1865,  5  Irv.  203).  The 
prosecutor,  liowever,  cannot  evade  the  plea  by  merely  describing  the  same 
facts  by  a  dilferent  name. 

2.  If  new  events  supervene  after  the  first  trial  which  change  the  nature 
of  the  offence,  the  plea  of  "tholed  an  as.size"  is  invalid.  Thus  a  man 
previously  tried  for  assault,  may,  on  the  death  of  his  victim  from  the 
effects  of  the  assault,  be  tried  for  culpable  homicide  or  murder  {M'Xeill, 
1826,  Shaw,  162;  Cohh,  1836,  1  Swin.  176,  227,  and  324;  Stevens,  1850, 
J.  Shaw,  287  ;  Steivart,  1866,  5  Irv.  310  ;  O'Connor,  1882,  5  Coup.  206). 

3.  If  the  former  trial  was  stopped  by  circumstances  for  which  the 
prosecutor  was  not  responsible,  such  as  the  illness  of  the  judge,  or  of  the 
accused  (Macintyre,  1829,  Bell,  Notes,  300  ;  Chambers  and  Henderson,  1849,  J. 
Shaw,  252),  or  of  a  juryman  {Elder  or  Smith,  1827,  Syme,  71  and  76  ;  Pringle, 
1830,  Shaw,  235;  Grant  and  Others,  1838.  2  Swin.  165  ;  Leehic,  1841,  Bell, 
Notes,  295;  Ross,  1842,  1  Broun,  434;  M'Namara,  1848,  Ark.  521;  Ionian 
or  Wilson,  1852,  1  Irv.  144;  Jackso7i,  1854,  1  Irv.  347;  Smith,  1853,  1 
Irv.  378),  the  plea  of  "  tholed  an  assize  "  will  not  be  sustained.  In  the 
cases  of  Boss,  M'Namara,  and  Loman  {sirprci)  a  single  juryman  was  balloted 
to  fill  the  place  of  the  juryman  who  was  taken  ill.  Further,  the  plea  will 
not  be  sustained  where  the  former  trial  has  been  nullified  in  consequence 
of  some  defect  for  which  the  prosecutor  was  not  responsible,  such  as  the 
personation  of  a  juryman  or  the  like  {Sharp,  1820,  Siiaw,  19.  See  also 
6  Geo.  IV.  c.  22,  s.  16  ;  and  Glennan  and  Bradly,  1839,  2  S.  J.  382). 

[Hume,  ii.  465  ;  Alison,  ii.  615  ;  Macdonald,  432  ;  Anderson,  Crim.  Law, 
234.]    See  Bes  judicata. 

Th  reats. — l.  Verbal  and  Written. — It  is  criminal  to  threaten,  either 
verbally  or  Ijy  letter,  to  do  serious  injury  to  person  or  property.  It  is  also 
a  criminal  offence  to  threaten  to  accuse  a  person  of  crimes  or  immoral 
offences.  The  person  who  utters  threats  against  another  usually  does  so 
with  the  object  of  extorting  money  from  the  person  threatened.  It  is 
enough,  however,  that  the  purpose  of  the  threat  is  to  alarm  the  person 
threatened  {Miller,  1862,4  Irv.  238).  The  usual  mode  by  which  the  threat 
is  communicated  is  by  threatening  letters,  signed  or  unsigned  {Ledingham, 
1842,  1  Broun,  254;  Ross,  1844,  2  Broun,  271 ;  Smith,  1846,  Ark.  4).  The 
crime  is  complete  when  the  letter  is  despatched,  though  it  never  reach  the 
person  for  whom  it  was  intended  {Hunter,  1838,  Bell,  Notes,  111). 

2.  Blackmailing. — If  the  object  of  the  threat  is  to  blackmail  or  concuss, 
it  is  no  defence  to  urge  that  money  demanded  was  justly  due  {Crauford, 


TIMP.Ki;  259 

1850,  J.  Sliaw,  309;  Macdonald  and  Laird,  1879,  4  Coui».  208).  U  j-j 
immaterial  that  the  threats  made  liave  prochiccd  no  eM'ect  on  the  iH.Tson 
tlireatened  {M'Dcmicl,  1876,  3  Coup.  271).  In  the  ca.se  of  a  letter  thrcaton- 
ini^r  to  accuse  of  crime,  it  is  no  defence  to  oiler  to  prove  the  truth  of  the 
contents  of  the  letter  Tlie  prosecutor,  accordingly,  is  not  hound  to  dispnjve 
accusations  made  by  the  accused  {Cravford,  supra),  and  it  is  inconij>etont 
for  the  accused  to  prove  the  Veritas  convicii  either  in  justification  or  extenu- 
ation of  his  crime  (.VJ'Jwan,  1854,  1  Irv.  520).  It  has  not  been  decided 
wliether  it  \V(nild  be  criminal  to  threaten  with  exposure  a  person  wlio  wuh 
living  an  immoral  life,  with  the  object  of  extorting  money  from  biui,  or 
whether  in  such  a  case  it  is  competent  to  prove  Veritas.  (See  Ld.  Justice- 
Clerk  Hope's  opinion  in  Craioford,  supra,  and  Ld.  Deas'  opinion  in 
Macdonald  and  Laird,  siqrra.) 

3.  Aggravations. — The  crime  of  uttering  threats  is  aggravated  if  the 
object  is  to  prevent  the  giving  of  true  evidence  {M'Danicl,  supra),  or  in 
revenge  for  information  given  to  the  authorities  (Eoss,  sxijn-a),  or  to 
intimidate  electors  (see  17  &  18  Vict,  c.  102,  s.  5)  or  masters  or  workmen 
(see  9  Geo.  iv.  c.  129 ;  22  Vict.  c.  34 ;  and  38  &  39  Vict.  c.  80).  It  is  also 
a  grave  offence  to  threaten  judges  or  magistrates  in  reference  to  their 
oflicial  duties  (1540,  c.  104;  'Portcous,  1832,  Bell,  iVo^cs,  lOG ;  Carr,  1854, 
1  Irv.  464). 

[Hume,  i.  135;  Alison,  i.  443  ;  More,  ii.  404;  Macdonald,  170  ;  Anderson, 
Crim.  Law,  83.] 

Ticket  of  Leave. — See  Penal  Servitude. 

Tigni  immittendi  was  an  urban  servitude,  recognised  by  lioman 
law  and  also  by  Scots  law,  whereby  the  owner  of  the  dominant  tenement 
lias  a  right  to  let  a  beam  or  joist  into  the  wall  of  the  servient  tenement 
and  to  keep  it  there.  The  beam  might  be  renewed  when  necessary.  The 
servitude  might  be  constituted  either  with  reference  to  existing  lieams  or 
future  constructions  {Dig.  8.  5.  14  pr.).  The  dominant  owner  could  not 
compel  tlie  servient  owner  to  maintain  the  wall  in  repair  (Big.  8.  5.  8.  2). 
As  to  how  far  the  servitude  is  recognised  in  Scots  law,  see  Stair,  ii.  7.  6  ; 
Ersk.  ii.  9.  7  ;  Bell's  Frin.  1003,     See  Oxeris  ferexdi;  Suitort. 

Timber. — Woods  and  trees  are  regarded  as^;ar/f.5  soli,  i.e.  pertinents 
or  parts  of  the  lands  on  which  they  grow  (B.  P.  s.  741).  Hence  "  trees 
planted  in  one's  ground,  thougli  not  by  the  proprietor,  are  deemed  an 
accessory  of  the  ground  in  whicli  they  were  planted,  after  they  have  taken 
root  in  and  drawn  nourishment  from  it ;  and  so  belong,  as  an  accessory  of 
the  ground,  to  the  owner  of  it"  (Ersk.  ii.  1.  15;  see  also  ii.  6.  14;  B.  /'. 
1473 ;  Paul,  1840,  2  D.  1286). 

Difficult  questions  as  to  rights  in  timber  arise  principally  between  the 
following  parties  :  (1)  Fiar  and  Liferenter,  (2)  Heir  of  Entail  in  Possession 
and  next  Substitute,  and  (3)  Landlord  and  Tenant. 

Fiar  and  Liferenter. — As  a  general  rule,  a  liferenter  is  l)0und  to  preserve 
the  trees  upon  an  estate,  even  though  they  have  been  planted  by  himself; 
and  he  has  no  right  in  them  except  to  ingather  their  produce,  i.e.  shed 
leaves,  mast,  and  fallen  branches  (St.  ii.  3.  74  ;  Ersk.  ii.  9.  58;  B.  /'.  1046. 
1058;  Ptankine,  Landownership,  Srd  ed.,  637;  Mousewcll'.'i  Crs.,  1683,  M. 
8253;  Graj/,  1789,  M.  8250).  To  the  general  rule  there  are  several 
exceptions  :  First,  in  the  case  of  silvcc  ca:dua:,  or  coppice-wood,  the  simplest 
case  being   "where  the  wood  is  laid  out  in  portions  (haggs)  or  lots  for 


260  TIMBEK 

annual  cutting,  ami  regarded  as  part  of  the  crop  of  the  land"  {Lang,  1752, 
Elch  Notes,  "  Liferent,"  6 ;  MouseweU,  supra ;  Dss.  of  Hamilton,  1722, 
Eobertson's  Ap.  443;  M'AIistcr's  Trs.,  1851,  13  D.  1239).  In  several 
cases  the  right  of  a  liferenter  by  reservation  was  recognised  as  being  more 
extensive  than  the  right  of  a  liferenter  by  constitution — the  former,  but 
not  the  latter,  being  entitled  to  cut  coppice-wood  though  not  laid  out_  in 
haggs,  so  long  as  he  conformed  to  local  usage  (Ferguson,  1737,  M.  8254 ; 
Grcn/  and  Lang,  supra).  Tliis  distinction  has  disappeared,  and  tlie  right  of 
the  latter  is  now  as  extensive  as  that  of  the  former  {Dickson,  1823,  2  S. 
152  (N.  E.  138) ;  M'Alisters  Trs.,  supra).  If  a  liferenter  sells  his  right  to 
cut  coppice-wood,  the  right  expires  with  the  liferenter's  life,  and  the  fiar 
may  stop  the  purchaser  cutting  after  that  date  (B.  P.  1058).  Secondh/, 
underwood  or  brushwood  and  ordinary  windfalls  go  to  the  liferenter  (Ersk. 
ii.  9.  58).  On  the  other  hand,  windfalls  caused  by  an  extraordinary  storm 
belong  to  the  fiar  {M'Alisters  Trs.,  siqjra).  Thirdly,  mature  wood  and 
extraordinary  windfalls  may  be  claimed  by  the  liferenter  as  far  as  necessary 
to  maintain  the  houses,  etc.,  in  tenantable  condition  {Stanfield,  1680,  M. 
8244;  E.  Dunfermline,  1683,  M.  8244;  Dickson  and  M'AIistcr's  Trs.,  supra). 
Before  exercising  this  right  the  liferenter  must  give  notice  to  the  fiar 
(Dickson,  supra;  Tail,  1825,4  S.  247  (N.  E.  253);  Din  gicall,  1S33,  1834, 
12  S.  216,  541). 

Heir  of  Entail   in  Possession  and  Next  Substitute. — An  heir  of  entail, 

beinor  a  fiar,  though  with  limited  rights,  is  in   a  much  more   favourable 

position  than  a  liferenter   as   regards   cutting   timber.      As   put   by   Ld. 

Ardmillan  in   Boyd,  1870,  8  M.  637,  at  642,  "  The  heir  in   possession   is 

entitled  to  cut  wood,  and  to  do  so  to  a  very  considerable  extent.     Indeed, 

if  he  cuts  ripe  wood,  such  as  a  proprietor  in  fee-simple  might  fairly  be 

expected  to  cut,  and  does  not  anticipate  the  proper  time  for  cutting  and 

dispose  of  wood  before  it  is  ready,  so  as  unfairly  to  benefit  himself  at  the 

expense  of  his  successors  in  the  entailed  estate,  I  think  that  his  right  and 

power  to  cut  wood  is  very  wide,  and  that  this  Court  cannot  in  the  general 

case  interfere  to  restrict  it"  (see  too  Ersk.  iii.  8.  29  ;  1  B.  C.  51;  B.  D. 

1754  ;  Hamilton,  1757,  M.  15408).     But  an  heir  of  entail  will  be  interdicted 

from  cutting  down  such  trees  as  are  "  required  for  the  reasonable  enjoyment 

of  the  mansion-house  by  persons  in  the  rank  of  life  which  the  inmates  of 

such  a  house  may  be  supposed  to  hold  "  (Ld.  Deas  in  Boyd,  supra,  at  p.  644 ; 

Mackenzie,  1824,  2  S.  775  (N.  E.  643);  Bontinc,  1827,  5  S.  811  (N.  E.  750), 

and  6  S.  74;  Gordon,  24  Jan.  1811,  F.  C. ;  M.  of  Huntlys  Trs.,  1880,  8  R. 

50).     Properly  constituted  prohibitions  in  an  entail  as  to  the  cutting  of 

limber  receive  effect  so  far  as  possible  (Moir,  1826,  4  S.  730  (N.  E.  737)). 

The  cutting  of  unripe  timber  is  not  an  act  of  ordinary  administration,  and 

therefore  not  such  an  act  as  an  heir  of  entail  is  entitled  to  do  (see  Boyd, 

supra;  Cathcart,  17 o5,  M.  15403,  5  B.  S.  818;  affd.  1  Pat.  618;  Bontinc, 

1 827,  G  S.  74).     An  heir  in  possession  has  absolute  right  only  to  the  wood 

which  is  severed  from  the  soil  during  his  lifetime  ;  and  if  he  assigns  his 

right  and  dies  during  the  execution  of  the  contract,  his  assignee  can  only 

claim  the  value  of  the  wood  which  has  actually  been  cut  down  during  the 

hfetime  of  the  heir  (Cathcart,  supra;  Stewart,  17G1,  M.  5436  ;  Ld.  Elibank, 

1833,  lis.  238  ;   Veitch  and  Pringle,  note  to  1  B.  C.  53).     A  trustee  for 

creditors  may  exercise  the  powers  of  an  heir  in  possession  (Kcr,  1827,  6  S. 

73) ;  and  proljably  individual  creditors  may  adjudge  the  faculty  of  cutting 

tiinljer  (1  B.  C.  53;  Eankine,  Landoumcrship,  3rd  ed.,  627). 

Lavdlord  and,  Tenant. — Under  an  ordinary  agricultural  lease  woods  are 
"  reserved  to  the  landlord,  the  tenant  being  entitled  to  the  yearly  fruits. 


TIME,  co:^rrrTATi()x  of  2Ci 


thinnings  for  repairs,  willow  twigs  while  young  for  basket-work  etc  "(It 
P.  1226  ;  More,  Notes,  255  ;  Ersk.  i.  6.  22  ;  Ld.  Touch,  1GG4,  M.l.Vjr/ii ;  liojue, 
1806,  :M.  "  rianting,"  Appx.  2).     Where  woods  arc  let  as  an  accessory  to  a 


accessory 

farm,  the  tenant  is  not  entitled  to  cut  for  alienation,  but  oidy  for  erectin" 
or  repairing  the  necessary  farm  buildings  {Ld.  Tuuch,  siij>ru).  A  tenan*? 
under  a  ninety-nine  years'  Ijuilding  lease  granted  by  an  heir  of  enUiil  in 
virtue  of  powers  conferred  by  the  Montgomery  Act,  is  entitled  to  cut 
timber  growing  on  the  land  leased  to  him  (Cordon,  1883,  1 1  K.  67).  A 
number  of  old  statutes  were  passed  imposing  pains  and  penalties  up<jn 
those  destroying  woods,  and  providing  for  indenmifying  the  owners  of 
woods  in  case  of  their  destruction  (inter  alia  1685,  c.  39  ;  1098,  c.  16;  see 
these  statutes  referred  to  in  Eankine  on  Zcanes,  2nd  ed.,  202). 

Property  in  trees  was  formerly  transferred  only  by  actual  removal 
and  delivery  (Brodie's  Stair,  897;  B.  F.  1303;  Htdcr,  1833,  11  S. 
902 ;  Anderson,  1844,  6  D.  1315 ;  see  now  nnder  Sale  of  Goods  Act, 
1893,  56  &  57  Vict.  c.  71,  ss.  17,  18.  See  also  Bell  on  Leases,  i.  82, 
348;  ii.  10,  299,430;  Hunter  on  Landlord  and  Tenant;  and  article  on 
Leases). 

Time,  Computation  of.— The  mode  of  computing  time  is  of 
the  greatest  importance.  Questions  as  to  the  terminus  a  quo  and  the 
A /'^lu^fsac?  (/wcwi  constantly  arise.  It  is  impossible,  however,  to  lay  down 
any  fixed  rules.  "  Time  must  always  be  computed  in  a  rational  way, 
having  regard  to  the  particular  purpose  for  which,  in  the  case  in  (piestion, 
the  computation  has  been  made"  (in  re  North,  1895,  11  T.  L.  11.417). 
Where  no  time  is  given,  a  reasonable  time,  varying  with  the  nature  of  the 
case,  must  be  allowed.  When  a  party  is  obliged  to  do  a  piece  of  work,  be 
must  have  as  much  time  as  the  case  requires  (Stair,  i.  17.  18). 

There  are  two  methods  of  computing  time :  Naturalis  computatio  and 
Civilis  computatio. 

I.  Naturalis  computatio. 

This  mode  is  reckoned  de  momento  in  momentum.  Where  the  period  is 
expressed  in  hours,  it  would  seem  natural  to  compute  by  this  rule.  Thus 
the  24  hours  after  which,  in  postal  service,  the  induciw  are  to  run,  are 
calculated  from  the  exact  moment  of  citation.  Where  time  runs  from  an 
unknown  period  between  two  hours,  or  on  a  given  day,  month,  or  year,  then 
the  hour,  day,  month,  or  year  must  be  treated  as  indivisible,  ami  computation 
will  be  reckoned  from  the  last  moment  of  said  hour,  day,  mouth,  or  year 
{Ogiloie,  1630,  M.  6541;  Ersk.  ii.  7.  30).  In  diligences,  competitions  of 
rights,  prescriptions,  or  where  good  sense  or  the  intention  of  parties  demands 
it,  this  mode  is  resorted  to  (Bell,  Prin.  ss.  46,  note  h  and  622).  Thus 
diligence  on  the  same  day,  but  earlier,  is  preferred.  In  cases,  however, 
between  Crown  and  subject,  the  Crown  is  always  preferred  in  a  competition 
of  rights  arising  on  same  day  (Rcx;'d  Ex.  32).  Where  days,  months,  or 
years  are  the  given  periods  of  time,  then,  as  a  rule,  computation  is  de  die 
in  diem.  If  the  naturalis  cojnjmtatio  is  adopted,  then  difliculties  will  arise. 
Thus  take  a  case  of  prescription,  where  it  is  laid  down  that  tliis  is  the 
method  of  computation  (Stair,  ii.  12.  14;  Ersk.  iii.  7.  30  ;  Bell,  Prin.  s.  622). 
If  a  deed  is  recorded  at  11  a.m.  on  5th  Mardi  1800,  when  does  the  20  years 
expire?  Calculating  strictly  de  momento  in  mo77i':nt urn,  twenty  periods  ot 
365  days  6  hours  would  require  to  elapse.  It  is  submitted,  however,  that 
the  proper  method  of  calculating  is  to  take  the  same  hour  of  the  day  of  the 
month  having  the  same  numerical  denomination,  i.e.  11  a.m.  on  5th  March 


2G2  TIME,  CO^rPUTATlOX  OF 

18S0  (Zrtt/y  Bangour,  1G81,  M.  248).  In  the  case  of  Simpson  (1899,  6  S.  L.  T. 
433),  Lil.  Stonnoutli  Darling  adopts  another  method,  and  reckons  the  time 
from'  twelve  o'clock  midnight  of  the  day  of  recording  ;  but  this  is  properly 
computation  dc  die  in  diem  (see  Ld.  Tres.  Campbell's  dicta  in  case  of  Ogilvie, 
3  Pat.  at  p.  377).  Another  example  of  naturalis  computatio  is  the  case  of  a 
minor  attaining  majority:  the  same  difficulty  would  arise  here  {Drummond, 
1G24,  M.  3405)! 

II.   ClYILIS   COMPUTATIO. 

This  mode  is  reckoned  de  die  in  diem.  This  is  the  ordinary  mode  of 
calculation.  "  Date  does  not  mean  the  hour  or  the  minute,  but  the  day  of 
delivery,  and  in  law  there  is  no  fraction  of  a  day "  (Ld.  Mansfield  in  re 
Pugh,  2  Cowp.  714).  An  indefinite  period  of  time  will  not  be  treated  as  a 
unit.  Thus  where  proceedings  had  to  be  taken  within  4  months  from  the 
time  when  cause  arose,  and  where  matter  was  libelled  as  taking  place 
between  certain  dates,  the  earlier  of  which  were  without  the  period :  held 
proceedings  bad  (Farquharson,  1894,  21  E.  (J.  C.)  52).  The  expression 
"  time  "  has  the  same  meaning  as  "  day  "  (Frew,  1897,  34  S.  L.  R.  527). 

"When  does  Time  begin  to  run. — Here  there  will  be  the  difficulty  as 
to  whether  Greenwich  mean  time  or  local  is  to  be  the  criterion.  In  Acts  of 
Parliament,  deeds,  and  other  legal  instruments,  the  commencement  of  a  day 
will  be  according  to  Greenwich  time  (Statutes  Definition  of  Time  Act,  1880). 
Outside  of  this  statutory  definition,  the  local  time  will  be  taken.  Thus  the 
time  for  lighting  lamps  is  to  be  reckoned  by  local  time  {Gordon,  1899,  80 
L.  T.  E.  20).  '"In  the  case  of  Curtis  (1858,  28  L.  J.  E.  (Q.  B.)  36)  the 
question  is  fully  discussed. 

The  date  from  which  time  is  to  be  computed  is  sometimes  not  expressly 
stated,  but  in  some  cases  statute  or  the  Courts  have  determined  it.  Thus  by 
33  Geo.  III.  c.  13,  the  date  of  the  Eoyal  Assent  is  the  date  of  the  commence- 
ment of  all  Acts,  unless  otherwise  provided  for ;  by  sec.  3  of  Citation 
Amendment  Act,  1882,  the  day  of  posting  is  fixed  as  the  date  of  citation. 
The  times  from  which  the  various  prescriptive  periods  run  are  also 
determined  by  statute.  The  commencement  of  an  action  is  the  date 
of  execution,  not  the  date  of  signeting  {Alston,  1887,  15  E.  78).  Where 
impossible  to  throw  salmon  nets  out  of  fishing  order  at  six  on  Saturday, 
then  they  must  be  thrown  out  of  order  before  that  time. 

Is  the  Day  from  which  the  Time  runs  to  he  included  or  excluded  ?  The 
tendency  is  to  exclude  such  day.  Thus  when  something  is  to  be  done 
"  from  "  or  after  a  certain  day,  this  day  is  excluded  in  the  computation, 
and  time  begins  to  run  from  the  midnight  following.  Illustrations: — A 
Provisional  Order  coming  into  operation  f}'om  and  after  a  certain  day  does 
not  begin  to  operate  till  the  day  after  {Mayor  of  Sheffield,  1898,  77  L.  T. 
GIG).  Twelve  calendar  months  from  24th  Xov.  1887  excludes  that  day 
{South  Staffordshire  Tranncays  Co.,  [1891]  1  Q.  B.  402).  A  bill  payable  at  a 
lixed  period  after  date,  the  time  of  payment  is  determined  by  excluding  the 
day  from  which  the  time  is  to  begin  (Bills  of  Exchange  Act,  1882,  s.  14, 
subs.  2).  Days  of  grace  are  reckoned  exclusive  of  day  bill  falls  due  (Thomson 
on  Bills,  2nd  ed.,  379).  Periods  of  time  under  the  Bankruptcy  Act  of  1856 
are  to  be  reckoned  exclusive  of  day  from  which  such  period  is  directed  to 
run  (s.  5).  As  to  the  application  of  tliis  section  to  sec.  108,  see  Stiven, 
1891,  18  E.  422;  and  as  to  the  computation  of  time  under  sees.  125  and 
127,  see  Lejjman,  1893,  20  E.  818.  Insurance  from  a  certain  date  means 
from  expiry  of  that  date  {Sickness  and  Accident  Assurance  Assoc.  Ltd.,  1892, 
19  E.  977).     "Where  a  complaint  is  to  be  made  or  an  action  brought  within 


TLMK,  COMriTATlOX  OF  20.". 

a  certain  time,  the  day  on  which  the  offence  was  comniilted  is  excluded 
(Freiv,  Kt  supra ;  Ihiddiffe,  1892,  1  Q.  1',.  IGl  ;  Ashley,  1873,  11  M.  70S). 
In  calculating  the  GO  days  within  which  preferences  are  <,'raiited  uikUt 
the  Act  1G90,  c.  5,  the  day  of  bankiuj.tcy  is  to  be  excluded  {Llalkie, 
21  January  1809,  F.  C. ;  Anderson,  2  Marcli  1813,  F.  C. ;  Scott,  IS.'Jo'. 
2  D.  20G).  Similarl}',  under  tlie  Act  169G,  c.  4,  in  reductions  ex  cajrite  kct'i 
the  day  of  death  is  excluded  (0;/Hv{e,  1793,  M.  333G  and  3  I'at.  434; 
Mitchell,  1801,  M.  App.  No.  4).  \Vhere  seisin  was  taken  on  IGth  October 
between  11  and  12  a.m.  and  recorded  on  15tli  Decendjcr  between  3  and  4  p.m., 
it  was  held  validly  recorded.  Time  computed  from  midnigiit  to  midnigliti 
and  excluding  day  on  which  seisin  taken  {Lindsay,  1844,  G  1).  771). 

Where  the  expression  used  is  "clear  days,"  "days  at  leiist,"  "not  earlier 
than,"  or  the  like,  then  the  first  day  is  excluded,  Tiius  the  words  "  being 
not  earlier  than  six  days,"  in  sec.  67  of  Bankruptcy  Act,  185G,ha8  been  held 
to  mean  that  six  clear  days  must  elapse  {Wilson,  1891,  19  E.  219).  The 
interval  of  "not  less  than"  14  days  between  the  meetings  passing  and 
confirming  a  special  resolution,  is  an  interval  of  14  clear  days  exclusive  of 
both  days  of  meeting  {in  re  Sleepers  Siqjply  Co.,  1885,  29  Ch.  D.  205). 

There  are  cases  where  the  first  day  is  included.  Where  a  charter-party 
bore  that  the  hire  was  for  the  space  of  one  or  four  weeks  and  connnencing 
from  the  8th  Sept.,«^  which  date,  etc. :  held  that  this  meant  earliest  moment 
of  8th  {M'Kenzie,  1883,  10  E.  705).  Where  a  consignee  who  had  so  many 
days  to  unload,  chose  to  start  unloading  at  12  noon  :  held  that  that  day  must 
be  included  as  one  whole  day  {Roiajh,  1879,  6  E.  9G1).  It  would  appear 
that  the  first  day  is  included  where  the  party  begins  to  have  the  benefit  on 
that  day.  Thus  where  a  return  ticket  is  valid  for  so  many  days,  the  day 
of  issue  would  be  computed.  By  sec.  36  (2)  of  Interpretation  Act,  1889, 
where  an  Act,  passed  after  this  Act  or  any  Order  in  Council,  order,  warrant, 
scheme,  letters-patent,  rules,  regulations,  bye-laws,  made,  granted,  or  issued 
under  a  power  conferred  by  any  such  Act,  is  expressed  to  come  into 
operation  ON  a  particular  day,  the  same  shall  be  construed  as  coming  into 
operation  immediately  on  the  expiration  of  the  previous  day  (compare  Mayor 
of  Sheffield,  ut  supra).  In  removings  under  Act  1555,  c.  39,  the  day  upon 
which  warnings  are  executed  is  held  to  be  one  of  the  40  required  by  law 
{Buccleurjh,  1715,  M.  13836).  The  wording  of  sec.  29  of  the  Act  16  &  17 
Vict.  c.  80  is  diiferent :  there  the  words  are  "  an  interval  of  at  least  40 
days,"  and  it  would  seem  that  under  this  Act  40  clear  days'  notice  would 
have  to  be  given. 

Does  Tlme  eun  ox  Continuously. — Time,  once  running,  does  not  as  a 
rule  stop.  But  he  who  is  losing  a  right  ought  to  be  legally  capable  of  assert- 
ing it.  And  so,  under  most  prescriptions,  time  does  not  run  during  the  time 
of  minority.  A  creditor  will  not  lose  his  right  if  he  has  not  been  able  to 
assert  it  owing  to  the  action  of  the  debtor  {Fannin,  7  Q.  B.  811).  Sundays 
are  reckoned,  as  a  rule,  except  a  Sunday  which  is  the  last  day  {Uutton,  1883, 
10  E.  (J.  C.)  60).  But  if  mere  notice  be  required,  then  it  must  be  given  on 
Sunday  or  before,  unless  there  is  some  co-operation  on  tlie  part  of  the  receiver 
necessary  to  make  notice  effectual  {M'Vcan,  1896,  23  E.  (J.  C.)  25).  Under 
Bills  of  Excliange  Act,  1882,  s.  92,  where  the  time  limited  for  doing  any 
act  is  less  than  3  days,  in  reckoning  time  non-business  days  are  excluded. 
These  are  Sunday,  Good  Friday,  Christmas  Day,  Bank  holiday.  Public  fast  or 
Thanksgiving  day. 

When  does  Time  stop  ? — On  the  expiry  of  a  month,  a  calendar  month 
is  meant  (Interpretation  Act,  1889 ;  see  also  Camplells  Trs.,  1880,  8  R.  21, 
and  dicta  of  Ld.  Young  there).    The  period  of  one  month,  therefore,  never  runs 


264  TIME,  COMI'UTATION  OF 

into  the  third  month.  One  month  from  28th,  29th,  30th,  and  31st  March 
would  be  the  28th  of  February.  ramning  days  are  not  periods  of  24  hours, 
but  calendar  days  ("  Katcj/,''  1895,  71  L.  T.  709;  see  also  Allen,  19  11. 
364,  as  to  Ld.  M'Laren's  dicta  on  this  point). 

1.  Last  Daij  included. — Where  the  first  day  has  been  excluded,  then, 
as  a  rule,  the  last  day  is  included.  But  the  computation  of  this  last  day 
receives  different  meanings. 

(a)  In  some  cases  the  maxim  Dies  inceptns  pro  compldo  habetur  applies ; 
and  although  the  last  day  is  included  in  calculation,  it  is  held  as  completed 
at  the  first  moment  of  the  day.     In  the  acquisition  of  rights,  the  dawn  of  last 
day  is  regarded  as  completing  time  {Dig.  44.  7.  6  ;  Bell's  Prin.  s.  46,  Guthrie's 
Xote  L.).     Where  a  party  has  presumption  in  his  favour,  i.e.,  in  favoribillhus, 
then  the  maxim  apphes  {Thomson,  1878, 5  K.  561).     Illustrations  of  the  rule  : 
Under  Act  of  Grace  1696,  c,  32,  for  the  liberation  of  debtors  after  10  days. 
An  imprisoned  debtor  was  freed  at  commencement  of  the  day  when  the 
10  days  did  not  expire  till  6.40  p.m.  {Tliomson,  ut  suiyra\  Blair,  1704,  M. 
3468;  Hood,  14  Dec.  1813,  F.  C. ;  Gill,  1833,  2   S.  28;  but  see  Mvjotti, 
1879,  4  C.  P.    D.  233,  where  same  result  arrived  at  by  including  first 
day   in   calculation).      The    60   days  under   Acts    1696,  c.    4,   and    1696, 
c.    5,   are   complete   on   the   morning   of    the   sixtieth   day,   so   that  any 
deed  executed  on  sixtieth  day  w^ould   be  valid  {Ogilvic,  Mitchell,  Blaikie, 
Anderson,  and  Scott,  ut  supra).     Sec.  12  of  the  Bankruptcy  Act  of  1856 
provides  as  to  the  equalisation   of   diligences  "  within "  60  days  prior  to 
bankruptcy.     According   to   the  ratio   of   the  above  decision,  those  using 
diligence  on  the  sixtieth  day  would  make  good  their  preferences.     Goudy 
on  Bankruptcy,  p.  83,  says  that  such  diligences  executed  on  the  sixtieth  day 
are  not  preferred.      Sec.  108  of  Bankruptcy  Act  cuts  down  diligences  "on " 
or  "after  "the  sixtieth  day  prior  to  sequestration.     The  expression  "on" 
makes   it   plain   that    diligences   executed    on    the    sixtieth    day   before 
sequestration  can  be  cut  down.     Where  two  persons  domiciled  in  England 
arrived  in  Scotland  about  4  a.m.  of  1st  July.     They  remained  there  until 
21st  following,  and  on  that  day,  between  11  and  12  a.m.,  contracted  marriage. 
It  was  held  that  they  had  not  lived  in  Scotland  21  days  {Lawford,  1878, 
4  r.  I).  61).      The  actual  time  they  stayed  was  about  20  days  7  hours, 
calculating  de  momento  in  momentum.     Had  they  stayed  in  Scotland  for  20 
days  20  hours,  the  marriage  would  have  been  legal.     For  the  first  day  of  20 
hours  is  excluded,  and  at  12  midnight  on  the  21st,  20  days  would  have  been 
complete.     Immediately  thereafter  they  would  have  acquired  the  21  days' 
residence  according  to  the  maxim  Dies  inceptus  pro  complcto  halctirr. 

{I)  Certain  Periods  expire  lefore  the  Conclusion  of  the  Last  DaTj. — Up  to 
what  time  can  a  valid  delivery  be  made  ?  "  Where  a  thing  is  to  be  done  any- 
where,_  a  tender  at  a  convenient  time  before  midnight  is  sufficient ;  where  the 
thing  is  to  be  done  at  a  particular  place,  and  where  the  law  implies  a  duty 
on  the  party  to  whom  the  thing  is  to  be  done  to  attend,  that  attendance  is 
to  be  by  daylight  and  at  a  convenient  time  before  sunset "  (Benjamin  on 
Sale,  687  ct  scq.).  Defences  are  lodged  timeously  on  a  certain  day,  if  lodged 
at  any  time  during  that  Court  day  '{M'Kenzic,  1894,  22  E.  45). 

(c)  Time  expires  at  Midnight  on  the  Last  Day. — T\\\q  is  primd  facie  i\\e 
method  of  calculating  a  day  inclusive.  Where  rights  are  to  be  lost,  then 
rights  are  not  to  be  extinguished  until  the  conclusion  of  last  day  {Dig.  44.  7.  6; 
see  also  Thomson,  ut  supra).  Day  on  which  act  is  to  be  done,  or  until  which 
some  act  is  prohibited  or  protection  afforded,  is  included  in  calculation  {Back- 
house, 28  L.  J.  Ex.  141 ).  An  act  "  within  one  month  from  10th  May,"  is  good 
at  any  time  on  10th  June  (  Watson,  1809,  2  Camp.  294;  see  also  South  Stafford- 


TINSEL  OF  SUrERIOJ;iTV  265 

tihire  Tramways,  ut  supra).  Where  insurance  was  for  six  niontlis  from  14lli 
February,  it  was  held  that  tlic  first  day  was  exchided,  and  that  insurance 
extended  over  the  whole  of  14th  August  {Isaacs,  187U,  L.  K.  o  Ex.  29G).  Pre- 
scription may  be  interrupted  at  any  time  on  the  last  day  (Ersk.  iii.  7.  uO). 

But  it  is  not  sufllcient,  where  notice  has  to  be  given  on  a  certain  day,  if 
it  is  posted  but  could  not  possibly  reach  its  destination  on  that  (Xivy  {Neilson, 
1891,  19  II.  oOl ;  but  see  Charlcson,  1881,  8  R.  (J.  C.)  34,  and  M'Vean,  nt 
siq)ra.).  As  to  case  where  it  was  possible  for  notice  to  have  reached  destina- 
tion on  due  date,  but  did  not — Neilson,  ut  supra;  Interpretation  Act,  1889, 
s.  26. 

2.  Last  Day  excluded — Where  so  many  clear  days  are  given  to  do 
something,  both  the  first  day  and  last  are  excluded.  Thus  if  8  clear  days  are 
given  from  1st  January  to  do  a  certain  thing,  it  might  be  done  at  any  time 
on  10th.  See  also  Wilson  and  in  re  Sleepers  Supply  Company,  ut  supra. 
Under  sec.  119  of  Titles  to  Land  Consolidation  (Scotland)  Act,  18G8,  the 
sale  cannot  take  place  till  full  6  weeks,  or  42  days,  have  elapsed  {Fer;/uso7i, 
1895,  22  11.  G4o).  Where,  however,  something  is  prohibited  after  8  free 
days,  then  the  fair  meaning  would  be  that  it  could  not  be  done  after  the  end 
of  the  ninth  day. 

Under  this  head  the  cases  where  not  only  the  last  day  but  many  days 
may  be  excluded  from  the  computation  may  be  discussed.  These  cases  are 
all  based  on  special  circumstances.  A  few  illustrations  will  best  exi»laiu  the 
rule.  Where  money  has  not  been  timeously  lodged  owing  to  circumstances 
for  which  the  debtor  is  not  responsible,  the  time  will  be  extended  (XiJdric, 
1895,  22  11.  413).  The  Sheriff  Court  Act,  187G,  s.  IG,  requires  defender  to 
lodge  notice  of  appearance  before  expiration  of  inducia;.  Where  it  was  im- 
possible to  enter  appearance  at  the  expiry  of  inducim  owing  to  local  holiday, 
appearance  was  timeously  entered  on  the  next  day  {M'Kenzie,  nt  sup7-a,  and 
Husband,  1874,  2  R.  82).  Where  annual  close  time  expires  during  time  of 
weekly  close  time,  then  there  is  excluded  from  the  calculation  of  the  IGS 
days  the  period  still  to  run  of  the  weekly  close  time  (Custar,  1878,  5  R. 
(J.  C.)  36).  Time  expired  on  23rd  of  month,  on  which  day  Court  was  closed 
and  remained  closed  till  28th :  held  that  good  delivery  on  28th  (.)PKihh{n, 
1894,  2  Ir.  C54).  For  the  most  part,  extensions  of  time  in  Court  procedure 
are  provided  for  by  statute  and  Acts  of  Sederunt  (see  Court  of  Session  Act, 
1868,  ss.  22  and  93,  etc.). 

See  Day;  Month;  Prescription;  Bills  of  Exchange;  Bell's  Friii. 
s.  146  ;  Lindley,  Introduction  to  Study  of  Jurisjvudcuce. 

Tinsel  of  Superiority  is  the  forfeiture,  either  permanently  or 
temporarily,  of  all,  or  some,  of  the  rights  of  superiority.  It  was  introduced 
by  1474,  c.  57,  to  enable  vassals  who  were  unable  to  obtain  an  entry  with 
their  superior  owing  to  his  title  being  incom})lete,  to  force  an  entry. 

Under  the  provisions  of  that  statute  a  vassal  might  charge  an  unentered 
superior  to  complete  his  title  within  forty  days,  under  certification  that  if  he 
failed  to  do  so  he  would  "  tyne  his  superiority."  On  ex]»iry  of  the  cliarge 
the  vassal  required  to  raise  a  declarator  of  tinsel  of  the  feu,  and  on  getting 
decree,  might  obtain  an  entry  from  the  next  over-superior.  The  recalcitrant 
superior  lost  his  right  to  any  casualties  which  might  accrue  during  the 
lifetime  of  the  vassal,  but  his  ri^ht  to  the  annual  feu-dutv  remained 
unaffected  (Stair,  ii.  328;  Ersk. 'ii.  7.  9;  Dickson,  1802,  Mor.  15024; 
Spaldinq,  1709,  Mor.  15033 ;  Christie,  1776,  5  B.  Sup.  608 ;  Eossmore,  1877, 
5  R  201). 

A  simpler  and  more  effective  method  of  procedure  was  introduced  by 


2G6  TINSEL  OF  THE  FEU 

the  LiuiJs  Transference  Act,  1847,  and  the  Titles  to  Land  Act,  1858, 
consolidated  by  31  &  32  Vict.  c.  101,  ss.  104-112.  Provision  was  made  for 
the  permanent,  or  temporary,  forfeiture  of  the  superiority,  according  as  the 
reddendo  did  or  did  not  exceed  £5,  in  the  event  of  the  superior  failing  to 
couiplete  his  title  ;  but  it  is  unnecessary  to  enter  into  detail,  since  a  vassal 
can  now  obtain  a  complete  title  even  though  the  superior's  title  is  incomplete 
(37  &  38  Vict.  c.  94,  s.  4  (2)). 

[^lenzies,  Lectures  on  Conveyancing,  820 ;  Bell,  Lectures  on  Conveyanc- 
ing, 789.] 

Tinsel  of  the  Feu . — Tinsel,  or  loss  of  the  feu,  is  a  penalty  which 
mav  be  incurred  by  a  vassal  in  the  event  of  his  failing  to  perform  an 
essential  condition  of  his  grant.  The  penalty  is  imposed  by  law  (1597, 
c.  250)  in  the  event  of  a  vassal  failing  to  pay  his  feu-duty  for  two  years 
whole  and  together,  and  in  accordance  with  the  principles  of  contract,  if 
a  vassal  fails  to  implement  a  real  condition  of  the  grant,  fenced  by  an 
irritant  clause.     See  Ikritancies,  Legal  and  Conventional,  sees.  1  and  5. 

Title  to  Exclude;  Exclusive  Title.— A  title  to  exclude 

is  a  defence  competent  in  actions  of  reduction  and  reduction  improbation, 
which  excludes  the  pursuer's  title  to  sue.  Prior  to  the  Judicature  Act 
it  had  to  be  stated,  and  perhaps,  strictly  speaking,  it  still  ought  to  be 
stated,  as  a  dilatory  or  preliminary  defence  to  satisfying  the  production. 
When  so  stated  and  sustained,  the  action  is  dismissed.  AVhen  so  stated 
and  repelled,  the  production  must  be  satisfied.  These  interlocutors  can  be 
reclaimed  against ;  but  in  the  latter  case  the  defender  must  give  notice  of 
his  intention  to  reclaim,  in  order  that  the  expenses  of  the  preliminary 
discussion  may  be  disposed  of  by  the  Lord  Ordinary.  In  cases,  on  the 
other  hand,  where  the  pursuer's  title,  though  objectionable,  yet  does  not 
entitle  the  defender  to  refuse  to  satisfy  the  production,  it  may  now,  on 
c^use  shown  and  under  reservation  of  its  effect  as  a  dilatory  plea,  be  stated 
as  a  defence  on  the  merits.  This  latter  course  is  quite  competent  in  most 
cases,  and  is  now  the  one  that  is  usually  followed  ;  but  if  it  cause  expense 
which  would  have  been  saved  if  the  action  had  been  thrown  out  on  the 
dilatory  defence  of  an  exclusive  title,  the  defender  may  be  found  liable  in 
the  expense  so  caused  (Court  of  Session  Act,  1850,  s.  7 ;  A.  S.,  11th  July 
1828,  s.  36;  6  Geo.  iv.  c.  120,  s.  5;  United  College  of  St.  Andrews,  1864, 
2  M.  810 ;  Macintosh,  1868,  6  M.  (H.  L.)  141). 

In  itself  a  title  to  exclude  is  a  title  preferable  to  that  of  the  pursuer, 
and  one  which  stands  even  though  the  one  the  pursuer  seeks  to  reduce  is 
bad.  In  other  words,  it  is  one  founded  upon  rights  in  the  person  of  the 
defender  standing  upon  independent  title  (per  Ld.  Justice-Clerk  in  E.Perth, 
infra ;  E.  iv.  1.  23). 

Thus  under  the  former  law  an  heir  who  had  been  excluded  from  the 
succession  by  an  irrevocable  deed  executed  while  the  grantor  was  in  liege 
poustie,  was  barred  from  reducing  any  subsequent  deed  of  such  granter  even 
though  granted  on  deathbed,  because  he  was  excluded  from  the  succession 
at  least  by  the  prior  deed  (E.  iii.  8.  98).  The  following  cases  also  illustrate 
the  rule:  Bohcrtson,  1822,  1  S.  364;  Strathmore,  1830,  8  S.  530  ;  affd.  5  W. 
&  S.  170;  Ker,  1830,  8  S.  694;  affd.  5  W.  &  S.  718.  Again,  a  decree 
in  favour  of  a  party  forms,  unless  it  be  itself  reduced,  either  a  title  to 
exclude,  or,  as  affording  a  plea  of  res  judicata  excludes  the  action  (Maule, 
1827,  5  S.  256).  On  the  other  hand,  the  deeds  themselves  brought  under 
reduction  cannot  form  a  title  to  exclude  (Clark,  1856,  18  D.  499) ;  but  the 


TITLE  TO  SUI-:  AND  DKri-XD  2G7 

defender  iu  such  an  action  may  be  ahle  to  have  it  sisted,  to  entiMe  him  to 
reduce  the  pursuer's  title  {M'Kcnzic,  1823,  2  S.  181). 

Again,  in  many  cases  it  is  a  question  of  eircumstnncoH  wliether  the 
defence  is  good.  Thus  a  discharge  of  all  clainis  under  a  deed  may  <>r  may 
not,  according  to  circumstances,  give  a  title  to  exchulc  an  action  of  reduction 
of  that  deed  (Crkhton,  1874,  1  li.  688 ;  Fraser,  1882,  9  li.  1030). 

Finally,  when  pleaded,  the  exclusive  title  must  he  exhibited  (cf.  E.  J'crUi 
1869,  7  M  042  ;  alld.  9  M.  (II.  L.)  SS  ;  Mackay,  Manual,  415-0). 

Title  to  Sue  and  Defend. 

I.  Title  to  Sue. 

A  principle  of  universal  application  in  the  law  of  Scotland  is  that  no 
man  is  bound  to  justify  his  actions  or  possessions  to  one  who  has  no  right 
or  interest  to  question  them  (Fatcrson,  8  D.  752).  In  other  words,  every 
pursuer  in  an  action  must  have  both  a  title  to  sue,  i.e.  a  formal  right  re- 
cognised in  law,  and  also  an  interest  to  sue,  i.e.  a  direct  benefit  (pecuniary 
or  otherwise),  to  himself  or,  if  he  sues  in  a  representative  capacity,  to  those 
whom  he  represents,  dependent  on  the  success  of  the  suit.  Both  interest 
and  title  are  usually  treated  of  under  the  head  of  title  to  sue. 

The  cases  in  which  a  pursuer  with  a  good  title  to  sue  fails  for  want 
of  suflicient  interest  are  so  few  that  they  may  be  dismissed  in  a  sentence  or 
two  at  the  outset.  "  We  are  not  indeed  bound  to  adjudicate  dc  lana  caprina  ; 
but  if  there  be  a  pecuniary  or  patrimonial  interest,  however  small,  depending 
on  the  determination  of  the  question,  the  parties  have  a  right  to  invoke  the 
aid  of  a  Court  of  law  to  decide  their  diil'erence"  (per  Ld.  J. -CI.  Inglis  in 
Strang,  2  M.  at  p.  1029).  From  this  it  is  evident  that  a  person  with  a  title 
will  not  be  barred  from  suing  an  action  of  strict  law  on  the  ground  that  his 
interest  is  too  small.  But  he  may  not  in  such  circumstances  be  entitled  to 
the  equitable  remedies  of  the  Court  according  to  the  maxim  Fc  minimis  non 
curat  irrcct or  (Trayner's  Latin  Maxims,  suh  voce  "  Fe  minimis,"  etc.).  If  a 
pursuer  with  a  good  title  would  by  success  in  the  action  expose  himself 
to  claims  by  the  defenders  in  the  action  for  an  amount  as  great  as,  or  greater 
than,  the  sum  sued  for,  he  will  be  prevented  from  suing  by  want  of  interest, 
according  to  the  maxim  Frustra  j^ctis  quod  moxcs  rcstitnturus;  as,  for  example, 
cases  in  which  the  pursuer  who  made  out  his  title  to  certain  lands  would 
take  them  under  an  obligation  to  convey  them  at  once  to  the  defenders 
(Liquidators  of  City  of  Glasqow  Fanl\  9  R.  535,  per  Ld.  Tres.  Inglis,  at  p.  580  ; 
Furl^c  &  Carmichael,  3  M.  799  ;  Smith,  8  S.  553  ;  Steele,  2  S.  140  ;  Fobertson. 
1  S.  364;  Shand's  Fractice,  p.  139).  The  principle  embodied  in  this  maxim 
is  illustrated  in  the  plea  of  compensation  or  set-off  (Trayner's  Latin 
Maxims).  As  compensation  can  only  be  pleaded  where  there  is  a  true 
concursus  dchiti  ct  crcditi,  so,  it  is  submitted,  the  maxim  Frustrapctisquod  max 
es  restituturus  only  applies  where  the  defender  himself  would  be  the  claimant 
in  the  event  of  the  pursuer  succeeding.  The  maxim,  therefore,  has^  no 
application  to  riding  claims  in  a  multiplepoinding,  and  such  cases  as  hers 
Trs.  (5  M.  4)  are  erroneously  referred  to  this  maxim. 

The  cases  in  which  the  pursuer  has  sutlicient  interest  but  no  title  to  sue 
are  more  numerous,  and  will  be  referred  to  in  dealing  with  title.  I>ut 
probably  the  best  illustration  of  this  is  the  Edinhurrjh  United  Frnccrics  Ltd., 
21  E.  (H.  L.)  10.  The  facts,  shortly  stated,  are  as  follows:— A.  sold  a 
brewery  to  B.  for  £20,500;  B.  sold  'it  to  C.  for  £28,500.  After  about  a 
year  it  was  discovered  that  a  clerk  in  A.'s  employment  had  falsified  the 
books  for  his  own  ends  and  outwith  A.'s  knowledge,  to  make  the  profits 


•2GS  TITLE  TO  SUE  AND  T)EFEXD 

appear  greater  than  was  the  fact.  C.  and  B.  jointly  sued  A.  for  reduction 
of  the  contract  of  sale.  No  fraud  on  the  part  of  A.  was  alleged.  It  was 
held  that  C,  being  no  party  to  the  contract  between  A.  and  B.,  had  no  title 
to  sue  for  its  reduction,  however  great  an  interest  he  might  have  ;  that  B. 
havin"  sold  the  subject  at  a  profit,  had  no  interest  to  have  the  contract 
reduced,  unless  the  contract  between  C.  and  B.  were  reduced  upon  legal 
I'rounds ;  and  that  the  two  suing  together  had  no  better  title  than  either 
separately.     (See  the  opinion  of  Ld.  Watson.) 

The  question  of  title  is  much  more  complex  than  the  question  of  interest, 
and  the  solution  varies  so  much  with  the  circumstances  and  the  nature  of 
the  action  that  it  is  impossible  to  lay  down  a  rule  applicable  to  all  cases. 
Objections  to  title  (apart  from  interest)  may  be  divided  into  two  great 
classes :  (1)  objections  personal  to  the  pursuer,  and  (2)  objections  arising 
out  of  the  cause  of  action. 

(1)  Objections  to  the  Title  of  Pursuer  Personally. — (a)  Absolute 
Incapacity. — Two  classes  known  in  the  law  of  Scotland  are  not  entitled 
to  sue  any  action  whatever,  either  directly  or  by  another,  viz.  alien  enemies 
and  outlaws. 

By  "  alien  enemies "  are  meant  the  citizens  of  a  foreign  State  at  war 
with  Great  Britain.  When  an  action  w^as  raised  by  such  a  pursuer,  the 
Court  were  in  use  to  sist  procedure  until  a  peace  (Carron,  28  November  1809, 
F.  C. ;  Wright,  17  January  1810,  F.  C.  (footnote  to  Carron)).  The  rights  of 
an  alien  to  recover  debts  due  to  him  before  the  war  are  only  suspended,  not 
forfeited,  so  the  right  revives  with  a  peace  (Bell's  Fr.  s.  2135).  The 
assignee  of  an  alien  enemy  has  no  better  title  to  sue  than  his  author 
(Johnston  &  Wiglit,  15  February  1809,  F.  C).  But  the  sovereign  may 
grant  a  special  licence  to  an  alien  to  sue  {Carron,  28  November  1809,  F.  C). 
As  an  alien,  although  friendly,  is  not  capable  of  holding  any  public  or 
political  office,  or  of  exercising  the  political  franchise,  or  of  owning  a  British 
vessel  (Bell's  Pr.  2135),  he  has  no  title  to  sue  in  reference  to  these  matters. 
But  while  the  States  are  at  peace,  he  may  now  sue  in  all  other  respects  as 
freely  as  a  native.  Aliens  were  formerly  disqualified  from  holding  heritage 
in  Scotland,  but  as  that  disqualification  is  now  removed,  no  more  need  be 
said  on  this  subject  (see  33  &  34  Vict.  c.  14,  repealing  7  &  8  Vict.  c.  G6). 
On  the  subject  generally,  see  Alien;  Shipping;  and  Franchise. 

When  a  person  who  is  accused  of  crime  cannot  be  found,  and  will  not 
voluntarily  yield  himself  up  to  justice,  sentence  of  outlawry  may  be 
pronounced  against  him  {Monson,  21  Pi.  (Just.)  5).  Such  an  one  having 
declined  to  submit  to  the  jurisdiction  of  the  Court,  has  of  course  no  title  to 
invoke  the  aid  of  the  Court  for  any  purpose.  He  has  therefore  no  title  to 
sue  or  defend,  and  counsel  will  not  even  be  heard  on  his  behalf  (Cheyne  & 
Maclccrsy,  6  S.  1061;  Marshall,  13  S.  179;  in  Chcync  &  Maclccrsy  it  was 
stated  that  decree  in  absence  would  be  given  against  the  outlaw ;  but  in  the 
earlier  case  of  Cro^nbie,  M.  10162,  the  Court,  while  refusing  to  hear  counsel 
on  behalf  of  an  outlaw  who  was  being  sued  civilly,  made  the  pursuer  prove 
her  case  before  giving  judgment  in  her  favour).  When  an  outlaw  obtains 
relaxation  of  tlie  sentence  of  outlawry  by  submitting  to  the  Court,  his  title 
to  sue  revives  (Stair,  iv.  47.  11 ;  Blade,  4  S.  124). 

Convicts  under  sentence  of  death  are  sometimes  mentioned  as  a  class 
wlio  are  personally  disqualified  from  suing.  But  as  this  disqualification 
only  extends  to  actions  relating  to  property  which  has  been  escheat  to  the 
Crown,  the  more  correct  view  appears  to  be  that  this  is  an  example  of  want 
of  interest  (see  Mackay's  Manual  of  Practice,  p.  142). 

Obviously  a  party  whose  whole  existence  is  in  violation  of  the  law  may 


TITLE  TO  SIK  AND  DKFKNI)  2G9 

not  sue  ill  its  Courts.     Thus  a  company  formed  fur  ^'ain  and  f...--i:.w.  „f 
more  than  twenty  members  (or  of  more  than  ten  if  the  c(jnii<ai,  ,  ,h 

be  banking)  requires  by  Law  to  be  registered  under  Ihe  Comjmmes  Act, 
1862  (25  &  20  Vict.  e.  89,  s.  4).    Such  a  coiniany,  not  rc^ii.stcrcd.  would  not 
be  entitled  to  sue  until  the  law  was  complied  witii  {Findlay,  Vo  II.  (.1    r  *  --^ 
per  Ld.  J.-Cl.  Moucreill). 

A  2Ji(2nl  with  a  guardian  or  tutor  has  no  capacity  to  sue  any  action, 
except  a•,^ainst  such  guardian  or  tutor  (Bell's  J'rin.  s.  20G7  ;  Erskine,  i.  7  14  ; 
Sliand's  rradice,  140;  Keiths,  15  S.  110).  Where  the  j.upil  has  either 
no  guardian  or  the  guardian  has  an  adverse  interest,  the  action  is  raihed  in 
name  of  the  pupil,  and  when  it  comes  into  Court  a  tutor  ad  litem  will  \ye 
appointed  {Boss,  5  IJ.  182  ;  Bojie,  3  D.  309  ;  Macneil,  M.  10384).  See  further, 
I'uriL,  where  this  subject  is  fully  and  ably  treated. 

Fatuous  and  Insane  Fcrso)is  are  in  much  the  same  position  as  pupils. 
They  are  unable  to  sue  in  their  own  names,  and  the  action  is  either 
raised  in  name  of  the  tutor-at-law  or  curator  bonis,  or  else  a  curator  bonis 
is  appointed  (Bell's  Frin.  2103  ct  scq. ;  Feid,  1  D.  400  ;  Wallace,  9  S.  40). 
A  charge  given  in  the  name  of  the  ward  directing  the  debtor  to  pay  to  the 
curator  bonis  oi  the  insane  creditor  was  sustained  (F?</f,  19  li.  107).  See 
Insane;  Judicial  Factor;  Tutor-at-Laav. 

{b)  Fersons  who  are  Incapable  of  Suing  v-itliout  Consent. — These  are 
principally  of  two  classes,  wives  under  coverture  and  minors.  A  wife 
cannot  sue  at  common  law  without  the  consent  of  her  husband  as  her 
administrator-at-law  {Wilkinson,  8  R.  72 ;  laird,  12  S.  54),  But  where  the 
husband  is  unable  or  unwilling  to  concur,  the  Court  may  a])point  a  curator 
ad  litem  (Ersk.  i.  0.  21).  "Where  the  husband's  jus  mariti  and  right  of 
administration  both  remain,  the  wife  has  no  title  to  sue  without  her 
husband's  concurrence,  but  the  husband  may  sue  alone  and  against  the 
wishes  of  his  wife  {Ferguson,  4  E.  393 ;  MacDougal,  20  D.  058).  But  before 
the  jus  mariti  could  attach,  the  property  had  to  vest  in  the  wife,  and 
therefore  a  husband  without  consent  of  his  wife  could  not  sue  a  reduction 
of  her  father's  will  {Aitkins,  1802,  M.  10140).  By  the  Conjugal  Eiglits  Act, 
1801  (24  &  25  Vict.  c.  80,  s.  10),  the  husband  is  declared  not  entitled  to 
claim  property  falling  to  the  wife  l)y  succession  or  donation,  "except  on 
the  condition  of  making  therelrom  a  reasonable  provision  for  the  support  and 
maintenance  of  the  wife,  if  a  claim  therefor  be  made  on  her  behalf "  before 
the  husband  has  obtained  complete  possession. 

Where  the  jus  mariti  but  not  the  ri^ht  of  administration  is  excluded, 
the  wife  cannot  sue  without  the  husband's  consent  ( Wight,  5  S.  549  ; 
Borthu-ick,  5  S.  242).  But  if  his  consent  be  unreasonably  refusetl,  the 
Court  may  appoint  a  curator  adlitem  {Cv.Uen,  9  S.  31 ;  afW.  0  "W.  &  S.  506  ; 
Blair,  8  S.  204).  "When  the  husband  was  undergoing  penal  servitude,  the 
same  course  was  followed  {Bain,  11  S.  088). 

The  wife's  heritage  was  a  subject  over  which  the  jus  mariti  never 
extended.  But  the  rents  of  the  heritage  fell  under  the  jus  mariti ;  and 
accordingly,  while  the  husband  was  entitled  to  sue  for  the  rents  of  property 
vested  in  his  wife,  he  could  not  sue  or  compel  her  to  sue  for  the  fee 
of  the  hevitnge  {Aitkins,  1802,  M.  10140).  See  :\rAKRiEi.  Woman  and 
Administration,  Husband's  Eight  of. 

These  things  have  been  altered  by  the  Married  Women's  Property 
(Scotland)  Act,  1881  (44  &  45  Vict.  c.  21),  That  Act  provides  that  in  the 
case  of  marriages  taking  place  after  the  date  of  the  passing  of  the  Act,  jus 
mariti  shall  be  excluded  from  the  wife's  moveables,  and  from  the  rents  of 
her  heritage;  and  in  the  case  of  marriages  which  were  existing  at  the  date 


270  TITLE  TO  SUE  AND  DEFEND 

of  the  Act,  the  husband's  jus  mariti  was  exchided  from  property  acquired 
by  the  wife  subsequent  to  the  passing  of  the  Act.  See  Married  Women's 
PuorERTY  Act,  1881 ;  Conjugal  Eights  (Scotland)  Amendment  Act,  18G1 ; 
;MARun:D  Woman. 

AVhen  the  husband  of  a  married  woman  had  gone  abroad  and  not  been 
heard  of  for  several  years,  the  Court  has  recognised  the  wife's  title  to  sue 
alone  for  aliment  of  an  illegitimate  child  {McQuillan,  19  E.  375).  This  case, 
however,  seems  in  direct  conllict  with  the  case  of  IFiltinson  (8  E.  72)  above 
quoted,  and  on  principle,  if  not  expediency,  the  earlier  case  seems  the 
sounder.  Until  the  subject  is  again  before  the  Inner  House,  no  hard  and 
fast  rule  can  be  laid  down  (cf.  Skinner,  7  S.  L.  E.  397).  Where  a  married 
woman,  with  the  consent  of  her  husband,  sued  for  damages  for  the  death  of 
their  son,  it  was  held  that  the  wife  had  no  title  to  sue  until  her  husband 
had  renounced  his  primary  claim  (Whitehead,  20  E.  1045).  Similarly,  a 
joint  action  by  husband  and  wife  for  reparation  for  the  death  of  their  child 
is  incompetent  (Bell,  4  S.  L.  T.  252). 

A  wife  can  sue  alone  in  regard  to  all  property  from  which  the  husband's 
right  of  administration  and  jus  mariti  have  both  been  excluded  {Primrose, 
12  D.  917;  Waddell,  16  S.  79;  Graham,  9  S.  543).  A  wife  can  also  sue 
alone  in  cases  where  the  husband's  interest  is  adverse,  as  in  cases  of  divorce, 
separation,  or  implement  of  marriage-contract  provisions  (M'Farlane,  9  D. 
793;  Paterson,  11  D.  421;  MXaughton,  12  D.  703;  A.  B.,15  D.  431; 
Wishart,  1  D.  125  ;  Smith,  4  M.  279).  After  a  divorce  or  judicial  separation, 
or  a  protection  order  under  the  after-mentioned  Act,  a  wife  may  sue  with- 
out the  consent  of  her  husband  (Conjugal  Eights  (Scotland)  Amendment 
Act,  1861  {q.v.)  (24  &  25  Vict.  c.  86,  ss.  5  and  6)). 

Minors  may  not  sue  without  the  consent  of  their  curators ;  and  if  the 
curators  refuse  to  consent,  or  if  the  action  be  against  them,  or  if  the  minor 
have  no  curator,  the  summons  will  be  raised  in  the  name  of  the  minor,  and 
a  curator  ad  litem  appointed  when  the  case  comes  into  Court  (Shand's 
Practice,  p.  141 ;  M'Conochie,  9  D.  791).  But  the  effect  of  a  minor  suing 
without  curators  is  not  to  render  the  whole  proceedings  null,  but  merely  to 
render  the  decree  liable  to  reduction  on  the  ground  of  lesion  within  the 
quadricnnium  utile.  "A  minor  may  do  a  great  many  things  without  his 
curator,  and  a  minor  who  has  no  curator  may  do  a  great  many  things 
subject  only  to  this  condition,  that  the  minor  is  entitled  to  have  what  he  has 
done  set  aside  within  the  quadriennium  utile  on  the  ground  of  lesion  ;  and  I 
do  not  doubt  that  judicial  proceedings,  like  other  actings  by  a  minor,  may 
be  set  aside  ex  capite  lesionis  within  the  quadriennium  utile"  (Ld.  Pres. 
Inglis  in  Cunninr/ham,  7  E.  424).  It  thus  appears  that  tlie  appointment  of 
a.  curator  ad  litem  to  a  minor  is  rather  in  the  interest  of  his  opponent  than  in 
his  own  (Shand's  Practice,  p.  142 ;  Hay,  Mor.  8973).  See  further  on  this 
subject  sub  voce  Minor. 

(c)  Persons  under  Trust. — By  the  Bankruptcy  (Scotland)  Act,  1856  (19 
&  20  Vict.  c.  79,  s.  73),  the  trustee  on  a  sequestrated  estate  may  sue  all 
actions  relating  to  the  property  of  the  bankrupt  exactly  as  the  bankrupt 
himself  might  have  done  prior  to  his  sequestration.  The  general  rule, 
therefore,  is  tliat  the  bankrupt  has  no  title  to  sue  any  action  which  the 
trustee  is  willing  to  sue ;  and  this  was  also  the  case  under  the  former 
I'ankruptcy  Statutes  (Ooudy  on  Bankruptcy,  p.  378  ;  Bell's  Co??i.,5th  ed.,  ii. 
414).  But  where  a  trustee  refuses  to  prosecute  a  claim,  the  bankrupt,  on 
finding  caution  for  expenses  {Cooper,  20  E.  920,  per  Ld.  M'Laren,  p.  922 ; 
Dunsmae's  Trs.,  19  E.  4;  Hoi-n,  10  M.  295),  may  sue  in  his  own  name, 
provided  always  that  there  is  such  a  prospect  of  a  reversion  going  to  the 


TITLE  TO  SUE  AND  DKFKXD  271 

bankrupt  as  to  give  him  a  title  uud  interest  to  sue  (WhyU,  17  I:.  895) 
As  the  bankrupt  has  no  title  to  sue  on  behalf  of  tlie  ere(Htor.s(],er  bl.  Shanti 
in  Whyte,  17  K.  at  p.  902),  his  only  right  to  sue  nnist  be  derived  from  IiIh 
reversionary  interest.  The  trustee's  right  Ui  recover  the  estate  of  the 
bankrupt  extends  even  to  recovering  damages  for  personal  injuries 
sustained  by  the  bankrupt  {Thorn,  19  \).  721).  15ut  of  course  in  all  cases 
in  whicli  the  direct  interest  is  not  pecuniary,  the  trustee  has  no  title  Ui 
sue.  Thus  the  bankrupt's  right  to  sue  a  divorce,  or  to  concur 
in  an  action  as  administrator  of  his  wile  where  his  own  jus  mariti  is 
excluded  {Horn,  10  jNF.  295),  and,  in  a  word,  to  sue  any  action  in  which  his 
creditors  have  no  interest  or  only  a  secondary  interest,  remains  unaltered. 
This  leaves  it  in  the  discretion  of  a  bankrupt  whether  he  will  sue  for 
divorce,  or  even  whether,  if  a  woman,  slie  will  raise  an  action  of  danmge.s 
for  breach  of  promise,  though  in  both  these  instances  the  creditors  might 
indirectly  have  an  interest  in  the  result  of  the  suit.  So  also  the  l)ankru]>t 
alone  can  sue  for  damages  for  defamation  (per  Ld.  J.-Cl.  Hope  in  Thom,  19 
D.  721),  though  the  damages,  if  awarded,  would  go  to  tlie  creditors  (Jackson, 
3  E.  130).  After  a  bankrupt  has  obtained  his  discharge,  liis  right  to  sue 
without  finding  caution  revives  fully  {Cooper,  20  11  920),  and  this  right 
revives  without  the  necessity  for  retrocession  (per  Ld.  Watson  in  Whytc, 
18  E.  (H.  L.)  37).  Any  creditor  of  a  bankrupt  is  entitled  to  reduce  an 
illegal  preference  granted  in  violation  of  the  Act  1G9G,  c.  5,  luit  he  is  not 
entitled  to  recover  the  subject  either  for  himself  or  for  the  other  creditors 
{McLaren's  Tr.,  24  E.  920  ;  Cooh,  23  E.  925  ;  Broicn  &  Co.,  18  E.  311  ;  Smith 
&  Co.,  16  E.  392).  But  a  trustee  under  a  voluntary  trust  deed  for  creditors 
has  no  title  to  reduce  {M'Zarm's  Tr.,  supra).  The  trustee  in  a  sequestration, 
or  his  equivalent  in  a  foreign  sequestration,  may  reduce  a  di.scharge  of  legitim 
granted  in  fraud  of  creditors  {Obers,  24  E.  719).      See  siqjra,  Sequk.stration. 

A  trustee  in  a  cessio  honorum  may  sue  generally  such  actions  as  a 
trustee  in  a  sequestration  may  sue  {Henderson,  IG  E.  341).  Eut  see 
Cessio.  And  the  liquidator  of  a  limited  company  is  in  the  same  position. 
See  Joint  Stock  Company. 

A  creditor  of  the  bankrupt  has  no  title  to  sue  the  bankrupt's  debtors, 
that  right  being  exclusively  in  the  trustee  or  assignee  of  the  bankrupt 
{Henderson,  16  E.  341 ;  GiU's  Trustees,  16  E.  403). 

A  company  formed  for  the  purpose  of  realising  the  assets  of  a 
banking  company  in  liquidation  was'  held  to  have  a  good  title  to  sue 
for  reduction  of  a  discharge  granted  to  a  contributory  on  a  compromise, 
although  such  claim  was  not  expressly  assigned  {Assets  Co.  Ltd.,  24  E.  418). 

Similarly,  the  title  to  recover  debts  due  to  a  person  deceased  is  not 
in  his  general  legatees,  but  in  his  executors.  "  By  our  law,  if  a  man  in 
this  country  executes  a  testament  and  leaves  general  legacies,  his  general 
legatees  have  no  action  against  the  debtors  of  the  deceased,  for  they 
are  not  debtors  to  the  legatees,  but  to  the  executors  of  the  deceased, 
and  it  is  against  the  executors  that  the  general  legatees  must  bring  their 
action.  Where  a  special  legacy  is  left,  the  legatee  is  in  a  dilferent 
situation.  He  may  bring  his  action  directly  against  the  holder  of  the 
subject  specially  bequeathed,  provided  he  makes  the  executor  a  party  to 
the  action"  (per  Ld.  Corehouse  in  Young,  IG  S.  572;  Pcoclx,  2  S.  769; 
and  Hinton,  10  E.  1110,  where  it  was  held  that  a  general  residuary  legatee, 
who  has  taken  no  steps  to  vest  the  debt  in  himself,  has  no  title  to  sue  a 
debtor  of  the  testator).  A  decree  obtained  by  one  who,  though  po.ssessing 
the  character  of  apparent  heir,  sued  solely  as  executor  of  the  deceased, 
was  reduced  on  the  ground  that  he  had  produced  no  nomination  as  executor, 


272  TITLE  TO  >SUE  ASV  DEFEND 

or  decree  -  dative  or  similar  title.  Ld.  J.-Cl.  luglis  said  that  tliougli  in 
practice  an  executor-nominate  may  sue  before  obtaining  confirmation,  if 
he  expede  confirmation  bcl'ore  extracting  the  decree,  he  knew  of  no  authority 
and  could  see  no  principle  for  holding  that  a  party  can  sue  as  executor 
before  obtaining  any  title  as  such  (Malcolm,  5  M.  18).  The  distinction  is 
that  an  existing  title  may  be  formally  completed  in  the  course  of  the  action, 
but  a  title  non-existent  at  the  commencement  of  the  action  (see  Summons) 
cannot  be  supplied  during  its  course  (see  Ld.  Adam  in  Symington,  21  l\. 
434).  Persons  nominated  as  trustees  of  a  charitable  bequest  have  no 
title  to  present  a  petition  for  approval  of  a  scheme  before  accepting 
office  as  trustees  ( Watt,  23  E.  33). 

It  will  be  noticed  that  these  cases  are  examples  of  persons  having  an 
interest  but  no  title  to  sue.  There  is  neither  title  nor  interest  in  a  member 
of  a  class  from  which  the  beneficiary  is  to  be  selected  by  the  executors. 
Thus  where  a  bursary  is  to  be  given  to  such  member  of  a  defined  class  as  may 
be  selected  by  the  trustees  or  by  examination,  a  rejected  candidate  has  no 
title  to  sue  for  reduction  of  the  award,  or  for  damages,  even  on  the  ground 
that  the  successful  candidate  did  not  belong  to  the  favoured  class  {M'Donald, 

17  K.  951 ;  Martin,  13  11.  274 ;  Ramsay,  22  D.  1328 ;  affd.  23  D.  (H.  L.)  8). 
An  apparent  exception  is  to  be  found  in  the  case  of  Boss,  5  D.  589,  in 
which  the  Court  of  Session  found  that  a  boy,  admittedly  eligible  for  Heriot's 
Hospital,  who  had  been  rejected  by  the  governors,  had  a  title  to  sue  them 
(see  per  Ld.  Cuninghame  at  p.  G09).  But  in  that  case  the  averments 
were  that  there  were  more  vacancies  than  candidates  eligible  at  the  time 
pursuer  was  rejected  ;  and  as  the  ratio  of  the  otlier  cases  is  the  uncertainty 
of  the  pursuer's  election,  these  averments  may  reconcile  the  decisions. 
The  case  of  Boss  was  subsequently  reversed  on  another  point  (5  Bell's 
Appeals,  37).  Again,  several  old  women  of  a  class  from  which  annuitants 
were  to  be  selected  under  a  will,  were  held  to  have  no  title  to  sue  for 
reduction  of  a  subsequent  will  revoking  the  first.  The  ground  of  the 
decision  was  that  they  were  not  the  representatives  of  the  testator 
{Addison,  8  M.  909).  Contrast  with  this  case  Duncan  (20  R.  200),  in  which 
a  beneficiary  nominatim  was  held  entitled  to  reduce  a  subsequent  will. 
The  whole  or  a  majority  of  the  trustees  under  a  ibrmer  will  might  of 
course  sue  a  reduction  of   a  subsequent   will  {Duncan,  sujjra;    Gilchrist, 

18  E.  599). 

An  executor  can  in  general  sue  any  action  which  the  deceased  himself 
could  have  sued.  The  exceptions  are  principally  questions  oi  status  and  cases 
to  which  the  maxim  Actio  'personalis  moritur  cinn  persona  applies.  Thus  an 
executor  cannot  sue  a  declarator  of  marriage,  or  carry  on  such  an  action 
raised  by  the  deceased,  though  he  may  prosecute  an  alternative  conclusion 
for  damages  for  breach  of  promise  of  marriage  {Green  or  Borthwieli,  24  E. 
211).  But  a  surviving  party  may  sue  for  declarator  of  marriage,  calling  as 
defenders  the  representatives  of  the  deceased  {Sccales,  4  M.  300;  but  see  infra, 
1».  270).  The  executor  of  a  deceased  person  cannot  sue  for  damages  for 
])er.sonal  injuries  sustained  Ijy  the  deceased  {Bern's  Executor,  20  E.  859). 
But  he  may  follow  out  an  action  which  the  deceased  has  commenced  {Neil- 
son,  10  D.  325 ;  Darling,  19  E.  (H.  L.)  31).  Auld,  2  E.  191,  was  a  case  in 
which  an  executrix  was  held  entitled  to  sue,  but,  as  pointed  out  by  Ld. 
^I'Laren  in  Bern's  Executor,  supra,  there  were  averments  of  patrimonial  loss 
tlicre  which  make  the  case  in  some  degree  special.  A  landlord  in  ])OSsession 
is  the  proper  person  to  sue  for  rent  falling  due  during  his  possession,  though  he 
may  have  to  account  for  it  to  the  executor  of  his  predecessor  {Lennox,  21  E.  77). 

Members  of  the  Buhlic. — In  questions  affecting  the  public  generally,  any 


TITLE  TO  SUE  AND  DEFEND 

luembor  of  the  public  luis  a  tille  to  siiu.     Thus  any  luemWr  of  tlie  tmblic 
may  sue  for  removal  of  a  nuisance  {Otjston,  24  IJ.  ( H.  L)  8;  Potter,  s  M. 
1064);  for  declarator  of  right  to  use  a  public  market  (Mcujs.  of  J 
13  E.  (H.  L.)  78);  and  for  dccl.iiator  of  itublic  right  of  way  {JfnLina,  7  M. 
739),     A  limited  compfiny  lurmed  for    the  purjxjse  of  vindu-aling  public 
rights  of  way  has  a  title  to  sue   such  actions  {}farfic,  11  U.  lOlA).     lA. 
Low,  Ordinary,  held   that   a   railway  company  had    no   tille   to  sue   for 
declarator  of  a  public  riglit   of  way,  that   being  no   part  of  its  business 
{Parlcyard  Co.   Ltd.,  24  K.  1148).     ]5ut    this   seems  doubtful,  and  in   the 
Inner  House  approval  was  expressly  witldield  (see  i».   lli3G).     A  njenib<.'r 
of  the  public  has  been  held  entitled  to  complain  of  a  breach  of  a  local 
Tramway  Act,  without   averring   special  damage  {Adamson,  10  M,  533). 
A  ratepayer  in  a  burgh  has  a  title  under  the  lUirgh  Police  (Scotland)  Act, 
1892  (55  &  56  Vict.  c.  55,  s.  67),  to  petition  the  SiierilV  for  correction  of 
a  faulty  method  of  keeping  the  burgh  accounts,  without  averring  personal 
hardship  {Heddle,  25    E.    801).      Ratepayers   are  entitled    to   retluce   the 
return  of  an  election  of  members  of  the  School  Board  {Duncan,  19  R.  504); 
and  a  publican  may  sue  for  declarator  of  the  meaning  (jf  a  local  Act  ^iv\ 
to  affect  his  Mccwcq  {Tenncnt,  21  R.  735);  and  public  bodies  have  fiecpiently 
statutory  power  to  sue  in    particular  actions,  e.ff.  the  Act  32  &  33  Vict, 
c.  6,  s.  18,  gives   a   power  to   the  Eerguson   liequest  Fund  (incorporated 
by  that  Act)  to  apply  to  the  Court  for  directions  in   cases  of   dillicultv 
("  The  Ferguson  Bequest  Fund"  case,  6  R.  486 ;  ib.,  36  S.  L.  R.  157).     The 
Roads  and  Bridges  (Scotland)  Act,  1878   (41   &  42  Vict.  c.  51,  s.    121). 
enacts  that  all  penalties  under  the  Act  may  be  recovered  "at  the  instanct* 
of  the  procurator-fiscal,  or  of  the  clerk  of  the  trustees,  or  of  the  clerk  of 
the  burgh  local  authority,  as  the  case  may  be."     And  the  Local  (Jovi-rn- 
ment  (Scotland)  Act,  1880  (52  &  53  Vict.  c.   50,  s.  94),  enacts  that  any 
offence  against  the  Act  may  be   prosecuted,  and   any  fine  or  penalty  re- 
covered, at  the  instance  of  the  procurator-fiscal  of  Court,  or  of  the  county 
clerk.     At  common  law  it  was   held  in  1886  that  county  road  lru.sin'.><, 
incorporated  under  a  local  Act,  had  a  good  title  to  sue  for  removal  of  a 
barbed  wire  fence  near  a  public  road,  "  upon  the  general  rule  of  law  that 
trustees  always  have  a  good  title  to  defend  the  subject  of  their  trust " 
(Flgin  Countij  Foad  Trustees,  14  R.  48,  per  Ld.  l*res.  Inglis  at  p.  51).     This 
rule  of  law  covers  the  case  of  all  public  or  municipal  bodies  charged  with 
the  performance  of  a  duty  where   the  remedy  or  the  mode  of  enforcing 
it  is  not  otherwise  specially  declared  in  the  Act  creating  the  duty  (.V.  1'. 
Railway  Co.,  13  R.  (H.   L.)  37;   Tay  Didrict  Fishery  Foard,  15  R.  40). 
A  few  miscellaneous  cases  which  lay  down  no  general   rule   are  noted : 
Kelso  District  Committee,  3  White,  94;  Forrest's  Trs.,  11  R.  719;  .^fays.  of 
Kilmarnoek,  7  M.  548  ;  Chisholm,  1  R.  389  ;  Mags,  of  Aberdeen,  4  R.  (H.  L)  48. 
(2)  Objections  to  Title  to  Sue  akising  fi:om  tiik  Cau.sk  of  Action.— 
(rt.)  Contraet.—  T\\Q  general  rule  is  that  no  person  has  a  title  to  sue  on  u 
contract  to  which  he  is  not  a  party,  or   the   proper   representative   of  a 
party  {TayiJort  Land  Co.,  23  R.   287;    Fdinburgh  United  Brcvrrits  J'' 
21  R.  (H.  L.)   10).     A  passenger  on  a  railway  having  been  acciil-"' 
killed,  his  sisters  sued  the  company  for  reparation,  founding  on  tlie  i 
company's  contract  with  the  deceased  to  carry  him  safely,  and  ; 
that  the  deceased  was  their  sole  supporter.     Held,  that  as  colhu 
had  no  title  to  sue  {Eisten,  8  M.  980).      Thus  the  beneficiari. 
trust  have  no  title   to  sue  the  law  agents  emidoyed  by  the  ti  for 

damages  resulting  from  bad  advice  given  by  them,  as  there  is  no  privity 
of  contract   between   the   beneficiaries  and   the  law  agents  (/?««.  10  Jt. 

18 

S.  E. — VOL.  XII. 


274  TITLE  TO  SlK  AND  DEFEND 

(H.  L)  31);  iior  can  the  beneficiaries  under  any  testamentary  deed  sue 
the  law  agent  of  the  testator  for  failure  to  carry  out  any  provision 
{IVilliamson,  14  K.  720).  Wliere  a  person  during  his  lifetime  purchased 
a  house,  directing  the  title  to  be  taken  in  his  nephew's  name,  and  employed 
a  law  a'4ent  to  revise  the  disposition  in  the  nephew's  interest,  the  nephew 
had  no  title  to  sue  that  agent  for  failure  to  discharge  the  duty  properly 
{Tall//,  19  I\.  65).  On  the  same  principle  it  was  held  by  a  majority  of 
the  Second  Division,  that  the  trustees  of  a  chapel  of  ease  had  no  title  to 
sue  for  a  contribution  to  the  endowment  fund  promised  to  the  minister 
in  a  private  letter  on  which  they  founded.  Ld.  Young  dissented  from 
this  <4round  of  judgment  {Camhuslang  West  Church  Committee,  25  E.  322). 
Again,  an  employer  contracted  with  A.  to  build  certain  mason  work,  and 
with  B.  to  erect  the  necessary  scaffolding.  The  scaffolding  gave  way,  and 
some  of  A.'s  workmen  were  injured.  A.,  having  paid  compensation  to  the 
injured  workmen,  sued  B.  for  relief.  Held  by  Ld.  Kyllachy  (Ordinary) 
and  Ld.  M'Laren  that  A.,  not  having  contracted  with  B.,  had  no  title 
to  sue  him  {Gardiner,  22  E.  100;  CamplcU,  19  E.  282).  A  purchaser  of 
an  unfinished  ship  from  the  builders  has  no  title  to  recover  damages  for 
delay  from  the  engineer  with  whom  the  builders  had  contracted  to  supply 
the  engines  by  a  certain  date  {Blumcr  &  Co.,  1  E.  379).  The  purchasers 
of  a  company  business  undertook  "  to  pay  and  discharge  all  the  present  and 
future  liabilities  of  the  vendors  in  connection  with  the  business."  Found- 
ing on  this  clause,  a  person  who  averred  that  he  had  been  defamed  by  the 
vendors  sued  the  purchasers  for  damages.  Held  that  the  pursuer  was  not 
a  party  to  the  agreement,  and  had  no  Jus  qucesitum  under  it,  and  therefore 
had  no  title  to  sue  {Henderson,  22  E.  51). 

This  brings  us  to  consider  the  qualification  of  the  strict  rule  that  no  one 
except  parties  to  the  contract  may  sue  under  it,  in  favour  of  third  parties 
who  have  a  jus  qucesitum.  A  person  may  on  this  principle  sue  under  a 
contract  to  which  he  was  not  a  party,  if  such  contract  was  made  on  his 
behalf  or  directly  for  his  benefit,  and  this  whether  he  is  named  in  the 
deed  or  not.  Thus  an  association  of  underwriters  required,  on  the 
admission  of  new  members,  a  guarantee  for  underwriting  obligations  to 
be  undertaken  by  them.  The  guarantee  was  addressed  to  the  secretary 
of  the  association.  Held  that  a  person  insured  by  such  new  member 
suljsequently  had  a  jus  qiicesitum  under  the  guarantee  and  might  sue  the 
guarantor  under  it  (Eose,  Murison,  &  T/iomson,  16  E.  1132,  per  Ld.  Kyllachy, 
0.  H.).  It  is  a  well-established  rule  in  marine  insurance  that  if  the  same 
person  insure  the  same  subject  against  the  same  risk  with  two  or  more 
offices,  and  recover  from  one  of  the  offices  the  whole  damage,  the  office 
paying  may  sue  the  other  insurers  for  a  rateable  contribution  {Newhj,  1 
AVm.  Blackstone,  416,  per  Mansfield,  C.  J.:  Lvecis,  6  Cow.  635;  Parson's 
Marine  Insur.  ii.  468).  This  principle  of  contribution,  which  practically  is 
the  same  as  jus  qucesitum,  was  applied  to  fire  insurance  in  certain  obiter 
dirta  in  North  British  &  Mercantile  Insur.  Co.  (5  Ch.  D.  569,  see  particularly 
Mcllish,  L.  J.,  at  p.  583).  This  case  was  followed  by  Ld.  Low,  and  the  title 
of  one  insurance  comjiany  to  sue  another  sustained,  in  Sichness  &  Acrident 
Insur.  Assn.  Ltd.  (19  E.  977).  But  it  is  otherwise  where  the  insurer, 
ha\ing  paid  the  loss,  seeks  to  recover  wliat  he  has  paid  from  the  person 
whose  fault  caused  the  loss.  "I  know  of  no  foundation  for  the  right  of 
unilerwriters  except  the  well-known  principle  f.f  law  that  where  one  person 
has  agreed  to  indemnify  another,  he  will,  on  making  good  tlie  indemnity,  be 
entitled  to  succeed  to  all  the  ways  and  means  "by  which  the  person 
indemnified  might  have  protected  himself  against  or  reimbursed  himself  for 


TITLE  TO  SrE  AND  DEFEND  275 

the  loss.  It  is  on  ihis  i.iinciiile  that  the  iunlt:r\viiUT  .  .  .  can  aKRcrt  any 
right  which  the  owner  of  the  ship  niiglit  have  aK.serted  against  the  wrou"- 
doer  for  damage  for  the  act  which  has  ciiused  the  h)ss.  lint  this  right  of 
action  they  nnist  assert  not  in  their  own  name  hut  in  tlie  name  of  the 
person  insured  "  (per  hd.  Chan.  Cairns  in  Simjison  it:  Co.,  F>  U.  (U.  ],.)  40). 
Accordingly,  wlien  a  collision  occurs  between  two  ships  belonging  to  the 
same  owner,  tlie  insurers  cannot  claim  on  the  fund  apj)ointed  to  pay  dama<'e8 
(ih.).  But  a  ])erson  wliosc  property  is  injured  through  another's  fault  is  not 
deprived  of  his  right  to  sue  because  his  property  is  fully  insured  (Port 
Glasgow  tC-  Ncwarh  Sailcloth  Co.,  19  11.  608). 

In  marriage  contracts  a  destination  in  favour  of  the  issue  of  the  marriage 
may  confer  on  such  issue  a  jus  qua:situm  which  will  entitle  them  to  sue 
under  the  contract.  The  existence  of  this  right  is  to  Ije  gathered  from  the 
terms  of  the  deed  {M' Donald,  20  K.  (H.  L.)  88;  Ihujhcs,  19  K.  (II.  L)  :',3; 
Gillon's  Trs.,  17  R  435  ;  Allan,  8  M.  34 ;  Earl  of  Glasgow's  Truster,  11  M.  218)! 

It  is  customary  to  insert  in  buihling  feus  clauses  restricting  tlie  character 
of  the  buildings  to  be  erected  and  the  uses  to  which  they  may  l»e  ]tut. 
These  restrictions  may  be  made  enforceable  not  oidy  by  the  sujjerior  l)Ut  also 
by  the  adjoining  feuars ;  that  is  to  say,  dijus  qmrsitiim  may  be  conferred  on 
the  adjoining  feuars.  This  may  be  done  in  one  of  two  ways,  either  (1)  where 
the  superior  feus  out  his  land  in  separate  lots  for  the  erection  of  houses  in 
streets  or  .squares  upon  a  uniform  plan  which  is  referred  to  in  each  of  the 
feu-charters;  or  (2)  where  the  superior  feus  out  a  considerable  area  with  a 
view  to  its  being  subdivided  and  built  upon,  without  jirescriliing  any 
definite  plan,  but  imposing  certain  general  restrictions  which  the  feuar  is 
taken  liound  to  insert  in  all  sulj-feus  or  dispositions  to  be  granted  by  him 
(per  Ld.  Watson  in  Hishyp,  8  Ii.  (H.  L.)  95,  at  p.  103).  In  l>oth  these  cases 
the  feuar  is  presumed  to  consent  to  the  restrictions  being  enforced  against 
him  by  his  neighbours  in  return  for  the  right  to  enforce  tlie  restrictions 
against  them.  M'Gihhon,  9  M.  423,  is  an  example  of  the  first  category,  and 
JRohertson,  1  R  1213,  is  an  example  of  the  second.  Other  cases  which  may 
be  referred  to  are:  Johnston,  24  II.  1061;  Dalri/mplc,  5  R  847;  Exring,  5 
E.  439;  Beattie,  3  R  634;  Alexander,  9  M.  599;  Guthrie,  9  M.  544; 
MNeill,  8  M.  520;    Gould,  8  M.  165;    Glasgow  Jute  Co.,  8  M.  93.     See 

Jus  QU-ESITUM  TERTIO  and  JuS  TEKTII. 

Somewhat  resembling  the  case  of  jus  qua^situm  is  the  right  of  a  principal 
to  sue  for  fulfilment  of  a  contract  made  for  him  by  his  agent.  Tlie  rules  in 
reference  to  this  are  concisely  stated  l)y  Ld.  M'Laren  in  Bennett,  18  I  J.  975 : 
"  Supposing  the  parties  were  within  the  jurisdiction,  I  apprehend  there  can 
be  no  doubt  that  a  seller  to  the  agent  of  an  undisclo.scd  principal,  when  he 
comes  to  know  the  name  of  the  principal,  may  elect  to  sue  the  principal  for 
the  price.  But  if  he  takes  advantnge  of  this  right,  he  is  disabled  from 
maintaining  any  plea  that  would  alter  the  relations  of  the  priiieii>al  and  the 
agent  to  the  disadvantage  of  the  principal.  ... 

"A  corresponding  rule  exists  that  a  principal,  if  he  has  occasion  to  sue 
for  fulfilment  of  a  contract,  may  come  forward  and  disclo-se  him.self,  and  may 
sue  tlie  other  party  in  his  own  name.  But  he  also,  if  he  elects  to  sue  in  Ins 
own  name,  will  be  affected  by  any  counter  claims  that  mi<:ht  have  l»een 
pleaded  against  his  agent.  ... 

"  If  the  seller  knew  who  the  principal  was  from  the  beginning,  the 
election  is  hold  to  be  made  at  tlie  time  of  making  the  enntract,  because  the 
seller  is  bound  to  elect  whom  he  is  to  take  as  his  debtor  as  soon  as  he 
comes  to  know  who  is  the  principal  to  whom  the  goods  are  sold. ' 

Ld.  M'Laren  goes  on  to  say  that  where  the  principal  is  a  foreign  trader. 


27G  TITLK  TO  SUK  AND  DEFEND 

the  presuuiptiuu  is  that  tlie  commission  meiehaut  buys  on  his  own  account, 
but  such  presumption  may  be  rebutted  by  evidence  that  he  was  truly  an  agent. 
The  selection  liaving  been  made,  the  creditor  may  not  sue  the  agent 
after  having  sued  the  principal,  or  vice  vcrsd  ■  and,  similarly,  the  agent  may 
not   sue  afler  his  principal  has  sued,  or   vice  versd  {Thomson,  2  Snuth's 

Leading  Cases,  368).  _  ,. 

Where  there  is  a  disclosed  principal,  the  agent  m  the  ordinary  case  has 
no  title  to  sue  on  the  contract,  the  principal  being  the  only  person  entitled 
to  sue.  Ikit  if  the  contract  contains  a  clause  expressly  in  favour  of  the 
a^ent,  the  agent  has  a  title  to  sue  for  implement  of  that  clause  {Levy  &  Co., 
10  vJ  1134:° Bonar,  3  D.  830;  Fisher  dt  Hephurn,  G  S.  216). 

There  cannot  be  an  agent  for  a  non-existent  company,  and  therefore  a 
company  has  no  title  to  sue  on  a  contract  made  by  an  agent  before  it  had 
come  into  existence  {Tinncvelly  Sugar  Eefining  Co.  Ltd.,  21  R.  1009).     See 

1  Bell's  Com.  490  d  scq. ;  Be  Laurier,  17  E.  167  ;  Millar,  22  D.  833  ;  Paterson, 

2  Smith's  Leading  Cases,  355  ;  Addison,  2  Smith's  L.  C.  361. 

Lut  an  agent  having  made  a  contract  for  a  principal  containing  a  clause 
requiring  the  principal  to  sign  a  confirmation  slip,  and  the  principal  having 
failed  to°sign  such  confirmation  slip,  it  was  held  tliat  the  jirincipal  had  no 
title  to  sue  under  the  contract  {Bansohoff  &  Wissler,  25  E.  284). 

The  rules  of  a  provident  society  contained  a  clause  referring  to  the 
decision  of  a  committee  of  the  society  any  dispute  between  a  member,  or  a 
person  claiming  through  a  member,  and  the  society.  This  clause  was  held 
not  to  oust  the  jurisdiction  of  the  Court  where  the  society  disputed  that 
pursuer  was  the  representative  of  a  deceased  member.  The  pursuer's  title 
to  sue  in  the  Court  of  Session  was  accordingly  sustained  {Symington's 
Eoxcidor,  21  R  371).  Compare  with  this  the  case  of  Law,  21  E.  1027, 
in  which  a  contract,  constituted  by  advertisement,  was,  to  pay  £100  "  to  the 
person  whom  the  proprietors  of  Tit-Bits  may  decide  to  be  the  next  of  kin 
of  anyone  killed  in  a  railway  accident"  if  a  copy  of  the  paper  was  found  on 
deceased.  The  decision  of  the  proprietors  was  held  to  be  a  condition 
precedent,  and  accordingly  one  suing  as  next  of  kin  was  held  to  have  no 
title  to  sue  without  producing  a  decision  of  the  proprietors  in  his  favour. 

A  shipmaster  has  a  title  to  sue  on  a  contract  as  representing  the  owners 
in  a  foreign  country  {Larsen,  20  E.  228). 

(6)  Bejjaration. — The  question  of  title  to  sue  in  cases  of  reparation  has 
been  fully  treated  in  the  article  on  Eei'Aration,  which  see. 

(c)  Consistorial  Actions,  viz.  declarators  of  marriage,  declarators  of  nullity 
of  marriage,  divorce,  and  separation  and  aliment.  The  general  rule  is  that 
any  such  actions  may  only  be  raised  or  carried  on  during  the  subsistence 
of  the  marriage,  and  the  title  to  sue  is  solely  in  the  injured  spouse  (Stair, 
i.  4.  7;  Ersk.^  i.  6.  43;  Bell,  Brin.  1524  and  1534;  A.  v.  B.,  1  Spink,  12; 
Ritchie,  1  E.  826).  A  declarator  of  marriage,  when  not  founded  on  promise 
cum  suhsequcnte  copula,  may  be  raised  by  the  surviving  spouse  after  the 
death  of  the  predeceaser  (Eraser  on  Husband  &  Wife,  p.  1241 ;  Steuart,  2  E. 
(H.  L.)  80 ;  Scealea,  4  M.  300),  and  the  marriage  may  be  proved  incidentally 
in  an  action  where  a  third  party  has  an  interest  in  proving  it,  because  such 
third  i^arty  cannot  raise  a  declarator  (Eraser,  Lf.  &  W.  p.  1242  ;  Pirie,  Hume, 
248  ;  Downie,  Hume,  251 ;  Budland,  16  Scot.  Jur.  97).  In  Borthwick,  24  E. 
211,  conflicting  opinions  were  expressed  as  to  the  right  of  an  executor  of 
a  deceased  woman  to  carry  on  an  action  of  declarator  of  marriage  instituted 
by  the  deceased  during  her  life.  As  it  was  not  necessary  for  the  decision 
of  the  case,  these  dicta  are  obiter.  But  they  are  sufficient  to  show  that  the 
law  cannot  be  regarded  as  settled. 


TITLK  TO  SUE  AND  DKFKNl)  o— 

Declarators  of  nullity  of  luavriiigo  on  groiinfls  Other  lliaii  in 
jugal  duties  may  be  sued  not  only  l.y  ihe  alleged  spouses,  l.ut  1.,  . •  .  .„,. 

an  interest  (Fraser,  //.  &  W.  p.  1244,  and  pp.  80-104;  Bell,'/'/  \],  " 

An  action  for  divorce  is  competent  only  to  the  injured  spouse,  and 
though  instituted  by  him  or  her  during  lifL,  many  not  he  carried   to  a 

conclusion  by  his  or  her  executors  (P.ell,  I'rin.  lolM).    Wwi  it  i.s  no  r- '■  .r\ 

to  this,  that  the  executors  of  a  deceased  pursuer  may  sist  tliem  •  lo 

defend  in  a  reclaiming  note  a  decree  obtained  by  the  deceased  in  the  Outer 
House  (nitrJne,  1  11.  82G)  (hi/ra,  Title  to  Drfcnd).  It  lias  been  dccid.-d  that 
the  curator  of  an  insane  spouse  has  no  title  to  sue  an  action  of  seiiamtion 
{Thomson,  14  E.  G34);  a  fortiori  he  would  have  no  title  to  raise  an  action  of 
divorce  (per  Ld.  Young,  p.  G.'IG).  From  the  opinions  expressed  and  the 
grounds  of  the  judgment,  it  would  apparently  make  no  diflerence  tliough 
the  lunatic  had  been  cognosced. 

As  these  actions  are  only  competent  to  spouses,  of  course  the  title  to 
sue  depends  on  the  subsistence  of  that  relationship.  It  follows  that  a 
declarator  of  nullity  of  marriage  is  good  defence  to  an  action  of  divorce,  aa 
obviously  a  bond  cannot  be  dissolved  which  never  existed  {C.  B.  v.  A.  li., 
12  11.  (H.  L.)  oG).  It  also  follows  that  a  spouse  who  has  been  divorced 
cannot,  after  that  decree  has  become  final,  raise  an  action  for  divorce 
against  the  pursuer  in  the  former  action.  But  until  the  decree  has  become 
final,  the  defender  may  raise  a  counter  action,  or  reclaim  in  the  first  action 
tliough  he  has  not  lodged  defences  (^V.s,  24  It.  1020). 

As  above  stated,  the  curator  of  an  insane  wife  cannot  sue  for  separation 
{Thomson,  14  R.  G34).  Further,  a  decree  of  separation  which  has  become 
final  cannot  be  recalled  at  the  instance  of  one  Sfiouse  {Strain,  17  II.  207). 

Another  action  may  be  mentioned  among  the  consistorial  actions — 
declarator  of  putting  to  silence.  This  may  be  resorted  to  when  a  person 
continually  declares  in  public  that  he  (or  she)  is  the  spouse  or  child  of  the 
pursuer.  The  reported  cases  are  few,  and  none  of  them  refer  to  title  to  sue. 
But  it  is  obvious  that  all  who  are  subjected  to  the  annoyance  of  having 
such  statements  made  about  them  must  have  a  title  to  sue,  and  no  others. 

{d)  Comjmny  Actions. — The  general  rule  is  that  the  title  to  sue  is  in  the 
company,  and  the  company  alone,  and  that  a  majority  of  the  shareludders  are 
entitled  to  determine  what  actions  shall  be  raised.  This  has  been  well 
settled  in  England  {Macdou(j(dl,  L.  E.  1  Ch.  D.  13  ;  Mozlcy,  1  Ph.  790 ;  Lord, 
2  Ph.  740 ;  Foss,  2  Hare,  461),  and  is  now  recognised  in  Scots  law  {Lee, 
17  E.  1094).  An  equally  well  settled  exception  is  that  where  a  contract  or 
other  act  of  the  company  amounts  to  a  fraud  by  a  majority  of  the  share- 
holders on  the  minority,  a  single  shareholder  who  has  been  thus  defiauded 
has  a  sufficient  title  to  sue  {ifixon,  16  E.  653;  ih.,  18  E.  264.  see  per  Ixl. 
Kincairney,  p.  271 ;  affd.  without  opinions,  20  E.  (IT.  L.)  53;  Hannay,  per 
Ld.  Low,  36  S.  L.  E.  228).  A  single  shareholder  may  also  challenge  an 
act  of  the  company  on  the  ground  that  it  is  not  only  ultra  vires  of  the 
directors,  but  of  the  company  as  sucli,  e.g.  if  a  railway  company  start  a  line 
of  steamers  without  having  power  under  their  Act  to  do  so  (per  Ld.  Kinnear 
in  Eixo7i,  16  E.  at  p.  655;  per  Ld.  Low  in  Smith,  4  S.  L.  T.  451).  But  a 
rival  shipowner  has  no  title  to  sue  even  on  that  ground  (per  T.d.  T.ow  in 
Cli/dc  Steam  Packet  Co.,  4  S.  L.  T.  450).  It  has  not  been  authoritatively 
decided  whether  a  private  shareholder  may  sue  on  the  ground  that  he  ha.s 
been  induced  to  take  shares  in  a  company  by  the  fraudulent  statement.^  "f 

the  promoter,  though  a  debenture-holder  or  other  person  who  has  hMit • 

to  the  company  on  these  representations  may  sue  {Dunnctt,  12  E.  4 

15  E.  131).     But  in  the  leading  case  of  Tulloch,  3  Macqucen,  783,  it  was 


278  TITLE  TO  SUE  AXD  DEFEND 

decided  that  a  single  shareholder  had  a  good  title  to  sue  the  representatives 
of  a  deceased  director  of  a  company  whose  false  and  fraudulent  representa- 
tions had  induced  the  pursuer  to  take  shares  in  the  company. 

The  cases  ijuoted  so  far  chielly  relate  to  what  has  been  called  the 
internal  atl'airs  of  the  company.  As  regards  actions  against  other  persons, 
the  rule  is  rigid  that  only  the  company  has  a  title  to  sue. 

The  li(piidator  of  a  company  cannot  sue  in  his  own  name,  but  must  use 
the  company's  name  (per  Ld.  Kincairney  in  Munro,  3  S.  L.  T.  413). 

(e)  Partnership  Actions. — A  firm  being  recognised  in  Scotland  as  a 
distinct  persona  in  law,  has  a  title  to  sue  as  such,  it  being  unnecessary  to 
give  the  names  of  the  partners  {Forsyth,  13  S.  42,  and  Douglas,  Heron,  &  Co., 
16  June  1792,  quoted  by  Ld.  Medwyn  at  p.  49).  And  an  action  instituted 
by  one  member  of  a  firm  in  the  name  of  the  firm  may  be  proceeded  with  in 
spite  of  a  disclaimer  lodged  by  another  partner  (per  Ld.  M'Laren  in  Kinnes, 
9  E.  698).  It  is  otherwise  where  the  name  of  the  firm  is  descriptive ;  such 
a  firm  cannot  sue  without  the  partners,  or  at  least  three  of  the  partners, 
being  named  {Cv.lcrevjjh  Cotton  Co.,  2  S.  41).  But  the  mandate  implied  in 
partnership  enables  the  name  of  an  absent  or  unwilling  partner  to  be  used 
without  specific  authority  {Antermony  Coal  Co.,  4  M.  1017).  Where  a 
partnership  is  dissolved  by  death,  the  surviving  partners  have  a  good  title 
to  sue  in  their  own  names ;  and  the  same  is  the  case  when  a  partnership  is 
dissolved  by  mutual  agreement,  and  one  partner  dies  before  the  affairs  are 
wound  up  {Nicoll,  5  It.  137).  Where  a  firm  would  have  had  a  title  to  sue 
an  action  of  removing,  as  possessing  the  radical  right  to  the  subjects,  though 
they  had  granted  a  disposition  ex  facie  absolute  but  really  in  security,  it  was 
held  that  the  sole  surviving  partner,  who  described  himself  as  trustee  for 
the  now  dissolved  firm,  had  no  title  to  sue  {Traill,  1  It.  61).  A  minority 
of  joint  adventurers  were  held  entitled  to  sue  another,  who  had  acted  as 
treasurer,  for  count,  reckoning,  and  payment  {Pypcr,  6  II.  143).  One  of 
several  owners  of  a  ship  may  call  on  the  sliip's-lmsband  to  account  for 
rebates  on  commissions  paid  by  him,  though  the  other  owners  object 
{Manners,  11  E.  899).  When  a  contract  of  copartnery  gave  an  option  to  the 
executors  of  a  deceased  partner  to  become  members  of  the  firm  in  his  place, 
held  that  one  executor  had  no  title  to  sue  for  implement  of  this  condition 
without  the  consent  of  the  other  executors  {Neilson,  12  E.  499 ;  reversed  on 
another  point,  13  E.  (H.  L.)  50).  A  business  was  carried  on  by  the  trustees 
of  a  deceased  partner,  who  owned  three-fourths  of  the  business,  and  the 
surviving  partner.  Held  that  the  trustees  collectively  constituted  one 
partner,  and  could  not  sue  in  the  name  of  the  company  without  consent  of 
the  other  partner  {Beveridye,  10  M.  (II.  L.)  1). 

Two  out  of  three  joint  proprietors  pro  indiciso  have  no  title  to  sue  a 
removing  without  the  authority  of  the  third  {Grozier,  9  M.  826).  But  one 
of  several  ^-'^'^  indiviso  proprietors  has  a  title  to  sue  to  prevent  encroachment 
on  the  subjects  {Laird,  9  M.  699).  Individual  lair-holders  in  a  cemetery 
have  a  title  to  sue  for  vindication  of  their  individual  rights,  but  not  for  tho 
rights  of  others  {Cunningham,  9  M.  869). 

(/)  Assi/j nations. — An  assignee  has  no  better  title  to  sue  than  his  author 
had  {Johnston  &  Wight,  15  February  1809,  F.  C.  ;  Scot.  JVidous'  Fund, 
3  E.  1078 ;  Simpson  &  Co.,  5  E.  (H.  L.)  40  ;  Edinlurgh  United  Breweries 
Ltd.,  20  E.  581).  The  extent  of  his  title  is  determined  by  the  terms  of 
the  assignation,  subject  to  the  ])0wers  of  the  cedent  {Glen,  5  S.  11  ; 
Macl-cazie,  3  S.  190 ;  "T^osc,  15  E.  336;  compare  Assets  Co.  Ltd.,  24  E.  418). 
The  purchaser  of  a  ship  sued  for  damages  sustained  by  tlie  ship  before  the 
date  of  the  purchase ;  after  the  summons  had  been  served  he  obtained  an 


TITLE  TO  SUK  AM)   hKlKND  279 

assi^uatiou  from  Ihc  seller  of  his  (the  .scllei'.s)  ri-ht:  If. hi  ih  ■ 

he  had  no  title  to  sue;  and  hi.s  title  being  utterly  h;id  ut  i 

commencement  of  the  action,  could  not  be  cured  by  an  u.sHi-niiiion  Hinc« 
that  date.  The  case  was  distinguished  fmm  that  of  a  person  who  lias  a 
substantial  right,  technically  incomplete  at  tiie  date  of  the  action,  v. '  '  ' 
may  be  corrected  at  any  time  before  extract  (Si/miiiijfon,  21  iJ.  i  ,, 
Compare  Dist.  Com.  of  the  Middle  Ward  of  Lanarh,  24  R.  ibu,  where  oj.ini..n« 
were  e.\[»resscd  that  one  of  two  joint  tenants,  being  the  person  with  llie 
substantial  right,  was  entitled  to  found  on  an  assignation  granted  bv  the 
oihav  pendente  processii  in  order  to  comjilete  the  pui'.',uer's  formal  title  to 
sue  (Doncdd,  5  M.  140,  per  Ld.  Ardmillan,  p.  152;  irds/i,  IV)  D.  4u4). 
Where  parties  entitled  to  assign  the  rights  under  a  i>atent  for  any  period 
nut  exceeding  five  years,  assigned  them  alisolutoly,  it  was  held  not  to  be  a 
good  objection  to  the  assignee's  title  to  sue,  icllhin  five  years  from  the  dale 
of  the  assignation  {Mrs.  Siddons,  3  S.  576). 

It  is  competent  for  an  assignee  to  carry  on  an  action  already  raised  l>y 
the  cedent  {Frascr,  IG  S.  1130),  or  to  raise  an  action  either  in  his  own  nam'* 
or  in  that  of  the  cedent  (ih.) ;  but  an  absolute  assignation  takes  away  tiie 
cedent's  own  right  to  sue.  An  assignation  in  security  leaves  the  radical 
right  in  the  cedent,  but  it  is  proper  that  he  should  have  the  consent  of  the 
assignee  to  sue  {Manson,  12  D.  775). 

(//)  Land  Riglds. — A  landowner  is  entitled  to  sue  any  action  retjuind 
for  the  protection  of  his  property  or  the  vindication  of  his  rights,  liut  it 
has  been  questioned  how  far  this  enables  one  ^?/v  indiviso  proprietor  of  a 
subject  which  has  been  let,  to  sue  for  the  rent  without  the  concurrence  of 
the  other  proprietor  (ScJiaw,  16  II.  330).  A  heritable  creditor  who  has 
entered  into  possession  of  the  subjects  by  the  usual  process  of  a  ilecrce  of 
niaills  and  duties,  has  a  good  title  to  sequestrate  for  rent  liie  goods  of  any 
one  subsequently  occupying  as  tenant,  although  he  was  not  called  in  the 
action  of  niaills  and  duties  (liohcrf son's  Trs.,  16  1{.  705).  The  a  '  •  of  a 
tenant  at  will  has  no  title  to  sue  an  action  of  removing  ngainsl  <,•  u  uant 
{Sinclair,  14  E.  792;  cf.  Dunlop  &  Co.,  4  li.  11).  A  party  to  a  lease 
admittedly  in  existence  lias  always  a  good  title  to  sue  for  declaration  of 
its  validity,  though  the  lease  eventually  turn  out  to  be  bad  {Abbot,  8  M. 
268).  The  tenant  of  a  mill  was  held  to  have  a  title  to  sue  an  action  in  the 
.Sheriff  Court  for  abstracted  multures  though  it  involved  a  question  as  to  the 
extent  of  the  thirl  {Stohbs,  11  M.  530).  A  proprietor  has  a  title  to  sue  for 
interdict  against  a  nuisance  which  is  injuring  either  the  amenitv  or  the 
value  of  his  property  {Shotts  Iron  Co.,  9  R  (H.  L.)  78  ;  Monrrirffe,  13  K.  021). 
To  stop  the  pollution  of  a  river,  several  proprietors  may  in  one  action  sue 
several  defenders  {Cowan  &  So7is,  4  U.  (H.  L.)  14).  Where  the  payment  of 
rent  is  postponed  to  a  period  subsequent  to  the  possession,  the  landlord  in 
possession  at  the  date  when  it  becomes  payable  is  the  proper  person  to  sue 
for  the  rent,  though  he  mav  have  to  account  for  it,  when  recov-i.-d  i.i  flii- 
executor  of  his  predecessor  {Lennox,  21  Ii.  77). 

A  superior  has  no  title  to  sue  an  action  of  maills  and  duties  for  recoveiy 
of  his  ien-dnty  {FrKdcjUial  Assurajice  Co.,  11  IJ.  871);  nor  has  a  i)erson  wlio 
has  divested  himself  of  a  superiority  any  title  to  sue  an  action  of  poinding 
of  the  ground  for  recovery  of  arrears  of 'fcu-duties  due  to  him  wiiile  be  wjis 
superior  {Scottish  Hcritarjcs  Co.,  12  E.  550).  Wliere  a  superior  had  rc.<'umed 
possession  of  the  dominium  utile  under  a  decree  of  irritancy  ob  i 

canonem,  he  had  no  title  to  insist  in  a  statutory  claim  for  conipen-,.;        •     :;i 
a  railway  company  for  damage  done  while  the  va-sal  was  still  in  }>  a 

{Caledonian  Eaihcay  Co.,  2  E.  917).     Where  a  vassal  has  no  right  to  enforce 


280  TITLE  TO  SUE  AND  DEFEND 

restrictions  against  his  co-feuars,  the  concurrence  of  the  superior  will  not 
give  him  a  title  (Hislojy,  8  E.  (H.  L.)  95;  cf.  Martin,  21  E.  759,  where  a 
party  concurring  with  the  pursuer  was  held  not  entitled  to  reclaim). 

(h)  Cases  in  icliich  Concurrence  of  Croicn  or  Procurator-Fiscal  required. — 
To  enable  a  private  party  to  sue  for  the  infliction  of  penalties,  not  merely 
the  recovery  of  damages,  the  concurrence  of  the  Lord  Advocate  is  necessary 
{Pafcrson,  11  M.  76;  Usher  &  Cunninr/ham,  1  D.  639  ;  D.  of  Northumherlancl, 
10  S.  366).  Prosecutions  and  complaints  under  the  Merchant  Shipping  Act, 
1894  (57  &  oS  Vict.  c.  60,  s.  703,  re-enacting  M.  S.  Act,  1854,  s.  531),  may 
be  brought  before  a  Sheriff  or  two  Justices  of  the  Peace  at  the  instance  of 
the  person  aggrieved,  with  concurrence  of  procurator-fiscal ;  such  concur- 
rence must  be  given  before  service  {Lunelle,  21  E.  (J.  C.)  33). 

In  ordinary  cases  the  concurrence  of  the  Lord  Advocate  is  given  as  a 
matter  of  course  ;  but  in  petitions  for  the  reduction  of  letters-patent,  he  must 
consider  the  case  before  giving  his  consent  {Gillespie,  23  D.  1357). 

In  actions  for  contravention  of  lawburrows,  the  Lord  Advocate  must  be 
a  joint  pursuer,  as  one-half  of  the  penalty  goes  to  the  Crown  {Rohertson,  11 
M.  910,  per.  Ld.  Pres.  Inglis). 

In  proceedings  for  fraudulent  bankruptcy,  the  Lord  Advocate's  concur- 
rence is  necessary,  as  the  consequences  are  penal  {Darly,  M.  7907).  But  the 
Court  can  punish  incidentally  any  perjury  or  prevarication  committed  in 
the  course  of  a  process  depending  before  them,  these  crimes  being  of  the 
nature  of  contempt  of  Court  {ih.).    See  Sequestration. 

In  all  actions  for  or  against  the  Crown,  the  Lord  Advocate  has  the  title 
to  sue  or  defend. 

(?)  Miscellaneous. — Two  persons  raised  an  action  on  a  letter  in  which 
the  defender  undertook  to  pay  to  them  equally  the  profit  made  by  him  on 
certain  contracts.  After  the  action  was  raised,  one  of  the  pursuers  became 
bankrupt,  but  it  was  held  that  the  other  pursuer  had  a  good  title  to  insist  in 
the  action,  restricting  the  conclusions  to  one-half  of  the  profit  made  {Shaw, 
20  E.  718). 

A  person  who  is  merely  a  consenter  to  an  action  has  no  title  to  reclaim 
against  an  interlocutor  pronounced  in  the  case  {Martin,  21  E.  759). 

A  female  pauper  has  a  title  to  sue  for  the  aliment  of  an  illegitimate  child, 
though  the  parochial  board  is  the  true  dominus  litis  {Hephurn,  1  E.  875). 

11.  Title  to  Defend. 

Whoever  is  called  as  a  defender  is  entitled  to  defend  the  action  {Pollock, 
5  S.  195  ;  Drummond,  3  S.  315,  per  Ld.  Pres.  Hope).  But  when  a  person  called 
as  defender  is  mentally  weak,  the  trustees  in  whom  his  property  is  vested 
have  no  title  to  lodge  defences,  not  being  themselves  called  {Lindsay,  5  D. 
1194).  "When  a  defender  died  ^)e9u?c/i('c  proccssu,  persons  alleging  that  they 
had  been  appointed  his  trustees  under  a  will  which  had  gone  amissing,  were 
held  not  entitled  to  be  sisted  as  defenders  in  bis  place  until  they  proved  the 
existence  of  the  missing  document  in  an  action  of  proving  the  tenor  {Geikic, 
10  D.  354). 

In  general,  parties  who  can  only  sue  through  anotlier,  or  with  the  aid  of 
another,  as  pupils,  minors,  wives  under  coverture,  etc.  (see  supra),  must  be 
called  in  the  same  way.  liut  the  person  who  sues  through  his  tutors  is 
usually  called  as  defender,  and  also  his  tutors  by  name  if  they  are  known, 
but  if  not,  by  the  general  designation  of  his  "tutors  and  curators  if  he  any 
have."  It  is  incompetent  to  call  a  factor  or  curator  for  a  fatuous  person 
without  calling  the  fatuous  person  himself  as  principal  defender  {Govan,  20 
Dec.  1814.  F.  C). 


TOWN  L'LKIIK  281 

111  actions  against  a  nKirried  woman,  litr  husljand  mu^'  ^        ^'    '      • 
"  as  her  curator  and  adiiiinistrator-in-law  "  or  "  for  liis  int.  ! 

6080;  Clark,  1  S.  Jur.  302).  I'.ut  if  the  wife  bo  jmUcially  separati-d.  ). 
protection  under  the  Conjui,'al  JJi.i,dits  (Scotland)  Act,  18G1  {'1\  k  'll  Vin. 
c.  80),  or  carries  on  a  separate  l)usiness  to  which  the  action  relalcM,  it  i  ■  • 
necessary  to  call  the  husband.  The  same  i)iiMciitle  would  appear  to  n 
it  unnecessary  to  call  the  Inisband  in  actions  relatin;;  to  property  from 
which  his  jus  mariti  is  excluded,  as  the  wife  may  sue  such  actions  without 
the  husband's  consent  (see  svjna);  but  in  practice  it  is  safer  to  (    "  '  '   i. 

If  a  woman  who  is  defender  in  an  action  marry  ])niilcn.(r  ;-  ,  1.  r 

husband  must  be  sisted  as  a  defender  (Fiaser  on  Ilushand  and  \\',fi   i  . 
Ersk.  i.  6.  21). 

"Where  a  wife  has  an  interest  to  defend  a  suit  indepondt-nllv  of  hi-r 
husband,  and  her  husband  refuses  to  appear,  the  Court  will  appoint  a 
curator  ad  litem  to  her  (Fraser,  H.  &  W.  p.  582,  quoting  M'Kemie,  9  S.  31. 
which  relates  to  title  to  sue). 

A  heritable  creditor  has  both  title  and  interest  to  defend  an  action  of 
poinding  of  the  ground  {Scottish  Hcritajcs  Co.  Ltd.,  12  K.  or)0,  per  Ld. 
Adam,  Ordinary,  and  Ld.  Shand). 

Where  a  patentee  brought  a  suspension  and  interdict  for  infringement  of 
the  patent,  and  no  appearance  was  made  for  the  parties  called  as  respon- 
dents, it  was  held  tluit  a  third  party  could  not  sist  hini.self  as  defender  on 
the  allegation  that  the  machine  really  l^elonged  to  hiiu  and  was  not  an 
infringement.  Ld.  Shand  dissented,  holding  that  the  minuter  had  the  real 
interest  in  the  case  {Laing's  Sewing  Machine  Co.,  5  R.  29).  The  princij>le 
that  the  person  having  the  real  interest  to  defend  is  entitled  to  be  sisted, 
was  given  effect  to  in  Glasgov:  Shipowners'  Aiisociation,  12  IJ.  09."). 

Magistrates  are  entitled  to  defend  the  rights  of  the  public  to  the  fore- 
shore {Keillcr,  14  E.  191). 

A  neighbouring  proprietor  has  a  right  to  be  sisted  as  a  respondent  lu  a 
petition  in  the  Dean  of  Guild  Court  for  authority  to  erect  new  buildings, 
although  his  property  was  not  contiguous  to  the  petitioner's  {Laicrit,  18  K. 
1154;  cf.  Scott,  l^  E.  895). 

A  bondhohler  hns  no  title  to  defend  an  action  for  reduction  nf  an  agree- 
ment by  the  borrower,  to  which  the  bondholder  was  not  a  party,  and  by 
which  she  was  not  bound  {Heron,  20  1\.  1001). 

A  debtor  has  neither  title  nor  interest  to  defend  an  action  of  maills  and 
duties  on  the  ground  that  the  pursuer's  title  was  an  a.ssignation  by  the 
debtor,  which  the  debtor  now  alleged  was  insuHicient  to  warrant  the  action 
{Schaw,  IG  E.  336). 

The  debtor  under  an  obligation  to  pay  an  annuity  was  sued  by  the 
person  who  by  adjudication  had  acquired  the  right  to  receive  the  annuity. 
The  debtor  objected,  on  the  ground  that  the  del)t  in  respect  (.f  which  the 
annuities  had  been  adjudged  was  long  ago  extinguished.  Held  he  had  no 
title  to  maintain  that  plea  {Macleod's  Trustees,  18  E.  831). 

Town  Clerk.— The  town  clerk  is,  as  the  designation  practically 
implies,  the  clerk  to  the  corporate  body  of  the  town  or  burgh  for  which  he 
is  appointed. 

EoYAL  ryURGns.—QualiJiccdions.—Tho  (pialifications  necessary  f.T  tlie 
office  are  not  authoritatively  laid  down  either  by  the  common  luv  or 
statute,  but  as  in  former  times  he  had  the  duty  laid  upon  him  of  acting  as 
Notary  in  all  infeftments  granted  of  burgage  property  within  the  burgh  it 
M-as  necessary  at  least  that  he  should  be  a  Notary  Eublic.     Tiiough  this 


2S2  TOWN   rLKllK 

practice  has  been  s^Yept  away  by  legislation,  the  town  clerk  has  still  very 
important  duties  to  the  community,  and  even  to  the  State,  to  discharge,  and 
it  is  therefore  necessary  that  he  should  be  a  Notary  Public,  as  he  may  have 
protests  to  take,  record,  and  extend,  and  by  prelerence  he  should  be  a  duly 
qualified  Law  Agent. 

Diqualijications. — Tlie  town  clerk  cannot  at  common  law  hold  office  as 
such,  and  at  the  same  time  also  as  a  magistrate  and  councillor  (J/it/i?-o  v. 
Forbes,  21st  July  1784;  aftVl.  3rd  May  1785,  3  Pat.  23).  In  Dvumlanrvj,  loth 
January  1624,  M.  13089  and  2509,  a  charge  given  to  the  town  clerk  along 
with  the  magistrates  to  implement  the  town's  obligations  was  suspended 
as  against  the  clerk  but  sustained  as  against  the  magistrates.  By  sec.  28 
of  3  &  4  Will.  IV.  c.  76  it  is  enacted  that  no  councillor  nor  the  partner  in 
business  of  any  councillor  shall  be  capable  of  holding  the  office  of  town 
clerk  in  any  such  burgh,  and  no  town  clerk  shall,  during  the  period  he  shall 
hold  that  office,  interfere  directly  or  indirectly  in  the  election  of  the  magis- 
trates or  town  council  of  any  such  burgh.  By  sec.  36  of  2  &  3  Will.  iv. 
c.  65,  town  clerks  and  town  clerks-depute  are  disqualified  from  exercising  the 
franchise  in  burgh  elections. 

Xeither  the  clerk  of  a  Burgh  Court  nor  any  of  his  deputes  can  act 
directly  or  indirectly  as  procurators  in  that  Court;  and  if  they  do,  the 
proceedings  will  be  invalid  even  though  the  opposite  party  consent  to  waive 
tlie  objection,  as  private  consent  cannot  make  lawful  what  the  public  law 
has  declared  to  be  unlawful  (A.  S.,  12th  Nov.  1823,  part  11,  c.  6,  s.  2 ;  see 
also  A.  V.  B.,  14th  February  1740,Bruun's  Sup.  p.  693  ;  A.  S.,  lOtli  July  1839, 
s.  160  ;  Cellon  v.  Duff,  11th  February  1809, 15  J.  C.  101 ;  Smith  v.  Bohcrtson, 
27tli  June  1S27,  5  S.  848).  Nor  can  the  clerk  be  pursuer  in  the  Court  of 
which  he  is  clerk  {Camplell  v.  JWCoivaoi,  10th  July  1824, 3  S.  173  ;  Macfarlane, 
V.  A.  B.  {CamjjhcU),  6th  March  1827,  5  S.  537  (K  E.  504) ;  affd.  8th  April 
1830,  4  W.  &  S.  123),  nor  act  as  clerk  of  Court  in  any  lawsuits  in  which 
he  is  personally  interested  {Manson  v.  Smith,  8th  February  1871,  9  M.  492  ; 
MacBeth  v.  Jarvis,  8th  February  1873,  11  M.  404). 

Appointment. — The  appointment  of  the  town  clerk  has  by  immemorial 
usage  rested  with  the  magistrates  and  council.  No  special  mode  of  election 
is  prescribed,  and  the  Act  3  &  4  Will.  iv.  c.  76  does  not  make  any  pro- 
vision as  to  this.  The  election  of  a  town  clerk,  therefore,  must  be  made  in 
the  same  manner  as  the  election  of  any  other  officer  of  the  corporation. 
He  must  be  appointed  at  a  duly  called  and  constituted  meeting  of  the 
magistrates  and  council.  Where  there  is  a  competition  for  the  office,  he 
must  be  elected  by  a  majority  of  the  members  present.  If  there  be  only 
two  candidates,  the  majority  will  be  easily  ascertained  ;  but  if  there  be  three 
or  more,  "  the  proper  form  of  taking  the  vote  is  to  strike  off  the  candidate 
who  has  the  fewest  votes,  and  to  follow  out  this  course  until  no  more  than 
two  remain,  the  vote  between  whom  will  be  decisive"  (Ld.  Ptutherfurd 
Clark,  quoted  Campbell  Irons,  Bolice  Lmv,  p.  74).  If  there  be  a  motion  for 
adjournment,  this  must  not  be  met  with  a  motion  to  elect  one  candidate,  but 
by  a  direct  negative  to  proceed  (Gibson  v.  Kerr,  20th  December  1856,  19  D. 
261).  In  lliis  case  Ld.  Ivory  said  :  "You  must  so  manage  that  each  indivi- 
dual c<juncillur  may  give  his  vote  for  the  one  candidate  or  the  other  as  he 
pleases ;  and,  further,  you  are  not  to  mix  up  the  voting  for  an  election  with 
the  voting  for  an  adjournment."  A  vote  by  ballot  seems  to  be  illegal  ( Wat- 
son v.  Glasf/oio  Bolice  Covrmissioncrs,  10th  IMarch  1832,  10  S.  481,  7  F.  370). 

Tenure. — Tiie  town  clerk,being  duly  elected, holds  his  office  by  legal  title  ad 
vitam  ant  culpam,  and  is  not  re  moveable  therefrom,  except  on  just  cause,  even 
though  the  terms  of  his  appointment  bear  to  be  "  during  the  pleasure  of  the 


TOWN  CLKItK  :•  ; 

council"  (Simpson  v.  7\></(/,  ITlh  June  1.S21,  3  S.  loO,  N.  K.  IOl';,  ui  i  • 
l)eriod  uf  years,  though  the  luria  staU-d  may  have  o.\i»irtd  {Farisk  v.  M 
of  Annan,  22iid  Novciul)cr  183G,  15  S.  107,  12  T.  115;  alld.  lUh  .1    .. 
1837,  2  S.  &  M'L.  930).     Tlie  inagi,strale.s  and  council  cannot  annex  any 
conditions  to  the  ajipointnient  whicli  are  illegal  or  nltra  vires.     The  town 
clerk,  not  being  tlie  mere  servant  ui'  the  tuwn  council,  hut  a  public-  onicer. 
whatever  be  the  terms  of  his  appointment,  is  not  liable  to  be  aibitrarily 
removed  nor  summarily  dismissed  from  his  ollice  without  proper  pro.c.'-.s  of 
law  {Si)n2)soii  v.  Todd;  Farish  v.  Mmj^i.  of  Annan,  supra). 

Where  the  otlice  of  town  clerk  is  held  l)y  one  or  more  persons  \su< 
able  and  willing  to  perform  the  duties,  the  town  council  is  notenliil' 
without  the  consent  ot  the  holder  or  holders,  to  appoint  an  additional  lowu 
clerk.  Even  where  the  oflice  is  held  by  two  persons  under  an  appointn  •• 
"  to  be  conjunct  common  clerks  in  terms  of  law,"  and  one  has  died  but  liii- 
other  is  able  and  willing  to  perform  the  duties,  the  town  council  do  not 
appear  to  be  entitled  to  appoint  a  second  town  clerk  without  the  consent 
of  the  survivor  {.Vags.  of  Forfar  v.  AJam,  14th  ^lay  1822,  1  S.  400  ; 
7th  March  1823,  2  S.  281  (N.  E.  248)). 

It  is  very  doubtful  whetlier  the  town  council  can  competently  appoint 
an  interim  clerk,  even  for  the  purpose  of  officiating  in  matters  in  which  the 
town  clerk  cannot  act,  or  grant  authority  to  any  other  person  to  jjcrforni  such 
duties.  When  it  becomes  necessary  to  api)oint  an  interim  ck-rk  or  other 
person  to  peri'oim  duties  which  the  town  clerk  cannot  lawfully  jterform 
{Duffx.  Macjs.  of  Elgin,  16th  January  1823,  2  S.  117  (N.  E.  100) ;  Talt,  20ih 
June  1848,  10  D.  1365),  or  during  the  incapacity  of  a  town  clerk  {Mags,  of 
Kewljurgh,  29th  November  1864,  3  M.  127),  or  if  a  vacancy  in  the  oflice  occur 
whereby  a  town  council  is  unable  to  elect  a  town  clerk  ]jernianently,  the 
proper  course  is  to  apply  to  the  Court  of  Session,  which  will  make  the 
necessary  appointment  on  just  cause  being  shown.  Where  proceedincs  are 
actually  in  dependence,  however,  with  reference  to  the  office,  as  p' 
and  exercised  by  a  person  elected  and  holding  a  prima  facie  title  t"  n,  inc 
Couit  will  not  interfere  with  the  person  in  possession  {Mags,  of  Annan  v. 
Fari.^h,  5th  December  1835,  14  S.  Ill,  2  S.  &  M'L.  930). 

The  town  clerk  is  the  legal  and  proper  custodier  of  the  records  of  the 
council  of  the  burgh,  as  well  as  of  charters,  writs,  and  other  documents 
relating  to  the  burgh.  If,  therefore,  the  magistrates  and  council,  or  any  of 
them,  take  or  retain  possession  of  these  documents  and  records,  they  will 
not  only  be  ordained  to  deliver  such  to  the  town  clerk,  but  will  Ix-  found 
personally  liable  for  the  expenses  to  which  he  may  be  put  in  vindicating 
his  rights  (Spcncc  v.  Cunningham  and  Cunnimiham  v.  Magistrates  and 
Council  of  Linlitluio'w,  6th  July  1830,  8  S.  1013  ;  'Bo\jd  v.  Cunningham,  20th 
November  1832,  il  S.  58  ;  Finnic  v.  M'Iniosh,  15th  July  1858,  G  M.  1066). 
The  town  clerk  is  bound  to  furnish  extracts  from  the  records  to  pcr- 
showing  a  proper  interest;  and  if  he  refuse  or  fail  to  do  so,  he  is  li...  .^ 
personally  in  expenses,  even  though  his  failure  arise  from  the  refusal  of  the 
magistrates  and  council  to  give  him  possession  of  the  records ;  but  in  that 
case  he  is  entitled  to  relief  against  those  who  have  illegally  retainetl  them 
(Tody.  Connolli/,  17th  June  1824,  3  S.  153  (N.  E.  103);  Fothcringhain  v. 
Williamson,  0th  March  1838,  16  S.  904  ;  Spencc  v.  Cunningham,  Gth  Julv 
1830,  8  S.  1015).  The  extracts  must  be  complete  excerpts  from  the  record 
of  proceedings  of  the  town  council  relating  to  the  specilic  matter,  and  not 
merely  such  parts  or  portions  as  the  town  clerk  may  think  i«roper.  If  the 
object  of  requiring  extracts  be  avowedly  for  a  jirivate  purpo.se,  and  to  aid 
one  of  the  parties  m  a  lawsuit,  the  clerk  may  be  justified  in  dechnmg  to  give 


284  TOWN  CLERK 

them  (Fotheririgham  v.  WiUiamson,  supra).  A  town  clerk  is  not  bound  at 
the  instance  of  a  litigant  to  produce  the  Burgh  Court  books  in  process,  as 
parties  having  right,  who  wish  to  examine  these,  are  bound  and  entitled  to 
iusjieet  tiiem  at  the  burgh  cliambers,  and  obtain  the  necessary  extracts. 
Generally,  however,  unless  the  town  clerk  has  good  reason  to  apprehend  that 
the  public  interest  would  suffer  by  giving  access  to  the  records  and  furnish- 
ing extracts,  it  is  the  prudent  and  proper  course  for  him  to  afford  such  access, 
and  give  whatever  extracts  may  be  required.  He  is  entitled  to  be  paid  for 
such  extracts,  and  reasonable  remuneration  for  searching  the  minutes  therefor. 

If  the  town  clerk  has  been  provided  with  apartments  or  chambers  in 
the  town  house  of  the  burgh  for  the  performance  of  his  official  duties,  it  is 
incompetent  for  the  magistrates  to  proceed,  by  way  of  summary  removing 
before  the  Sheriff,  to  deprive  him  of  the  apartments  he  is  occupying  {Mags, 
of  Dundee  v.  Kerr,  6th  December  1833,  12  S.  1739,  F.  124).  Even  where  a 
town  hall  was  erected,  partly  by  public  subscription  and  partly  by  funds 
contributed  by  the  town  council,  on  a  site  provided  by  the  council,  with 
a  view  to  accommodation  being  made  for  all  the  purposes  of  the  burgh, 
and  the  plans  referred  to  "  two  rooms  for  town  clerk's  offices,"  it  was  held 
that  the  town  clerk  was  entitled,  free  of  rent,  to  such  accommodation  as 
could  reasonably  be  afforded  him  consistently  with  other  public  require- 
ments {Downic  V.  Mags,  of  Annan,  7th  January  1879,  6  Pi.  457). 

Duties. — The  town  clerk  is  the  clerk  of  the  corporation,  and,  generally 
speaking,  must  do  what  the  corporate  body  orders  him  to  do,  but  not  extra 
professional  duties  which  any  other  person  equally  with  the  town  clerk 
might  perform.  He  is  bound  to  attend  all  the  meetings  of  the  town  council 
in  its  corporate  capacity,  and  to  write  out  the  minutes  and  keep  the  records 
of  the  town  council ;  and,  in  the  same  manner,  he  must  attend,  as  clerk  to 
the  Burgh  Court,  when  the  bailies  are  performing  their  judicial  functions  as 
judges  of  that  Court,  and  must  wTite  out  their  judgments.  It  does  not  seem 
to  be  part  of  the  duty  that  he  can  insist  on  performing,  or  be  compelled  to 
perform,  to  act  as  assessor.  When  he  is  called  on  in  the  administration  of 
the  affairs  of  the  burgh  to  act  as  notary  or  agent,  a  duty  which  any  other 
professional  man  might  perform,  that  is  out  of  the  official  department,  and 
he  then  becomes  the  agent  for  the  burgh,  and  is  entitled  to  be  remunerated 
as  such  {Fortes  v.  Mags,  of  Banff,  23rd  February  and  Sth  July  1856,  18  D. 
645,  1210). 

The  town  clerk  has,  besides,  other  and  onerous  duties  to  perform,  imposed 
upon  him  both  by  the  common  law  and  statute,  too  numerous  to  specify. 

Removal  from  Office.- — The  appointmentbeingar/  ritam  aut  cul23am,the  town 
clerk  cannot  be  removed  except  for  culjja  or  incapacity.  In  Sir  William 
Thomson  v.  The  Toivn  of  Edinhiirgh,  14th  February  16G5,  j\f.  13090,  the  town 
clerk  sought  to  have  the  act  of  deposition  reduced,  on  the  ground  that  the 
punishment  was  incommensurate  with  the  fault,  and  that  no  real  damage  had 
resulted.  The  Court  repelled  the  reasons  of  reduction,  and  found  the  sentence 
not  to  be  unjust,  the  fault  being  of  "  knowledge  and  importance,"  but  found 
that  if  it  could  be  proved  tliat  the  fault  "was  not  of  knowledge  but  of  mere 
omission  incident  to  any  person  of  the  greatest  diligence,  they  would  not  find 
that  a  sufficient  ground  to  depose  him."  It  is  not  clear  that  a  town  clerk 
can  be  removed  from  his  office  on  the  ground  of  incapacity.  In  Wright  v. 
Lockerbie,  1st  July  1876,  not  reported  (Campbell  Irons,  Police  Law,  p.  797), 
Ld.  IJutherfurd  Clark  indicates  an  opinion  that  the  town  clerk  of  a  royal 
burgh  cannot  hold  his  office  when  he  becomes  incax)acitated ;  but  all  the 
length  the  Court  has  yet  gone  in  such  a  case  was  to  appoint  an  interim 
town  clerk  during  the  incapacity  of  the  town  clerk  on  the  petition  of  the 


TltADE,  l;(lAin)  OF  - 

magistrates  (Mui/s.  of  Newhurr/h,  29lli  X.jvenibiT  1...,,,  ..  .\i  ,_,^.  i,, 
several  of  the  larger  Imrghs  the  oflice  of  town  clerk  is  n-gulute.l  l.v  -:t:.tut.. 
applicable  to  the  burgh. 

rAKLiAMKNTAUV  Duiaais. — Tuwii  tlurks  of  parhaiiicntary  burghH  are  in 
much  the  same  })usitiun  as  these  of  royal  burghs,  with  tin-  exception  of  *' 
tenure  of  ollice.    With  regard  to  this,  sec.  2G  of  :j  &  4  Will.  iv.  c.  77  prov.  .■ 
that  the  magistrates  and  council  may  elect  a  town  clerk  for  the  i>eri<xl  of 
one  year,  without  prejudice  to  his  re-election,  and  also  without  ])reju<iice  to 
the  riglit  of  any  existing  town  clerk  in  any  such  burgh  to  hold  his  «  "         ' 
town  clerk  or  clerk  to  the  magislrates  and  council  ad  rituvi  nut, 
With  the  exception,  therefore,  of  clerks  who  may  have  been  appointed  ml 
vitam  aut  culjxiin  prior  to  the  passing  of  this  Act,  all  other  town  clerks  of 
parliamentary  burghs  can  only  be  ai)pointed  for  one  year.     Iiuk-cd,  ih«! 
magistrates  and  council  have  no  lawful  power  to  elect  for  any  other  perit^l 
(Di/kcs  V.   The  Mags,  of  Fort  Glasgow,  2nd  July  1849,  2  D.  1274,  13  Y. 
1388 ;  Morrison  v.  The  Mags,  of  Greenock,  27th  May  180G,  referred  to  by 
Ld.  IMoncreiff  in  Dykes  case;   Anderson  v.  Hanay,  11th  ]March  1837,  15 
S.  875,  12  ,J.  783). 

Burghs  of  Eegality  and  Barony. — The  clerk  to  a  burgh  of  barony  or 
regality  holds  his  office  during  the  pleasure  of  the  magistrates  only,  and 
has  no  right  to  liold  it  ad  vitam  aut  cidpam  (Morrison  v.  The  Mags,  of 
Greenock,  27th  ]\lay  1806,  supra),  and  it  does  not  alter  tlie  condition  of  his 
tenure  though  the  burgh  may  have  become  a  parliamentary  burgh  {Dykes  v. 
Mags,  of  Port  Glasgoiv,  2nd  July  1840,  2812,  V.  4,  15,  1388). 

Trade,  Board  of. — The  Board  of  Trade  was  originally,  and  is 
still  in  theory,  a  committee  of  the  I'rivy  Council  But  the  Ilarlnjurs  and 
Passing  Tolls,  etc..  Act,  1861  (24  &  25  Vict.  c.  47,  s.  65),  enacta  that  "The 
Lords  of  the  Committee  of  Privy  Council  appointed  for  the  consideration 
of  matters  relating  to  trade  and  foreign  plantations  may  be  deseribed  in 
all  Acts  of  Parliament,  deeds,  contracts,  and  other  instruments  by  the 
official  title  of  the  Board  of  Trade,  without  expressing  their  names ;  and 
all  Acts  of  Parliament,  contracts,  deeds,  and  other  instruments  wherein 
they  are  so  described,  shall  be  as  valid  as  if  the  said  Lords,  or  any  of 
them,  had  been  named  therein."  The  Board  of  Trade  really  con.'^ists  of  a 
president  (who  is  usually  a  member  of  the  Cabinet),  a  parliamentary 
secretary  (ai)pointed  in  virtue  of  30  &  31  Vict.  c.  72),  and  a  permanent 
secretary  and  staff,  but  the  president  is  still  in  theory  the  president  of  a 
committee  of  the  Privy  Council  for  Trade,  and  on  accepting  oflice  takes 
the  oath  in  that  capacity,  though  any  such  committee  has  long  ago  ceased 
to  exist  for  any  practical  purpose.  The  section  of  the  Act  quoted  above 
show^s  that  the  Board  of  Trade  was  originally  a  committee  "a]>pointed  for 
the  consideration  of  matters  relating  to  trade  and  foreign  iilantalions,"  and 
its  duties  were  confined  to  collecting  and  tabulating  information  on 
commercial  subjects,  to  advising  the  Poreign  Oflice  as  to  commercial 
treaties  with  foreign  States,  and  generally  to  assisting  all  the  deixirtments 
of  State  in  matters  relating  to  trade  and  conmicrce,  both  by  tlie  collcc'-  •• 
of  information  and  by  consulting  and  advising  thereon.  One  of  its  i; 
important  duties  was  estimating  the  food  supply  of  the  country  and 
regulating  accordingly  the  export  and  import  of  corn.  But  since  1840,  the 
duties  of  the  Board  have  been  executive  and  administrative  rather  than 
consultative.  Owing  to  the  institution  of  railways  and  steamships,  there 
arose  a  necessity  for  some  State  department  charged  esi»ecially  with  the 
supervision  of  the  safety  of  the  public  travelling  by  land  or  sea  and  of 


2SG  TKADE,  BOAliD  OF 

railway  servants  and  sailors.  This  important  work  naturally  fell  to  the 
Board  "of  Trade,  and  their  duties  under  various  Acts  of  Parliament  have 
increased  to  such  an  extent  as  to  necessitate  division  amongst  seven 
ditierent  departments,  which  are  distinct  from  each  other,  but  for  all  of 
whicli  the  president  and  parliamentary  secretary  are  responsible.     These 

are — 

I.  Tlie  Statistical  and  Com-  IV.  The  Harbour  Department. 

mercial  Department.  V.  The  Finance  Department. 

II.  The  Riiilway  Department.  VI.  The  Fisheries  Department. 

III.  The  Marine  Department.  VII.  The  Bankru])tcy  Department. 

I.  The  following  Acts  affect  the  powers  and  duties  of  the  Statistical  and 
Commercial  Department : — 

The  Cotton  Statistics  Act,  18G8  (31  &  32  Vict.  c.  33).  This  Act  provides 
for  the  collection  and  publication  of  cotton  statistics  by  the  Board  of  Trade. 

The  Eegulation  of  Puiilways  Act,  1871  (34  &  35  Vict.  c.  78).  Sec.  9  of 
this  Act  provides  that  every  railway  company  shall  annually  prepare 
returns  of  their  capital,  traffic,  and  working  expenditure  for  the  year,  and 
forward  the  same  to  the  Board  of  Trade. 

The  Conciliation  Act,  1896  (59  &  60  Vict.  c.  30).  This  Act  makes 
provision  for  the  institution  of  Boards  of  Conciliation  and  for  the  assistance 
of  the  Board  of  Trade  in  endeavouring  to  prevent  and  settle  disputes 
between  employers  and  workmen. 

The  Statistical  and  Commercial  Department  also  prepare  annual 
statistics  of  shipping  and  navigation,  and  as  to  railways,  labour,  emigration, 
trade  unions,  etc.,  and  collect  information  on  any  subject  required  by  the 
Government  or  by  Parliament. 

II.  The  following  Acts  affect  the  powers  and  duties  of  the  Railway 
Department : — 

The  Railway  Eegulation  Act,  1840  (3  &  4  Vict.  c.  97). 

The  Abandonment  of  Eailways  Act,  1850  (13  &  14  Vict.  c.  85). 

"  An  Act  to  repeal  the  Act  for  constituting  Commissioners  of  Eailways, 
1851 "  (14  &  15  Vict.  c.  64). 

The  Eailway  and  Canal  Traffic  Act,  1854  (17  &  18  Vict.  c.  31). 

An  Act  to  amend  the  law  relating  to  cheap  trains,  etc.,  1858  (21  &  22 
Vict.  c.  75). 

Tlie  Eailway  Companies  Arbitration  Act,  1859  (22  &  23  Vict.  c.  59). 

The  Companies  Act,  1862,  "an  Act  for  the  incorporation,  regulation, 
and  winding  up  of  companies  "  (25  &  26  Vict.  c.  89). 

The  Eevenue  Act,  1863  (26  &  27  Vict.  c.  33),  s.  14. 

The  Eailway  Clauses  Act,  1863  (26  &  27  Vict.  c.  92). 

The  Companies  Clauses  Act,  1863  (26  &  27  Vict.  c.  118). 

The  Eailway  Companies  Powers  Act,  1864  (27  &  28  Vict.  c.  120). 

The  Eailway  Construction  Facilities  Act,  1864  (27  &  28  Vict.  c.  121). 

The  Eailway  Companies  Securities  Act,  1866  (29  &  30  Vict.  c.  108). 

The  Eailway  Companies  (Scotland)  Act,  1867  (30  &  31  Vict.  c.  126). 

The  Cc>m])anies  Act,  1867  (30  &  31  Vict.  c.  131). 

The  E.'gulation  of  Eailways  Act,  1808  (31  &  32  Vict.  c.  119). 

The  Eailways  (Powers  and  Construction)  Acts,  1864,  Amendment  Act, 
1870  (33  &  34  Vict.  c.  19). 

The  Gas  and  Water  AVorks  Facilities  Act,  1870  (33  &  34  Vict.  c.  70). 

The  Tramways  Act,  1870  (33  &  34  Vict.  c.  78). 

The  Gasworks  Clauses  Act,  1871  (34  &  35  Vict.  c.  41). 

The  Eegulation  of  Eailways  Act,  1871  (34  &  35  Vict.  c.  78). 

The  Eegulation  of  Eailways  Act,  1873  (36  &  37  Vict.  c.  48). 


'IllADK,   noAlM)  (»r 

The  Kailway  Kegulatiou  (Signals,  etc.)  Act,  1873  (3G  &  37  Vict.  c.  7G) 

The  lioard  of  Trade  Arbitrations  Act,  1874  (37  &  38  Vict  o  40) 

The  Companies  Act,  1877  (40  &  41  Vict.  c.  2G). 

Thellailway.s  lJeturn.s(C'(tntinu(ius  I'rakcs)  Act,  1878(41  &42  Vict  c  ''0) 

The  Companies  Act,  1879  (42  .^-  4:5  Vict.  c.  7G). 

The  Tramways  Orders  Confirmation  Act,  18711  (42  &  43  Vict  c  103') 

The  Electric  Lighting  Act,  1882  (45  &  4G  Vict.  c.  r,G). 

The  Cheap  Trains  Act,  188:]  (4G  &  47  Vict.  c.  34). 

The  Patents,  Designs,  and  Trade  Marks  Act,  188:;  (4G  &  47  Vict.  < 

Ditto,  Amendment  Act,  1885  (48  &  49  Vict.  c.  G3). 

The  Patents  Act,  188G  (49  &  50  Vict.  c.  37). 

The  Merchandise  ]\rarks  Act,  1887  (50  &  51  Vict.  c.  28). 

The  Electric  Lighting  Act,  1886  (51  &  52  Vict.  c.  12). 

The  Kailway  and  Canal  Traffic  Act,  1888  (51  &  52  Vict.  c.  25). 

The  Patents,  Designs,  and  Trade  Marks  Amendment  Act,  1888  (51  &  52 
Vict.  c.  50). 

The  Kegulation  of  Railways  Act,  1889  (52  &  53  Vict.  c.  57). 

The  Electric  Lighting  (Scotland)  Act,  1890  (53  &  54  Vict.  c.  13). 

The  Railway  and  Canal  Traffic  Amendment  Act,  1891  (54  &  55  Vict.  c.  1 2 ). 

The  Merchandise  :\Iarks  Act,  1891  (54  &  55  Vic4:.  c.  15). 

The  Pvailway  and  Canal  Traffic  Amendment  Act,  1892  (55  &  5G  Vict.  c.  44). 

The  Railways  Regulation  Act,  1803  (5G  i^-  57  Vict.  c.  29). 

The  Merchandise  ALarks  (Prosecutions)  Act,  1894  (57  &  58  Vict.  c.  19). 

The  Railway  and  Canal  Traffic  Act,  1894  (57  &  58  Vict  c.  54). 

The  Light  Railways  Act,  1896  (59  &  60  Vict.  c.  48). 

The  West  Highland  Railway  Guarantee  Act,  189G  (59  &  GO  Vict,  c  58). 

The  titles  of  the  above  Acts  indicate  the  varied  powers  and  duties  of 
this  department  of  the  Board  of  Trade  They  have  powers  and  duties  con- 
nected with  various  matters  liesides  railways,  though  the  general  su]»crvision 
of  railways  constitutes  the  most  important  jiart  of  their  work.  I'lKtn  them 
rests  the  duty  of  inspecting  new  railways,  in  order  to  secure  the  Siifety  of 
the  travelling  public.  They  also  inquire  into  and  report  on  railway  acci- 
dents. They  report  to  Parliament  on  the  rates  and  charges  prop<j.'!ed  in 
railway  Bills,  and  approve  of  bye-laws  for  railway  companies,  tramways, 
etc.  They  also  may  prepare  and  submit  to  I'arliament  for  approval  Pro- 
visional Orders  relating  to  new  tramways,  gas,  water,  and  electric  lighting. 

The  Patents,  Designs,  and  Trade  Marks  Act,  1883  (ss.  82-83).  provides 
for  the  establishment  of  a  Patent  Office,  and  for  the  appointment  of  a 
Comptroller-General  of  patents,  designs,  and  trade  marks,  who  is  vnulcr  the 
superintendence  and  direction  of  the  Board  of  Tratlc.  The  control  of  the 
Patent  Office  is  under  this  department  of  the  lioard  of  Trade.  The 
Registrars  of  companies  registered  under  the  Companies  Acts,  and  tlieir 
assistants,  are  appointed  l)y  the  Board  of  Trade.  A  Registrar  must  be 
appointed  for  each  of  the  three  parts  of  the  United  Kingdom. 

IIL  The  following  Acts  affect  the  powers  and  duties  of  the  ^larine 
Department : — 

The  Merchant  Shipping  Repeal  Act,  1854  (17  i?c  18  Vict,  c  120). 

The  Chain  Cable  and  Anchor  Acts,  1864  (27  &  28  Vict.  c.  27V  1871 
(34  &  35  Vict.  c.  101),  and  1874  (37  &  38  Vict.  c.  51). 

The  Merchant  Seamen  (Wages  and  Rating)  Act,  1880  (43  c^-  44  Vict.  c.  IG). 

The  Merchant  Shipping  (Fees  and  Expens^es)  Act,  1880  (43  &  44  Vict.  c.  22). 

The  Boiler  Explosions  Acts,  1882  (45  .<c  46  Vict.  c.  22\  and  1800 
(53  &  54  Vict.  c.  35) 

The  Sea  Fisheries  Act,  1883  (46  &  47  Vict.  c.  22). 


28S  TIIADK,  liUAKD  OF 

The  ^Merchant  Shipping  (Fishing  Boats)  Acts,  1883  (46  &  47  Vict. 
c.  41),  and  1887  (50  &  51  Vict.  c.  4). 

The  Mail  Ships  Act,  1891  (54  &  55  Vict.  c.  31). 

The  Merchant  Shipping  Act,  1894  (57  &  58  Vict.  c.  60). 

The  Derelict  Vessels  (Eeport)  Act,  1896  (59  &  60  Vict.  c.  12). 

This  department  has  charge,  among  other  matters,  of  the  examination 
of  masters,  mates,  and  engineers  in  the  merchant  service,  and  of  the  issue  of 
certificates  of  competency  to  them,  which  may  be  suspended  or  cancelled  ;  of 
the  whole  matters  relating  to  the  health  or  discipline  of  merchant  ships  at 
home  or  abroad ;  of  tonnage  measurement ;  of  the  survey  of  passenger  and 
emicrrant  ships,  and  the  detention  of  unseaworthy  or  overloaded  ships ;  of 
the  rule  of  the  road  at  sea,  ships'  lights,  and  fog-signals,  etc. ;  inquiries  into 
wrecks ;  and,  generally,  all  questions  relating  to  ships  and  seamen  at  home 
or  abroad.  This  department  also  co-operate  with  the  Admiralty  in  the 
management  of  the  Royal  Naval  Eeserve. 

IV.  The  following  Acts  affect  the  powers  and  duties  of  the  Harbour 
Department : — 

The  Preliminary  Enquiries  Act,  1851  (14  &  15  Vict.  c.  49). 

The  Merchant  Shipping  Law  Amendment  Act,  1853  (IG  &  17  Vict.  c.  131). 

The  Pilotage  Amendment  Act,  1853  (16  &  17  Vict.  c.  129). 

The  General  Pier  and  Harbour  Act,  1861  (24  &  25  Vict.  c.  45),  and 
ditto  Amendment  Act,  1862  (25  &  26  Vict.  c.  19). 

The  Harbours  and  Passing  Tolls  Act,  1861  (24  &  25  Vict.  c.  47). 

The  Harbours  and  Transfer  Act,  1862  (25  &  26  Vict.  c.  69). 

The  Railway  Clauses  Act,  1863  (26  &  27  Vict.  c.  92). 

The  Telegraph  Act,  1863  (26  &  27  Vict.  c.  112). 

The  Harbours  Transfer  Act,  1865  (28  &  29  Vict.  c.  100). 

The  Harbour  Loans  Act,  1866  (29  &  30  Vict.  c.  30). 

The  Crown  Lands  Act,  1806  (29  &  30  Vict.  c.  62),  and  1885  (48  &  49 
Vict.  c.  70). 

The  Shipping  Dues  Exemption  Act,  1867  (30  &  31  Vict.  c.  15). 

The  Coinage  Act,  1870  (33  &  34  Vict.  c.  10),  and  1891  (54  &  55  Vict.  c.  72). 

The  Petrolevmi  Act,  1871  (34  &  35  Vict.  c.  105),  and  1879  (42  &  43 
Vict.  c.  47). 

The  Board  of  Trade  Ai-bitrations  Act,  1874  (37  &  38  Vict.  c.  40). 

The  Explosives  Act,  1875  (38  &  39  Vict.  c.  17). 

The  Weights  and  Measures  Act,  1878  (41  &  42  Vict.  c.  49),  and  1889 
(52  &  53  Vict.  c.  21),  and  1892  (55  &  56  Vict.  c.  18),  and  1893  (56  &  57 
Vict.  c.  19). 

Tiie  Public  Works  Loans  Act,  1881  (44  &  45  Vict.  c.  38). 

The  Artillery  Pille  Ranges  Act,  1885  (48  &  49  Vict.  c.  36). 

The  Submarine  Telegraph  Act,  1885  (48  &  49  Vict.  c.  49). 

The  Western  Highlands  and  Islands  Works  Act,  1891  (54  &  55  Vict.  c.  58). 

The  Electric  Lighting  and  Telegraph  Act,  1892  (55  &  56  Vict.  c.  59). 

In  addition  to  the  above  Acts,  there  are  various  local  harbour  Acts 
which  confer  powers  and  duties  upon  this  department.  It  has  charge, 
among  other  matters,  of  the  foreshores  belonging  to  the  Crown,  and, 
generally,  of  harbours  at  home  and  abroad ;  of  colonial  lighthouses ;  of 
registry  of  British  ships,  wrecks,  and  salvage ;  and  of  examination  of  private 
Bills  affecting  navigation  or  the  title  of  the  Crown  in  the  foreshore  or  bed 
of  the  sea. 

V.  Tlie  following  Acts  affect  the  work  of  the  Finance  Department : — 
The  Seamen's  Fund  Winding-up  Act,  1851  (14  &  15  Vict.  c.  102). 

The  Merchant  Shipping  Law  Amendment  Act,  1853  (16  &  17  Vict.  c.  131). 


TRADE  DISPUTES:  CONCILIATION  ACT 

The  Grueinvich  Jluspitul  Act,  18G9  (:JL'  &.  ;j;j  \  i,  i  c  iij  ^ua  in- 
(35  &  36  Vict.  c.  07).  '    '       ^' 

The  Life  Assurance  Companies  Act,  1870  (33  &  34  Vict   c   OH   n!i«l 

1871  (34  &  35  Vict.  c.  58).  '    '        ' 
This  Department  presents  to  thi;  Ext  he'iuri  lIil-  ucn.iuii.-,  m  :j 

of  Trade,  and  of  other  l)odic's  undt-r  its  control.     It  also  udmini.-^ 
Mercliant  Seamen's  Fund,  the  wages  of  deceased  seamen,  seameu'ti 
banks,  etc.     It  receives  and  presents  to  I'arliament  the  accounts  oi 
assurance  companies. 

VI.  The  Fisheries  Department  administer  the  Sahiion  and  ^■■'-f'~' 
Acts    for    England;    l)ut    in    Scotland    the    corresponding    \  1 
duties  fall  to  the  Fishery  Board  (see  under  Fishings)  in  virtue  of  the 
Fishery  Board  (Scot.)  Act,  1882  (45  &  40  Vict.  c.  78),  and  the  Sea  Fish.  ■ 
(Scot.)  Amendment  Act,  1885  (48  &  49  Vict.  c.  70). 

VII.  The  Bankruptcy  Department  of  the  Board  of  Trade  was  instituted 
l)y  the  Bankruptcy  Act,  1883.  The  head  of  this  department  is  the 
Inspector-General  in  Bankruptcy.  Under  this  Act  the  r>oard  of  T- 
appoint  "official  receivers"  of  debtors'  estates,  and  such  receivers  act  ui...  ■ 
the  general  authority  and  direction  of  the  Board  of  Trade.  But  the 
provisions  of  the  said  Act  do  not  apply  to  Scotland. 

Trade  Disputes:  Conciliation  Act.— Thi.s  Aci,5;i  .v  o  - 

Vict.  c.  30,  which  is  cited  as  the  Concilialinn  Act,  1800,  was  pa-s.-ed  for 
the  purpose  of  making  better  provision  for  the  prevention  and  settlement 
of  trade  disputes.  It  repeals  earlier  enactments  of  a  similar  nature,  viz. 
The  Masters  and  Workmen's  Arbitration  Act,  1824;  the  diuncils  of 
Conciliation  Act,  1807;  and  the  Arbitration  (Masters  and  Workmen^  Art 

1872  (s.  7). 

The  first  section  of  the  Act  makes  provision  for  application  for  registra- 
tion to  the  Board  of  Trade  by  any  Conciliation  Board,  which  moans 
any  Board  established  either  before  or  after  the  passing  of  this  Act  (7lh 
August  1890),  which  is  constituted  for  the  purpose  of  settling  disputes 
between  employers  and  workmen  by  conciliation  or  arbitration,  or  by  any 
association  or  body  authorised  by  an  agreement  in  writing  made  between 
employers  and  workmen  to  deal  with  such  disputes.  The  ai»plication  !!"^-' 
be  accompanied  by  copies  of  the  constitution,  bye-laws,  and  regulai. 
and  any  other  information  reasonably  required. 

The  Board  of  Trade  keep  a  register  of  such  Conciliation  Boanls,  any  i.ne 
of  which  may,  however,  at  any  time  have  its  name  removed.  The  Boanl 
of  Trade  may  remove  a  name  if  satisfied  the  I'.oard  no  lunger  exist.*!. 

The  second  section  confers  certain  powers  on  the  Board  of  Trade  in  the 
event  of  a  difl'ereuce  arising  or  being  apprehended  between  employers  and 
workmen.     These  are — 

(1)  To  inquire  into  the  causes  and  circumstances. 

(2)  To  take  certain  steps  to  enable  the  parties  to  meet  together  with  a 

view  to  an  amicable  settlement. 

(3)  On  application  of  employers  or  workmen  int.-     '    '    ' 

person  or  ])crsons  to  act  as  conciliator  or  as  a  1  • 

(4)  On  the  application  of  both  parties,  to  appoint  an  arbitrator. 

A  report  of  the  proceedings  by  a  person  acting  as  concil  • 

the   Board  of  Trade,  and  if   the  'dillerence  is  settled  Vv 
arbitration,  a  memorandum  of  the  terms  of  settl''!!MTit  \, 
and  a  copy  sent  to  the  Board  of  Trade. 

The  Arbitration  Act,  1889,  does  not  apply  to  the  settlement  by 

S.  E. — VOL.  XII. 


290  TUADK  ,MAi;K 

tion  of  disputes  luuler  this  Act;  but  such  arbitration  proceedings  are  to 
be  conducted  in  accordance  with  such  of  the  provisions  of  the  Act  of  1889, 
or  such  regulations  of  any  Concihation  Board,  or  such  other  regulations 
as  rnay  be  agreed  upon  by  the  parties  (s.  3).  Under  sec.  4  the  Board  of 
Trade 'may  take  means  to  aid  in  establishing  Boards  of  Conciliation  in 
districts  deemed  to  be  requiring  such. 

The  Board  of  Trade  has  from  time  to  time  to  make  a  report  to  Parliament 
of  their  proceedings  (s.  5),  and  the  expenses  incurred  under  this  Act  are 
to  be  defrayed  out  of  moneys  provided  by  Parliament  (s.  6). 

Trade  Mark. — The  custom  of  a  manufacturer  of  goods  adopting 
a  disiineiive  mark  to  be  affixed  to  his  products  is  said  to  be  of  very  ancient 
origin  in  this  country ;  and  the  common  law,  from  early  times,  has  recog- 
nised and  protected  his  right  to  the  exclusive  use  of  such  trade  mark  {Dixon, 
1867,  5  M.  326 ;  Orr-Hwing,  7  App.  Ca.  219).  This  legal  protection  is  in 
the  interest  both  of  the  manufacturer  and  of  the  public.  Provision  for  the 
registration  of  trade  marks  was  first  made  by  the  Trade  Marks  Eegistration 
Act,  1875.  The  matter  is  now  regulated  by  the  Patents,  Designs,  and 
Trade  Marks  Acts,  1883  to  1888  (46  &  47  Vict.  c.  57;  48  &  49  Vict.  c.  63; 
49  &  50  Vict.  c.  37 ;  and  51  &  52  Vict.  c.  50).  See  also  Merchandise 
Makks  Act, 

Definition. — The  present  statutory  definition  of  a  trade  mark  is  con- 
tained in  sec.  64  of  the  Patents  Act,  1888:  "(1)  For  the  purposes  of  this 
Act,  a  trade  mark  must  consist  of,  or  contain  at  least  one  of,  the  following 
essential  particulars : — 

"  (ft)  A  name  of  an  individual  or  firm  printed,  impressed,  or  woven  in 
some  particular  and  distinctive  manner ;  or 

"  (b)  a  written  signature  or  copy  of  a  written  signature  of  the  individual 
or  firm  applying  for  registration  thereof  as  a  trade  mark ;  or 

"(c)  a  distinctive  device,  mark,  brand,  heading,  label,  or  ticket;  or 

"  {d)  an  invented  word  or  invented  words ;  or 

"  {e)  a  word  or  words  having  no  reference  to  the  character  or  quality  of 
the  goods,  and  not  being  a  geographical  name. 

"  (2)  There  may  be  added  to  any  one  or  more  of  the  essential  particulars 
mentioned  in  this  section,  any  letters,  words,  or  figures,  or  combination  of 
letters,  words,  or  figures,  or  any  of  them ;  but  the  applicant  for  registration 
of  any  such  additional  matter  must  state  in  his  application  the  essential 
particulars  of  the  trade  mark,  and  must  disclaim  in  his  application  any 
right  to  the  exclusive  use  of  the  added  matter,  and  a  copy  of  the  statement 
and  disclaimer  shall  be  entered  on  the  register."  But  a  person  need  not, 
under  the  above  section,  disclaim  his  own  name  or  the  foreign  equivalent 
thereof,  or  his  place  of  business ;  but  no  entry  of  any  such  name  shall  affect 
the  right  of  any  owner  of  the  same  name  to  use  that  name  or  its  foreign 
equivalent  (s.  64  (3)  (1)).  There  is  a  saving  for  old  words,  letters,  and 
figure  marks  which  were  used  as  a  trade  mark  before  13th  August 
1875. 

RegiMmtion. — Application  for  registration  of  a  trade  mark  must  be 
made  to  tlie  Comptroller,  Patent  Office  (Trade  Marks  P.ranch),  South- 
ampton Buildings,  London.  The  requisite  forms  for  making  application 
are  on  sale  at  all  the  chief  post-offices  in  the  United  Kingdom  (see  Trade 
:Mark  Rules,  1890,  framed  by  Board  of  Trade).  Tlie  application  is 
advertised  in  the  official  Trade  Marks  Journal  (published  weekly).  Notice 
of  opposition  ought  to  be  given  within  one  month  from  the  date  of  the 
Journal  containing  the  advertisement  of  the  application — but,  on  good  cause 


TKADK  UNIONS  291 

shown,  tlie  Coiiiptrnller  may  extoiul  this  tiiuc  f..r  a  puriud  oi  nut  moic  iLan 
three  months. 

Period  of  Protection. — The   period   of  protection  of  mmI  tra<lc 

mark  is  f(nirteen  years.  At  the  e.xpinitio!!  of  that  period,  tlie  rc^giKiniti.-n 
may  be  kejit  iu  force  for  another  ])eriud  of  fourteen  yr-ars  hy  p  '  uf 

the  prescribed  fee  for  renewal  ;  and  it  may  be  thus  renewed  ul  iht  .^.la- 
tion  of  each  period  of  fourteen  years  (Act  1883,  s.  79;  Act  1888,  s.  19 
(1)  (2)).  The  date  of  application  is  hehl  to  be  the  date  of  rej,M .stmt ion ;  and 
application  for  rcL^dstration  is  declared  to  be  erpiivalent  to  jtublir-  UKe  of  the 
trade  mark  (Act  .1888,  s.  75).  liegistration  is  ]>rii/Kl  farir  evid--'-  ••  '■<"  a 
person's  right  to  the  exclusive  use  of  the  trade  mark  ;  and  after  tlie .  .  .n 

of  five  years  from  the  date  of  registration,  is  conclusive  evidence  of  his  right 
to  the  exclu.sive  use  of  the  trade  mark,  subject  to  the  pntvisions  of  ih<»  Ads 
(Act  1883,  s.  7G).  This  provision,  however,  does  not  mean  that  "  the  mark, 
as  registered,  shall  be  deemed  to  be  a  trade  mark,"  but  only  tliat  the  jK^Tson 
who  has  registered  it  is  entitled  to  it  (per  Jessel,  M.  Jl.,  in  re  Palmer, 
21  Ch.  D.  53).  A  trade  mark  may  be  expunged  from  the  register  on  cau.'^e 
shown  (and  even  after  the  expiry  of  five  years  (ILrhrrf,  1897,  24  li.  5G1)); 
or  the  entry  in  the  register  may  be  varied  or  amended  (Act  1888.  s.  24  ; 
Act  1883,  s.  92). 

Transfer. — Trade  marks  can  be  assigned  and  transferred  only  in  connec- 
tion with  the  goodwill  of  the  business  in  wliich  they  have  been  u^cd — the 
owner  must  at  the  same  time  transfer  to  the  assignee  of  the  trade  mark  the 
business,  or  so  much  of  it  as  relates  to  the  goods  for  which  the  mark  has 
been  registered  {Edicareh,  30  Ch.  D.  454,  per  Fry,  L.  J.).  If  a  busine«.s  be 
sold  without  mention  of  the  trade  mark,  the  mark  is  hehl  to  be  transferred 
by  implication  to  the  purchaser  {Shipvrvjlit,  19  W.  W.  599). 

In  Scotland  a  petition  for  rectification  of  the  register  may  Vh*  presented 
in  the  Outer  House  (Herbert,  1897,  24  K  59G).  A  petition  under  sec.  90 
of  the  Act  of  1883  cannot  competently  Ite  presented  to  the  Scottish  Courts; 
the  proper  procedure  is  by  summons  {Den-ar,  1898,  6  S.  L.  T.  No.  120). 

Even  w^here  there  is  no  "trade  mark"  in  the  statutory  sense,  if  the 
goods  manufactured  by  a  person  have  come  to  be  associated  in  the  minds  of 
the  public  with  his  name,  or  the  name  of  the  jilace  of  manuf  nl 

common  law  he  will  be  protected  against  any  use  of  that  name  b;.  liier 

in  such  a  way  as  to  mislead  the  public  (Singer  Co.,  1873,  11  M.  267;  3  App. 
Ca.  376,  8  App.  Ca.  15;  Loehgdly  Co.,  1879,  6  W.  482;  Charlemn,  1870,4  K. 
149;  Crawford's  Trs.,  1896,  23  E.  747;  Crlhdar  Clothing  Co.,  1808,  35 
S.  L.  E.  869;  Thomson  t&  Co.,  1888,  15  E.  880;  Bayer,  1898,  35  S.  L  R. 
913,  per  I-d.  President). 

[Sebastian  on  Trade  Marks;  Fulton  on  Patents,  Trade  Marks,  elr. ;  Ik^ll's 
Prin.  (Guthrie)  s.  1361.] 

Trade  U nions.— Int roductori/.— The  objects  of  trade  unions  an* 
iu  general  of  a  twofold  cliaracter. 

(1)  Those  of  an  ordinary,  friendly,  or  benefit  society,  such  ^as  to  aJlurd 
relief  to  members  when  incapacitated  by  sickness,  accident,  or  ■  ^  '     •'^ 

(2)  Those  of  a  trade  society  proper,  viz.  to  watch  over  and  'e  the 
interests  of  the  working  classes  in  the  several  trade*,  and  Uy  to 
protect  them  against  the  undue  advantage  which  the  nd  .-f  a  larvc 
capital  is  supposed  by  them  to  give  to  the  employers  of 

The  first  was  probablv  their  original  and  primary  co: '"<'. 

but  it  was  natural  that  in  the  sequence  of  events  they  i^hould  devote  some 
attention  to  the  relations  of  their  members  with  their  employers.     f>o  lar 


292  TKADE  UNIONS 

as  regards  their  first  and  primary  objects,  these  associations  couki  not  be 
said  to  be  illegal.  It  was  only  when  they  endeavoured  to  interfere  Avith 
and  regulate  such  matters  as  rates  of  wages,  etc.,  that  they  overstepped  the 
limits  of  legality.  For  a  combination  of  persons  concerned  in  a  trade  is 
not  of  itself'^iDeg'al.  The  illegality  arises  from  its  purpose.  So,  during  the 
Middle  Ages,  there  existed  under  the  name  of  "  gilds  "  many  combinations 
of  persons,  interested  in  one  trade  or  craft,  which  were  perfectly  legal. 
But  it  was  ever  a  well-established  principle  of  common  law  that  "  restraint 
of  trade  "  was  unlawful.  Apart  from  this  common  law  doctrine  there  was 
much  legislation  from  early  times  to  prevent  and  punish  combinations  or 
conspiracies  in  restraint  of  trade.  Owing  to  these  statutory  enactments 
there  are  not  many  reported  cases  founding  on  the  common  law,  but 
reference  may  be  made  to  Hilton,  1856,  6  E.  &  B.  47 ;  Hornhj,  1867,  10 
Cox  C.  C.  393 ;  and  Farrar,  1869,  L.  E.  4  Q.  B.  602,  as  three  English  lead- 
ing cases  illustrating  the  illegality  of  such  combinations  and  the  consequent 
impossibility  of  having  their  agreements  enforced  by  a  Court  of  law. 

Prior,  then,  to  1824,  under  these  statutes  known  as  the  Combination 
Acts,  and  at  common  law,  all  concerted  proceedings  on  the  part  of  work- 
men for  the  purpose  of  raising  wages  were  punishable ;  and  any  association 
formed  for  the  ordinary  purposes  of  a  trade  union  was  illegal  and  not 
entitled  to  any  protection  from  law. 

In  that  year,  by  5  Geo.  iv.  c.  95,  the  Combination  Acts  were  repealed, 
and  members  of  such  combinations  were  only  subject  to  punishment  where 
their  acts  were  attended  with  violence. 

In  the  following  year,  by  6  Geo.  iv.  c.  129,  the  common  law  in  regard  to 
conspiracy  was  restored,  and  summary  penalties  were  imposed  for  violence, 
threats,  intimidation,  and  molestation.  The  Act  made  certain  exceptions 
and  exempted  from  punishment  meetings  for  discussing  the  rate  of  wages 
and  hours  of  work.  This  Act  did  not,  however,  affect  the  illegahty  at 
common  law  of  a  society  where  its  rules  were  in  "  restraint  of  trade." 

A  Koyal  Commission  considered  the  whole  subject  from  1867  to  1869, 
and  following  on  its  report  there  were  passed  the  Trade  Union  Act,  1871 
(34  &  35  Vict.  c.  31),  and  the  Criminal  Law  Amendment  Act,  1871  (34 
&  35  Vict.  c.  32).  A  second  Eoyal  Commission  on  the  labour  laws  was 
appointed  in  1874,  and  on  its  report  were  passed  the  Employers  and  Work- 
men's Act,  1875  (38  &  39  Vict.  c.  90),  the  Conspiracy  and  Protection  of 
Property  Act,  1875  (38  &  39  Vict.  c.  86),  and  the  Trade  Union  Act  Amend- 
ment Act,  1876  (39  &  40  Vict.  c.  22).  The  statutory  law  in  regard  to 
trade  unions  is  therefore  comprised  in  these  Acts. 

T.  Constitution  and  Status  of  Trade  Unions. 

Effect  of  1871  Act. — This  Act  is  intended  as  a  remedial  measure  to 
improve  the  status  of  such  associations  by  removing  tlie  taint  of  illegality 
attached  to  them,  and  their  position  is  clearly  set  forth  in  the  2nd,  3rd,  and 
4th  sections  quoted  below.  Facilities  are  also  given  for  registration,  and 
regulations  provided  for  such  registered  unions.  Generally  speaking,  the 
object  of  the  Act  was  "  to  give  relief  to  trade  unions  in  certain  clearly 
defined  directions,  to  enable  them  to  sue  certain  actions  and  enforce  certain 
rights  which  they  could  not  sue  and  enforce  before,  and  to  save  them  from 
certain  criminal  liabilities  to  which  they  were  previously  exposed"  (per  Ld. 
Pres,  Inglis  in  Shanks  v.  United  Operative  Masons'  Association,  1874,  1  K. 
823  at  825). 

A  "  trade  union"  to  which  the  Act  applies  is  defined  as  "any  combina- 
tion, whether  temporary  or  permanent,  for  regulating  the  relations  between 


TIJADE  UNIONS  203 

workmen  and  masters,  or  Ijctwocn   workmen  and   ■.      '      -n,  or  u 

masters  and  masters,  or  f(»r  inqxjsin^'  restrictive  con...;..,.  W)n  <^-  i 

of  any  trade  or  business,  whether  such  comhination  woidd  or  ,.  if 
tlie  princ  ipal  Act  luid  not  been  passed,  have  been  dijeuied  to  hjive  been  an 
unlawful  combination  by  roa'^on  of  .some  one  or  more  of  its  pii' 

in  restraint  of  trade  {'M)  &  40  Vict.  c.  22,  s.  15,  partly  re)'-  •'  .  .... 

Vict.  c.  31,  s.  23).  Tiie  unrepealed  p.irt  of  the  latter  secti<.:.  from 
the  definition — 

(1)  any  agreement  between  partners  as  to  their  own  businr 

(2)  any  agreement  between  an  employer  and  those  enipl<.)'-'i  n^   inm 

as  to  sucli  employment ; 

(3)  any  agreement  in  consideration  of  the  sale  of  tlie  goodwill  of  a 

business,  or  of  instruction  in  any  profession,  trade,  or  handicraft. 

By  the  2nd  and  3rd  sections  it  is  declared  that  the  ])urposes  of  a  trade 
union  are  not,  by  reason  merely  that  Ihey  are  in  restraint  of  trade,  unlawful — 

(a)  so  as  to  render  any  member  liable  to  criminal  prosecution  for  con- 
spiracy or  otherwise ; 

(h)  so  as  to  render  void  or  voidable  any  agreement  or  tnist. 

But  "  no  change  was  introduced  into  the  constitution  of  these  societies. 
They  remain  voluntary  associations  of  which  the  law  can  take  no  sjiocial 
cognisance  as  collective  bodies." 

Jurisdiction  of  Courts  of  Law. — The  common  law  disabilities  aiiaciiing 
to  trade  union  contracts  are  carefully  preserved  liy  the  4th  .section,  which. 
while  declaring  that  such  are  not  unlawful,  provides  that  notiiiug  in  the 
Act  is  to  enable  any  Court  to  entertain  any  legal  proceeding  instituted  in 
order  directly  to  enforce  or  recover  damages  for  breach  of — 

(1)  an  agreement  between  the  members  of  a  trade  union  as  such  con- 

cerning the  conditions  on  which  they  shall  or  siiall  not  sell  their 
goods,  transact  business,  employ  or  be  employed  : 

(2)  an  agreement  for  the  payment  by  any  person  of  a  subscription  or 

penalty  to  a  trade  union  ; 

(3)  an  agreement  for  the  application  of  the  funds — 

{a)  to  provide  benefits  to  members; 

(6)  to  furnish  contributions  to  non-members  in  consideration  of 

their  acting  in  conformity  with  the  rules  or  resolutions  of 

sucli  trade  unions  ; 
(c)  to  discharge  a  fine  imposed  by  any  Court  of  justice : 

(4)  an  agreement  between  two  or  more  trade  unions; 

(5)  any  bond  to  secure  the  performance  of  any  of  the  bei'ure-mcuiiuucJ 

agreements. 

The  effect  of  this  section  is  that  the  question  whether  such  agreements 
can  be  enforced  in  a  Court  of  law  is  to  be  determined  by  the  common  l.iw 
apart   from    the   statute   {Am  ah /a  mated   Society   of   J^aihrc;/    >"  '     'or 

Scotland,  1880,  7  E.  8G7,  per  Ld.  Young,  p.  873).     The  iinp<.rtani in 

M'Kcrnan,  1874,  1  E.  453 ;  S/ianks,  1874,  1  II.  823 ;  and  AitLm,  IS.^."  12  R 
1206,  are  not  contrary  to  this  view,  for  they  established  that,  as  the  ••* 

result  of  the  common  law  and  the  Trade  Unions  Act,  lS71,n.'  '"  Id 

entertain  any  action  to  directly  enforce  or  recover  dama-—  ^■■'  '^' 

any  agreement  for  the  application  of  the  funds  of  a  tr.T:  le 

benefits  to  members.  ... 

It  cannot,  however,  be  said  with  certainty  to  what  extcn'  -  ■» 

interfere  to  indirectly  enforce,  inter  se,  the  rights  of  •-'■'•    •  '-•■  ^ 

Thus  it  has  been  held  that  an  application  at  the  n.  of  tli  -ii 

trustees  of  a  trade  union  for  interdict  against  the  trustees  of  a  brancn 


29-i  TKADE  UNIONS 

applying  funds  iu  their  hands  for  purposes  alleged  to  be  other  than  those 
specified  iu  the  rules,  is  not  a  proceeding  struck  at  by  the  provisions  of  the 
•4th  section  {Am ahfit mated  Socieft/  of  Raihcay  Servants  for  Scotland,  supra. 
See  irolft;  21  Ch/l94 ;  Strod;  1887,  3G  Ch.  D.  558;  Duke,  1888,  49  L.  J. 
Ch.  802). 

Where  the  primary  objects  of  a  society  are  legal,  the  fact  that  some  of 
its  rules  are  illegal  as  being  in  restraint  of  trade  does  not  constitute  the 
society  an  illegal  society,  and  a  mamber  will  l^e  entitled  to  claim  benefit 
money  under  a  rule  which,  being  in  accordance  with  the  fundamental 
objects  of  the  society,  is  legal  and  not  affected  by  other  rules  which  are 
illegal  {Sivaine,  1889,  2-4  Q.  B.  D.  252).  Piules  made  for  the  ho7id  fide  pur- 
pose of  protecting  the  funds  of  such  a  society  from  claims  wdiich  can  be 
avoided  by  reasonable  care  and  management  are  not  illegal  because  they 
are  incidentally  to  some  extent  in  restraint  of  trade,  provided  that  their 
provisions  go  no  further  than  is  reasonable  and  necessary  for  that  purpose 

Rdation  to  Friendly  Societies. — The  Friendly  Societies  Act,  1896,  the 
Industrial  and  Provident  Societies  Acts,  and  the  Companies  Acts  do  not 
apply  to  trade  unions,  and  the  registration  of  any  trade  union  under  any  of 
these  Acts  is  void  (1871  Act,  s.  5).  But  an  exception  to  this  rule  was 
introduced  by  the  Act  187G,  s.  2,  in  the  case  of  a  trade  union,  whether 
registered  or  unregistered,  which  insures  or  pays  money  on  the  death  of  a 
child  under  ten  years  of  age.  These  are  to  be  treated  as  industrial  assurance 
companies,  and  therefore  subject  to  sees.  62-67  and  84  of  the  Friendly 
Societies  Act,  1896  (59  &  60  Vict.  c.  25),  and  sees.  1  and  13  of  the  Collect- 
ing Societies  Act,  1896  (59  &  60  Vict.  c.  26). 

liegistered  trade  unions  and  branches  thereof  which  contribute  to 
medical  societies  are  within  the  provisions  of  sec.  22  of  the  Friendly  Societies 
Act,  1896. 

XL  Eegistered  Trade  Unions. 

The  1871  Act,  besides  making  an  important  change  in  the  status  of 
associations  of  the  nature  of  trade  unions,  also  makes  provision  for  such 
being  registered  with  the  Hegistrar  of  Friendly  Societies,  provided  that 
none  of  its  purposes  are  unlawful  (ss.  6  and  17).  Mere  restraint  of  trade 
is  not  now  an  unlawful  purpose  (ss.  2  and  3). 

(a)  PiEGiSTEi;. — The  provisions  in  regard  to  registry  are  contained  in 
sees.  6  and  13  of  the  1871  Act.  The  regulations  are  similar  to  those  for 
Friendly  Societies,  and  deal  with  the  form  of  application,  the  production  of 
the  rules,  the  registered  name,  the  issue  of  a  certificate  of  registry,  and  the 
power  of  one  of  H.M.  Principal  Secretaries  of  State  to  make  regulations  as 
to  registry.  Under  sec.  15  the  society  must,  under  pain  of  a  penalty,  have  a 
registered  office;  and  sec.  16  provides  for  an  annual  return  being  sent  to 
the  registrar,  under  a  penalty  for  failure  or  false  entries.  The  cancellation 
or  withdrawal  of  the  certificate  of  registry  is  regulated  by  sec.  13  and  sec.  8 
of  the  1876  Act.  Provisions  for  change  of  name,  amalgamation,  and  dis- 
solution, on  giving  proper  notice,  are  made  in  sees.  14-15  of  1876  Act. 

{h)  Pules. — In  the  first  schedule  of  the  1871  Act  are  enumerated  the 
matters  requiring  to  be  dealt  with  in  the  rules  of  registered  trade  unions. 

A  copy  of  the  rules  must  be  delivered  to  every  person  demanding  them, 
at  a  cost  not  exceeding  one  shilling  (s.  14  of  1871  Act).  Tlie  circulation 
of  false  copies  is  an  offence  (s.  18). 

(c)  The  Trustees. — (1)  Vesting  and  Transfer  of  Property.— Lund  not 
exceeding  one  acre  may  be  purchased,  sold,  or  leased  for  any  trade  union  by 


TRADE  UNIONS  295 

the  trustees,  and  their  receipt  shall  he  :i  sunicieiil  ui  :»     li^. 

property  of  a  registered  trade  union  or  hranrh  is  vl-^:    .  ...  i.../ir-' 

for  the  time  being,  whether  of  the  union  or  the  hranch,  aecor'ainu'  ' 
rules,  and  no  conveyance  i»r  deed  is  necessary  to  vest  the  sanie  in  f- 
trustees  (s.  8  and  s.  :j  of  187G  Act).     Trovision  is  made  for  irai    ' 
on  the  absence,  removal,  bankruptcy,  iiicqiacitv  or  death  "f 
whose  name  it  stands  (1870  Act,  s.  4). 

(2)  Tide  to  Sue  and  he  Sued. — In  all  legal  proceedings  conceming  the 
property,  right,  or  claim  to  any  ])roperty  of  the  union,  the  tn 

other  ollicer  specially  authorised  by  the  rules  shall  sue  or  <!•  f,        ,„ .,. 

of  the  union,  the  title  of  their  office  being  a  sullicient  <1  ;on.    The 

action  is  not  alfected  by  the  death  or  removal  of  a  trustee.    The  8ummon« 
to  a  trustee  or  ollicer  is  sufhciently  served  by  Iea\ing  it  at  the  :  :ed 

office  of  the  trade  uniou  (s.  9  of  1871  Act). 

(3)  LiaUlity  of  Trustees.— T\\Qy  are  not  liable  for  any  deficiency  in  the 
funds,  but  only  for  money  actually  received  by  them  on  behalf  of  the  uniou 
(s.  10). 

The  treasurer  and  other  officials  have  to  make  an  accounting  in  ; 
ance  with  the  rules  (s.  11). 

The  wilful  withholding,  or  application,  fraudulent  or  contrary  to  the 
rules,  of  any  of  the  elfects  of  the  union  is  an  oH'euce  dealt  with  under  sec.  VI. 
See  also  sec.  5  of  the  1S7G  Act. 

{d)  Pkosecutions  axd  Complaints. — The  jurisdiction  is  in  Scotland 
confined  to  the  Sheriff  Court.  Prosecutions  are  at  the  instance  of  the 
procurator-fiscal  under  the  provisions  of  the  Summary  Procedure  Act,  1864. 
Summary  orders  under  the  Act  may  be  made  and  enforced  on  complaint  in 
the  Sheriir  Court  (s.  19). 

The  21st  section  allows  an  appeal  against  any  order  or  conviction  to  tl  o 
Justiciary  Court. 

(c)  Mkmbers. — (1)  The  member.sliip  is  open  to  all  overM.MecnV'  • 
unless  the  rules  otherwise  provide  (1870  Act,  s.  9).  Their  position  ...  .  _ — 
to  the  union  is  an  anomalous  one.  For  they  enter  into  a  contract  declurtd 
not  to  be  unlawful  (it  would  be  more  correct  to  say  "contrary  to  the  law"), 
and  yet  they  are  excluded  from  enforcing  the  agreement.  In  other  won!<. 
they  have  apparently  no  legal  remedy  for  payment  of  the  benefits  for  which 
they  have  paid  their  contribution.?.  On  the  other  hand,  the  union  has  no 
means  of  enforcing  payment  of  their  contributions  by  the  membera 

(2)  Nomination  and   Payment  on  Death. — A  member  of  a    • 
trade  union  may  nominate  certain  per.sous  to  receive  any  sum  p..;.;-..    ■■.. 
his  death,  not  exceeding  £100  (1870  Act,  s.  10,  and  40  &47  Vict.  e.'47,  a  3). 
The  union,  on  satisfactory  proof  of  death  of  the  nominator,  pays  over  the 
money  to  the  nominee.     Where  a  member  dies  intestate  or  without  ni;i" 
nomination,  and  tiie  fund  does  not  exceed  £100,  payment  may  l>e  v.:    ' 
out  confirmation  to  the  person  considered  by  the  majority  of  lli- 
entitled  to  the  same.     If  the  deceased  member  be  a  bastard,  the  union  may 
make  payment  to  the  persons  who  would  have  been  entitled  if  he  had  btx*n 
legitimate,  or  if  there  is  no  such  person,  must  deal  with   tl      ' 
Treasury  may  direct  (Trovident,  Nomination,  and  Small  Inte-.  ^ 

40  &  47  Vict.  c.  47,  ss.  7  and  8).     A  trade  union  cannot  be  sued  by  a  nouiinee 
for  payment  of  the  sum  to  which,  under  the  rules,  he  became  cnlillo«l.  there 
being  nothing  in  the  provisions  of  the  1870  Act  which  \\ 
provisions  oi'the  4tli  section  of  the  1871  Act  in  this  re>i»Ci  : 
1  Q.  P..  702).  . 

No  estate  or  succession  duty  is  payable  on  such  sum  of  £Uk»,  nor  any 


296  TKADE  UXIOXS 

legacy  duty  where  the  sum  does  not  exceed  £80  (57  &  58  Vict.  c.  30,  s.  8 
(1);  46  .^-47  Vict.  c.  47,  s.  10). 

(  /■)  Exemption  from  Income  Tax. — Under  the  Trade  Union  (Provident 
Funds)  Act,  1893  (56  Vict.  c.  2),  the  interest  and  dividends  of  a  registered 
trade  union  applicable  and  applied  solely  for  the  purpose  of  provident 
l>enefits  are  exempted  from  income  tax,  provided  the  rules  do  not  permit  a 
member  to  be  assured  for  a  larger  sum  than  £200  or  an  annuity  exceeding 
£30  a  year. 

Tlie  mode  of  claiming  exemption  is  the  same  as  that  prescribed  for 
income  for  charities  (s.  2),  and  the  term  "provident  benefits"  is  defined 
under  sec.  3. 

III.  Combining  agatnst  Third  Parties. 

Hitherto  we  have  been  considering  mainly  the  position  of  trade  unions 
and  their  members  inter  se.  "VVe  have  now  to  consider  the  position  of  these 
in  relation  to  third  parties,  and  to  treat  the  law  as  it  affects  Strikes, 
Picketing,  Unlawful  Combination,  and  Conspii'acy  of  workmen  against  their 
masters  or  fellow-workmen. 

(a)  Civil  Liahility. — In  England  of  late  years  this  important  question 
has  been  much  discussed.  There  has  been  some  difference  of  opinion,  but 
by  recent  decisions,  including  the  Mogul  case  and  Allen  v.  Flood,  the 
principles  of  common  law  which  apply  to  such  questions  have  been  fairly 
well  settled. 

In  the  Mogul  Steamship  Co.,  [1892]  A.  C.  25,  certain  shipowners  formed 
an  association  in  order  to  secure  a  certain  carrying  trade  exclusively  to 
themselves,  by  the  inducement  of  cheaper  rates  of  freight,  and  the  proliibi- 
tion,  on  pain  of  dismissal,  of  agents  of  members  acting  in  the  interests  of 
competing  shipowners.  Their  action  seriously  prejudiced  the  trade  of 
other  shipowners ;  but  as  there  was  no  question  of  misrepresentation  or 
compulsion  used  in  attaining  their  object,  it  was  held  that  though  the 
agreement  itself  may  not  be  enforceable  as  between  the  parties,  as  being 
in  restraint  of  trade,  yet  neither  the  end  contemplated  by  the  agreement, 
nor  the  means  used  for  its  attainment,  was  contrary  to  law,  and  that  they 
were  not  liable  for  loss  sustained  by  third  parties. 

The  case  of  Allen  v.  Flood  ([1898]  A.  C,  reversing  [1895]  2  Q.  B.  21), 
wliile  it  does  not  define  the  rights  of  trade  unions,  is  a  case  of  high  authority 
and  importance,  and  lays  down  certain  legal  principles  that  help  to 
determine  the  liability  of  such  associations  and  their  members  in  their 
actings  towards  third  parties.  The  case  decides  that  an  act  lawful  in 
itself  is  not  converted  by  a  malicious  or  bad  motive  into  an  unlawful  act, 
so  as  to  make  the  doer  of  the  act  liable  to  a  civil  action.  The  act  com- 
plained of  in  this  case  was  that  the  delegate  of  the  trade  union  of  iron- 
workers employed  on  the  repair  of  a  ship  had  informed  the  employers  tliat 
unless  certain  shipwrights  were  discharged  from  the  work,  the  ironworkers 
would  all  leave.  The  delegate  had  previously  been  sent  for  by  the  iron- 
workers, who  told  him  this  was  their  intention.  In  consequence  of  the 
representation  made  to  the  employers,  the  sliipwrights  were  dismissed,  and 
two  of  them  raised  an  action  of  damages  against  the  delegate  of  the  union. 
It  was  decisively  settled  in  this  ca.se  that  the  delegate  had  not  used  unlawful 
means  in  procuring  the  shipwrights'  dismissal,  and  that  he  had  done  no 
unlawful  act,  and  tliat  in  order  to  give  a  cause  of  action  against  him,  malice 
did  not  suffice,  but  that  something  more,  such  as  violation  of  duty  or  breach 
of  contract,  or  what  would  tend  to  such  a  breach,  must  be  averred  and 
proved.     The  next  question  is  whether  such  an  act,  being  lawful  in  itself, 


TKADK  UXIOXS 


297 


would  become  actional ilu  wliuii  iloia'  hy  two  or  inoro  ]    --  -     -  .,^ 

tliis  question  has  been  decided  in  IFultlcij  v.  Simmv;  ..    .,'i 

In  that  case  Darling,  J.,  on  the  authority  of  recent  En'<;lihh  didii  nmlthe 
important  Irish  decision  of  Kearney  v.  Lloyil,  2G  L.  It.  Ir.  2G8,  ht-M  tlmt 
there  is  no  ground  of  action  unless  the  "acts  agreed  to  be  done,  an<l  in  fact 
done,  would,  had  they  been  done  without  i)rcconcert,  have  iiiv.-K.  ,1  :,  ,  ivil 
injury  "  to  the  pursuer. 

Tlie  dicta  in  these  cases  do  not,  of  course,  exclude  liability  where  there 
has  been  some  specific  wrong,  such  as  assault,  slander,  pro  '"ul 

dismissal,  etc.      The  principles  laid   down    in    these   Kngl.. ..  re 

recently  approved  and  followed  by  Ld.  Kincairney  in  the"  Sco:  .,f 

The  Scottish  Co-operative  Wholesale  Society  Ltd,  1898,  5  S.  L  T.,  No.  336. 
The  facts  more  nearly  resembled  the  Moijtd  case  than  Allm  v.  Flood,  a 
oo-operative  society  being  held  to  have  no  ground  for  damages  against  the 
Glasgow  butchers  for  forming  an  agreement  for  the  purpose  of  inducing  the 
cattle  salesmen  not  to  accept  the  bids  of  the  former  at  auction  sales  of 
cattle.  In  the  course  of  his  judgment  his  Lordship  said:  "It  cannot,  I 
think,  be  doubted  that  if  A.  inlorms  B.  that  he  will  not  deal  with  him 
unless  he  ceases  to  deal  with  C,  and  C.  thereby  loses  the  custom  of  B.,  C. 
has  no  action  against  A.,  although  he  may  in  fact  have  suffered  throu'^li  his 
interference;  and  if  it  should  appear  or  be  admitted  that  A.  ma^le  his 
request  or  demand  for  no  other  reason  than  Ijccause  he  disliked  C.  and 
wished  to  injure  him,  tliat,  according  to  the  doctrine  of  Allen  v.  FlvoJ.  would 
make  no  difference." 

(Z>)  Criminal  Liability. — There  are  not  any  penal  provisions  in  the 
statutes  affecting  trade  unions  as  societies,  and  they  are  therefore  not 
subject  to  prosecutions  as  such.  Certain  statutory  oflences  fur  which  the 
oificers  and  others  may  be  punished  have  already  been  n»entioned,  and  the 
mode  of  appeal  stated. 

The  question  as  to  how  far  trade  unions  and  their  niend)eis  arc 
criminally  liable  for  concerted  operations  against  third  parties,  as  i-y  >'' -A-w 
and  Picketing,  comes  under  the  law  of  Conspiracy. 

Prior  to  1871,  Strikes  and  Picketing  would  liave  been  held  to  be  illegal 
{Walsby,  1861,  3  El.  &  El.  51G),  though  there  was  a  tendency  by  some 
English  judges  to  regard  a  strike  as  lawful  if  not  accompanied  by  violence, 
intimidation,  or  the  like  {Druitt,  18GG,  10  Cox  C.  C.  502). 

So  the  combination  of  a  number  of  persons  to  induce  a  strike  would  also 
have  been  an  illegal  act. 

Following  on  a  Parliamentary  Commission  in  18G7,  there  was  passed  in 
1871  the  Criminal  Liw  Amendment  Act  (38  &  39  Vict.  c.  38),  which 
repealed  the  Act  of  1825,  and  limited  conspiracies  in  restraint  of  trade  to 
conspiracies  to  do  things  prohibited  by  the  Act.     It  was  found  necessary  to 

again  amend  the  law,  and  tlie  rights  of  trade  uni<ins  in  this  mattei •  "  w 

regulated  by  the  Conspiracy  and  l*rotectiun  of  Property  Act,  1^,  «V 

39  Vict.  c.  8G).  By  sec.  3  "  an  agreement  or  combination  by  two  or  more 
persons  to  do  or  procure  to  be  done  any  act  in  contemplation  or  fi:  e 

of  a  trade  dispute  between  employers  and  workmen,  shall  not  be  in'.  .  ■  le 
as  a  conspiracy,  if  such  act,  if  committed  by  one  pei-son,  would  n<'t  l«e 
punishable  as  a  crime."  Certain  saving  clauses  follow,  providing  that  any 
conspiracy  for  which  punishment  is  awarded  by  any  Act  of  I'  nt  w 

not  afTected,  nor  the  law  relating  to  riot,  unlawful  ;i-  '  '  >'.  br-.-i  '  "  le 
peace,  or  sedition,  or  any  oOence  against  the  State  or  ~-    ■   ■   ig'i-     •  * 

this  change  in  the  law  apply  to  the  wilful  and  malicious  breach  of  r.-ntract 
by  employees  of  authorities  supplying  gas  or  water  (a  4),  nor  to  wilful  and 


298  TRADE,  USAGE  OF,  CUSTOM  OF 

malicious  breach  of  a  contract  iuvolviug  injury  to  property  (s.  5).  Summary 
remedies  are  provided  by  the  Act  for  these  particular  breaches  ;  and  further, 
sec.  7  enumerates  certain  acts  for  which  a  person  is  liable  to  summary 
conviction  and  punishment  by  tine  or  imprisonment.  These  are  where  any 
person,  with  a  view  to  compel  any  other  person  to  abstain  from  doing  or  to 
do  any  act  which  such  other  person  has  a  legal  right  to  do  or  abstain  from 
doing,  wrongfully  and  without  legal  authority — 

1.  uses  violence  to  or  intimidates  such  other  person,  or  his  wife   or 

children,  or  injures  his  property  (see  Curran,  [1891]  2  Q.  B.  545 ; 
Judge,  1887,  3G  W.  E.  103) ; 

2.  persistentlv  follows  such  other  person  about  from  place  to  place  (see 

Smith,  1889,  54  J.  P.  596); 

3.  hides  any  tools,  clothes,  or  other  property  owned  or  used  by  such 

other  person,  or  deprives  him  of  or  hinders  him  in  the  use  thereof  ; 

4.  watches  or  besets  the  house  or  other  place  where  such  other  person 

resides,  or  works,  or  carries  on  business,  or  happens  to  be,  or  the 

approach  to  such  house  or  place  ; 
But  attendance   at  or  near  such   a   place   merely  in  order  to   obtain    or 
communicate  information  is  not  deemed  watching  or  besetting. 

5.  follows   such   other   person    with  two    or   more  other  persons  in  a 

disorderly  manner  in  or  through  any  street  or  road. 

Offenders  are  tried  in  the  Sheriff  Court,  subject  to  appeal  to  the 
Justiciary  Court  (ss.  17-20). 

The  Act  does  not  apply  to  seamen  or  to  apprentices  in  the  sea-service 
(s.  16).  This  means  seamen  as  defined  by  the  Merchant  Shipping  Acts,  i.e. 
persons  employed  or  engaged  on  board  ship  {11.  v.  Lynch,  [1898]  1  Q.  B.  61  ; 
Kennedy,  [1891]  1  (^  B.  77). 

There  are  not  any  reported  cases  in  Scotland  under  this  Conspiracy  Act 
of  1875.  In  England  the  law  as  to  Pichcting  under  the  Act  has  been 
frequently  discussed,  the  most  recent  being  Lyons,  [1896]  1  Ch.  811.  This 
case  is  not  affected  or  overruled  by  the  principles  laid  down  by  the  House 
of  Lords  in  Allen  v.  Flood  {Lyons,  1898,  15  T.  L.  E.  128). 

Under  the  present  law,  outside  of  these  statutory  provisions,  strikes, 
like  trade  unions,  are  not  contrary  to  law,  at  least  so  far  as  the  doctrines  as 
to  restraint  of  trade  are  concerned,  and  up  to  a  certain  point  a  strike  can 
be  conducted  with  perfect  legality.  They  have,  however,  no  power  to  coerce 
people,  and  to  prevent  them  working  for  whom  they  please,  and  on  what 
terms  tlicy  please.  A  strike  only  becomes  criminal  when  accompanied  by 
acts  which  themselves  are  criminal,  and  for  which  the  members  of  the 
union,  whether  acting  separately  or  in  combination,  will  be  prosecuted,  and 
not  tlie  union  itself.  The  circumstances  of  each  case  must  decide  whether 
the  limits  to  their  actings  which  the  law  allows  have  been  overstepped. 

Authorities. — 'SYi'v^lii'^  Conspiracy ;  Erie  on  Trade  Unions;  Guthrie  on 
Trade  Unions  ;  Davis  on  Friendly  Societies  and  Trade  Unions. 

See  Conspiracy  ;  Friendly  Societies  ;  Trade  Disputes  Conciliation 
Act. 

Trade,  Usage  of,  Custom  of  .—See  Custom  of  Trade. 

Tradition.— See  Delivery  of  Moveables. 

Transaction — "Any  agreement  between  two  parties  tending  to 
the  settlement  of  doubtful  and  controverted  claims.  It  does  not  apply  in 
strictness  to  mere  contingencies  "  (Bell's  Diet,  and  Dig.). 


TltAXSFEKEXCE  (l'K(JCESS)  299 

A  transaction  may  be  ludiiced  uu  the  ground  thai  ii  has  V' ■• 

by  misrepresentation  or  fraud  {Dempster,  187:5,  1 1  M.  843);  bi.' 
ground  of  error  as  to  legal  right  {Kipjn'n,  1871,  I   K.  1171). 

Transference  (Process).— A.  urdinari/  j^.j..,.  j...  ;,.    ,    , , 

Court  of  Session  from  Inferior  Courts. — The  procedure  is  rcgtilalod  by  \'>\  & 
32  Vict.  c.  100,  ss.  70-71,  and  by  Act  of  Sederunt,  10th  March  1870,8.  3. 
Within  two  days  from  receiving  the  note  of  ajtpeal,  the  Clerk  of  the  infericr 
Court  must  himself  (Innes,  1851),  12  I).  1007)  transmit  the  \>v  *       ne 

of  the  Clerks  of  the  Division  to  which  tlie  appeal  is  taken,  who  i  .  _  ^  Jii 
to  the  appeal  a  note  of  the  day  on  which  it  is  received  (.s.  71  of  the  statute). 
The  further  procedure  is  regulated  by  A.  S.,  1870,  s.  3.  If  the  apijcal 
has  been  held  to  be  abandoned  in  tlie  manner  provided  for  in  tlie  Act  of 
Sederunt,  the  process  is  retransmitted  to  the  Clerk  of  the  inferior  ('(.mt  the 
Clerk  of  Court  having  first  engrossed  on  the  interlocutor  slieet  ami  i  a 

certificate  to  this  effect :  "  [Date]  Eetransmitted  in  respect  of  the  abandon- 
ment of  the  appeal";  and  in  respect  of  said  certificate,  tlie  judge  of  the 
inferior  Court  will,  upon  motion,  grant  decree  for  payment  to  the 
respondent  of  £3,  3s.  of  expenses.  So  long  as  the  process  has  not  been 
actually  retransmitted,  the  Court  has  allowed  trilling  errors  to  lie  corrected, 
if  the  other  side  has  not  been  prejudiced  (I'arl-,  1874,  12  S.  L  I'.  11; 
Yoiuiff,  1875,  2  E.  45G ;    mdlcer,  1877,  4  li.  714;  Doj/d,  1888,  ItJ  J:.  104). 

In  appeals  under  the  Debts  Recovery  Act,  1807  (30  &  .".I  Vict.  e.  90). 
the  procedure  in  regard  to  transmission  of  process  is  sinjilnr  to  that  in 
ordinary  cases  (ss.  11-14).  AVhen  appeal  lias  been  made,  the  Sherifl'  Clerk 
transmits  the  whole  process  to  one  of  the  Principal  Clerks  of  tlic  Divi.sion  to 
which  the  appeal  is  taken  (or  to  one  of  the  Principal  Clerks  of  the  First 
Division  if  the  Division  is  not  named  in  the  ajipcal) ;  A.  S.,  14th  ( )ctolK-r 
1868,  s,  20,  provides  for  such  cases  being  sent  to  certain  Clerks  d. 

When  an  appellant  fails  to  move  in  an  appeal  under  the  Debts  i^'  ■  •■.-  ly 
Act,  s.  14,  it  is  the  duty  of  the  Clerk  to  the  process  at  once  to  tran-smit 
the  same  to  the  SherilT  Clerk,  without  any  steps  being  taken  by  the 
respondent  to  move  the  Court  to  dismiss  the  ap})eal ;  and  the  r<  nt 

will  not  be  allowed  the  expenses  of  enrolling,  etc.  {L'ainl,  18G0,  7  ^i.  c'j_). 

B.  Airpeals  for  Removed  of  Process. — Processes  may  be  tiansffiri'd  fmm 
the  Sheriff  Court  to  the  Court  of  Session  as  follows,  namely — 

(1)  By  appeal  on  the  ground  of  incompetency,  including  defect  of 
jurisdiction,  and  personal  objection  to  tiie  judge  {i.e.  interest  or  relatiuiiship). 
The  appeal  may  bo  taken  both  under  50  Geo.  ill.  c.  112,  s.  30,  and  in  virtue 
of  the  common"^  law  power  of  the  Court  to  control  irregular  pri>ceedin{;.s  in 
inferior  Courts.  The  procedure  was  formerly  by  advocation,  but  appeal 
was  substituted  as  a  mode  of  review  by  the  Court  of  Session  Act,  1868, 
ss.  65,  66.     See  Incompetency. 

(2)  By  motion  on  the  ground  of  contingency  (Court  of  Session  Act,  18GS. 
s.  74).  Formerly,  when  contingency  existed  between  an  inferior  Couit 
process  and  a  process  in  the  Court  of  Session,  it  was  neces-ary  to  ;  a 
note  of  advocation  oh  contimjmtieim  (50  Geo.  III.  c.  112,  s.  86)»»  "■  ••■'' 
Chamber;  but  the  following' procedure  can  now  be  a.lupied  by  mi  v  party 
desiring  to  transfer  the  inferior  Court  process  to  the  Court  of  ^  ';  "^ 
copy  of  the  inferior  Court  record,  or  of  such  pleadings  as  niav  J. 
lodged,  and  of  the  interlocutors  in  the  cause  certified  by  the  < '  '  "  ■ 
in  the  Court  of  Session  process,  and  the  Lord  Ordinary  oi  1  .•  ir  '  f 
whom  that  process  is  depending  is  movcl  to  grant  an  order  on  the  ^'crK  ol 
the  inferior  Court  for  the  transmission  of  the  inferior  Court  pro.     -      It  the 


300  TP.AXSFEEENCK  (PKOCESS) 

Lord  Ordinary  or  Division  is  satisfied  that  there  is  contingency,  warrant  is 
granted  to  the  Clerk  of  the  inferior  Court,  and  the  process  is  transmitted 
accordingly  (Court  of  Session  Act,  1868,  s.  74).  Tlie  decision  of  the  Lord 
Ordinary,  or  Court,  upon  the  motion  for  transmission  is  final ;  but  in  the 
event  of  the  application  being  refused,  either  party  may  renew  the  motion 
at  any  subsequent  stage  of  the  cause  (s.  75).  When  transferred,  the  action 
becomes  a  Court  of  Session  process,  and  if  desired  may  be  conjoined.  See 
Contingency  of  a  Process. 

(3)  By  appeal  for  jury  trial  (a)  In  ordinary  actions  under  the 
Judicature  Act,  1825  (6  Geo.  iv.  c.  120,  s.  40).  "  In  all  cases  originating 
in  the  inferior  Courts  in  which  the  claim  is  in  amount  aljove  £40,  as  soon 
as  an  order  or  interlocutor  allowing  a  proof  has  been  pronounced  in  the 
inferior  Courts  (unless  it  be  an  interlocutor  allowing  a  proof  to  lie  in 
retentis,  or  granting  diligence  for  the  recovery  and  production  of  papers),  it 
shall  be  competent  to  either  of  the  parties,  or  who  may  conceive  that  the 
cause  ought  to  be  tried  by  jury,  to  remove  the  process  into  the  Court  of 
Session,  by  Bill  of  Advocation  .  .  ."  Xote  of  appeal  is  now  substituted  for 
bill  of  advocation,  and  the  procedure  is  the  same  as  in  an  ordinary  appeal 
for  review  (i.e.  by  note  of  appeal  in  the  form  prescribed  by  the  Court  of 
Session  Act,  18G8,  ss.  66  et  scq.).  But  it  is  still  subject  to  the  conditions 
specified  in  the  Judicature  Act,  s.  40.  Appeals  for  jury  trial  are  pre- 
sented to  the  Inner  House,  but  may  be  remitted  to  the  Outer  House  (Court 
of  Session  Act,  1868,  s.  73). 

See  under  Appeal,  Ajjpcals  for  Removal  of  Process,  Appeal  for  Jury 
Trial;  Mackay,  Manual,  p.  599. 

{h)  In  competing  petitions  for  service.  Where  competing  petitions  have 
l)een  conjoined,  or  where  any  person  competently  appears  to  oppose  a 
petition  of  service,  any  of  the  parties  may  at  any  time  before  the  Sheriff 
has  begun  to  take  the  proof,  remove  the  proceedings  to  the  Court  of  Session 
by  note  of  appeal  in  the  form  prescribed  by  Court  of  Session  Act,  1868, 
6s.  66  et  seq.  (31  &  32  Vict.  c.  101,  s.  41,— re-enacting  10  &  11  Vict.  c.  47, 
s.  17 ;  and  see  ss.  43  and  44). 

(4)  By  note  for  transmission  of  process. — {a)  In  actions  relating  to 
lipritable  rights,  etc.,  under  the  Sheriff  Courts  Act,  1877,  s.  9  (40  &  41 
Vict.  c.  50). 

The  actions  formerly  competent  only  in  the  Court  of  Session,  but 
rendered  competent  in  the  Sheriff  Court  by  the  1877  Act,  s.  8,  may  be 
transferred  to  the  Court  of  Session  under  sec.  9.  The  defender  may  at  any 
time  before  the  closing  of  the  record,  or  within  six  days  thereafter,  lodge  a 
note  in  the  process  in  the  following  terms:  "The  defender  prays  that  the 
process  may  be  transmitted  to  the  Court  of  Session  [signature  of  defender 
or  agent  and  date]."  The  Sheriff  Clerk  forthwith  transmits  the  process  to 
the  Keeper  of  tlie  Polls  of  the  First  Division  of  the  Court  of  Session,  and  the 
Lord  President  determines  the  Lord  Ordinary  and  the  Division  before  whom 
it  shall  depend.  The  process  is  then  transmitted  to  the  office  of  such  Lord 
Ordinary,  and  tliereafter  the  action  proceeds  as  if  it  had  been  raised  before 
him.  If  the  defender  is  successful  in  liis  action,  but  tlie  Lord  Ordinary  or 
Court  is  of  opinion  that  tlie  action  might  have  been  properly  tried  in  the 
Sheriff  Court,  they  may  only  allow  him  expenses  on  the  Sheriff  Court  scale- 
(s.  9  of  Act). 

(//)  In  actions  under  the  Employers'  Liability  Act,  1880  (43  &  44  Vict.  c.42). 

^  Actions  of  damages  under  the  Employers'  Liability  Act,  1880,  must  be 

raised  in  the  Sheriff  Court,  but  such  actions  may  be  transferred  to  the  Court 

of  Session  at  the  instance  of  either  party,  in  the  manner  and  subject  to  the 


I 


Ti;AWI.IX(i 

conditions  prescribed  by  sec.  9  of  the  .Sherill'  (Juuit  Act,  1877  (Eii;>-^ V 

Liability,  s.  G).     The  whole  cause  is  removed  aud  not  merely  ti,  ;  » 

under  the  statute  {M'Avo;/,  1881,  9  R.  100;  Morrisun,  1882,  10  It 
►Such  actions  may  also  be  transferred  for  jury  trial  under  31  &    '      ' 
c.  100,  s.  73  ;  G  CJeo.  iv.  e.  120,  s.  40,  when'  an  order  for  proof  is  m..  .. 
other  actions  above  £40  {Paton,  1885,  12  It.  538). 

SeeApPKAL;  Mack, \y,  Practice;  BalUnxv,  Court  of  Stssion  Pnict ice;  Ihtst- 
AN'ilsou,  Sheriff  Court  Practice. 

Transportation  of  Convicts.— See  Tknal  Skuvitii.k. 

Transumpt,    Action    of.— The   action   of   transumpt   is  an 

action  to  unrorce  the  prochietiou  of  a  deed  or  other  writing  wilii  a  vi<  "  * 
having  it  copied,  and  to  have  it  declared  that  the  copy,  when  made  Jimi 
authenticated,  shall  be  held  to  be  equivalent  to  the  original,  or  at 
shall  have  the  same  effect  as  if  the  original  had  been  recorded  in  a  public 
register,  and  the  copy  were  an  extract. 

It  arose  at  a  time  when  writs  common  to  several  parties  had  not 
clauses  of  registration,  or  when  parties  were  not  willing  to  publish  them 
by  registration,  and  it  enabled  parties  who  were  entitled  to  raise  it  to 
obtain  what  was  the  equivalent  of  an  extract. 

The  action  was  only  competent  when  the  defender  or  haver  of  the  writ 
was  under  an  obligation  in  writing  to  grant  transumpts,  or  when  the  pui-suer 
could  prove  that  he  had  an  interest  in  the  writings  "  ex  (jr.  that  they  made 
part  of  the  title  deeds  of  his  lands." 

The  conclusions  of  the  action  were  that  the  defender  be  oniaincd  lu 
produce  the  writing  in  question,  that  the  copy  of  it  inserted  in  the  .summons 
be  collated  with  the  principal,  and  that  the  transumpt  or  collated  copy, 
signed  by  the  Clerk  of  Court,  be  declared  to  be  as  elfectual  as  if  it  •  u 

extract  of  a  registered  writ.     If  the  pursuer  obtained  decree,  the  tr....  .....i-t 

accordingly  became  equivalent  to  the  original  in  all  cases,  except  in 
actions  of  reduction  improbation,  when  the  original  writings  had  to  be 
produced. 

The  proper  parties  to  this  action  are  the  granter  and  grantee,  or  their 
respective  representatives,  of  the  writing  in  question,  and  also  the  iiaver  of 
the  writ;  and  unless  these  parties  are  all  parties  to  the  action,  or  ex- 
pressly consent  to  the  writings  being  transumed,  the  transumpt  will  not 
receive  effect  {Duncaw^,  1758,  Mor.  161G1).  This  action  is  an  accessory  one, 
and  is  distinguishable  from  the  action  of  exhibition  and  delivery,  which  is 
an  ordinary  principal  action.  It  was  competent  either  in  the  Court  of 
Session  or  inferior  Courts,  but  is  now  almost  unknown  in  pr,i<iice. 

[Du  Cange,  Glossarium  ;  Stair,  iv.  31  ;  F.ankt.  iv.  24.  58;  Ersk.iv.  1.  53; 
Jurid.  Styles,  iii.  22.] 

Trawling". — Trawling  is  the  name  given  to  the  method  of 

fish  by  means  of  mechanism  operating  at  the  botti>m  of  the  scji.      I  ,' 

is  regulated  by  statute,  and  by  bye-laws  promulgated  by  the  Fishei 
which  recognise  and  deal  witli  three  modi-s  of  trawling,  vi/..  Ix-am  • 
seine  trawling,  and  otter  trawling. 

Tiie  Scottish  Fishery  Board   was   established    by   i'       '  » 

(Scotland)  Act,  1882  (45  &  4G  Vict.  c.  78),  which  pros  .t 

the  Board  shall  take  cognisance  of  everything  relating  to  ;  .  p 

sea  fisheries  of  Scotland,  and  take  such  measures  for  their  improvement  aji 
the  funds  under  their  administration  aud  not  otherwise  approi.nated  may 


302  TKAWLIXG 

ailniit  of,  but  without  interfering  witli  any  existing  public  authority  or 
private  right. 

By  the  S.-a  Fisheries  Act,  1883  (46  &  47  Vict.  c.  22),  it  is  provided 
(Sche'd.  First,  Article  xix.)  that  when  trawl  fishermen  are  in  sight  of  drift- 
net  or  of  long-line  fishermen,  they  shall  take  all  necessary  steps  in  order  to 
avoid  doing  injury  to  the  latter.  Where  damage  is  caused,  the  responsibility 
sliall  lie  on  the  trawlers,  unless  they  can  prove  that  they  were  under  stress 
of  compulsory  circumstances,  or  that  the  loss  sustained  did  not  result  from 
their  fault  (see  Cojnbe,  1886,  1  Wh.  150;  Leslies,  1886,  14  R.  288;  Masson, 
1892,  20  E.  176). 

By  the  Sea  Fisheries  (Scotland)  Amendment  Act,  1885  (48  &  49  Vict, 
c.  70),  it  is  provided  (s.  4)  that  when  the  Fishery  Board  for  Scotland,  herein- 
after called  the  Fishery  Board,  are  satisfied  that  any  mode  of  fishing  in  any 
part  of  the  sea  adjoining  Scotland,  and  within  the  exclusive  fishery  limits  of 
the  British  Islands,  is  injurious  to  any  kind  of  sea-fishing  within  that  part, 
or  where  it  appears  to  the  Fishery  Board  desirable  to  make  experiments  or 
observations  with  the  view  of  ascertaining  whether  any  particular  mode  of 
fishing  is  injurious,  or  for  the  purposes  of  fish  culture  or  experiments  in  fish 
culture,  the  Fishery  Board  may  make  bye-laws  for  restricting  or  prohibiting, 
either  entirely  or  subject  to  such  regulations  as  may  be  provided  by  the 
bye-law,  any  method  of  fishing  for  sea-fish  within  the  said  part,  during  such 
time  or  times  as  they  think  fit,  and  may  from  time  to  time  make  bye-laws 
for  altering  or  revoking  any  such  bye-laws. 

A  bye-law  under  this  Act  shall  not  be  of  any  validity  until  it  is  confirmed 
by  the  Secretary  for  Scotland. 

A  bye-law  shall  not  be  confirmed  until  the  expiration  of  one  month  after 
notice  of  the  intention  to  apply  for  its  confirmation  has  been  given  by  the 
Fishery  Board  by  advertisement  in  one  or  more  newspapers  circulating  in 
the  county  or  counties  adjoining  the  part  of  the  sea  to  which  such  bye-law 
applies. 

The  Secretary  for  Scotland  shall  allow  any  person  to  make  a  representa- 
tion for  his  interest  against  the  confirmation  of  any  bye-law,  on  a  notice  of 
objection  being  given  by  such  person  to  the  Fishery  Board  within  the  said 
period  of  one  month,  and  may,  if  he  see  fit,  allow  parties  to  be  heard 
thereon. 

Every  bye-law  when  confirmed  shall  be  published  in  the  Fdinhurgh 
Gazette,  and  in  such  further  mode  as  the  Secretary  for  Scotland  may  direct. 

A  copy  of  the  Edinburgh  Gazette  containing  a  bye-law  shall  be  evidence 
in  all  legal  proceedings  until  the  contrary  is  proved  of  the  due  making, 
confirmation,  and  existence  of  such  bye-law,  without  further  or  other  proof. 

Any  person  contravening  a  bye-law  duly  confirmed  shall  be  guilty  of 
an  offence  under  the  Sea  Fisheries  Act,  1883,  and  shall  be  lial)le  on  summary 
conviction  to  a  fine  not  exceeding  one  hundred  pounds,  and  failing  immediate 
payment  of  the  fine  to  imprisonment  for  a  period  not  exceeding  sixty  days, 
without  prejudice  to  diligence  by  poinding  or  arrestment,  if  no  imprisonment 
has  followed  on  the  conviction. 

The  following  section  of  the  Act  (s.  5)  deals  with  trawlers,  and  provides 
that  every  British  sea-fishing  boat  propelled  by  steam,  fishing  in  any  part 
of  the  sea  adjoining  Scotland,  shall,  in  addition  to  having  the  number  and 
letters  painted  on  the  bow  in  maimer  provided  by  the  Sea  Fisheries  Act, 
1883,  have  the  initial  letter  or  letters  of  the  port  to  which  it  belongs,  and 
the  registry  number  in  the  series  of  numbers  for  that  port,  painted  in  white 
oil-colour  on  a  black  ground,  on  the  funnel  twelve  inches  from  the  top,  and 
on  the  quarter  three  or  four  inches  below  the  gunwale,  and  so  as  to  be 


TIlAWI.lXd  303 

clearly  visible,  of  the  dimensions  i)rescnljt'cl  f(.r  the  It-ticrs  and  mv^    -    r,„ 
tlie  bow  by  the  regiilutions  in  force  for  the  time  being  fur  the  .  •,•• 

numbcrin-^  and  registering  of  I'.ritish  sea-fishing  bouts  under  the  Sm 
Fislierics  Acts  or  any  Ads  amending  the  snme. 

This  section  shall  be  (.■nfdrtud  in  the  sani.-  manner  as  if  it  \v*,i..  ^,...i.iu.«d 
in  such  regulations. 

It  sliall  be  the  duty  of  the  Fishery  lioard  to  enforce  the  provisions  of 
the  Sea  Fisheries  Acts,  and  of  any  Orders  in  Council  following  thereon,  with 
respect  to  the  numbering  and  lettering  of  lishing-bouls,  by  direct"  ■  -V.-ir 
officers,  being  sea-fishery  officers,  to  use  the  powers  in  tiiat  behalf  ■  .-d 

upon  sea-fishery  officers  by  the  said  Acts  and  Orders  in  Council. 

By  the  Herring  Fishery  (Scotland)  Act,  188'J  (52  &  Uo  Vict.  c.  2:i),  it  is 
provided  (s.  G  (1))  that  it  shall  nut  be  lawful  to  u.se  the  method  of  l;'  - 
known  as  beam  trawling  or  otter  trawling  within  three  miles  of  low  .....  . 

mark  of  any  part  of  the  coast  of  Scotland  nor  within  the  waters  specified  in 
the  schedule  annexed  to  the  Act,  save  only  between  such  points  on  the 
coast  or  within  such  other  defined  areas  as  may  from  time  to  time  Ik; 
permitted  by  bye-laws  of  the  Fishery  lioard  for  Scotland,  and  subject  to  any 
conditions  or  regulations  made  by  these  bye-laws.  Provided  that  this  section 
shall  not  apply  to  the  Solway  Firth  nor  to  the  I'entland  Firth ;  and  pro- 
vided also  that  nothing  herein  contained  shall  aflect  the  powers  of  the 
Fishery  lioard  under  sec.  4  of  the  Sea  Fisheries  (Scotland)  Aii!-'!''"""' 
Act,  1885. 

(2)  The  Fishery  Board  may  from  time  to  time  make,  alter,  and  revoke 
bye-laws  for  the  purpo>^es  of  this  section,  but  a  bye-law  shall  not  be  of  any 
validity  until  it  is  confirmed  by  the  Secretary  for  Scotland. 

(3)  This  subsection,  which  imposed  penalties  for  contravention  of  the 
enactment  of  subsection  (1)  and  of  any  bye-law  of  tlie  Fishery  Board,  was 
repealed  by  sec.  3  of  the  Herring  Fishery  (Scotland)  Act  Amendment  Act, 
1890  (53  Vict.  c.  10),  which  provides  as  follow:— 

Any  person  wdio  uses  any  method  of  fishing  in  contravention  of  the 
6th  section  of  the  Herring  Fishery  (Scotland)  Act,  1889,  or  of  any  bye- 
law  of  the  Fishery  Board  duly  confirmed,  shall  be  liable,  on  (  ion 
under  the  Summary  Jurisdiction  (Scotland)  Acts,  to  a  fine  not  e\'  '■<•  iing 
one  hundred  pounds,  and  failing  immediate  payment  of  the  fine,  to 
imprisonment  for  a  period  not  exceeding  sixty  ilays,  witiiout  prejudice  to 
diligence  by  poinding  or  arrestment,  if  no  imprisonment  has  followed  on 
the  conviction;  and  every  net  set,  or  attempted  to  be  .set,  in  contravention 
of  this  section  shall  be  forfeited,  and  may  be  seized  and  ilestroyed  or 
otherwise  disposed  of  by  any  superintendent  of  the  Herring  Fishery  or 
other  officer  employed  in  the  execution  of  the  Herring  Fishery  (Scotland) 
Acts. 

It  is  further  provided   by    tlic    Herring  Fishery  (Scotland)  Art    IQfiO 
(s.  7  (1)),  that  the  Fishery  Board  may,  by  bye-law  or  bye-laws,  <, 
the  methods  of  fi.shing  known  as  beam  trawling  and  otter  trawling  shall 
not  be  used  within  a  line  drawn  from  I)uncansby  Head,  in  ' '     ' 
llattray  Toint,  in  Aberdeenshire,  in  any  area  or  areas  to  be  dc...    . 
bye-law,  and  may  from    time   to   time   make,  alter,  and  revoke  by 
for  the  purposes  of  this  section,   but   no   such   bye-law   shall   Ik)  of  any 
validity  until  it  has  been  confirmed  by  the  Secretary  for  Scotland  (  H*  " 
1896,  2  Adam,  114:    W/u/fc,  1897,  24  R.  (J.  C.)  55). 

(2)  This  subsection,  which  imposed  penalties  for  contravention  of  any  bye- 
law  made  in  virtue  of  the  powers  conferred  on  the  Fishery  lioartl  by  the  fore- 
going subsection,  was  repealed  by  sec.  10  (5)  of  the  Sea  Fisheries  Kegulalion 


304  TEAWLIXG 

(Scotland)  Act,  1895  (58  &  59  Vict.  c.  42),  and  sec.  10  (4)  of  said  Act  was 
substituted  tlierefor.  (See  iyifm  for  the  provisions  of  this  last-mentioned 
subsection.)  It  is  further  provided  by  the  said  Herring  Fishery  (Scotland) 
Act,  1889  (s.  8),  that  it  shall  not  be  lawful  to  land  or  to  sell  in  Scotland 
any  fish  caught  in  contravention  of  the  Act,  or  of  any  bye-law  made  there- 
under, and  all  superintendents  and  other  officers  employed  in  the  execution 
of  the  Herring  Fishery  (Scotland)  Acts  are  hereby  empowered  and  required  to 
prevent  the  landing  or  sale  of  any  fish  so  caught  {Poll,  1898,  oh  S.  L.  E.  637). 

The  said  Sea  Fisheries  Eegulation  (Scotland)  Act,  1895,  remodelled  the 
constitution  of  the  Fishery  Board  (s.  4),  and  established  sea-tishery  districts 
(s.  5),  and  fishery  district  committees  (s.  6),  which  were  empowered  (s  8  (1)), 
from  time  to  time,  subject  to  such  regulations  as  might  be  made  in 
that  behalf  by  the  Fishery  Board,  to  impose  penalties,  and  also  to  make 
bye-laws  to  be  observed  within  their  district,  for,  inter  alia,  the  following 
purpose : — 

For  restricting  or  prohibiting,  either  absolutely  or  subject  to  such 
regulations  as  may  be  provided  by  the  bye-laws,  any  method  of  fishing  for 
sea  fish  or  the  use  of  any  instrument  of  fishing  for  sea  fish,  and  for 
determining  the  size  of  mesh,  form,  and  dimensions  of  any  instrument  of 
fishing  for  sea  fish. 

It  is  further  provided  by  said  Act  (s.  9  (1))  that  the  Fishery  Board  may,  by 
bye-law  or  bye-laws,  direct  that  the  method  of  fishing  known  as  seine  trawling 
shall  not  be  used  in  any  area  or  areas  within  the  limits  specified  in  sec.  6 
of  the  Herring  Fishery  (Scotland)  Act,  1889,  or  in  tlie  schedule  annexed  to 
that  Act,  as  defined  in  such  bye-law,  and  may  from  time  to  time  make, 
alter,  and  revoke  bye-laws  for  the  purposes  of  this  section. 

(2)  Any  person,  who  uses  such  method  of  fishing  in  contravention 
of  any  sucli  bye-law,  shall  be  liable,  on  summary  conviction,  to  a  fine  not 
exceeding  five  pounds  for  the  first  ofience,  and  not  exceeding  twenty 
pounds  for  the  second  or  any  subsequent  offence;  and  every  net  set,  or 
attempted  to  be  set,  in  contravention  of  any  such  bye-law,  may  be  seized 
and  destroyed  or  otherwise  disposed  of  by  any  superintendent  of  the 
herring  fishery  or  other  officers  employed  in  the  execution  of  the  Herring 
Fishery  (Scotland)  Acts.  Provided  always  that,  if  no  conviction  shall 
follow,  any  net  so  seized  shall  be  forthwith  returned,  and  due  compensation 
shall  be  made  for  any  loss  or  dxmage  occasioned  thereto  by  such  seizure. 

Sec.  10. — (1)  The  Fishery  Board  may,  by  bye-law  or  bye-laws,  direct 
that  the  methods  of  fishing  known  as  beam  trawling  and  otter  trawling 
shall  not  be  used  in  any  area  or  areas  under  the  jurisdiction  of  Her 
Majesty,  within  thirteen  miles  of  the  Scottish  coast,  to  be  defined  in  such 
bye-law,  and  may  from  time  to  time  make,  alter,  and  revoke  bye-laws  for 
the  purposes  of  this  section.  Provided  that  the  powers  conferred  in  this 
section  shall  not  be  exercised  in  respect  to  any  areas  under  Her  Majesty's 
jurisdiction  lying  opposite  to  any  part  of  the  coasts  of  England,  Ireland,  or 
the  Isle  of  Man,  within  thirteen  miles  thereof. 

(2)  Xo  bye-law  under  this  section  shall  be  confirmed  by  the  Secretary 
for  Scotland  until  he  shall  have  directed  a  local  inquiry  to  be  held  in  the 
district  adjoining  the  part  of  the  sea  to  be  included  in  the  bye-law ;  at 
which  inquiry  all  persons  interested  shall  be  heard,  whether  resident  in  the 
district  or  not ;  and  notice  of  such  inquiry  shall  be  sent  to  all  committees 
of  sea-fisliery  districts  in  the  United  Kingdom. 

(3)  Provided  that  no  area  of  sea  within  the  said  limit  of  thirteen  miles 
shall  be  deemed  to  be  under  the  jurisdiction  of  Her  Majesty  for  the 
jjurposes  of  tliis  section  unless  the  i)owers  conferred  thereby  shall   have 


Tin-Asox  30:; 

been  accepted  as  binding  x\\uni  their  uwii  subjects  with  respect  i.j  Butii 
area  by  all  the  States  signatories  of  the  Xtirtli  Sea  Convention,  1HS2. 

(4)  Any  person  who  uses  any  such  method  of  fishing'  in  eonlravention 
of  any  such  bye-law,  shall  be   liable  on   convicti(»n,  un<ler  the  S  y 

Jurisiliction  (Scotland)  Acts,  to  a  line  not  exceedin*;  one  hundred  j-MUias, 
and  failing  immediate  payment  of  the  fine  to  imi)risonment  f<.r  a  i.eri«xl 
not  exceeding  sixty  days,  without  prejudice  to  diligence  by  p<jindini.'  or 
arrestment,  if  no  imprisonment  has  followed  on  the  convietion  ;  and  . 
net  set,  or  attempted  to  be  set,  in  contravention  of  any  sueh  bye-law,  may 
be  seized  and  destroyed,  or  otherwise  disposed  of,  ])y  any  superintendent  of 
the  herring  tisliery  or  other  ofiicers  employed  in  tiie  execution  of  t.li« 
Herring  Fishery  (Scotland)  Acts.  Provided  always  tliat,  if  no  convi 
shall  follow,  any  net  so  seized  shall  be  forthwith  retiirned,  and  av,ii 
compensation  made  for  any  loss  or  damage  occasioned  thereto  by  sn'h 
seizure. 

(6)  Failing  payment  by  a  certain  date  named  in  the  conviction  of  the 
fine  imposed  upon  the  person  or  persons  convicted,  decree  therefor  may  be 
pronounced  against  the  owner  or  owners  of  the  ollending  vessel  or  boat,  and 
upon  such  decree  being  pronounced,  the  person  or  persons  convicted  bhall 
be  relieved  therefrom  and  from  all  penalties  attaching  thereto. 

•  In  virtue  of  the  powers  conferred  upon  the  Fishery  Board  in  the  fore- 
going statutes,  bye-laws  regulating  trawling  in  the  .seas  adjacent  to  the 
coasts  of  Scotland  have  from  time  to  time  been  passed. 

The  Merchant  Shipping  Act,  1894  (57  &  58  Vict.  c.  60),  contains  certain 
provisions  applying  to  trawlers.     These  relate  to  the  engagement  of  ii 

(ss.  399-408),  the  payment  of  wages  and  discharge  of  seamen  (ss.  4i/.^  i .  J.), 
the  certificates  of  skippers  and  second  hands  (ss.  413-416),  and  the  convey- 
ance of  fish  from  trawlers  (s.  417). 

Treason. — By  the  ancient  law  of  Scotland  treason  was  either 
proper  or  constructive.  Treason  proper  comprehended  all  otlences  which 
were  held  to  be  high  treason  itself — offences  against  the  State  or  the 
sovereign  (see  1424,  cc.  3,  4;  1449,  c.  25;  1455,  c.  54;  1584,  c.  129;  1661. 
c.  5;  1(362,  c.  2;  1089,  cc.  1,  2;  and  1703,  cc.  1,  3).  Constructive  treason 
embraced  all  offences  which,  though  in  themselves  bearing  none  of  tlie 
characters  of  treason,  were,  from  their  serious  nature,  punished  as  tr- 
(see  1528,  c.  8 ;  1587,  cc.  50,  51 ;  1592,  c.  146 ;  and  1681,  c.  15).  In  Iwth 
these  classes  of  treason  tlie  punishment  was  death,  forfeiture  of  real  and 
personal  estate,  and  loss  of  honour  and  privilege. 

By  the  Act  of  7  Anne,  c.  21,  ss.  1,  23,  the  Englisli  law  of  treason  was 
adopted  as  that  of  Scotland.  Tiie  basis  of  the  law  of  treason  in  England  is 
25  Edw.  III.  stat.  5,  c.  2,  which  established  the  various  modes  of  committing 
treason. 

Under  that  statute,  the  following  acts  are  treason  : — 

1.  To  compass  or  imagine  the  death  of  the  king,  or  of  his  queen,  or  • 
eldest  son  and  heir. 

The  word  "king"  means  sovereign  reigning,  whether  cerrn""""y 
crowned  or  not,  and  applies  to  a  king  dc  facto  as  well  as  Jr  jtirr.     I:  -. 

to  the  heir  of  the  king,  though  not  yet  crowned,  from  the  moment  ol  his 
predecessor's  death.  Tiie  term  includes  a  (lueen  regent,  but  not  her 
consort.  .     . 

The  words  "his  queen"  refer  only  to  the  wife  of  the  reiening  sovereign, 

so  long  only  as  the  marriage  lasts. 

The  words  "eldest  son  and  heir"  indicate  only  the  eldest  son  of  the 

S.  E. — VOL.  XII. 


300  TEEASOX 

sovereign,  and  not  the  presumptive  heir,  nor  eklest  daughter  where  there 
is  no  son. 

If  iv  usurper  is  in  possession  of  tlie  throne,  the  treason  laws  do  not 
apply  to  acts  done  against  the  rightful  heir  to  the  Crown. 

Overt  Acts. — There  must  be  overt  acts  indicating  treasonable  intention. 
Thus,  lying  in  wait  to  kill  the  king,  preparing  arms  or  poison  for  this 
purpose,  consulting  as  to  means  of  doing  so,  bribing  a  person  to  do  so,  are 
direct  overt  acts. 

There  may  be  dubiety  as  to  whether  writings  or  words  spoken  amount 
to  overt  acts. 

(1)  Writings. — Speculative  writings,  unpul)lished,  are  not  treasonable. 
"Writings  which  relate  to  an  existing  treasonable  conspiracy  may,  though 
unpublished,  amount  to  a  proper  overt  act.  A  general  impeachment  of 
monarchy  is  not  treasonable ;  but  if  published  writings  arraign  the  existing 
sovereign  as  a  tyrant,  they  are  treasonable. 

(2)  Words  Spoken. — If  the  language  used  is  general  and  not  relative  to 
any  design,  it  is  not  treasonable.  Spoken  words,  however,  may  afhx  a 
treasonable  character  to  an  ambiguous  act ;  and,  conversely,  the  character 
of  the  act  done  may  affix  a  treasonable  signification  to  words  spoken. 

The  law  of  treason  is  extended,  as  regards  the  person  of  the  sovereign, 
by  the  Act  36  Geo.  in.  c.  7,  which  is  made'perpetual  by  57  Geo.  in.  c.  6.  By 
this  statute  it  is  treason  "  to  compass,  imagine,  invent,  devise,  or  intend  death 
or  destruction,  or  any  bodily  harm  tending  to  death  or  destruction,  maim 
or  wounding,  imprisonment  or  restraint,  of  the  person  of  the  sovereign." 

In  the  case  of  the  king's  wife  or  heir,  the  compassing  must  be  directed 
against  their  lives,  and  not  merely  aim  at  restraint  of  their  persons. 
•     2.  It  is  treason  if  a  man  violate  the  king's  companion,  or  the  king's 
eldest  daughter  unmarried,  or  the  wife  of  the  king's  eldest  son  and  heir. 

It  matters  not  whether  the  carnal  knowledge  be  by  force  or  consent, 
and  it  is  treason  in  the  woman  consenting  as  well  as  in  the  man. 

3.  It  is  treason  to  levy  war  against  the  king  within  his  realm. 

(1)  There  must  be  a  levying  of  war.  A  mere  consultation  or  conspiracy 
to  levy  war  is  not  enough.  But  the  mere  raising  and  assembling  of  a 
warlike  force,  or  attack  on  the  king's  troops  for  public  reasons,  or  holding 
out  a  castle  against  the  king's  troops,  amounts  to  levying  of  war. 

(2)  The  war  must  be  levied  against  the  king.  It  is  enough  that  the 
royal  prerogative  or  autliority  is  attacked,  or  reformation  of  the  established 
lau-s  or  politicaHnstitutions  is  attempted  by  force.  But  a  rising  is  treason- 
able only  when  it  aims  at  the  accomplishment  of  a  general  object,  or  takes 
cognisance  of  a  matter  of  general  concern.  When  tumult  arises  from  a 
special  provocation,  or  merely  to  redress  a  local  grievance,  this  is  riot  only, 
and  not  treason. 

(3)  The  levying  of  war  must  be  within  the  king's  realm.  This  includes 
the  narrow  seas,  so  that  it  is  treasonable  to  attack  a  royal  vessel  there. 

4.  It  is  treasonable  to  adhere  to  the  king's  enemies,  or  aid  or  comfort 
them  within  the  realm  or  elsewhere.  Every  alien  is  an  enemy  who  comes 
into  this  country  in  open  hostility,  though  liis  State  be  at  the  time  friendly 
with  Great  Britain.  Acts  of  adherence  to  those  opposed  to  the  king's  allies 
are  treasonable.  ,    •. 

5.  It  is  treason  to  counterfeit  the  king's  Great  or  Privy  Seal,  or  the 
Crown  Seals  appointed  by  the  Act  of  Union  to  be  used  in  Scotland. 

6.  It  is  treason  to  slay  the  king's  chancellor,  treasurer,  or  justices  while 
in  office.  This  includes  the  slaying  of  any  of  the  judges  of  the  Scottish 
Supreme  Courts  while  sitting  in  judgment. 


TPiEASOX-FELONV  307 

7.  It  i«  treasonaltle  (1   Anne,  slat.  'J,  c.  17)  to  endeavour,  l.y  uny 
and  overt  act,  to  hinder  tlie  succession  to  tlie  Crown  of  the  jhtboh  ei.:.... .. 

to  succeed  according  to  tlie  jirovisions  of  the  Act  of  Setllenicnt ;  and,  liy 
0  Anne,  c.  7,  it  is  treason  to  maintain  and  allirnj,  advisedly  and  directly, 
by  writing  or  printing,  that  any  jtcrson  has  right  to  the  (.'rown  i.f  these 
realms,  otherwise  tlian  by  the  Act  of  Settlement,  or  that  the  King  and 
Parliament  cannot  make  laws  to  bind  the  Crown  and  descent  thereof.  lUjt 
to  do  the  same  by  teaching,  preaching,  or  advised  speaking  does  not  aniouot 
to  treason. 

I^crsons  ivJio  are  AmcnaUc  (o  Trial  for  'frianon — 

(1)  Everyone  born  of  a  British  father,  whether  resident  at  home  or 
abroad. 

(2)  Every  natural-born  subject  of  a  friendly  State  who  is  resident  in 
this  country.  If  war  breaks  out  between  his  State  and  (Jreat  Britain,  he 
must  leave  tliis  country  before  he  is  entitled  to  take  service  under  his  own 
prince.  If  he  remains,  he  is  treated  as  a  I.ritish  subject.  Foreign 
ambassadors  are  guilty  of  treason  when  they  attempt  the  sovereign'.s  life. 

(3)  An  enemy  coming  to  Great  Britain  under  protection  of  a  royal  safe- 
conduct  is  amenable  to  the  laws  against  treason. 

(4)  Accessories,  whether  before  or  after  the  fact,  are  principals  in 
treason. 

Procedure. — In  Scotland  tren.^on  mav  be  tried  by  the  Court  of  Justiciarv 
or  by  any  Iioyal  Commission  of  Oyer  and  Terminer,  containing  at  least 
three  Lords  of  Justiciary.  If  the  Lord  Advocate  desires  it,  any  trial  for 
treason  pending  before  the  Commission  may,  by  a  certiorari  under  the  CJreat 
Seal,  be  transferred  to  the  Justiciary  Court.  A  Lirand  jury  of  twelve  must. 
within  three  years  after  the  offence,  find  a  true  bill  against  the  traitor,  and 
the  trial  then  proceeds  before  a  petty  jury  of  twelve.  A  copy  of  the 
indictment  and  list  of  the  jury  must  be  served  on  the  prisoner,  the  xnduci(c 
being  fifteen  days.  The  accused  has  right  of  peremptory  challen;:e  of  jurors 
to  the  number  of  thirty-five.  Two  concurring  wilnes.se3  to  each  (»vert  act 
libelled,  or  one  witness  to  each  of  two  or  more  overt  acts  of  the  same  siM?cie.s 
of  treason,  are  required  (1  Edw.  vi.  c.  12 ;  5  &  G  Edw.  vi.  c.  11  ;  1  .^-  2  ThJl. 
and  Mary,  c.  10 ;  7  Will.  III.  c.  3).  The  Criminal  Procedure  Act.  1S87  (50 
&  51  Vict.  c.  35),  does  not  apply  to  treason,  nor  allect  the  procedur'  i'>  <ny 
prosecution  or  trial  therefor  (s.  75). 

Punishment. — (1)  Death.  The  accused  is  to  be  drawn  on  a  hurdle  to 
the  place  of  execution  and  hanged  or  beheaded  (the  latter  only  in  the  case 
of  men)  (30  Geo.  iii.  c.  48).  After  death  the  body  is  quartered  (54  ( loo.  HI. 
c.  146). 

(2)  Confiscation  of  moveables. 

(3)  Forfeiture  of  honours  and  heritage  held  in  fee-simple  to  the  Crown. 

(4)  Corruption  of  Wood,  no  one  succeeding  to  the  traitor  a--  '  -  or 
tlirougli  him  (see  Gordon,  1  Pat.  558). 

In'  England  the  punishment  of  treason  is  now  hanging,  the  con~  ^  es 
of  forfeiture  and  attainder  having  been  abolished  by  33  &  34  Vict,  c.  1\;.  an 
Act  which  does  not  apply  to  Scotland.  e    •    •■ 

[Hume,i.  512;  Alison,  i.  596;  Ersk.  iv.  4.  20;  P.ankt  ii.  3.  46;  Stoir.u. 
3.  m\  Macd.  226;  Anderson,  Cn?n.  Zaw,  28  ;  Stephen,  Com,,  12lh  ed.,  ii. 
441 ;  iv.  137.] 

Treason-Felony.— In  1848  an  Act  was  passed  to  enable  the 

ordinary  criminal  Courts  to  try  an.l  punish  in  the  usual  w.iy  trcMonable 
practices  of  minor  political  significance,  without  the  necessiiy  of  dealing 


308  TEEASOX,  MLSPEISIOX  OF 

with  them  as  high  treasou.  By  this  statute  (11  Vict.  c.  12)  it  was  provided 
(s.  3)  that  "  if  any  person  whatsoever  shall,  within  the  United  Kingdom  or 
without,  compass,  imagine,  invent,  devise,  or  intend  to  deprive  or  depose 
our  most  gracious  lady  the  Queen,  her  heirs  or  successors,  from  the  style, 
honour,  or  royal  name  of  the  imperial  crown  of  the  United  Kingdom,  or  of  any 
other  of  Her  Majesty's  dominions  and  countries,  or  to  levy  war  against  Her 
Majesty,  her  heirs  or  successors,  within  any  part  of  the  United  Kingdom,  in 
order  by  force  or  constraint  to  compel  her  or  them  to  change  her  or  their 
measures  or  counsels,  or  to  put  any  force  or  constraint  upon,  or  in  order  to 
intimidate  or  overa\ve  both  Houses,  or  either  House  of  Parliament,  or  to 
move  or  stir  any  foreigner  or  stranger  witli  force  to  invade  tlie  United 
Kingdom  or  any  other  of  Her  Majesty's  dominions  or  countries  under  tlie 
obeisance  of  Her  Majesty,  her  heirs  and  successors ;  and  such  compassings, 
imaginations,  inventions,  devices,  or  intentions,  or  any  of  them,  shall  express, 
utter,  or  declare,  by  publishing  any  printing  or  writing,  or  by  open  and 
advised  speaking,  or  by  any  overt  act  or  deed,"  he  shall  be  guilty  of  felony. 
This  statute  thus  makes  the  crime  of  treason-felony  consist  in — 

1.  Devising  the  deposition  of  the  sovereign  or  successors ;  or 

2.  Devising  the  levying  of  war  on  the  sovereign  in  order  to — 

(1)  Compel  a  change  of  measures  or  counsels. 

(2)  Intimidate  Parliament. 

(3)  Stir  up  or  induce  foreign  invasion. 

The  crime  is  complete  wlien  such  devising  has  been — 

(a)  published  in  print  or  writing  ; 

(b)  openly  and  advisedly  spoken  of; 

(c)  indicated  by  overt  act  or  deed. 

It  is  competent  to  try  under  the  statute  offences  which  may  amount  to 
high  treasou  (s.  7). 

Punishment. — The  statutory  penalty  is  penal  servitude  (20  &  21  Vict. 
c.  3,  and  27  &  28  Vict.  c.  47)  for  life,  or  any  period  not  less  than  seven 
years,  or  imprisonment  not  exceeding  two  years,  with  or  without  hard 
labour. 

There  has  been  only  one  prosecution  under  the  statute  in  Scotland,  viz. 
Cummimj  and  Others,  18-48,  J.  Shaw,  17.  (See  also  Mulcahy,  L.  P.  3  H.  L. 
306,  328.) 

[.Alacdonald,  232 ;  Stephen,  Com.,  12th  ed.,  iv.  153  ;  Anderson,  Crim. 
Law,  34.] 

Trcasoil,  IVlisprision  of.— The  term  misprision  is  derived 
from  the  old  French  mes,  wrongly,  and  j^reiidre,  to  take.  In  the  law  of 
England  the  term,  in  its  widest  signification,  denotes  every  serious  mis- 
demeanour which  has  no  7iomcn  Juris.  By  the  law  of  that  country,  a 
misprision  is  held  to  be  implied  in  every  treason  or  felony,  so  that  a  person 
may  be  proceeded  against  either  for  the  treason-felony  or  for  a  misprision 
only.  In  England,  however,  the  term  is  now  rarely  used  in  this  wide  sense, 
but  i.s  practically  confined  to  the  two  phrases,  misprision  of  treason  and 
misprision  of  felony. 

The  crime  of  misprision  of  treason  consists  in  knowing  of  a  treasonable 
act  and  failing  to  communicate  this  knowledge,  with  all  reasonable  speed, 
to  a  judge  or  justice  of  the  peace.  It  follows  that  whenever  a  new  treason 
is  enacted,  there  results  a  new  misprision  of  treason.  If  the  guilt  exceed  a 
bare  failure  to  reveal,  the  charge  will  not  be  limited  to  misprisi(jn.  The 
conduct  of  the  accused  may  be  such  as  to  warrant  his  being  indicted  for 
high  treason. 


ti:easuiik  tih»\i: 


309 


The  mode  of  prosecution  fur  misprisiuii  of  treason  is  the  satne  n«  that 
provided  lor  high  treason. 

I'unishitient. — The  punishment  ul'  niisiirisiou  of  treason  i-  ....  •  ii 
imprisonment,  forfeiture  of  goods,  and  of  the  profits  of  hinds  dui  ;o 

of  the  offender. 

[Hume,  i.  551;  Ersk.  iv.  4.  28;  iiank.  ii.  2G1 ;  More.  ii.  307;  Swin. 
Ahriihj.  voce  "Treason";  Sweet's  Law  Did.,  sub  voce;  Macdonahl,  2li2  , 
Anderson,  Crim..  Law,  34.]     See  Thkason. 

Treasure  Trove.— The  riglit   to  trea.sure  trove  is  one  of  llie 

Ecgalia  Mi  nam,  and  as  .such  is  vested  in  the  Crown.  It  is  coramtniioahlc  to 
a  siibject,  but  only  by  express  grant,  not  being  included  among  those  rights 
which  a  barony  charter  carries  by  imi.liciition.  Similarly,  if  a  subject 
having  a  grant  of  treasure  trove  from  tiie  Crown  feus  out  his  land,  the 
right  to  any  treasure  which  may  l)e  found  in  it  remains  with  tlie 
superiority  unless  it  be  expressly  conferred  upon  the  vassal  (Stair,  ii,  1.  5 ; 
ii.  3.  60). 

Treasure  trove  is  defined  by  Paulus  as  follows :  "  Thesaurus  est  vetus 
quaidam  depositio  pccunifc  cujus  non  extat  momoria  ut  jam  dominum  noii 
habeat"  {Dig.  41.  1.  31.  1).     The  lloman  law  as  to  tiie  right  of  propt-rty  in 
such  finds  underwent  alteration  at  various  times,  but  the  general  principle 
finally  established  was  that  treasure  trove  belonged  to  the  owner  of  the  soil 
in  which  it  w-as  found  if  the  discovery  were  made  by  (1)  him.«olf,  (2)  his 
servant  employed  to  search  on  his  behalf,  or  (3)  a  stranger    making   a 
deliberate  and  unauthorised  search.     On  the  other  hand,  where  a  person 
discovered  treasure  fortuitously  and  without  express  search  in  another's 
bind,  it  was  divided  equally  l)etween  the  finder  and  the  proprietor  of  the 
soil  {Inst.  ii.  1.  39).      The  following  definition  given  liy  Ciiitty  {I'rcro^;-'   ^ 
of  the  Crown,  p.  152)  accurately  expresses  the  modern  Kngli.sh  law  oi. 
subject   in  terms   which   are   equally  applicable  to  Scotland :   "  Treasure 
trove  is  where  any  gold  or  silver  in  coin,  plate,  or  bullion  is  found  conce;»le<l 
in  a  house  or  in  the  earth  or  other  private  place,  the  owner  thereof  being 
unknown,  in  w-hicli  case  the  treasure  belongs  to  the  King  or  his  grantee 
having  the  franchise  of  treasure  trove."     This  right  in  the  Sovereign  as 
against  both  the  owner  of  the  soil  and  the  finder,  which  is  in  such  distinct 
contrast  with  the  doctrine  finally  adopted  liy  the  civil  law,  was  jirohaMy 
not  unconnected  in  its  origin  with  the  feudal  law,  which  reserved  t<t  the 
King  a  supreme  right  in  all  the  lands  of  his  subjects.     It  would  appear, 
however,  to  be  rather  of  the  nature  of  an  exaction  which  the  Cro^s-n's 
power  enabled  it  to  enforce,  than  the  outcome  of  any  cquiuible  p 
altliough  the  right  has  been  said  to  have  been  conferred  upon  \.\u   '•  .    -n 
with  a  view  to  preventing  strife  and  contention  as  to  the  owner.«iliip  of 
finds.     A  misconception  of  what  properly  constituted  a  res  nttUius  in 
struing    the    maxim,   "  Quod    nullius    est    fit  domini   regis,"   the   fci;*;.a 
transcript  of  the  civil  law  rule,  "Quod    nullius   est  fit  occu|«intis."  v    v 
also  have  contributed  to  bringing  about  the  present  state  of  the  law. 
term  res  nullius  is  only  appropriately  aj-plied  to  things  which  have  never 
had  an  owner,  or  wOiich  have  been  intentionally  abandoned  hy  their  owy 
or,  in  another  use  of  the  expression,  to  things  of  a  religious  charactcr^wj; 
none  of  which  classes  does  treasure  trove  fall  {Inst.  ii.  1.  7  and  12-1 »). 

To  l)ring  a  find  within  the  operation  of  the  law  (.f  trwisure  trove,  it  w 
essential  (1)  that  it  consist  of  gold  or  silver ;  (2)  that  there  ^ 
sufficient  presumption  of  its  having  been  hidden  or 
owner  or  liis  representatives  be  unknown  and  ni. 


.1.   ^ 


310  TKEASURE  TEOVE 


have  been  inado  in  Scotland  to  extend  the  scope  of  the  Crown's  riglit  to 
articles  not  of  gold  or  silver.  Thus  in  1888  a  claim  was  made  on  behalf  of 
the  Crown  to  a  pre-historic  jet  necklace  and  certain  other  antiquarian 
objects  found  in  Forfarshire,  but  was  waived  in  favour  of  the  owner  of  the 
soil  in  which  the  treasure  was  found,  on  condition  of  his  presenting  the 
articles  to  the  National  Museum  {Proceedings  of  the  Socictij  of  Antiquaries 
of  Scotland,  xxv.  64).  Such  a  claim  plainly  involved  an  undue  extension 
of  the  Crown's  right. 

The  circumstances  in  which  the  treasure  is  found  must  be  such  as 
to  point  to  its  having  been  intentionally  concealed,  or  having  formed  part 
of  a  hidden  hoard,  and  not  to  its  having  been  merely  accidentally  lost  or 
jjurposely  abandoned.  According  to  Blackstone,  it  is  the  hiding,  not  the 
abandonment,  which  seems  to  be  the  l)asis  of  the  Crown's  right  (Kerr's 
BlacJcstonc's  Conim.  i,  268).  Thus  the  objects  must  be  found  in  the  earth,  or  in 
some  secret  recess  or  hiding-place  in  a  wall  or  house,  not  on  the  surface  of  tlie 
earth  or  in  the  sea.  Where  a  single  object,  such,  for  example,  as  a  ring,  is 
found,  even  in  the  earth,  it  is  thought  that  it  need  not  necessarily  be 
treasure  trove,  if  circumstances  point  to  the  probability  of  its  having  been 
originally  lost  accidentally  (see  Opinion  of  Sir  E.  B.  Finlay  and  G.  H. 
Blakesley,  Proceedings  of  the  Society  of  Antiquaries,  2nd  series,  xiv.  222). 
In  the  case  of  valuable  objects  of  gold  or  silver  interred  along  with  dead 
bodies,  it  is  questionable  whether  such,  on  their  sidjsequent  discovery  in  a 
hiter  age,  come  properly  within  the  definition  of  treasure  trove,  seeing  that 
deliberate  abandonment  on  the  part  of  the  owner  is  implied  and  the 
element  of  concealment  is  absent. 

If  the  owner  of  the  treasure  trove  or  his  representatives  be  traceable  or 
even  sufficiently  presumable,  then  of  course  the  Crown's  claim  is  excluded 
in  his  or  their  favour  (see  Clcghorn,  1696,  Mor.  13523;  More,  Notes  to 
Stair,  cxlvi). 

Treasure  trove  found  in  lands  the  proprietors  of  which  do  not  possess 
by  grant  the  riglit  to  it,  is  claimed  in  Scotland  by  the  Queen's  and  Lord 
Treasurer's  Rememljrancer,  or  the  local  procurator-fiscal  on  his  behalf. 
"Where  a  prompt  and  full  report  is  made  of  the  discovery  by  the  finder,  the 
Crown  will  in  general  give  full  bullion  value  for  the  objects.  A  Treasury 
Order  of  27th  August  1886,  addressed  to  the  Chairmen  of  Quarter  Sessions, 
prcjvides  for  the  return  to  the  finder  of  such  coins  and  objects  as  are  not 
actually  required  for  national  institutions,  and  for  payment  to  him,  less 
certain  deductions,  of  the  sums  received  from  such  institutions  as  the 
antiquarian  value  of  the  coins  and  objects  retained  (Archa:ological  Journal, 
xliii.  348).  Balfour  speaks  of  the  concealment  of  treasure  trove  as  a  crime, 
and  apparently  regarded  it  as  a  species  of  treason  {Practlcks,  p.  517);  but 
Hume  states  categorically  that  occidtatio  thesauri  is  not  now  a  crime  in 
Scotland,  if  indeed  it  ever  was  such  (i.  62-3).  In  England,  on  the  other 
hand,  concealment  of  treasure  trove  is  a  misdemeanour  punishable  by  fir.e 
or  imprisonment  (Stephen's  Digest  of  the  Criminal  Zaw,  308:  Kerr'3 
Blackstones  Comin.  iv.  107) ;  and  it  is  part  of  the  duty  of  a  coroner  to  hold 
an  inrpiest  as  to  treasure  trove  (The  Coroners  Act,  1887,  s.  36  ;  Att.-Gen. 
V.  Moore,  [1893]  1  Ch.  676). 

With  regard  to  articles  not  coming  within  the  exceptional  category  of 
treasure  trove,  the  general  common  law  rule  is  that  the  finder  of  such  has 
a  right  to  them  as  against  all  the  world  except  the  true  owner  {Armory,  1 
Smith's  L.  C,  10th  ed.,  343  ;  Bridges,  1851,  21  L.  J.  Q.  B.  75),  a  right 
recognised  by  the  Burgh  Bolice  (Scotland)  Act,  1892,  s.  412,  subject  to 
certain  safeguards  in  the  interest  of  the  original  owner.     This  applies  to 


THESPASS  3j, 

things  lost  tlirough  eir.n'  aii.l  to  ll.in^,  al.au.loned  an.l  i,  :. 

1'rol.ably  nut  applicable  to  objects  of  anti.iuaiian  inlercHl  .  .  • 

a  road  or  m  some  other  public  place),  as  disLii.gui.she.l  frou.  ai; 
lost.     Jt  such  aiiti-iuariau  finds  be  discovered  under  the  caith  the  c ' 
tlie  proprietor  of  the  soil  to  them  as  vartcs  soli  apj.ears  indiipulable.  and 
piehistonc  articles,  such  as  Hint  arrowheads  ami  the  like,  found  on  the 
surface  would  also  appear  to  be  claimable  by  the  proprietor  of  tb-  s..i!  for 
the  same  reason  (/.Y/rf.s-,  188G,  2 ']'.  L.  K.  7H-') 

Laiikt.  1.  &..  10;  1.  211.  1);  n.  1.  8;  Ersk.  ii.  1.  12;  IJell.  J'  V>01 

1.9o  ;  Rankme  on  Landomicr^Up,  M  ed.,  p.  224;  Note  by  1  .  ...;.unhuli; 
.>  Br.  Sup  148;  Oenle  v.  S^mth,  1788,  1  licirs  111.  :;75  ;  Sands  v.  JJ.ll  and 
hcdjoyr  12^lay  1810,  F.  C.  ;  Ilegina  v.  Thomas  and  M'illdt,  18G3,  33  L  J 

.  n'  '.^?'"''  '/  ^'"'^^'''  ^^^''  ^'-  ^^-  -  ^-  L-  -6.  As  to  the  ca.se  ..f  an 
urn  tull  of  silver  coins  found  at  Aberdeen,  see  The  Times  of  ;;rd  June  l.SSO 
Ihe  authorities  on  the  subject  are  exhaustively  collected  in  Murray^  yl» 
ArchcL'olofjical  Survey  of  the  6"?«7r^  Am^t/w,  Glasgow,  180G,  ]. p.  57-71  to 
which  is  appended  a  summary  of  tlio  various  Continental  laws  on  the 
subject.] 

Treating.— See  Coukupt,  etc.,  Pi.-AtTicE-s. 
Trees.— See  Timdeu. 

Trespass. — By  the  law  of  Scotland  the  proprietor  or  occupier  of 

corporeal  property  is  entitled  to  prevent  any  stranger  intruding  thereon. 
Such  intrusion  is  termed  trespass,  a  word  borrowed  from  Engli.^h  juris- 
prudence. The  subject  of  trespass  in  ])ursiut  of  game  has  already  \n.'cn 
dealt  witli  in  the  article  ui.on  Toaching.  Apart  from  some  culi>able 
ancillary  purpose,  such  as  poaching  or  malicious  mischief,  trespai-s  i.s  not  a 
criminal  olleiice.  There  is  a  popular  superstition  to  the  contrary,  and  the 
country  abounds  with  placards  threatening  trespassers  that  they  will  be 
prosecuted  with  the  utmost  rigour  of  the  law.  But  all  such  placards  arc 
hruta  fidmena.  The  only  remedy  competent  against  the  tresi)asser  is  an 
action  of  interdict  against  his  return  on  a  subserjuent  occa.siun.  It  is  a 
valid  answer  to  such  an  action  that  the  alleged  trespa.<s  was  for  an 
urgent  purpose,  such  as  the  suppression  of  fire,  the  prevention  of  crime  or 
capture  of  the  criminal,  personal  safety,  or  tlie  rescue  of  cattle  or  other 
property,  or  the  destruction  of  a  noxious  aniuail.  It  is  also  a  gtM.d  d- 
to  such  an  action,  that  the  tres^jass  was  of  an  innoct-nt  or  inci..  .,,... 
character,  not  done  with  the  view  either  of  asserting  a  right  or  of  defying 
the  right  of  the  proprietor,  and  that  there  is  no  cause  to  apprehend  a 
repetition  of  it  {Hays  Trs.,  1877,  4  B.  398;  Sfewart,  1877.  4  If.  873; 
Maclcod,  1881,  14  B.  92).  Otherwise,  if  a  trespass  has  been  romn;'**--V 
decree  of  interdict  will  be  granted,  and  the  resp  indent  will  Ik.'  found  . 
in  expenses.  If  the  interdict  be  broken,  the  respondent  may.  of  course,  be 
punished  by  fine  or  imprisonment.     If  a  trespasser,  on  U-ing  fouml  and 

challenged,  refuses  to  remove,  the  jnoprietor  is  not  entitled  to  • '  ••  '  •?« 

by  force  (see  P^glintoun,  M'Lauriu's  C.  T.  ]».  r»05).     He  nm.st  i'e 

nuisance   for   the   time   being,  and   interdict   its    recurrence.     Ihis    rule 
applies,  however,  only  to  outdoor  trespass.     The  owner  or  "f 

houses  or  other  l»uildiiigs  is  entitled  to  employ  force  to  cxjm  i  .  .^ 

Other  cases  may,  perhaps,  be  figured  where  the  employment  of  fi»i  .•! 

beheld  to  have  been  justified^  as  where  trespassers  i)ersisled  in  smoking 


312  TPJAL 

in  a  stackyanl,  or  insulted  females  or  annoyed  an  invalid.  ^Vhere  trespass 
is  accompanied  with  the  destruction  or  injmy  of  property,  the  offence  may 
be  punished  as  malicious  mischief. 

The  Trespass  Act,  1865. — Certain  kinds  of  trespass  have  been  rendered 
criminal  by  this  Act,  which  provides  (s.  o)  that  "  every  person  who 
Iodides  in  any  premises,  or  occupies  or  encamps  on  any  land  being  private 
property,  without  the  consent  and  permission  of  the  owner  or  legal 
occupier  of  sucli  premises  or  land,  and  every  person  who  encamps  or  lights 
a  fire  on  or  near  any  private  road  or  enclosed  or  cultivated  land,  or  in  or 
near  any  plantation,  without  the  consent  of  the  owner  or  legal  occupier  of 
such  road,  land,  or  plantation,  or  on  or  near  any  turnpike  road,  statute 
labour  road, or  other  higliway, shall  be  guilty  of  an  offence  punishable"  with 
a  penalty  not  exceeding  twenty  shillings  or  fourteen  days  for  a  first  offence, 
and  not  exceeding  forty  shillings  or  twenty-one  days  for  a  second  or  any 
subsequent  offence.  Private  prosecution  is  not  allowed  (s.  5),  and  all 
]irosecutious  must  be  begun  w'ithin  one  month  after  the  offence  was 
committed. 

[Ifankine,  Landoiciiership ;  Irvine,  Game  Laics.^ 

Trial. — See  Jury  Trial;  Criminal  Prosecutiox. 

Triennial   Prescription. — I.  I.  Meaning  and  Effect  of  the 

Statute. — The  Statute  1570,  c.  8;^>,  introduced  into  some  of  the  commonest 
transactions  of  daily  life  a  form  of  prescription  which  subsequent  Scottish 
legislation  was  not  slow  to  imitate.  (See  Quinquennial  Prescription; 
Sexennial  Prescription  or  Bills  ;  and  Vicennial  Prescpjption,  I.  Holo- 
graph Writings.)  In  vii-tue  of  this  sort  of  prescription  tlie  mere  lapse  of 
a  certain  time  does  not  operate  the  total  extinction  of  a  claim  or  obligation, 
but  a  certain  "  specified  and  very  safe  mode  of  proof  "  is  imposed  upon  the 
pursuer  as  a  condition  of  his  having  an  action.  The  words  of  the  statute 
are  as  follows : — 

"  It  is  .statute  and  ordained  .  .  .  that  all  actiones  of  debt,  for  liouse-mailles,  mennis 
ordinars,  servands'  fees,  merchants'  coniiites,  and  nther  the  like  debts,  that  are  not 
founded  upon  -written  obligationes,  be  persewed  Avithin  three  zeires,  ulherwise  the 
creditour  sail  have  na  action,  except  he  outlier  preife  be  writ,  or  be  aith,  of  his  partie." 

The  object  of  the  enactment  was  plainly  "  to  preserve  a  party  after  a  certain 
period  of  time  from  claims  for  money  founded  on  old  claims  of  a  loose 
nature,  and  to  be  made  out  by  the  slippery,  or  faithless,  or  dishonest  state- 
ments of  witnesses"  (CamphcU,  1848,  10  1).  361,  per  Ld.  J.-Cl.  Hope);  and 
for  long  after  the  passing  of  the  Act,  the  Court  appears  to  have  felt  no 
difficulty  in  its  application  (see,  e.g.,  Ord,  1630,  M.  11083;  Wilson,  1680, 
M.  11080;  Thomson  cfc  //«y,  1708,  M.  11093;  Douglas,  1736,  M.  11102). 
Put  towards  the  close  of  last  century  doubts  seem  to  have  arisen  as  to  its 
true  meaning.  The  question  was  agitated  whether  the  presumi»tion  on 
which  the  statute  was  based  was  that  payment  had  been  made  durhig  the 
currency  of  the  triennmm  or  after  its  close ;  and  some  of  Ld.  Pres.  Blair's 
remarks  in  giving  judgment  in  Leslie,  15  Nov.  1808,  P.  C,  though  not 
necessarily  the  decision  itself,  pave  rise  to  the  view,  wliich  was  subsequently 
carried  to  a  great  extreme,  that  there  are  latent  in  the  statute  certain 
exceptions  and  limitations  which  it  is  for  the  Court  to  give  effect  to.  In 
Leslies  case,  it  is  true,  the  prescription  was  held  to  apply,  and  the  decision 
was  arrived  at  upon  a  construction  of  the  defender's  oatli.  Nevertheless, 
tlie  inferences  drawn  from  that  case  would  have  deprived  many  litigants 
of  the  protection  of  which  tliey  stood  specially  in  need ;  for  they  amounted 


TlilENNIAL  ri;Ksa:il»TI()X  313 

to  the   three  iiropositions :  (1)  that  if  the  fuiiLiauLur  oi  il,e 
within  three  years  from  the  termination  of  the  account,  the     .. 
not  capitly;  (2)  that  the  representative  of  tlie  alleged  d'ehtor  i,. 
payment  in  order  to  be  entitled  to  the  benefit  of  the  statute  ;  and  (.J)  that 
after  the  lapse  of  three  years  tlie  creditor  need  not  jirove  the  r- 
but  merely  the  constitution  of  the  debt  sued  for,  and  that 
defender  be  the  original  debtor  or  his  representative  (see  Ki  1 1 

S.  591;  Auld,  1842,  4  D.  1487).  The  tendency  to  read  into  the  etulute 
qualitlcations  of  this  nature  was  firndy  checked  by  tlie  decision  of  the 
►Secuud  Division  in  Alcocl:,  1842, 51).  ;J5G,  where  the  ojunion  i.f  \A.  J. -CI.  Hoi* 
may  be  taken  as  at  once  the  clearest  and  most  authoritative  exjM.sition  of 
the  meaning  and  effect  of  the  statute;  and,  finally,  in  Cullen,  185.".,  15  I). 
8G8,  the  case  of  Auld  was  expiessly  overruled  by  the  unanimou.s  decision 
of  the  whole  Court,  and  the  view  taken  in  Alcock  was  uiihehl.  Since  tlmt 
date,  there  has  been  no  attemjtt  to  question  the  interpretation  <jf  the  Act 
there  given.  It  may  now  be  regarded  as  settled  law  that  "there  is  no 
warrant  for  allowing  any  presumptions  of  payment  or  of  non-payment  to 
bear  on  the  construction  of  the  statute,  or  to  regulate  its  opcrati<»n.  .  .  . 
In  the  application  of  the  statute,  the  Court  has  really  no  right  to  restrain 
and  narrow  the  protection  afforded  by  the  effect  ascribed  to  any  particular 
presumption  as  to  payment  or  non-payment  in  ordinary  cases  of  a  proper 
prescription;  for  the  statute  recognises  no  such  materials  for  its  coi  '  On 

or  application  ;    and  its  terms  exclude  all  considerations  but  tl.:    jle 

element  of  dates.  And  if  the  dates  are  such  as  bring  the  case  within  the 
simple  predicament  of  the  statute,  the  rule  is  simply  the  statute  itself" 
(per  Ld.  J.-Cl.  Hope  in  Cullen,  vt  sup.  872). 

The  onus,  then,  imposed  upon  a  pursuer  after  the  expiry  of  tic  »';..i,T>;i,ni 
is  to  prove  both  tlie  constitution  and  the  resting-owing  {I!<'  iO, 

2  D.  1343)  of  the  debt  for  payment  of  which  he  sues,  in  a  iMirticular 
manner,  viz.  by  the  writ  or  oath  of  his  party,  i.e.  of  the  defender  whom  Ijc 
brings  into  Court.  There  is  no  extinction  of  the  claim,  and  conscfpiently 
the  arrestment  of  a  debt  which  has  suffered  the  jtrescription  will  found 
jurisdiction  (Shaw,  1869,  7  M.  449),  though  a  prescribed  account  will  not 
entitle  a  creditor  to  vote  in  a  sequestration  {irink,  1849,  11  1).  ^^^X 
Hence,  also,  it  follows  that,  strictly  speaking,  there  can  be  no  "  intorru]  •■  -  " 
of  the  triennial  prescription.  "The  true  sense  of  the  statute  is  that  i. 
the  action  in  which  you  seek  to  prevail  is  brought  within  three  years.  Tou 
have  no  action  at  all,  and  any  other  action  just  goes  for  nothing"  (J/'/ 
1829,  7  S.  483,  per  Ld.  Glenlee)  "  So  long  as  the  action  has  to  b-  '  -  k 
to  recover,  the  action  for  debt  has  not  been  ]>ursued,  and  ther  .  ;  he 
statute  is  pleadable  and  applies"  (Coehran,  1841,  4  D.  7G,  per  Ld.  J.-CL 
Hope). 

But  this  rigid  view  of  the  statute  has  generally  licen  d  ■  ■  from,  ar.-i  ii 

seems  to  be  well  settled,  possibly  with  some  aid  from  the  ..     .  ....'*  cf  personal 

bar,  that  pursuit  within  the  three  years  other  than  the  action  in  vhich 

prescription  is  pleaded  will  deprive  the  defender  in  the  latter  of  his  right 

to  the  benefit  of  the  statute.     A  formal  action  is  not  nc< 

pursuit  in  this  sense.     A  demand  maile  in  a  competeui  j  .  . 

judicial  proceeding  before  a  tribunal  which  can  conij^etontly  «  ■•" 

give  effect  to  it  will  suffice,  whether  as  a  matter  of  fact  .such  p: 

leads  to  effective  decerniture  or  not  {MonUand  J!ailirat/s  ''     '  ''• 

1041).     "I  think  it  is  quite  settled  that  there  may  be  an  y    -h 

a  party  may  be  allowed  a  proof  pro  v.t  dc  Jure,  after  t  'the 

statutory  period  of  three  years,  provided  he  has  made  '« 


3U  TrtlKXNIAL  riiESCUTrilOX 

in  a  previous  competeut  action  \\  ithin  the  statutory  period,  although  that 
claim  shall  not  have  been  pursued  to  a  successful  issue  "  (Stock  Journal  Co., 
1898,  25  E.  1016,  per  Ld.  Kinnear).  This  doctrine  is  well  illustrated  by 
the  case  of  Fcrrkr,  9  July  1811,  F.  C,  where  the  production  of  a  claim 
for  furnishings  with  an  oath  of  verity  in  a  process  of  cognition  and  sale 
was  held  not  to  be  equivalent  to  pursuit,  on  the  ground  that  "  there  was  no 
procedure  by  which  the  creditors  could  have  enforced  their  claim  or  obtained 
a  decree  "  (per  Ld.  Eobertson).  On  the  other  hand,  the  lodging  of  a  claim 
in  a  process  of  multiplepoinding  or  of  ranking  and  sale  (Stuart,  1823,  2  S. 
200),  or  the  judicial  production  of  the  account  in  question  in  defence  by 
way  of  counter-claim  (Sloan,  1827,  5  S.  692),  will  preserve  a  debt  from  the 
operation  of  the  statute.  Similarly,  where  parties  had  agreed  to  the  sub- 
mission of  a  disputed  claim  within  the  prescriptive  period,  and  the  reference 
fell  owing  to  the  death  of  the  arbiter,  it  was  held,  in  an  action  raised  on  the 
claim  after  the  expiry  of  the  triennium,  that  the  application  of  the  statute 
was  excluded,  and,  separately,  that  the  defender  was  barred  j^cisonali 
exccptione  from  pleading  the  prescription  (Dunn,  1854,  16  D.  944,  where  see 
opinions  of  Ld.  liutlieifurd).  If  the  pursuer's  failure  to  sue  timeously  be 
due  to  the  action  of  the  defender,  the  latter  will  not  be  allowed  to  plead 
the  statute  (Caledonian  Pacy.  Co.,  1886,  13  E.  773).  It  is  not  enough, 
however,  to  obviate  its  application  that  there  has  been  mere  citation  of  the 
defender  (Camiybdl,  1799,  M.  11120),  or  that  there  has  been  a  tinieous 
action  which  was  subsequently  abandoned  (Gohhi,  1859,  21  D.  801). 

Minority  is  not  deducted  in  reckoning  the  years  of  the  triennial  prescrip- 
tion (Broicn,  1709,  jM.  11150),  agreeably  to  the  general  rule  that  minority 
is  never  deducted  unless  specifically  excepted  (Baird,  1861,  23  D.  1080). 
Nor  is  the  annus  deliberandi  to  be  discounted  (Douglas,  1736,  M.  11102). 
Absence  from  the  country  will  not  suspend  the  operation  of  the  statute 
(J/'(?/^;>,  1776,  M.  11112). 

II.  Dchts  to  u-hicJt  the  Statute  is  AiiplicaUc. — The  class  of  debts  enumer- 
ated in  the  statute  is  extensive,  and  has  rather  been  enlarged  than  restricted 
by  judicial  interpretation. 

(1)  House  maills  or  rents  prescribe  from  year  to  year  when  the  house 
is  let  on  a  verbal  lease  (Cuniminrjs  Trs.,  1825,  3  S.  545).  But  the  statute 
does  not  apply  where  there  is  a  written  lease,  or  where  the  subject  let  is 
other  than  a  house  (Boss,  1627,  M.  12735;  Minister  of  Kilhucho,  1628, 
M.  11083). 

(2)  Debts  due  for  entertainment  at  board  fall  within  the  description  of 
"  mennis  ordinars,"  whether  the  entertainment  be  supplied  by  an  innkeeiter 
or  by  a  schoolmaster  (Thomson,  1808,  Hume,  466).  Alimentary  debts 
arising  ex  debilo  uaturw  do  not  fall  within  the  scope  of  the  statute  (Davidson, 
1739,  M.  11077;  Thomson,  1842,  4  D.  833);  but  a  claim  for  board  and 
lodging  supplied  to  a  cliild  ex  contract^/  suffers  prescription,  even  though  the 
contract  be  not  express  but  merely  implied  (Taylor,  1858,  20  D.  401  ; 
Ligerticood,  1872,  10  M.  832).  If  the  agreement  between  the  father  and 
the  person  boarding  the  child  be  to  make  termly  or  yearly  payments,  each 
term's  or  year's  aliment  runs  a  separate  course  of  prescription  (Frazrr,  1836, 
16  S.  1045);  but  where  no  such  agreement  was  averred,  it  was  held  that 
the  account  must  be  regarded  as  a  continuous  whole  (Bracken,  1891,  18 
E.  819). 

(3)  Servant.s'  wages  are  liable  to  tlie  prescription,  each  term's  amount 
prescribing  separately  {Bois,  1680,  M.  11089;  Douglas,  1736.  ^L  11102; 
Alcock,  1842,  5  L).  356).  Even  where  no  definite  remuneration  had  been 
stipulated  for,  a  claim  for  payment  in  respect  of  services  rendered  to  a 


TltlKXXIAl.  ritESCiniTIoN  315 

brotlier-iii-law  was  lii-Ul  lo  lull  wilhiii  tlii.s  class  of  dulls,  uud  therefore  U» 
be  subject  to  prc.scrii>li(ju  {Snullif,  lS,".r>,  13  S.  544). 

(4)  "Merchants'  accounts"  is  a  phrase  which  is  lieKl  to  include  monOy 
shopkeepers'  accounts,  and  not  to  apply  t<»  accounts  current  1  • 
nicrchaiils  in  the  modern  sense  of  the  t'-rni  (Ifnmiltun,  170.0,  M.  iii::u, 
M'Kinlui/,  1851,  14  D.  1G2  ;  Lahi</,  1871,  lU  M.  74;  AfKiiilai/,  1885,  i:;  R 
210;  Brown,  1891,  18  K.  880.  The  di.stinclion  between  the  cnnt-s  of 
MKinlay,  13  E.  210,  and  Batchclors  Trs.,  1892,  19  K.  903,  where  the  atutule 
was  held  to  a]»ply,  is  certainly  a  lino  one).    It  is  fur  the  Court  to  .' 

after  proof,  if  necessary,  whether  a  given  account  falls  wilhiii  the  ■  .--  ■  ....-^ 
or  the  other. 

(5)  The  comprehensive  f,'eneral  description,  "other  the  like  debt 
been  held  to  justifv  the  application  of  the  statute  to  the  reniui. 

factors  {Gruhb,  1835, 13  8.  G03),  jainters  (XcUl,  1850,  12  D.  G18),  -....;■:-. 
{Stevenson,  1850,  12  D.  G7o),  advocates'  clerks  {Fortune's  Kxra.,  1864,  2  M. 
1005),  surgeons  {Macdowall,  1849,  12   1'.  170),  and  law  agents  {SomervtH, , 
1G75,  M.  11087;  Leslie,  15  Nov.  1808,  F.  C;    irallacc,  1829,  7  S.  542). 
The  fees  due  to  an  engraver  for  preparing  ])arliamentary  ]»lans  (./c/mo'  -  . 
18G0,  22  1).  393),  to  the  clerk  in  a  reference  (Fart/itharson,  1755,  M.  11  lo    >. 
and  to  a  stockbroker  for  services  in  promoting  a  railway  (  White,  18G8,  6  M. 
415),  have  been  held  to  fall  within  the  statute.    "When  a  person  of  the  c\-i><. 
whose  claim  for  remuneration  is  liable  to  the  jtrescriptinn  receives  n  fix<d 
salary  instead  of  being  i)aid  by  fees  for  work  done,  each  year's  salary  semis 
to  prescribe  separately  {Smith,  1845,7  D.  499).     "  Tradtsnien's"  accounts 
must  be  added  to  the  long  list  of  those  allected  bv  the  prescription  {Ba 
1G92,  M.  11029;  Tweedic,  1694,  ^\.  11092),  and  so'are  debt.s  arising  out  of 
the  contract  of  locatio  opcrarum  {Muchaj,  1S51,  14  D.  207.     Ihit  contiasi 
Donaldson,  1819,  Hume,  481).     It  was  held  by  the  Ld.  Drdiiuiry  (Kinluch) 
in  Gohhi,  1859,  21  D.  801,  that  the  statute  applied  to  a  single  imrchuse  of 
goods  as  well  as  to  a  continuous  account,  and  it  is  thought  that  this  i\< 
in  spite  of  earlier  cases  which  point  in  an  opposite  direction  (f.'j.  Mo 
1811,  Hume,  472;  Smith,  1827,  5  S.  314;  M'DowjnU,  1833.  7  W.  «•> 
per  Lil.  Chan.  Lrougliam),  would  be  followed  at  the  present  day. 

What  has  been   said  with  reference  to  the  accounts  of   law 
engineers,  and  the  like  must  be  taken  subject  to  the  qualificatioii 
these    accounts     are     subject     to     prescription     oidy     if    the     sery.  ^ 
rendered   have   been   in   tiie   ordinary  course   of   the  pursuing  creditor's 
employment.     Thus  the  claim  of  an  engineer  for  fees  as  a  jiarliai; 
witness  was  held  to  fall  outwitli  the  statute  {Blackaddcr,  1851,  !."•  I 
and  a  similar  decision  was  pronounced  in  the  case  of  a  contractor  en., 
to  give  evidence  before  a  parliamentary  committee  (Ilcirr,  1864,  2  M.  K 
Contrast  Beans,  185:5,  16  I).  317,  the  case  of  a  solicitor).     Disbur^ 
made  by  a  law  agent  which  it  falls  within  the  province  of  a  law  ;. 
make,  r.'/.  fees  to  counsel,  witnesses,  etc.,  are  all'ected  by  the  statul' 
1832,  10  S.  375);  but  advances  made  by  him  in  tlie  capacity  of 
factor,  or  the  like  are  not  {Richardson,  1863,  1  M.  940,  j.er  Ul.  Cm 
The  Court  has  sometimes  allowed  an  account  to  be  bn.ken  up,  an<i  a  m,  - 
tinction  made  between  the  items  subject  to  prescription  and  t   •  -•  '-vKjM. 
were    not   {.Uoncreif,  183G,  14    S.  8;;(l).      I'.ut,  a.s  a  rule    the 
claim  is  considered  as  a  whole,  and  its  nature  as  a  whole  will 
whether  the  statute  is  to  be  applied  to  the  several  items  or  not  </''.;,-; 
30  June  1829,  F.  C. ;   Mxrra;/,  1870,  8  M.  722.     ' ''     '"-     ^^    •   !• 

482).  ,       ,,.       .    . 

The  statute  does  not  apply  to  cases  of  mandate  {Urrys  ; 


316  TKIEXNIAL  ntESClUrTlOX 

1822,  1  S.  402;  Walker,  1832,  10  S.  672;  Paterson,  1812,  Simjjson,  1813, 
both  in  13  I).  825,  n.)  or  ncgotiorum  gcstio  {Drummond,  1740,  M.  11103);  to 
a  soldier's  claim  against  his  officer  for  pay  (Graham,  1709,  M.  11093);  to  a 
parochial  schoolmaster's  salary  (XicoIso7i,  1747,  I\I.  11080):  to  poor's  rates 
(Muiiro,  1857,  20  D.  72);  or  to  the  claim  of  one  of  several  debtors  against 
liis  correi  in  respect  of  a  merchant's  account  which  he  has  paid  {Bland, 
1825,  3  S.  294).  A  mandatary's  claim  against  his  mandant  for  outlays 
(Saddler,  1795,  :M.  11120;  Gra7it,  1881,  9^11.  257),  and  a  tradesman's  or 
agent's  claim  in  respect  of  cash  advances  made  by  him  (Kcr,  1827,  5  S.  742 ; 
Smith,  1829,  7  S.  771;  Maclarcn,  1874,  2  E.  185),  do  not  fall  within  the 
statute.  When  the  case  really  turns  out  to  be  one  of  accounting,  e.g. 
between  heir  and  executor,  or  between  the  master  and  owners  of  a  ship,  the 
prescription  does  not  apply  (Brunton,  1822,  2  S.  54;  Freer,  182G,  4  S.  399  ; 
Waddel,  1825,  6  S.  172;  Butchart,  1781,  M.  11113;  Mackintosh,  1849,  11 
]).  1244). 

Claims  arising  out  of  written  obligations  are  not  affected  by  the  prescrip- 
tion (Blaclcadder,  1851, 13  D.  820).  But  tlie  writing  must  contain  a  distinct 
obligation  by  the  defender;  otherwise  the  statute  applies  (N.  B.  pMilivay 
Co.,  1873,  1  K.  309).  AVhere  a  sack-contractor  issued  to  his  customers,  and 
they  signed,  a  printed  form  containing  the  conditions  of  his  contract  with 
them,  the  prescription  was  held  to  be  excluded  (Chisholni,  1883,  10  E.  760). 
But  where  a  written  offer  to  execute  furnishings  was  verbally  accepted,  it 
was  held  that  the  contractor's  claim  was  subject  to  prescription  (Chalmers, 
1878,  G  E.  190.     See  also  CampUll,  1843,  5  D.  755). 

III.  Terminus  a  quo. — Prescription  operates  upon  closed,  not  current, 
accounts  (Somerville,  1675,  :\I.  11087;  Leslie,  15  Nov.  1808,  F.  C.) ;  and 
the  currency  of  an  account  ceases  with  the  last  act  of  the  current  employ- 
ment. Consequently,  in  a  claim  arising  out  of  a  contract,  it  was  held  that 
prescription  ran  from  the  date  of  the  completion  of  the  work,  and  not  from 
the  date  of  the  measurer's  report  (M'Kaij,  1851,  14  D.  207).  But  the  lond 
fide  addition  of  new  items  within  the  three  years  will  reopen  the  account 
and  make  it  current  once  more  (Torrance,  1840,  3  D.  186.  See  also  Whyte, 
1829,  8  S.  154).  The  currency  of  an  account  is  a  matter  of  fact,  and  if  in 
reply  to  the  plea  of  the  statute  the  creditor  points  to  tlie  most  recent  items 
in  the  account  as  having  preserved  its  currency  down  to  a  date  within  the 
triennium,  it  is  competent  for  the  defender  to  aver,  and  he  will  be  allowed 
before  further  answer  to  prove,  that  these  items  are  fictitious  and  inserted 
merely  for  the  purpose  of  avoiding  the  operation  of  the  prescription  (Boss, 
1888,  16  E.  224;  Ste^mrt,  1844,  6  D.  889;  Aytoun,  1882,  9  E.  G31.  See 
also  Moffat,  1825,  3  S.  329).  In  determining  this  question  of  fact  much 
weight  will  be  given  to  the  state  in  which  the  creditor  has  kept  his  books 
(Wilson,  1826,  4  S.  427).  The  items  which  are  relied  upon  by  the 
l)ursuer  as  keeping  the  account  still  open  must  be  strictly  on  the  same 
account  and  on  the  same  employment  (Campbell,  1824,  3  S.  25).  But  a 
claim  by  an  agent  in  Edinburgh  against  one  in  the  country  was  dealt  with 
as  unum  quid,  although  it  consisted  of  separate  branches  corresponding  to 
the  various  clients  (Fisher,  1836,  14  S.  660;  cf.  Elder,  1833,  11  S.  591); 
and  where  a  law  agent  sued  for  payment  of  two  accounts,  there  being  an 
interval  of  more  than  three  years  between  the  close  of  the  first  and  the 
beginning  of  the  second,  he  was  held  entitled  to  prove  that  the  accounts 
were  a  continuous  whole,  in  respect  of  unbroken  contimnty  of  emjiloyment 
during  the  intervening  period  ( W other  spoon,  1868,  6  M.  1052).  Even  where 
the  later  items  of  an  agent's  account  had  been  paid  by  a  co-debtor  of  the 
defender,  the  pursuer  was  held  entitled  to  found  upon  them  for  the  purpose 


TlHEXXrAL  I'RKSrilll'TloN  3,7 

of  excluding  the  o[)ei;iti<)ii  of  Uiu  stiitiito  (Fish' ,,  ,a  ^„j>.     Ijm  couirasL  LuJ. 
1831,  10  iS.  81). 

There  must  be  identity  of  tlie  eredit(ji-  to  estaljlisU  tho  conliimity  of  ati 
account  {Wot he, •spoon,  18G8,  G  M.  1052).  The  assumpiion  of  u  ut-w 
partner  by  a  tinn  introduci's  uii  entirely  new  jnrsonu  on  l!  ..•.     Theiu 

is  a  new  contriiet  uf  eniploynieut,  between  new  parties  ( li'uij.  .  ..,/.. 

But  it  is  not  decided  whether  the  continuity  of  an  account  , 
destroyed  by  the  fact   that   a  lirni  to    which  part  of   it  wu«   iiicurreU   i« 
dissolved,  and  the  business  carrieil  on  Ijy  a  ].artner  to  whom  the  remainder 
of  the  account  has  been  incurred  {Barker,  1811,  3  \).  'd(>'i). 

With  regard  to  the  identity  of  the  debtor,  Mr.  Erskine  lays  it  down  that 
the  continuity  of  an  account  is  not  ipso  facto  interrupted  by  the  death  of 
the  delator,  for  the  heir  is  eadem  pcrsone  cuiii  dcfundo,  and  if  part  of  the 
account  has  been  incurred  by  the  deceased  and  j)art  liy  his  heir,  or  even  his 
executor,  the  course  of  employment  may  well  be  regardeil  as  continuous 
{Inst.  iii.  7.  17).  This  view  is  borne  out  by  the  cases  of  Graham,  1670, 
M.  1108G,  and  Ormiston,  1709,  M.  4981,  where  tlie  diderence  in  the 
representative  character  of  a  widow  and  an  heir  is  brought  out.  Mr.  licll, 
however,  says  that  it  is  well  settled  tiiat  tlie  debtor's  deatii  closes  an 
account  {Com.  i.  3-49),  and  upon  that  view  of  the  law  the  cases  of  Kennedy, 
1741,  M.  11104,  and  Lyon,  1819,  Hume,  481,  were  decided.  If  the  last 
item  in  an  account  was  ordered  by  the  deceased  debtor,  that  item  and  not 
the  one  immediately  preceding  will  be  the  starting-point  of  the  prescrip- 
tion, even  although  the  article  in  question  was  not  actually  furnisiied  until 
after  the  debtor  had  died  (Broiujhton,  182G,  4  S.  501). 

IV.    Writ  or  Oath  of  Party.— Tha  writ  or  oath  of  the  f  " 
has  been  held  to  be  writ  or  oath  of  party  in  the  sense  of  lh>  .  ;......    . 

debtor's  factor  {Smith,  1831,  9  S.  474,  though  it  is  doubtful  if  thi.s  c; 
stand  with  the  much  more  recent  decision  in  Bertram,  1874,  2  XL  255);  of 
the  debtor's  wife  where  she  h  praposlta  {Youny,  1802,  M.  1248G.     ('■ 
Ld.  Young's  opinion  in  Mitchells,  1882,  10  I\.  378,  to  the  efl'ect  '" 
resting-owing  of  debts  incurred  by  a  wife  after  marriage  must  be  i 
her   husband's   oath),  and   of   the  partner  of  a  company  where  the  debt 
is  properly  a  company  debt  {Neill  &  Co,  1850,  12  D.  G18).     On  the  other 
hand,  when  a  company  has  been  dissolved  the  oath  of  a  partner's  repre- 
sentatives will  not  suliice  to  prove  the  constitution  and  resting-owing  of  a 
debt  of  that  company  {Nisbet's  Trustees,  1829,  7  S.  307) ;  and  where  it  was 
proposed  to  refer  the  subsistence  of  a  debt  alleged  to  be  due  by  a  di 
company  to  the  oath  of  a  partner  wlio  had  been  sequestrated  and  >':  'm. 

such  a  course  was  held  to  be  inadmissible  {Xeill  cO  Co.,  1849, 11  1>.    .  A 

tradesman  cannot  prove  the  resting-owing  of  a  prescribed  account  by  tho 
oath  of  the  debtor's  housekeeper  {Gihiour,  1797,  M.  12042).  and  it  may  bo 
questioned  whether  it  is  permissible  to  refer  a  prescribeii  dclit  all.  •    '  * 
due  by  the  owners  of  a  ship  to  the  oath  of  the  ship's-husband,  ui..       .. 

one  of  the  owners  himself  {Duncan,  1829,  7  8.  821  ;  1831.  9  S.  540).     M  a 
general  rule,  the  oath  of  one  of  several  joint  owneis  will  not  bind  tlu- 
{Duncan,  1831,  ut  sujk).     The  oath  of  a  debtor's  heir  or  re] 

course,  equivalent  to  the  oath  of  the  debtor  him.self,  tiiou_ 

and  sale  raised  by  an  heir  against  his  father's  estate  it  was  hfld 

peteut  to  refer  the  prescribed  claims  of  certain  competing  ci 

oath,  on  the  ground  that  the  question  at  stake  was  rc.i" 

creditors,   and    that    tlierefore    the    heir   was    not   t!)" 

1826,4  8.420).  ^     .        ., 

The  writ  of  party  by  which  the  debt  may  be  proved  neeti  not  be  lormahy 


318  TEIEXNIAL  riJKSCrvIPTIOX 

autheuticated.  A  mere  jotting  iu  the  debtor's  handwriting  will  be  sufficient 
(Donaldson,  176G,  ^I.  11110).  Xor  need  the  writing  contain  an  express 
and  direct  acknowledgment  of  the  constitution  and  resting-owing  of  the 
debt.  It  is  enough  if,  by  a  sound  and  reasonable  process  of  construction, 
such  acknowledgment  may  be  inferred  from  the  terms  of  the  document. 
Instances  where  such  writings  have  been  construed  are  the  cases  of  S7nifh, 
1834.9  S.  474;  irallacc,  lS2d,  7  S.  542;  ^lacandrcic,  1851,  13  D.  1111; 
Stevenson,  1849,  11  D.  1086;  Fiske,  1860,  22  D.  1488;  and  Mitchells,  1882, 
10  E.  378.  The  debtor's  account-books  are  writ  of  party  in  the  sense  of  the 
statute ;  but  in  determining  whether  they  prove  resting-owing,  much  will 
depend  upon  the  regularity  with  which  they  have  been  kept.  The  absence 
from  the  books  of  a  municipal  corporation  of  an  entry  of  the  discharge  of  a 
debt  due  by  it  has  been  held  to  be  conclusive  of  resting-owing  {Leslie,  15 
Nov.  1808,  F.  C. ;  Bucheinan,  1828,  7  S.  35);  while  the  opposite  result  was 
arrived  at  in  the  case  of  books  kept  by  the  trustee  in  a  sequestration  (Ellis, 
1849,  11  D.  1347).  If  an  entry  in  the  debtor's  books  is  relied  on  by  the 
creditor,  it  must  unequivocally  refer  to  the  specific  debt  in  question  and 
afford  evidence  that  the  debt  was  constituted  (A'^ishct's  Trustees,  1829,  7  S. 
307).  It  has  been  held  competent  to  interpret  writings  of  the  debtor  by 
the  aid  of  letters  written  by  the  creditor  to  him  (Stcveiison,  nt  sup.) ; 
but  writing  of  the  pursuer  j^cr  se  is  not  equivalent  to  writ  of  the  defender, 
though  recovered  out  of  the  hands  of  the  latter  (M'Pherson,  1865,  3  M.  727). 
An  exception  to  this  rule  ma}^  be  made  w^here  the  writings  of  the  pursuer 
are  of  the  nature  of  receipts  for  payments  of  interest  or  the  like,  preserved 
by  the  defender  in  his  repositories  as  his  own  proper  vouchers  (Camijbell's 
Trustees,  1895,  22  E.  943  :  a  case  on  the  sexennial  prescrii)tion). 

There  appears  to  be  some  doubt  whether,  in  order  to  prove  the  resting- 
owing  of  a  debt,  the  writing  of  the  debtor  founded  on  must  be  subsequent 
in  date  to  the  expiry  of  the  triennium.  Mr.  Bell  (Com.  i.  349)  expresses 
t!ie  opinion  that  a  writing  dated  within  the  three  years  is  not  enough,  it 
being  requisite  that  the  writing  should  be  "intended  to  serve  as  a  voucher 
to  the  creditor  for  his  debt."  This  view  was  taken  by  Ld.  Ivory  in 
Stevenson,  1849,  11  D.  1086.  But,  in  tlie  absence  of  any  indication  in  the 
statute,  the  preferable  doctrine  seems  to  be  that  the  sufficiency  of  the  proof 
depends  primarily  on  the  terms  and  not  on  the  date  of  the  document  (see 
Thomas,  1868,  6  M.  777 ;  Davidson,  1806,  Hume,  460). 

Failing  production  of  writ  of  the  pursuer's  party,  the  constitution  and 
resting-owing  of  the  debt  sued  for  can  only  be  proved  by  his  oath  (see  Oath 
ON  liEFKRENXE) ;  and  where  the  pursuer  has  acquiesced  in  a  reference  to  the 
defender's  oath,  he  will  not  be  allowed  subsequently  to  maintain  that 
prescription  is  inapplicable  (Macdonedd,  1829,  7  S.  306).  When  the 
defender's  oath  has  been  emitted,  it  is  for  the  Court  to  determine  its 
import^  Every  oath  must  l)e  construed  upon  its  own  terms  (Fyfc,  1841, 
4  D.  152,  per  Ld.  Pres.  Boyle),  though  the  fundamental  principle  must  be 
kept  in  mind  that  the  onus  lies  upon  the  pursuer  to  prove  non-payment, 
and  not  upon  the  defender  to  prove  that  the  debt  has  been  discharged 
(see  Cooper,  1877,  5  E.  258).  It  is  a  natural  consequence  of  this  discretion 
tliat  the  decisions  seem  occasionally  to  conflict  with  one  another.  One  set 
of  cases  seems  to  proceed  upon  the  assumption  that  a  mere  nihil  novi  or 
nihil  memini  from  the  defender  is  not  suOicient  to  procure  him  absolvitor 
(e.g.  Campbell,  1824,  3  S.  25,  per  Ld.  Craigie ;  Cooper,  1824,  2  S.  609;  affd. 
1826,  2  W.  &  S.  59;  Derrj/s  Ilejjs.,  1822,  1  S.  402;  JacJcso7i,  1873,  11  M. 
475  ;  Hunter,  1835,  13  S.  369.  Contrast  Gordon,  1860,  22  D.  903).  Another 
set  of  cases  seems  to  proceed  upon  the  view  that  a  nihil  novi  or  nihil 


TKIKXXIAT.  I'KKSCiniTIoX  319 

mcmini  on  the  part  of  tlie  (lefcinlcr  is  coiifluKivo  against  tlio  pursuer's  claim 
(see  Fyfe,  1837,  15  8.  1188,  per  Ld.  .Mackenzie). 

In  the  majority  of  cases  where  dillicully  has  been  experienced  in 
CJiistruiii.t^f  tlie  oatli  of  jiarty,  the  dt'])oiit.'iit  lias  a<hiiitt»Ml  tin;  (•«.iistiniti..ii 
of  the  debt,  hut  has  (nialiticd  tlie  adiiii.ssinn  by  certaiti  s'  '•  "■• 'it<,  as,  for 
example,  that  the  debt  has  since  been  discliar<.,'ed  or  comj  i.     ^Vhen 

the  oath  is  to  this  cllect,  the  Court  has  to  determine  whether  the  (pinlilica- 
tion  so  adjected  to  the  admission  of  constitution  is,  as  it  is  called, "  intrinsic  " 
or  "extrinsic";  that  is  to  say,  whether  it  is  i^cr  sc  jtrol-ative,  or  whether  it 
must  be  independently  established  pro  nt  dc  Jure.  The  rules  for  the 
application  of  this  distinction  were  laid  down  categoiically  by  Ul.  Deas  in 
Cotrhrouf/h,  1870,  G  IJ.  301,  and  are  as  follows: — 

1.  If  the  oath  bear  that  some  other  mode  of  extinction  than  p.is  m-.i.i 
in  money  was  stipulated  for  at  the  contraction  of  the  del  it,  that  other'nuKl.', 
if  the  debtor  swears  it  was  acted  upon,  will  be  a  competent  and  instrinsic 
quality  of  the  oath. 

2.  If  the  debtor  depones  to  an  express  sult^equent  a<,Teemcnt  to  hold  tin- 
debt  extinguished  by  some  other  mode  than  payment  in  money,  that  ctli-r 
mode  will  be  a  competent  and  intrinsic  cpiality  of  the  oath, 

3.  An  express  subsequent  agreement  by  the  creditor  to  forgive  the  debt 
in  whole  or  in  part,  deponed  to  by  the  debtor,  will  be  instrinsic  and  receive 
effect  accordingly. 

4.  An  oath  that  the  debt  has  been  compensated  is  usually  extrinsic, 
because  compensation,  if  not  sworn  to  have  been  ai:reed  to  by  llie  creditor, 
as  a  rule  involves  matter  of  law,  and  matter  of  law  cannot  l>e  established 
by  the  deponent's  oath. 

In  view  of  these  distinct  propositions,  it  is  unnecessary  to  examine  the 
cases  in  detail.  It  must  suffice  to  refer  to  Thomson,  1855,  17  D.  1081 ; 
Laio,  1843,  G  1).  201;  Meyer,  1851,  14  D.  W\  Sfeirart,  1804,  U  "6; 

Knox,  1861,  24  D.  IG  ;  I'adcn,  1751,  M.  i:".2()7 ;  CampheU,  1G7G.  M 
Aitkcn,  1702,  M.  13205;  Lander,  1727,  :M.  1320G;  Trotter,  1G87.  M.  \^ 
as  illustrations  of  intrinsic  quality  ;  and  to  TurnhuU,  1830,  8  S.  735  ;  .V<i;>i>r. 
1838,  1  D.  245;  Fife,  18G0,  23  I).  30;   Wilson,  1871,  0  M.  020;  //- 
1806,  Hume,  417;  Goius  Exrs.,  18GG,  4  M.  578;  MitrheU,  1842,  5  1>.  .-  .', 
Grant,  1845,  7  D.  274 ;  Miller,  1810,  Hume,  480  ;  Gaylor,  1S54,  27  S.  J.  35  ; 
Workman,  1600,  M.  13234,  as  illustrations  of  extrinsic  quality  (see  also 
Bills,  Sexennial  Presci{IPTION  of).    Where  the  debtor  depones,  in  a^" 
to  admitting  the  constitution  of  the  debt,  that  he  gave  a  third  -      •-■ 
in  order  to  pay  it,  that  oath  seems  to  be  held  alUrmative  or  n',_ 
reference  according  as  it  is  not  or  is  the  character  or  function  of  that  thinl 
party  to  make  such  payment  {Mette,  1830,  8  S.  387;  GoodaU,  1S25,  8  S. 
387,  n.\  Crichton,  1857,  10  D.  GGl  :  Mackay,  1840,  11  D.  982;  i>mith.  '    ■ - 
Hume,  4G2). 

It  has  been  held  that  where  a  pursuer  upon  record  makes  avenn. 
admissions  tantamount  to  an  acknowledgment  of  constitution  and  r< 

owing,  the  necessitv  of  proof  by  oath  is  superseded  (/'     '      ' 14  ."^.  _:■  . 

per  Ld.  Gillies.  See  also  Gordon,  1826,  4  S.  585;  .V.--..  i.  ^  '  T'  l<iO, 
Bryson,  1825,  4  S.  182.     Cf.  Made,  1822,  1  S.  475).     This  v  vrver. 

must  be  accepted  with  great  caution,  for,  as  was  i»ointed  out  in  ,  f  o 

J).  356,  366,  the  system  of  pleading  in  Scotland  reqtr         "     ^'  ;"■= 

in  a  cause  to  be  put  upon  record  at  once,  and  it  v  •  '-'-' 

draw  from  his  pleadings  as  a  whole  inferences  t<>  ■     .  .      •  P* 

tion.      It  is  at  least  certain  that  any  judicial  admis.'^ion  of  a  «:  • 

defender  nnist  be  express  and  unequivocal  to  ?uix>rsode  the  necessiiy  i^i  hia 


320  TKOUT-FLSHlXe: 

oath  on  reference  {Darnlcy,  1845,  7  D.  595,  per  Ld.  Fullerton),  and  it  has 
even  been  questioned  whether  admissions  by  a  party  on  record  are  his  writ 
in  the  statutory  sense,  and  render  proof  as  prescribed  by  the  statute 
unnecessary  (Z>(//vj/<;^,  iit  supra,-^ex  Ld.  Jeffrey;  Cullen,  1853,  15  D.  8G8, 
per  Ld.  J.-Cl.  Hope).  In  Anderson,  1847,  9  D.  1222,  the  defender,  besides 
pleading  the  triennial  prescription,  proponed  a  defence  denying  the  alleged 
contract  and  consequently  (it  was  maintained)  admitting  non-payment. 
The  plea  of  prescription  was  nevertheless  sustained  by  Ld.  Cuninghame ; 
and  a  similar  decision  was  recently  given  in  the  like  circumstances  by  Ld. 
Kincairney  (.milcr,  10  June  1898,  25  R.  995). 

II.  The  Statute  1579,  c.  81,  enacts  that — 

"All  actions  of  spuilzies,  ejectionsis,  and  utheris  of  that  nature  be  persewed  .  .  , 
within  three  zeiris  after  the  conimitting  theirof,  utherwise  the  perseweris  alleged  hurt 
never  to  be  heard  thereafter.  Providing  that  this  Act  extend  not  to  niinours,  but  to 
persew  within  three  zeiris  after  their  perfite  age." 

The  statute  has  always  been  held  to  mean  that  tlie  pursuer  of  an  action 
of  reparation  for  Spuilzie  (q.v.),  or  Ejection  and  Intrusion  (q.v.),  loses  the 
privilege  of  proving  the  extent  of  his  injury  by  his  own  oath  in  litem, 
unless  the  action  be  brought  within  the  specified  period  (Constable  of  Dundee, 
1587,  M.  11067;  Baillie,  1835,  13  S.  472).  The  years  of  minority  are 
expressly  excepted. 

III.  The  Statute  1576,  c.  82,  enacts  that — 

"  All  actions  of  removing  be  persewed  within  three  zeiris  after  the  warning,  with 
certification  and  they  failzie,  the  warneris  sail  never  be  heard  thereafter  to  persew  the 
samin  upon  that  warning." 

The  three  years  run  from  the  term  to  which  the  warning  is  made  (Borth- 
wick,  1629,  M.  11076).     See  Tenants. 

[Authorities.— J.  Stair,  ii.  12.  30 ;  Ersk.  Inst.  iii.  7. 17,  IS  ;  Prin.  iii.  7.  6  ; 
Bell,  Prin.  ss.  628-033  ;  Com.,  7th  ed.,  i.  pp.  348-351 ;  Dickson  on  Evidcnee, 
ss.  484-528  [476-520];  Napier  on  Prescription,  pp.  714-813;  ]\Iillar  on 
Prescrijytion,  pp.  116-153. 

II.  Stair,  i.  9.  16  ;  ii.  12.  30  ;  Ersk.  Inst.  iii.  7.  10  :  Napier  on  Prescription, 
pp.  710-712;  Millar  on  Prescription,  pp.  115,  116.  ' 

IIL  Stair,  ii.  9.  43;  ii.  2.  30;  Ersk.  Inst.  iii.  7.  18,  36;  Napier  on  Pre- 
scription, pp.  712,  713  ;  Millar  on  Prescrip)tion,  p.  116.] 

Trout- Fishing,— See  Fishings. 

Truck  Acts,  The— These  Acts  have  for  their  object  the  abolition 
of  a  system  of  payment  of  wages  in  goods,  or  otherwise  than  in  money, 
which  largely  prevailed  last  century  and  early  in  this  century,  especially 
in  mining  and  manufacturing  districts.  The  name  "truck"  implies  a 
process  of  barter  or  exchange,  and  may  possibly  have  the  same  origin  as 
the  word  "traffic"  (cf.  the  Scottish  word  "troke,"  and  see  Skeat's 
Etymological  Dictionary  of  the  English  Language,  "truck,"  "traffic"):  the 
system  was,  practically,  the  exchange  of  labour  for  goods.  The  system  has 
been  tlius  described:  "The  plan  has  been  for  the  masters  to  establish 
warehouses  or  shops,  and  the  workmen  in  their  employment  have  either 
got  their  wages  accounted  for  to  them  by  supplies  of  goods  from  such 
depots,  without  receiving  any  money,  or  they  have  got  the  money  with  an 
express  understanding  that  they  were  to  resort  to  the  warehouses  or  shops 
of  their  masters  for  the  articles  of  which  they  stood  in  need"  (Tomlins, 


TRUCK  ACTS  321 

Law  Bictiunanj,  "  Truck  System  "  ;  iilso  M'Cullutli,  Ihdwnanf 

It  is  obvious  that  workiiu'ii  would  llni.s  be  exposed,  us  in  "fj, 

to  receiving  goods  cither  inferior  in  quahty  or  over-eHtiniate<l  a  _! 

owing  to  tlie  master's  contractu.d  moiioi.oly,— and  to  the  rink  of  In-ni^'  maile 

or  induced  to  take  goods  beyond  tlieir  nriMl  or  ability,  and  so  of  '  "     '^       • 

a  master's  ])ower.     On  such  groun<ls  legislative  restrictions  v.:  . 

to  correct  the  mischief  arising   from  the  unfair  disadvanUige  ii;       ,        jn 

the  practice,  and  to  secure,  so  far,  that  the  pei-son  employed  should  t)buiin 

the  stii)ulated  remuneration  for  services  rendoreil  (liaron  I'.ramwell  in    / 

18G2,  2  B.  &  S.  p.  89;   Ld.  Chan,   llerschell   in   Hnddt,\\H[iA\  Ai'-     ■ 

p.  389).  ^         ^      '  ■' 

There  are  now  three  statutes  dealing  exclusively  with  this  practice 
namely,  of  1831  (1  &  2  Will.  iv.  c.  37);  of  1887  (oO  &  51  Vict,  c  -l*))-  and 
of  1896  (59  &  60  Vict.  c.  44).  The  Act  of  1887  extends  (makiiv  ■•  •  ^■-  '  ^ 
to  Ireland)  and  amends  that  of  1831,  and  the  Act  of  1896  ei. 
amendments:  the  three  are  now  read  together  as  "The  Truck  Act«,  1831  to 
1896  "  (s.  12  of  the  Act  of  1896),  and  ai)ply  to  l-jigland,  Scotland,  and  Ireland. 
The  Act  of  1831  was  a  consolidating  Act,  following  on  the  repeal  (by  1  i^  2 
Will.  IV.  c.  36)  in  detail  of  previous  particular  enactments — from  the  time 
of  Edward  iv.  onwards — of  like  character.  Of  these,  12  Geo.  I.  c  34  scemB 
to  be  the  first  in  terms  prohibiting  payment  of  wages  "in  goods  or  hy  ttay 
of  truck,"  and  "deduction  from  .  .  .  wages  .  .  .  on  account  of  any  g«KKl8 
sold  or  delivered,"  in  connection  with  tiie  woollen  manufacture  (.ss.  3.  4 ; 
see  also  22  Geo.  ii.  c.  27,  s.  12);  57  (Jco.  in.  c.  115  prohibited  this 
"  pernicious  practice"  in  the  steel  and  cutlery  nuinufacture ;  and  57  (!eo.  IIL 
c.  122,  in  collieries,  in  Great  Britain  and  Ireland  (s.  1),  and  by  a  sn*  nt 

section  (s.  3)  extended  the  application  of  these  Acts  of  Geo.  J.  ami  '  :i 

to  Scotland  (and  Ireland). 

The  principal  enactments  of  the  consolidating  statute  (of  1831)  are  as 
follows: — 

Contracts,  in  certain  trades,  for  hiring  of  "artificers,"  or  for  the 
performance  of  labour  by  "  artificers,"  must  be  for  wages  in  money  (coin  or 
bank  notes,  or,  of  consent,  bank  drafts  or  orders) ;  and  any  other  arrangement 
is  illegal  and  void  (ss.  1,  8 ;  for  trades  allected,  s.  19).  The  wages  them- 
selves must  be  paid  in  money;  and  payment  in  goods, or  otherwise,  i-  '''•  L'al 
and  void  (s.  3).     Any  provision  in  such  contract  respecting  the  cxj  .i^e 

of  wages  "due  or  to  become  due"  with  regard  to  place,  manner,  or  jK-rwrn, 
makes  the  contract  illegal  and  void  (s.  2;  see  opinion  of  J\istiee  Grantham 
in  Zaw&,  [1891]  2  Q.  B.  p.  287;  also  of  Ld.  Chan.  Hersehell  in  f^.  \7/, 
[1894]  App.  Ca.  391).     Wages  so  far  as  not  paid  in  money  may  Ik,'  \'  \, 

as  servants'  wages  are  recovered,  or  by  other  process  (s.  4) ;  the  employer 
has  no  set-off  in  such  action,  nor  claim  of  reduction  for  g«»ods.  w  •., 

provided  as  wages  to  the  artificer  or  for  his  labour,  or  sold  to  hin.  ..i  ..i»y 
sliop  or  warehouse  in  which  the  employer  has  an  interest  (s.  5) ;  and  tlK» 
employer  has  no  action  for  goods  so  sold  by  him,  or  sold  froni  any 
such  shop  or  warehouse  (s.  6).     Tenalties  are  enacted  ■» 

offending,  by  themselves  or  others,  directly  or  indirect  1;.  " 

of  sees.  1-3,  namely,  a  fine  of  not  more  than  £10  for  tl'  "^ 

for  the  second,  and  conviction  as   for  a   misdemeanour  (in  >  d  a» 

"  offence  ")  and  fines  up  to  £100  for  a  third  (s.  9).     A  ]  ^ 

to  conviction  for  his  partner's  offence  against  the  Act,  ■  t 

his  knowledge,  but  the  co-partnership  proi>crty  is  ati  ^ 

offending  i^artner  does  not  pay  any  wages,  or  penalty,  etc..  ortlcred  lo  be 
paid;  and  wages  are  recoverable  from  any  i>artncr  (s.  13).     lU'  j«co.  1.», 

S.  E, — VOL.  XII, 


322  TKUCK  ACTS 


oi:. 


rei>ealecl  under  the  Act  of  1887  (see  below),  the  trades  affected  by  the  Act 
were  specified  in  detail,  being  in  fact  all  the  principal  branches  of  manu- 
facture of  the  day:  domestic  servants  and  servants  in  husbandry  were 
excluded — as  domestic  servants  still  are  (see  l)elow).  An  employer  or  his 
agent  may  supply  or  contract  to  supply  to  his  employee,  medicine,  medical 
aUendauce,  fuel,  or  materials  or  tools  for  mining,  or  provender  for  horses 
used  in  his  occupation ;  let  him  a  house ;  supply  or  contract  to  supply  him 
with  victuals  prepared  and  to  be  consumed  on  employer's  premises ;  and  he 
mav  make  or  contract  to  make  a  stoppage  or  deduction  from  wages  because 
of  rent,  or  the  sui)ply  of  medical  attendance,  or  of  the  various  classes  of 
excepted  articles,  or  of  money  advanced  for  the  same,  provided  the  stoppage 
or  deduction  does  not  exceed  the  true  value  of  what  is  tlnis  supplied  (apart 
from  medicine,  medical  attendance,  and  rent),  and  there  be  (in  all  cases)  a 
signed  written  agreement  to  the  effect  (s.  23).  An  employer  may  also 
advance  money  to  his  employee  for  the  purpose  of  contributions  to  a 
Friendly  Society  or  Savings  Bank,  or  for  relief  in  sickness  (s.  24) :  a 
written  agreement  is  not  needed  in  these  cases  (Act  of  1887,  s.  17). 
By  the  interpretation  clause  "  contract "  is  anxiously  defined,  and  means 
"  any  agreement,  understanding,  device,  contrivance,  collusion,  or  arrange- 
ment whatsoever  on  the  suliject  of  wages,  whether  written  or  oral,  whether 
direct  or  indirect,  to  which  the  employer  and  artificer  are  parties  or 
are  assenting,  or  by  which  they  are  mutually  bound  to  each  other,  or 
whereby  either  of  them  shall  have  endeavoured  to  impose  an  obligation  on 
the  other  of  them  "  (s.  25).  The  terms  "  artificer,"  "  employer,"  "  wages," 
are  also  defined  (by  s.  25),  but  that  part  of  the  section  is  repealed  under 
the  Act  of  1887  (s.  17). 

The  Act  of  1887  makes  the  "artificer"  of  the  original  Act  include 
"  workman"  as  defined  in  the  Employers  and  Workmen  Act,  1875  (38  &  39 
Yict.  c.  90,  s.  10),  viz.,  as  follows:  "The  expression  'workman'  does  not 
include  a  domestic  or  menial  servant,  but,  save  as  aforesaid,  means  any  person 
who,  being  a  labourer,  servant  in  husbandry,  journeyman,  artificer,  handi- 
craftsman, miner,  or  otherwise  engaged  in  manual  labour,  whether  under  the 
age  of  twenty-one  years  or  above  that  age,  has  entered  into  or  works  under 
a  contract  with  an  employer,  wliether  the  contract  be  made  before  or  after 
the  passing  of  this  Act,  be  express  or  implied,  oral  or  in  writing,  and  be  a 
contract  of  service  or  a  contract  personally  to  execute  any  work  or  labour  " 
(s.  2).  Where  an  advance  of  wages  is  stipulated  or  customary,  such  advance 
must  be  paid — and  without  deduction  of  interest  or  discount  (s.  3).  A 
servant  in  husljandry  may  contract  for  food,  drink  (not  intoxicating), 
a  cottage,  or  other  allowances  in  addition  to  money  wages  (s.  4).  An 
employer  has  no  set-off'  or  counterclaim,  in  any  action  by  a  workman  for 
wages,  for  goods  supplied  at  his  order  or  by  his  agent,  and  there  is  no  right 
of  action  for  such  goods — saving  in  respect  of  medicine,  tools,  etc.,  excepted 
under  the  Act  of  1831,  s.  23  (s.  5;  see  Act  of  1831,  ss.  5,  6).  By  sec.  6 
stijjulations  with  respect  to  the  expenditure  of  wages  "paid"  (see  also 
8.  2  of  Act  of  1831)  are  proliibitcd  to  the  employer  or  his  agent  as  a  condition 
of  employment ;  and  dismissal  of  a  workman  on  such  ground  is  also  pro- 
hibited, deduction  for  sharpening  or  repairing  tools  can  only  be  made  by 
a  separate  agreement  (s.  8).  Deductions  for  medicine,  medical  attendance, 
and  tools,  with  relative  expenditure,  must  be  submitted  annually  to  two 
auditors  appointed  by  the  workmen  concerned  (s.  9).  Workmen  making 
articles  at  home,  or  througli  their  own  families  only,  and  the  persons  buying 
such  articles,  are  brouglit  under  the  two  Acts  as  workmen  and  employers, 
and  the  price  is  regarded  as  wages  for  the  seven  days  Ijefore  delivery — in 


TliUCK  ACTS  :VJ3 

cases  wliere  the  uiLicle.s  are  under  £5  Viilue.and  arc  inmif  •  : 

material,  wool,  linen,  cotton,  leatlier,  silk,  Ix.ne,  ete.     The 

l)rovision  may  be  suspended  by  the  Queen  in  Couneil,  in  the'i: 

workmen  (s.  10).     See.  11  applies,  in  case  of  oirenccs  under  thi8  Act,  to  au 

employer  or  his  a;^'ent,  the  jienalties  of  the  ori^'inal  Act;  hoc.  12 

employer  the  ri<fht,  on  the  eonvietion  of  his  a;^'ent,  to  pnjve  hi.s  ow  : 

and  his  ignoranee  of  the  oH'ence — the  duty  hein^j  laid,  in  such  ciiTi. 

on  the  procurator-fiscal  to  prosecute  the  actual  oflender;  and.  under  «ec, 

13,  the  prosecution  of  ollences  and  refovery  of  jienaltics  arc   ■  ' 

the  Summary  Jurisdiction  (Scotland)  Acts,  1804  and  1.S.S1   ( 

also  sec.  14) ;  the  duty  of  enforcing  the  Acts  is  laid  on  the 

factories  and  of  mines  (sul)S.  (2));  and  the  duty  of  i)rosecution  is  laid  (in 

Scotland)  on  the  procurator-fiscal,  with  like  jxiwer  also  to  the  insiKjclow 

— all  prosecutions  being  in  the  Sheriil'  Court  (subs.  (4)). 

The  Act  of  1896  in  its  leading  sections  forbids  contracts  for  deduction 
from  wages,  or  for  payments  to  the  employer,  in  resi)ect,  first,  of  tines,  unless 
(a)  the  terms  of  the  contract  are  kejit  affixed  (in  a  "notice")  wliere  they 
may  be  easily  seen,  or  the  contract  is  in  writing  and  signed  by  the  workman  ; 
(h)  the  contract  specifies  the  acts  or  omissions,  and  tlie  amount  of  the  fine 
or  the  particulars  from  which  it  is  ascertainable ;  (c)  the  act  or  omission 
specified  is  likely  to  cause  damage  or  interruption  of  business :  (d)  the  fine  is  a 
reasonable  one,  in  the  wdiole  circumstances :  also  such  deductions  or  •    ■  •     -  ' 

themselves,  unless   (a)  these  are   under   such   a   contract;  (b)  \ 

showing  the  acts  or  omissions  and  the  amount  of  fines  are  supplied  to  the 
workman  on  each  occasion — these  enactments  being  made  applicable  to 
shop  assistants  in  the  same  manner  as  to  workmen  (s.  1 ).  Such  coi  * 
are  forbidden,  secondly,  in  respect  of  bad  or  negligent  work  or  injury  :  ;.. 
materials  or  other  property  of  the  employer,  save  under  exceptions  similar 
to  1  (a)  and  (d)  supra,  and  unless  the  deduction  or  payment  does  not  exceetl 
the  actual  or  estimated  damage:  also  such  deductions  or  jtayni'  ve 

under  the  same  exceptions  as  2  {a)  (h)  sitpiri  (s.  2).     Similar  ]>i> ,;.  -ns, 

with  substantially  similar  exceptions,  follow,  thirdly,  with  lopcct  to  tlie 
case  of  the  use  or  supply  of  materials,  tools,  machines,  room,  light,  heat, 
"  or  in  respect  of  any  other  thing  to  be  done  or  provided  by  the  cmj^loycr  in 
relation  to  the  work  or  labour  of  the  workman" — the  latter  clause  creating. 
apparently,  some  dillicuUy  as  to  the  other  exceittions  in  the  Act  of  18:>1, 
s.  23  (s.  3).  The  penalties  under  sec.  9  of  the  original  Act  are  made 
applicable  to  these  offences  (s.  4).  Such  illegal  deductions  or  payments  are 
recoverable  by  the  workman,  within  six  months,  bvit,  where  there  has  l»cen 
consent  or  acquiescence,  only  any  excess  over  what  the  Court  may  finti  to 
be  fair  and  reasonable  (s.  5).  Employers  making  contracts  under  this  Act 
must  produce  them,  on  written  demand,  to  the  inspectors,  and  give  a  copy 
to  the  contracting  worknuin  or  shop  assistant  at  the  time  of  "  '  "  '  "ud 
also  on  demand;  and  such  employer  must  keep  a  register  of  (;■.  "r 

payments  for  fines  purporting  to  be  made  under  such  coutrnrt.  whicli  shall 
be  open  to  the  inspector — all  under  40s.  penalty  (s.  6).     <  ''T 

the  Act  are  not  liable  to  stamp  duty  (s.  7).     The  S. 

power  to  exempt  from  the  operation  of  the  Act;  but  i 

the  order  (s.  0).     By  sec.  10  the  provisions  of  the  1887  Act,  with  recard  to 
the  duty  of  inspectors  (s.  13  (2)),  is  made  to  apply  to  the  case  of  '  n, 

and  of  places  where  work  is  given  out  by  the  occupier  of  a  factor)'  or  ^v_ik- 
shop,  or  bv  a  contractor,  or  sub-contractor. 

Trovisious  with  regard  to  deduction  of  wages  for  education  of 
contained  in  the  Act^of  1831,  s.  24,  and  of  1887,88.  7,9.  are  of  iilUe  d 


324  TRUCK  ACTS 

any  momeut  now  that  elementary  education  is  practically  free.  Provisions 
in 'sec.  7  of  the  former  Act,  and  sec.  16  of  the  latter,  whereby  a  parish 
relieving  a  workman  or  his  family  may  recover  from  the  employer  wages 
earned  "within  the  three  preceding  months  and  not  paid  in  cash,  are 
apparently  little  known,  but  seem  nevertheless  to  be  available  for  enforce- 
ment. 

There  are  few  Scottish  decisions  interpreting  these  enactments.  In 
Finlayson,  ISO-i,  2  M.  1297,  it  was  the  basis  of  judgment  (in  the  Inner 
House)  that  payment  (in  part)  of  wages  by  orders  for  goods  on  a  shop  or 
store  was  a  contravention  of  the  Act  of  1831  (s.  3),  even  although  the 
employer  had  no  interest  in  the  shop  or  store.  The  exceptions  under  sec. 
2;}  of  the  same  (the  original)  Act  have  been  dealt  with  in  two  cases.  In 
Hynd,  188-4,  22  S.  L.  E.  p.  702,  Ld.  :M'Laren  held  that  a  pay-ticket,  signed 
on  receipt  of  wages,  which  l^ore  that  deductions  were  to  be  made  for  doctor, 
smith,  fire-coal,  water,  and  house-rent,  was  not  "  an  agreement  or  contract 
...  in  writing  "  for  the  relative  (actual)  stoppage  or  deduction,  as  required 
in  the  j^roviso  at  the  close  of  sec.  23  excepting  from  the  prohibition  of 
sees.  1  and  3.  "  In  my  opinion,"  he  says,  "  receipts  for  the  wages  of  past 
services  are  not  the  kind  of  agreement  in  writing  whicli  the  statute  pre- 
scribes. I  think  that  either  the  agreement  must  apply  to  the  particular 
fortnightly  payment,  or  it  must  be  a  prospective  and  continuous  agreement." 
Tliis  case  was  not  appealed.  The  other  case,  M'Farlane,  1888,  16  E.  (J.  C.) 
28,  was  a  High  Court  case.  There  the  Court  decided  that  a  signed  pay- 
ticket,  bearing  the  following  terms :  "  Eeceived  payment  of  £  ,  and 

1  hereby  autliorise  you  to  deduct  from  my  wages  in  future,  so  long  as  I 
am  in  your  employment,  the  amount  of  my  house-rent,"  was  not  a  written 
agreement  justifying  (under  sec.  23)  a  deduction  for  rent  for  a  period 
subsequent  to  the  period  of  employment,,  and,  further,  that  a  regulation  of 
the  employment  which  practically  stipulated  for  right  to  deduct  for  non- 
removal  from  houses  on  the  expiry  of  employment  was  not  a  contract  as  to 
rent,  within  the  meaning  of  the  same  section,  but  a  contravention  of  sec.  2. 
A  recent  case  in  the  Sheriff  Court  of  Ayr  {MacKcnna,  1899,  6  S.  L.  T.  456) 
raised  the  question  whether  under  sec.  6  of  the  Act  of  1887  a  condition  im- 
posed on  employees  that  they  should  not  spend  wages  at  a  certain  store  (a 
co-operative  store)  was  illegal ;  but,  while  the  Sheriff-Substitute  held  that 
this  condition  was  illegal,  the  High  Court,  on  appeal,  dismissed  (3rd  March 
1 899)  the  cliarge,  on  the  ground  of  want  of  sufficient  specification  of  the 
party  charged  and  of  the  method  of  the  contravention,  so  that  the  question 
on  the  merits  was  not  determined.  "With  regard  to  the  application  of  the 
term  "workman,"  the  cases  of  Oahcs,  1884,  11  E.  579,  and  Wilson,  1878, 
5  E.  981,  may  be  referred  to,  and  of  "artificer,"  "employer,"  Phillips,  1874, 

2  E.  224. 

In  England  there  have  Ijcen  more  numerous  decisions — collected,  up  to 
1888,  in  Peace's  Digest  of  the  Lav)  Bclatinrj  to  Truck  (in  his  book  on  The 
Coal  Minrs  Rcrjulation  Act,  1887),  pp.  205-224;  up  to  1885,  in  Manley 
Smith's  Mastrr  and  Servant,  pp.  603-608;  and,  up  to  1883,  in  Macdonell's 
Master  and  Servant,  pp.  367-377 :  see  also,  for  English  as  well  as  Scottish 
cases,  Eraser's  blaster  and  Servant,  3rd  ed.,  pp.  442-451.  By  certain 
decisions,  beginning  with  liiley,  [1848]  2  Ex.  59,  personal  service  has  been 
required  to  support  tlie  operation  of  tlie  original  Act:  see  Pillar,  [1869] 
38  L.J.  C.  P.  204;  also  Sleeman,  [1864]  33  L.  J.  Ex.  153,  where  Chief 
liaron  Pollock  made  the  test  a  contract  for  labour  as  distinguished  from 
a  contract  for  the  result  of  labour.  Various  decisions,  too,  under  the 
Amendment  Act  of  1887,  seem  to  have  included  or  excluded  certain  classes. 


TliUClv  ACTS 


325 


of  employees  as  "  workmen  "  under  that  Act,  by  the  teat  of  Juanuul  labour 

as  the  principal  object  of  tli(!  emp!(»ymcnt,  o/.  Hunt,  [1801]  1   Q.   I 
(the  cases   there  cited  intiy  also   bu  referred  to,  of  wbicb  (W;,  [l^- 
Q.  B.  I).  683,  and  Morgan,  [1884]  13  Q.  B.  1).  83L',  run  counter  ht  I; 
supra,  as    to  tramway-car  conductors:    see,   in    J'hillips,   ]>.  L'l'T.   view  of 
Ld.  Tres.  Inglis  with  regard  to  Euf^disli  Common   Law  Court 8  p: 
Gould,  59  L.  J.  M.  C.  9,  was  a  case  where  u  l>ri(kmaker  who  \'. 
licensed  victualler  was  held  an  ollender  for  giving  workmen  moi. 
for   liquor   supplied   on    credit,  ;ind    deducting   it   from   their  wages.   '  lii 
Jlcwlrtt,    [1892]    2^Q.    B.    p.    GG2,   aflirmed    by   the    Mouse   of    ljon\9. 
[1894]  App.  Ca.  .'583,  it  was  held  that  deductions  from  wag.s  j.aid  into  a 
sickness  and  accident  club,  l)y  agreement,  were  not  struck  at  liy  heoj.  1  and 
o  of  the  original  Act,  the  whole  wages  payable  being  i)aid  in  coin,  and  llmt, 
assuming   (but   not   deciding)  that   they  were  struck   at   by   sec.   2,  the 
employee's  assent  made  the  wages  actually  received  full  discliarge  of  tin- 
employer's  obligation.    This  is  the  only  ultimate  interpretation  of  the  hUitule 
which  we  have,  but  it  does  not  go  beyond  the  points  of  the  [tfirticular  ca,se. 
The  view  of  the  Queen's  Bench  Division  that  the  deductions  in  question 
were  struck  at  by  the  first  or  by  tlic  second  section  of  the  Act  was  not 
upheld,  and  therefore  their  very  interesting  analysis  of  sees.  1-G,  23,  and 
sec.   5  of  the  Act  of  1887,  is  not  of  authority.     Furtlier,  tlie  Acta  are 
regarded  as  highly  penal,  and  are  therefore  to  be  strictly  construed.     In 
Cutts,  [1867]  L.  11.  2  Q.  B.  357,  it  was  held  that  the  agreement  in  writing, 

required  under  sec.   23,  need  not  specify  the  amount  or  ar '     '  ■  '  •■ 

deducted  (in  this  case  for  medical  attendance  and  rent).     Ik'. 
as  a  mode  of  calculating  wages  have  been  held  free  from  the  o])eration  of 
the  Acts— in  Chawncr,  [1846]  8  Q.  B.  311,  and  ^/r//<r,  [1859]  2  B.  &  S. 
61 — the  latter  being,  however,  a  case  wliere  three  judges  out  of  si.x  d-"'  •    ' 
and  where  elaborate  judgments  were  given  on  both  si«les.     Justice  K' 
cue  of  the  dissenting  three,  expressed  his  view  of  the  evil  to  be  remedied 
by  the  Act  thus:  "The  giving  by  masters  to  their  workmen,  in  ex 
for  their  labour,  wholly  or  in  part,  things  of  uncertain   value,  insicaa  <t 
money,  the  value  of  which  is   certain   (j).  76;    see    Smith,   [1877]  L   K. 
3  C.  V.  D.  p.  113).     In  Zarnh,  [1891]  2  (.}.  B.  281,  it  was  held  timt  sec,  6 
of  the  Act  of  1887  did  not  cut  down  the  exceptions  protected  by  sec,  23  of 
the  original  Act,  and  that  the  proviso  at  the  end  of  sec.  5  of  the  later  Act 
was  surplusage. 

Prosecutions  under  the  original  Act  were  before  tb.e  Justices  of  the 
Peace,  and  no  prosecutor  was  named :  hence  the  absence  of  reporlc<l 
prosecutions  in  Scotland.     Now,  under  the  Summary  Juri^  '  ' 

the  Truck  Amendment  Act  of  1887,  prosecutions  are  in  : 
and,  in  practice,  by  the  procurator-tiscal  (see  Eraser's  JA 
p.  784).     Under  the  Summary  Jurisdiction  Act  of  1881  (44  &  45  VicL  c. 
33),  the  penalties  imi)Osed  by  the  Truck  Acts  may  be  mil  • 
maybe  quashed,  by  the  High  Court  of  Justiciary,  on  li.- 
mental  nullity  and  illegality,  on  an  appc;il  f.ik(>n  on  a  ]• 
MFarlanc,  16  Pt.  (J.  C.)  28). 

The  original  TrucH^  Act  was  found  not  to  ajqdy  to  . 
rents  or  the  like  in  the  hosiery  manufacture,  an' 
&  38  Vict.  c.  48  (the  Hosiery  ':Manufacture  (Wa.,     .  .>, 
Under  it,  too,  the  provisions  with  regard  to  penalties  are  strictly 
(JF///W,  L.  R.  10  Q.  B.  383). 

See,  in  ad<lition  to  authorities  referred  to  svyra,  p.  ••-•f.  15cl- 
36  (8),  192  (2):  also  Ma.steu  and  Servant;  Wales. 


7',  • 


326  TIIUST 

Trust. 

PAGE        )  PAOB 

Definition 3:2(}  |  Trusts    arising   from    Operation    of 

Classification 3i'7  [        Law 33G 

Constitution -^31  i    Eevocation 340 

Proof 334  I  Domicile  of  Trust  and  Jurisdiction  .  342 

Definition. 

Tlie  contract  of  Trust  is  not  an  easy  one  to  define,  and  an  entirely 
satisfactory  definition  of  it  has  never  been  given.  The  older  writers  speak 
of  it  either  as  a  species  of  mandate,  or  as  a  species  of  deposit,  or  as  a 
combination  of  the  two  (Starr,  i.  12.  17;  i.  13.  7;  Ersk.  iii.  1.  32;  Bell, 
Com.,  5th  ed.,  1,  31).  This  last  view  has  the  sanction  of  the  late  Ld. 
President  (Inglis),  who,  in  a  recent  case,  defined  a  trust  as  "  a  contract  made 
up  of  the  two  nominate  contracts  of  deposit  and  mandate.  The  trust  fimds 
are  deposited  for  safe  custody,  and  the  trustees  receive  a  mandate  for  their 
administration"  {Croslcery,  1890,  17  E.  700).  But  in  neither  mandate  nor 
deposit  does  the  property  vest  in  the  mandatary  or  depositary,  whereas  in 
trust  the  property  vests  in  the  trustee.  The  mandatary  or  the  depositary 
holds  as  agent,  while  the  trustee  holds  as  principal.  The  contract  may 
perhaps  be  explained  as  one  in  which  the  legal  title  to  property  is 
transferred  to  a  person  called  a  trustee,  who  does  not  acquire  an  unlimited 
right  to  the  property,  but  who  holds  it  subject  to  an  obligation  to  use  it  in 
accordance  with  the  directions,  express  or  implied,  of  the  person  wlio 
constituted  the  trust,  for  the  benefit  of  certain  persons  of  whom  he  may 
or  may  not  himself  be  one.  The  whole  doctrine  and  practice  of  trusts,. 
according  to  Professor  Bell,  depends  upon  the  following  principles  :  (1)  That 
a  full  legal  estate  is  created  in  the  person  of  tlie  trustee,  to  be  held 
by  him  against  all  adverse  parties  and  interests,  for  the  accomplishment 
of  certain  ends  and  purposes.  (2)  That  the  uses  and  purposes  of  the  trust 
operate  as  qualifications  of  the  estate  in  the  trustee,  and  as  burdens  on  it 
preferable  to  all  who  may  claim  through  him.  (3)  That  those  purposes  and 
uses  are  eflectually  declared  by  directions  in  the  deed,  or  by  a  reservation 
of  power  to  declare  in  future,  and  a  declaration  made  accordingly.  (4)  That 
the  reversionary  right,  so  far  as  the  estate  is  not  exhausted  by  the  uses  and 
l)urpo.ses,  remains  with  tlie  truster,  available  to  him,  his  heirs  and  creditors 
(Bell,  Prin.  s.  1991).  Though  it  is  true  that  a  full  legal  estate  is  created 
in  the  person  of  the  trustee,  and  that  while  he  liolds  it,  the  other  parties 
interested  under  the  trust  have  only  a  bare  right  of  action  against  him ; 
yet  the  peculiarity  of  his  tenure  of  the  estate  is  this,  that  he  only  liolds  it 
qua  trustee,  and  so  long  as  he  remains  trustee,  and  tliat  it  does  not  transmit 
to  his  heirs,  nor  can  his  creditors  attach  it.  If  the  trustees  fail,  by  death 
or  otherwise,  the  title  to  the  estate  remains  in  suspense,  until  it  vests  either 
in  a  beneficiary  upon  his  making  up  a  title  to  the  estate,  or  in  new  trustees 
or  a  judicial  factor  appointed  by  the  Court.  It  is  necessary  for  the  existence 
of  a  trust,  that  the  trust  estate  should  l)e  unequivocally  in  the  possession  of 
the  trustee  and  under  his  control  (see  Mess,  1898,  25  Pt.  398  ;  Barney,  [1892] 
2  Ch.  2G5). 

In  tlie  contract  of  trust  there  are  three  parties  concerned ;  the  truster, 
who  constitutes  the  trust,  and  gives  over  the  property ;  the  trustee,  who 
receives  and  holds  the  property ;  and  the  beneficiaries,  who  are  to  derive 
benefit  from  tlie  property  thus  handed  over.  Either  the  truster  or  the 
trustee  or  both  may  Ijc  beneficiaries.  The  trustee,  however,  cannot  be  the 
sole  beneficiary ;  for  if  he  were  to  become  so,  his  right  as  trustee  would  be 


'J'lU'ST  ...»^ 

»>-  < 

extinguished  confusiom  in  lii.s  l:ir<,MT  ii-iii  as  I.lmi.  iiLury,  uuU  U  wouM  bo 
entitled  to  hold  the  pictpt-ity  fur  his  own  use  absolutely.* 

A  trust  can  be  created  by  any  pcrHon  who  is  !«"^'(illv  cni^blc  of  (Hb- 
posing  of  property,  with  regard  to  that  projicrty. 

The  whole  ((Ufsljon  of  the  Administration  of  IrusU  nmy  Ik.-  more 
conveniently  dealt  with  under  the  title  TitusTEK,  and  to  that  '■•'  ' 
reference  is  made  for  the  discussion  of  the  I'rust  Turitosfs.  Tiu  i 
FOit  Creditors  are  also  dealt  witli  in  a  separate  article.  In  Ihis  arliclo  it 
is  proposed  to  set  fortli  the  did'erent  classes  of  trusts  which  arc  known  to 
our  law,  and  to  deal  with  the  ([uestions  of  the  Constitution.  rpMif,  un<l 
Ecvocation  of  Trust,  and  also  with  the  application  of  intcrnation.ij  law  to 
the  subject. 

Classification. 

In  tlie  first  place,  then,  it  may  be  convenient  to  stjite  briefly  the  several 
kinds  of  trust  which  exist,  as,  according  to  their  objects  and  character,  they 
are  ordinarily  classified. 

(1)  Simple  and  Special. — AVhen  the  duty  of  the  trustee  amoimts  only 
to  an  obligation  to  hold  the  trust  estate,  and  hanil  it  over  to  tlie  j»erson 
entitled  to  it  when  called  upon  to  do  so,  the  trust  is  willed  a  SimjiJe  Tiust 
In  such  a  case  the  trustee  is  little  more  than  a  deposiUiry,  and  has  uo 
administrative  functions  to  perform.  "Whenever  he  has  made  uj»  iiis  title 
to  the  estate,  the  person  beneficially  interested  may  call  on  liim  t"  ■'■•'■•idu 
in  favour  of  him  or  his  assignee.  He  diflers,  however,  from  a  dej  .  in 
this  respect  that  he  may  hold  the  estate  for  a  third  party,  and  not  for  the 
person  from  whom  he  received  it.  A  Simple  Trust,  for  examjile,  exists 
where  lieritable  property  is  held  by  the  individual  partners  of  a  firm  for 
behoof  of  the  firm. 

In  a  Special  Trust,  on  the  other  hand,  the  trustee  has  certain  active 
duties  to  perform  beyond  the  mere  holding  of  the  estate.  All  trusts  which 
are  granted  for  the  management  of  the  truster's  estate  or  for  the  p;ivn>ent 
of  his  debts,  and  all  testamentary  or  marriage-contract  trusts  which  are 
created  to  provide  for  the  administration  of  the  estate,  come  under  this 
head.  A  simple  example  may  be  given: — Where  a  testator  directs  Ids 
trustees  to  hold  an  estate  for  A.  in  liferent  and  for  K  in  fee,  the  trii.st  is  a 
special  one.  It  has  to  be  maintained  during  A.'s  life  in  order  that  the 
liferent  may  be  paid  to  him,  and  upon  A.'s  death  the  fee  is  i>aid  over  to  B., 
and  the  trust  comes  to  an  enil.  Should  A.,  however,  predecease  the  testator, 
the  trust,  when  it  comes  into  operation  at  the  testator's  death,  would  n.'^dve 
itself  into  a  simple  one,  and  tlie  duty  of  the  trustees  would  be  f..  t.  Iv  to 
convey  the  estate  to  B. 

Special  Trusts,  again,  may  be  either  Discretionary  or  A<lm 
according   as    the    truster    has   or   has   not   conferred    ujxtn    the    i: 
discretionary  powers  with  regard  to  the  management  of  tlie  esUite,  i. ...   . 
to   say,  powers   which   involve   the   appliiation   of  a  certain  amount   of 
judgnient  by  the  trustees.     Where  no  such  powenj  have  been  jriycii,  the 
trust  must  be  administered  in  accordance  with  the  rules  )■ 

truster  in  his  trust  deed,  or  failing  such   rules,  in    accoi 

ordinary  rules  of  law. 

(2)  Public  and  Private.— A  Public  Trust  is  one  which  w  constiiutc*! 
for  the  benefit  of  the  public  at  large  or  of  some  c' 

answering  to  a  particular  descrii»tion  (Lewin  on  Tr 

a  Private  Trust  is  constituted  for  the  lienelit  of  th' 

creditors,  or  in  order  to  carry  out  family  arrangements  with  reganl  lo  tlte 


328  TKUST 

estiite,  as  iu  the  case  of  marriage-contract  and  testamentary  trusts.  Amon^f 
Public  Trusts  are  included  trusts  for  charitable  purposes,  and  in  a  legal 
sense  there  appeai-s  to  be  no  difference  between  a  public  and  a  charitable 
trust  (see  Dvlan,  18G7,  5  Eq.  GO;  atiU.  18G8,  3  Ch.  App.  G7G,  per  Eoniilly, 
M.  \X.,  5  Eq.  62).  But  in  ordinary  language  a  distinction  is  drawn  between 
trusts  for  purposes  of  public  utility,  such  as  the  making  and  repairing  of 
roads  and  bridges,  or  the  supplying  of  a  district  with  water  or  gas,  and 
trusts  such  as  those  which  provide  for  the  building  or  maintenance  of 
hospitals,  or  for  the  relief  of  the  poor.  The  subject  of  CiiAiaTABLE  Tkusts 
{q.r.)  has  been  already  dealt  with. 

The  important  distinction  between  public  and  private  trusts  is  that  the 
former  may  be  of  permanent  duration,  while  the  latter  may  not.  In  the 
English  case  of  Goodman  (1882,  7  App.  Ca.  633),  Ld.  Cairns,  speaking  of 
a  grant  in  favour  of  the  inhabitants  of  a  borough,  said :  "  A  trust  of  that 
kind  would  not  in  any  way  infringe  the  law  or  rule  against  perpetuities, 
because  we  know  very  well  that  where  you  have  a  trust  which,  if  it  were 
for  the  benefit  of  private  individuals,  or  a  fluctuating  body  of  private 
individuals,  would  be  void  on  the  ground  of  perpetuity,  yet  if  it  creates  a 
charitable,  that  is  to  say  a  public  interest,  it  will  be  free  from  any 
obnoxiousness  to  the  rule  with  regard  to  perpetuities." 

With  regard  to  private  trusts,  the  Entail  Act  of  1848  (11  &  12  Vict.  c. 
36)  limits  the  duration  of  trusts  of  heritage.  Sec.  48  provides  that  liferent 
interests  can  only  be  granted  in  favour  of  a  party  in  life  at  the  date  of  the 
grant,  and,  further,  that  where  land  or  estate  is  held  in  liferent  in  virtue  of 
any  deed  granted  after  the  date  of  tlie  Act  l;)y  any  party  of  full  age,  born 
after  the  date  of  the  deed,  the  conditions  and  limitations  contained  in  the 
deed  shall  have  no  effect,  and  the  party  "  shall  be  deemed  and  taken  to  Ije 
the  fee-simple  proprietor  of  such  estate."  Sec.  47  is  intended  to  prevent 
the  defeat  of  the  Act  by  trusts,  and  provides  that  where  any  land  or  estate 
is  held  in  virtue  of  any  deed  of  trust  dated  after  the  date  of  the  Act,  either 
directly  or  through  trustees,  by  a  party  of  full  age,  born  after  the  date  of 
the  trust  deed,  the  conditions  and  limitations  contained  in  the  deed  are  of 
no  effect,  and  the  party  "  shall  be  deemed  and  taken  to  be  the  fee-simple 
proprietor  of  such  land  or  estate."  With  regard  to  heritable -property,  then, 
it  is  impossible  to  create  a  liferent  or  to  put  the  estate  in  trust  for  a"^  longer 
period  than  the  life  of  a  person  in  life  at  the  date  of  the  deed,  or  during  the 
minority  of  a  person  born  after  that  date.  By  sec.  17  of  the  Entail  Act  of 
1868  (31  &  32  Vict.  c.  84),  a  similar  rule  is  made  with  regard  to  liferents 
of  moveable  estate,  constituted  by  means  of  a  trust  or  otJierwise,  and  it  is 
declared  that  in  calculating  the  limits  of  time,  the  date  of  any  testamentary 
or  mortis  causa  deed  shall  be  taken  to  be  the  date  of  the  death  of  the 
granter,  and  the  date  of  any  contract  of  marriage  shall  be  taken  to  be  the 
date  of  tlie  dissolution  of  the  marriage. 

Lawful  and  Unlawful.— Trusts  which  are  constituted  for  purposes 
which  are  illegal  or  immoral  or  contrary  to  the  public  policy  of  the  realm 
are  unlawful  trusts  and  are  invalid.  Amongst  trusts  which  are  illegal  are 
those  which  are  conceived  in  favour  of  the  truster  himself  to  the  exclusion 
of  his  creditors,  or  which  are  intended  to  create  unlawful  preferences 
{Learmonth,  1871,  10  M.  107;  1875,  2  P..  (H.  L.)  62;  Watson,  1874,  1  E. 
882  ;  Kcr,  1866,  5  M.  4 ;  Wood,  1850,  12  D.  963  ;  Wrniht,  1847,  9  D.  1151 ; 
lioscleri/,  1823,  2  S.  443).  In  England  it  has  been  held  that  a  conveyance 
by  a  bankrupt,  two  days  before  his  bankruptcy,  to  a  trustee  for  the  purpose 
of  making  good  breaches  of  trust  which  he  had  committed  on  estates  upon 
which  he  was  trustee,  was  not  a  fraudulent  preference  within  the  meaning 


TKUST  329 

<jf  sec.  48  of  the  J'.iinkiui.lcv  Ad  (.f  188:'.,  tlio  ol.jcrt  UAw^,  ■ 
one  creditor  to  another,  hut  to  protect  the  ^;ranl«T  from  the 
of   hreaches  of   trust   coniniitte«l   hv   him   (Nau  J'rancr  <(•  (; 
[1897]  2  Q.  K  19). 

The  fact  that  a  trust  is  interposed  hoeausn  the  truMt-i  .s  j.in] 
not  he  carried  out  hy  a  (hrect  conveyaneu  does  uni  neccHSiirilv  i.  .,  .  .  .... 

trust  unhnvfuh  Thus  it  is  quite  competent  to  make  an  annuity  ahmentarv, 
and  therefore  protected  from  the  general  creiUtors  of  the  annuiUmt.  liy 
makini,'  it  payahle  tlnou^h  the  machinery  of  a  tru.'^t  (see  Murraif,  1895.  2'1 
\\.  927,  per  I  A.  ]\rLaren,  at  j).  941).  AVhere  the  main  j.urjii.Kc  of  I  ho 
trust  is  lawful,  hut  an  unhiwfid  condition  has  heen  adjeclod  to  it.  the 
condition  will  he  disregarded,  and  tlie  trust  allowed  to  stand.  A  proviHion, 
for  example,  tliat  an  annuity  should  he  paid  without  deduction  on  acc«*unt 
of  income  tax  is  invaUd  (y;/rt(r,  1858,  21  I).  15;  7iy65o/i,  18G1,  2:'  T'  '"9; 
5  &  6  Vict.  c.  35,  s.  103 ;  16  &  17  Vict.  c.  34,  s.  5). 

Again,  a  condition  attached  to  a  legacy  to  the  effect  that  the  legatee 
should  not  reside  with  her  parents,  they  heing  of  good  character,  ha.s  IjetMi 
disregarded  as  contra  honos  mons,  and  the  legacy  has  heen  treated  as 
unconditional  (Grant,  1898,  25  IJ.  929  ;  Fraser,  1849,  ]  1  D.  14GG).  Ihit  all 
trusts  the  main  purpose  of  which  is  either  illegal  in  the  sense  of  being  an 
attempt  to  evade  some  positive  law,  or  contra  bonus  )no}-es,  are  treatctl  aB 
void.  A  trust  for  l)ehoof  of  a  mistress,  which  is  jtresumed  to  1  •  '  •■ 
granted  in  consideration  of  continued  cohahitation,  is  void  {Johna! 
14  S.  106).  But  where  the  trust  appears  to  have  been  intendetl  as 
reparation  for  injury  sustained,  and  not  as  an  inducement  to  continued 
cohabitation,  it  will  be  upheld  (Webster,  1886,  14  11  90;  Oib.ovi,  1815.  1 
Bell,  7//.  61).  "Where  a  testator  bequeathed  an  annuity  of  £2000  to  hia 
son,  and  an  additional  annuity  of  £1000  if  he  shoidd  have  niarriod  with 
his  consent  during  his  lifetime,  or  should  thereafter  marry  with  l\  nt 

of  his  trustees,  it  was  held  that  the  rule  which  makes  a  coniuiiuu  in 
restraint  of  marriage  inoperative  did  not  a])]tly,  as  a  jtrovision  had  been 
made  for  tlie  son  in  any  event  (Boitrsc,  1898,  W.  N.  150-3 ;  sec  Gillrt,  1715. 
1  P.  Wms.  284).  A  provision  in  favour  of  an  innocent  third  jmrty  contained 
in  a  deed  which  might  itself  be  struck  at  as  in  tin-jn  causa  is  efVectual 
(Younr/,  1S80,  7  11  VJO). 

It  has  already  been  seen  that  a  private  trust  may  not  be  constituted  to 
last  in  perpetuity,  and  trusts  which  are  intended  to  have  that  eflect  are 
invalid.     The  Thkllusson  Act  (q.v.)  (39  &  40  Geo.  in.  c.  98)  pr.'  '       'he 
accumulation  of  the  income  of  a  fund  under  any  settlement  »■.  .....  or 

personal  property  for  any  longer  term  than  the  life  of  the  granter,  or  the 

term  of  twenty-one  years  from  the  death  of  the  granter,  "or  durini;  the 

minority  or  respective  minorities  of  any  person  or  jierson.*?  ^•  l^e 

livin-^f,  or  in  ventre  sa  mhr  at  the  time  of  the  death  "oft' 

during  the  nnnority  or  res]iective  nunorities  only    ol  any  j- 

who  under  the  trusts  of  the  deed  would  for  the  time  beinc.  if  of  full  age, 

be  entitled  to  the  income  or  rents  directed  to  be  accumu' 

did  not  applv  to   the  rents  of  heritable  ])n»perty  in  Scuu.'; 

Entail  Act  of  1848  was  passed  (11  .^-  12  Vict.  c.  36.  s.  -H  V     '1 

therefore,  of  herital)le  pro].ertv  under  trusts  constitufod  ]  184«  do 

not  fall  under  the  Act,  and  can  be  accumulated  I  thu  iwenty-one 

years  (Cathcart,  1883,  10  B.  1205 ;  M'Larlif,  1864.  2  -M.  i^^'). 

In    the   sense  of    the    Act,   accumulation    take«    i.l...^    whenever    the 
benehcial  enjoyment  of  tiie  produce  of  tlie  esUte  is  |  •xl.     The  penod 

of  twenty-one  years  runs  from  the  date  of  the  death  of  the  r.  ana 


330  TKUST 


not  from  the  expiry  of  any  liferent  or  annuity,  upon  the  expiry  of  which 
the  income  is  directed  to  he  accumulated  {CamphclVs  Trs.,  1891,  18  R  992  ; 

Wchh,  1840,  2  Ik-av.  493;  Att.-Gcn.  v.  Poiddcn,  1843,  3  Hare,  555; 
Xettldon,  1849,  3  De  G.  &  S.  360).  In  the  special  case  of  Maxwell's  Trs. 
(1877,  5  1{.  248),  where  trustees  had  accumulated  income  in  terms  of 
their  deed  for  twenty-one  years  counting  from  the  expiry  of  an  annuity 
granted  by  the  deed,  the  question  put  to  the  Court  and  decided  was  as  to 
whether  the  direction  to  accumulate  beyond  that  time  was  void,  and  no 
question  was  raised  or  decided  as  to  the  legality  of  prior  accumulations. 

With  regard  to  the  disposal  of  the  rents  or  income  directed  to  be 
accumulated,  after  the  expiry  of  the  period  prescribed  by  the  Act,  it  is 
provided  that  they  shall  "  go  and  be  received  by  such  person  or  persons  as 
would  have  been  entitled  thereto  if  such  accumulation  had  not  been 
directed."  The  deed  or  disposition  will  stand  except  as  regards  the 
direction  to  accumulate.  Where  there  is  a  distinct  present  gift  of  the 
estate,  upon  which  the  direction  to  accumulate  is  a  burden,  the  person  to 
whom  the  estate  is  destined  will  be  entitled  to  the  income  after  the  period 
of  legal  accumulation  has  expired  (Jlaxu-ell's  Trs.,  1877,  5  E.  248  ;  Mackenzie^ 
1877,  4  R  962 ;  Ogilvie,  1846,  8  D.  1229).  In  a  recent  English  case  the 
House  of  Lords  has  decided  that  where  there  is  an  absolute  vested  gift 
payable  upon  the  occurrence  of  a  future  event,  w^ith  a  direction  to  the 
trustees  to  accumulate  and  to  pay  the  accumulation  of  income  with  the 
capital  upon  the  occurrence  of  that  event,  the  Court  will  not  enforce  a 
trust  to  accumulate  m  which  no  person  has  an  interest  except  the  legatee, 
that  is  to  say,  that  a  legatee  may  put  an  end  to  accumulation  wliich  is 
exclusively  for  his  benefit,  and  this  whether  the  legatee  be  an  individual 
or  a  charitable  institution.  Where  a  direction  to  accumulate  is  for  this 
reason  of  no  effect,  the  Thellusson  Act  has  no  application  ( Wharton,  [1895] 
App.  Ca.  186).  Where  there  is  no  distinct  present  gift  of  the  estate,  the 
income,  so  far  as  affected  by  the  Act,  is  regarded  as  undisposed  of,  and 
falls  to  the  testator's  heir  in  heritage  or  in  moveables  {Lo(jan,  1896,  23  IJ. 
848;  Elder,  1892,  20  R  2;  Campbell,  1891,  18  R  992;  Cathcart,  1883,  10 
R  1205;  Smyth,  1880,  7  E.  1176;  Fursell,  1865,  3  M.  (H.  L.)  59;  Lord, 
1860,  23  D.  Ill;  Keith,  1857,  19  D.  1040;  Turnlull,  1845,  7  U.  872, 
6  Bell's  App.  22).     According  to  the  decision  in  Lord  (ut  supra ;  see  also 

mison,  1894,  22  E.  62),  the  person  who  holds  the  position  of  heir  ab 
intestato  is  to  be  looked  for  as  at  the  date  of  the  testator's  death,  and  not 
as  at  the  date  when  intestacy  is  ascertained.  But  in  Camplcll  (ut  supra), 
where  tlie  question  concerned  the  rents  of  heritage,  the  majority  of  the 
Second  Division  (Ld.  Young  dissenting,  and  contrary  to  the  opniion  of 
Ld.  Kincairney,  Ordinary)  held  that  each  term's  rent  as  it  accrued  belonged 
to  the  person  holding  at  that  time  the  character  of  heir-at-law  of  the 
truster.  In  tliat  case,  Ld.  Ifutherfurd  Clark  said:  "The  Lord  Ordinary 
sustanis  the  claim  of  the  representative  in  heritage  of  George  Gunning 
Campbell,  the  heir-at-law  of  the  truster  as  at  his  death.  But  this  assumes 
that  the  rents  Ijehmged  to  George  Gunning  Campbell.  If  they  did  not, 
they  could  not  be  taken  up  by  his  representative.  He  died  in  1858.  To 
my  mind  it  is  clear  tliat  rents  which  did  not  become  due  till  1889  could 
not  belong  to  a  person  who  died  before  that  date.  I  should  think  it  a 
self-evident  proposition  that  the  interest  of  money  or  the  rent  of  lands 
cannot  belong  to  one  who  dies  before  they  accrue.  If  the  truster  had 
died  intestate,  and  George  (iunning  Campbell  had  succeeded  as  his  heir, 
the  latter  would  have  been  entitled  to  the  rents  which  accrued  due  up  to 
his  death,  and  to  no  more.     It  can  make  no  difference  that  we  are  dealing 


o 


TRUST  r»?^i 

with  a  case  wIiltg  the  rents  are  set  free  Ity  the  oi»er{ition  of  the  'J  .n 

Act.     That  circumstance  can   never  enlarj^e   the   rij^'hlH  or  <   ■  '. 

heir  ah  inkstato.  I  am  therefore  of  opinion  that  the  rent 
claimed  hy  anyone  as  the  reinvsentative  of  (jeorge  Gunning  Cuniphell" 
(18  1{.  1008).  In  tliis  case  the  »iuestion  was  of  no  inijtortancc,  as  in  any 
view  the  rents  fell  to  (.Jcor<fe  Guniiint^  CanipheH'H  rejtrr'scntativ.  '  *  it 
is  respectfully  su^'j^ested  that  it  is  tlie  rijht  to  the  rents  \\\\uh  '  ,  to 
the  heir,  and  tliat  that  riglit  can   he  transmitted  to  his  re|  ilives, 

just  as  a  right  to  an  annuity  payahlc  during  the  life  of  another  person 
can  be  transmitted  l)y  the  possessor  thereof  to  his  representativeH.  The 
decision  in  Canqihrll's  case  was  followed,  however,  hy  a  majority  of  the 
First  Division  (Ld.  Adam  dissenting)  in  Lofjan's  Trs.  (1H9G,  2:'»  K.  .S4H). 

Trusts  may  also  be  divided  into  those  which  are  created  hy  the 
deliberate  intention  of  the  truster,  and  those  which  are  held  to  arifie  by 
operation  of  law,  viz.  liesulting  and  Constructive  Trusts.  These  latter  will 
be  considered  immediately  (see  p.  o3G).     For  Executory  Trusts,  see  p.  359. 

Constitution, 

"Writing  is  not  necessary  in  order  validly  to  constitute  a  trust;  the 
mere  transference  of  the  property  from  tlie  truster  to  the  trustee,  accom- 
panied l)y  a  declaration  of  tiie  trust  purposes,  is  sullicient.  IJut,  in  the 
general  case,  trusts  are  constituted  by  writing,  and  it  may  be  noted  that 
the  Trusts  Acts  a])ply  only  to  trusts  constituted  "  by  any  ileed  or  local 
Act  of  Parliament." 

No  special  or  technical  language  is  necessary  in  order  to  constitute  a 
trust.  It  is  sufhcient  if  there  is  evidence  of  an  intention  on  the  jmrt  of 
the  truster  that  his  jnoperty  should  Ite  held  in  trust,  ami  if  it  is  iM..s*iiblo 
to  point  to  the  property  to  be  dealt  with,  to  the  beneliciaries  to  whom  it 
is  destined,  and,  to  some  extent,  to  the  methods  in  accordance  with  which 
it  is  to  be  administered.  Especially  in  the  case  of  trusts  for  chnrilable 
purposes,  the  Court  will  go  a  long  way  to  supply  any  th-liciencies  occurring 
in  the  trust  deed  (see  Marjs.  of  Dundee,  18;J8,  :'.  Maccp  134). 

There  are  two  forms  of  trust  deed  in  common  use,  the  one  being  an 
absolute  disposition  of  the  property  to  the  trustee,  qualified  l)y  a  sejiarate 
back-bond  or  back-letter  declaring  the  trust,  and  the  other  being  a  deed 
which  bears  in  grcmio  the  trust  purposes,  or  which,  declaring  that  the 
property  is  disponed  in  trust,  refers  to  a  separate  document,  written  or 
to  be  written,  which  sets  forth  the  trust  purposes.  In  the  case  of  inter 
vivos  trusts,  such  as  those  constituted  for  the  management  of  the  truster's 
estate  or  the  extrication  of  his  adairs,  the  absolute  disj.itsitii'n  wit!:  ■  '  -  »le 
back-bond  is  the  form  usually  adopted,  on  account  of  the  greater  :  .in 

dealing  with  the  estate  which  it  gives  to  the  trustee.  The  ordinary  trust 
disposition  bearing  in  r/ronio  the   trust  purposes  is  as  a  rule  found   the 

more  convenient  form  to  adopt  in  the  case  of  family  and  ?-  ' ••' '-r)' 

settlements.     But  in  this  latter  case,  it  is  sometimes  conven;'  ^r 

to  avoid  unnecessary  publication  of  family  arrangemcnt«,  to  exprcsw  in 
the   deed  itself  merely  the  fact  that  the  property  is  held   in  t:  'hI 

to  refer   to   another  document  for  the  trust  purjMises.      "\N  hen 
property  is  conveyed  bv  a  trust  deed  valid  according  to  tlie  law  J''  ^ 

for  purposes  to  be  afterwards  declared,  the  trust  purpo.'^es  nuiy  l>o  declnrcd 
by  any  deed  valid  by  the  law  of  the  place  where  it  is  execute*!  ( ' 
1831,  9  S.  001 ;  183:3,  7  W.  &  S.  lOG).  .  . 

TheimiMutant  distinction  between  the  absolute  disi^osition  wit. i  ivirk- 
bond  and  the  ordinary  trust  disposition    is  that  tlie  former  dr.  .'lO 


332  TEUST 

<,'ranter  of  liis  title  to  the  estiite,  leaving  him  merely  the  creditor  upon  the 
trustee's  obligation  to  reconvey,  while  the  latter  does  not  necessarily  divest 
liim,  but  mei^ely  burdens  his  right  (see  Robertson,  1840,  2  D.  279,  per  Ld. 
Fullerton,  at  p^  291). 

(1)  Absolute  Disposition  with  Back-Bond. — The  effect  of  a  deed  of 
this  nature  is  to  divest  the  granter,  and  vest  the  estate  in  the  trustee, 
subject  to  the  equitable  rights  of  reversion.  Tlie  trustee  is  tlierefore  liable 
in  all  the  consequences  lawfully  deducible  from  the  title  upon  which  he 
liolds,  such  as,  for  example,  the  payment  of  feu-duties  or  ground-annuals 
{Gardipi^,  1851, 13  D.  912  ;  1853,  1  Macq.  358  ;  M'Zelland,  1857, 19  D.  574  : 
Cl(i/of  Glasgow  Bank,  1882,  9  11.  689;  Clark,  1850,  12  D.  1047;  rev.  1854, 
1  Macq.  668).  Still,  in  a  question  with  the  granter  of  the  deed  or  with  the 
person  beneficially  interested  in  it,  the  absolute  disposition  does  not  give  the 
trustee  more  than  a  fiduciary  right  to  the  estate  disponed.  The  publication 
or  recording  of  the  back-bond  has  important  results  in  questions  arising 
with  third  parties.  Where  the  estate  is  vested  in  a  person  by  a  title  ex 
facie  absolute,  though  really  in  trust,  and  the  right  of  the  beneficiary, 
whether  he  be  the  truster  or  another,  rests  upon  a  latent  back-bond,  the 
trustee  can,  though  his  action  may  be  in  breacli  of  duty  or  even  grossly 
fraudulent,  communicate  a  valid  right  to  a  purchaser  or  a  lender  upon  the 
security  of  the  trust  estate,  who  transacts  with  him  for  value,  and  without 
notice  of  the  interest  of  the  beneficiary  (see  per  Ld.  Watson  in  Heritable 
Reversionary  Co.,  1892,  19  R.  (H  L.)  at  p.  47 ;  Red/mm,  1813,  1  Dow's  App. 
53;  Biums,  1840,  2  D.  1348;  Mansfield,  1833,  11  S.  813).  But  in  such  a 
case,  the  validity  of  the  right  acquired  by  the  disponee  for  value  does  not 
rest  upon  any  power  of  the  trustee  to  give  this  right,  but  upon  the  principle 
that  a  true  owner  who  chooses  to  conceal  his  right  from  the  public,  and  to 
clothe  his  trustee  with  all  the  indicia  of  ownership,  is  thereby  barred  from 
challenging  rights  acquired  by  innocent  third  parties  for  onerous  considera- 
tions under  contracts  with  his  fraudulent  trustee  (ib.).  Proof,  however, 
that  the  purchaser  or  assignee  knew,  of  the  latent  trust  will  invalidate  the 
contract  with  the  trustee,  and  give  a  preference  to  the  truster  or  beneficiary 
(Stair,  iv.  6.  5).  The  recording  of  the  back-bond,  or  its  production  in  legal 
proceedings  (Keith,  1795,  Bell,  Folio  Cases,  234),  is  equivalent  to  publication, 
and  when  the  back-bond  is  published  a  purchaser  will  be  held  to  have 
had  notice  of  the  trust. 

Tiie  creditor  of  the  trustee,  or  his  trustee  in  bankruptcy,  is  not  in  the 
position  of  an  onerous  assignee.  The  trustee  in  bankruptcy  takes  the 
property  of  the  bankrupt  subject  to  all  the  rights  and  equities  that  affected 
it  at  the  time  of  the  bankruptcy,  and  therefore  property  which  is  held  by  a 
bankrupt  under  a  disposition  ex  facie  absolute  but  really  in  trust,  does  not, 
whether  the  back-bond  is  recorded  or  not,  pass  to  the  trustee  in  bankruptcy 
(Heritable  Reversionary  Co.,  ut  sujjra;  Forbes,  1898,  25  11.  1012;  Fleeming, 
1SG8,  0  M.  (H.  L.)  113,  per  Ld.  Westbury ;  Abbott,  1870,  8  M.  791 ;  Gordon 
and  Dimjicall,  1824,  1  S.  (K  E.)  566;  Thomson,  1784,  Mor.  10229). 
Personal  creditors  do  not  as  a  rule  give  credit  on  the  strength  of  a  pre- 
sumption that  property  standing  in  the  name  of  their  debtor  is  his  private 
])nj|)erty.  "  Unless  they  are  going  to  advance  money  on  heritable  security, 
they  know  notliing  of  his  title  deeds,  and  trust  only  to  his  personal  credit" 
(per  Ld.  M'Laren  in  Heritable  Security  Co.,  18  Pt.  1175).  "An  heritable 
bond  is  good  because  it  is  the  price  of  the  estate ;  the  adjudger  seeks  to 
mend  his  former  security"  (per  Ld.  Monboddo  in  Thomson,  ut  snpra). 

(2)  Deed  liEAuixa  /.v  grumio  the  Trust  Purposes. — The  position  of  the 
radical  title  to  the  estate,  in  the  case  of  a  deed  wliich  bears  on  its  face  that 


TRUST  333 

it  is  a  conveyance  for  trust  purposes,  depends  uixjn  circutuhUncoH.  Where 
the  ultimate  purpose  of  tlie  trust  is  a  reconveyance  of  the  reversion  of  the 
estate  to  the  truster,  the  radical  title  to  the  estate  roniuins  in    *  r 

even  altliough  the  primary  purpose  of  tlie  trust  may  Ut  tl..-  .,f 

debts  which  exceed  in  their  amount  the  value  of  the  estate  (  1 

Mor.  "Adjudication,"  Xo.  11;  J/'J/Z/Za?/,  18;J1,  9  S.  551 ;  I8;i4  7  W  &  s' 
441;  Fairlir,  1827,  8  S.  9:;!7 ;  Gdmour,  187:5,  11  M.  853).     \.'  '     '    ■  title 

passes  to  the  trustee  than  that  which  is  necessary  to  enable  i ..,  carry 

out  the  trust  purposes.  The  only  practical  ditference  between  such  a  truHt 
and  a  heritable  security  is  that  in  the  latter  case  the  heritaide  crediUir 
holds  the  estate  in  satisfaction  of  a  debt  due  to  himself,  wjiile  in  tl.  r 

the  trustee  holds  in  satisfaction  of  debts  due  by  the  truster  to  thii  a. 

In  order,  however,  that  the  truster  may  retain  the  radical  title  U>  ti 
it  must  be  clear  from  the  deed  itself  that  the  surplus  of  the  estate,  if  any'. 
after  the  trust  purposes  have  been  fulfilled,  is  to  revert  to  him.     When,  for 
example,  the  trust  deed  bears  to  be  a  conveyance  of  the  wh'^-   -  -  •    ■•■■  '  >r 
behoof  of  the  creditors  in  consideration  of  receiving  a  dischi  ^  :n, 

the  Court  will  not,  in  the  event  of  there  being  a  surplus  after  the  debts  ar.- 
paid,  hold  that  a  resulting  trust  for  the  granter  is  implied  (.^'mj/A,  [ISO  1] 
L.  IJ.  App.  Ca.  297 :  rev.  1890,  45  Ch.  ] Jiv.  riS).  (See  ThU.sT  Deed  foi: 
Creditors.) 

Where,  however,  the  ultimate  purpose  of  the  deed  is  to  settle  an 
irrevocable  interest  in  the  reversion  of  the  estate  upon  a  third  lartv,  the 
granter  is  entirely  divested  of  the  radical  right,  and  this  even  tli  '  'le 
deed  reserves  to  him  a  liferent  interest  in  the  estate.     In  short,  tlj'  il 

right  is  in  the  person  beneficially  interested  in  the  reversion. 

AMiere  the  radical  right  remains  with  the  truster,  he  is  the  '.  \e 

proprietor  of  the  estate,  and  his  title  remains  to  all  •  ''  it 

was  before  the  trust  was  granted,  subject  only  to   :..     .  y 

created,  and  the  acts  of  the  trustee  in  conformity  with  i. 
ferred  upon  him''  (per  Ld.  J.-Cl.  MoncreiflFin  G^ihnoiir,  1873,  li  M  it 

p.  857).     The  fact  that  the  trustees  have  a  power  of  sale  dt-  s 

rights  as  proprietor  so  long  as  the  estate  is  unsold,  nor  T 

that  he  should  remain  in  possession  of  the  estate.     Tims  ■.  f* 

truster  cannot  complete  his  title  by  conveyance  from  the  trustee  ( ' 
lit  sup7-a\     Thus,  also,  the  truster  can  sell  the  estate  si;'  u 

imposed  upon  it  by  the  trust  (see  Bri^ajic,  1826,  4  >.  •*--;. 
heritable   securities   afiecting   it   (Lindsay,   1844,  6    1).   771).     1 
to  the  reversion  can  be  adjudged  or  attached  by  his  creditors  ( ' 
ISOl,  Mor.  "Adjudication,"  XoT  11;  Globe  Insurance  Co.,  1854,  17  1> 

Cama-on,  1830.  8  S.  440V     He  can  execir  "    '     "  "'      

the  extent  of  his  revei-sionarv  interest  {X  .',  .  .  .         - 

7   W.   &   S.   441;    Rcrrus,  1838,   16   S.   94S:   .'.  .  15  S 

WiUiams,  1872,  10  M.  362).     He  can  assign  that  mierest  (aee  : 
Bank,  1886, 14  R  (H.  L)  1).     In  a  rece:  '  ' 

a   disposition  ex  facie  absolute,  but  ro^....   ...  - 

when  the  property  was  reconveyed  to  him,  he  1. 

railway  company  for  damage  done  to  the  property 

the  lands  were  held  imder  the  «:  AifiV  ■^ii  (M  .  li,*.. 

21  R  620:  see  also  Vi ^  1S99',  6  S.  i..  ..  •■.■■;  , 

WTiere  the  truster  s  an  interest  of  a  be  »n  «>• 

estate,  he,  and  not  the  trustee  in  whose  name  the  t.  ^ 

the  person  entitled  to  vote  in  respect  of  the  f  • 

other  elections,  and  this  is  so  even  in  the  c  .. .v,-^..    -  . 


334  TEUST 

absolute,  so  long  as  the  trust  is  competently  proved  (Stcnwi,  1869,  8  M. 
13;  Skxctc,  1873,  1  E.  18;  Mvntcith,  1868,  7  M.  300 ;— as  to  proof  of  trust 
in  such  cases,  see  Jardinc,  1865,  4  M.  138;  Stewart,  1868,  7  M.  298;  Skcete, 
1879,  7  li.  12). 

Peoof  of  Trust. 

Act  1696,  c.  25. — In  a  question  between  truster  and  trustee,  or 
persons  in  their  right,  where  the  property  is  held  under  a  deed  ex  facie 
absolute,  trust  can  only  be  proved  by  the  writ  or  oath  of  the  alleged  trustee 
(Act  1696,  c.  25;  see  Duggan,  1797,  Mor.  12761,  3  Pat.  610;  Maclcay, 
1829,  7  S.  699 ;  Lyon,  1830,  8  S.  789 ;  Chalmers,  1845,  7  D.  865 ;  Dunn, 
1898,  25  R  461).  The  Act  provides  "  that  no  action  of  declarator  of  trust 
shall  be  sustained  as  to  any  deed  of  trust  made  for  hereafter,  except  upon 
a  declaration  or  back-bond  of  trust,  lawfully  subscribed  by  the  person 
alleged  to  be  the  trustee,  and  agamst  whom,  or  his  heirs  or  assignees,  the 
declarator  shall  be  intended,  or  unless  the  same  shall  be  referred  to  the 
oath  of  the  party  simplicitcr."  In  terms,  this  Act  only  applies  to  cases 
where  trust  is  averred,  but  no  distinction  has  ever  been  drawn  in  this 
respect  been  an  ex  facie  absolute  disposition  alleged  to  have  been  granted 
in  trust,  and  a  similar  disposition  alleged  to  have  been  granted  in  security. 
It  has  always  been  held  that  in  the  latter  case  as  well  as  in  the  former, 
proof  of  a  latent  qualification  of  an  absolute  title  is  limited  to  writ  or  oath 
(see  Lcckic,  1854,  17  D.  77). 

The  Act  is  not  limited  to  feudal  conveyances.  It  has  been  held  to 
apply  to  an  assignation  of  right  to  moveables  (see  Dunn,  1898,  25  Pt.  461, 
per  Ld.  Pres.  at  p.  467),  and  it  applies  to  a  conveyance  of  a  personal  right  to 
property  in  whatever  form  that  conveyance  may  be  found.  Thus  missives 
of  sale,  which  in  law  are  equivalent  to  a  minute  of  agreement  of  sale,  may 
constitute  a  "deed  of  trust"  in  the  sense  of  the  Act  {Dunn,  1898,  25  11. 
461 ;  see  Home,  1877,  4  K.  977). 

The  Act,  of  course,  does  not  apply  where  the  deed  bears  t?i  gremio  to 
be  a  trust  deed,  as  in  such  a  case  no  declarator  of  trust  can  be  necessary. 
It  does  not  apply  where  no  deed  of  trust  is  averred  {Gardiner,  1897,  4 
S.  L.  T.  355);  or  where  the  alleged  trustee  has  voluntarily  interposed  as 
negotiorum  gcstor  {Spread,  1741,  Mor.  16201,  Elchies,  wee  "Trust,"  No.  1; 
see  opinion  of  Ld.  J.-Cl.  Inglis  in  .Marshall,  1859,21  D.  521);  or  where 
the  averment  is  not  a  proper  averment  of  trust,  as,  for  example,  where  it 
w^as  averred  that  certain  members  of  a  club  had  purchased  property  under 
an  agreement  by  which  they  were  bound  to  make  over  the  property  to  the 
club  upon  being  paid  the  price  they  had  given  for  it.  In  such  a  case,  as 
the  property  in  question  had  never  belonged  to  the  club,  it  was  impossible 
for  the  club  to  constitute  a  trust  with  regard  to  it,  and  therefore  in  an 
action  raised  by  the  club  against  the  members,  it  was  held  that  trust  was 
not  relevantly  averred,  and  that  the  Act  did  not  apply  {Goran  New  Bowling 
Green  Club,  1898,  25  P.  485).     In  such  cases,  proof  2}rout  dc  jure  is  allowed. 

Where  the  averment  is  that  the  contract  was  mandate  and  not  trust, 
parole  proof  is  admissible,  as,  for  example,  where  the  pursuer  avers  that 
the  defender  has,  without  authority,  taken  the  title  in  his  own  name, 
instead  of  in  the  pursuer's  {Home,  1877,  4  E.  977;  Maclzay,  1829,  7  S. 
G99) ;  or  where  he  avers  that  the  defender,  as  agent,  has  taken  the  title 
in  his  own  name,  without  preserving  written  evidence  of  the  trust,  as  he 
was  instructed  to  do  {Pant  Mawr  Quarry  Co.,  1883,  10  E.  457).  "The 
statute  only  applies  where  one  man  alleges  that  he  has  trusted  another 
to  take  tlie  title  in  his  own  name  "  (per  Ld.  Pres.  Inglis  in  Home,  ut  siqjra). 


TKUST  335 

"When  the  allcf^ation  is  not  trust  l>ut  itartnersliip,  the  Act  1' 
not  apply.  The  fact  that  a  partner  holds  on  hehalf  (if  the  conijumy  nmv 
he  -pYOYcd  proHt  dc  jure"  (per  Ld.  .I.-C'l.  MoncreilV  in  /'  '  '  ~  ■_»  1{. 
755).  In  this  case  it  was  held  cmiipetont  to  jtrove  ;»?•<  .  ,  .  ....a  an 
insurance  policy  upon  the  life  of  a  partner  in  a  fiini  had  heen  held  hv  hiiu 
for  helioof  of  the  tirni.  r>ut  in  the  later  oise  of  /xtm/ (1884,  12  It.' 294), 
where  a  ])atent  had  heen  taken  out  in  the  names  of  two  pet  f 

whom  was  a  partner  in  a  firm  and  liie  other  the  niana^'er,  it  \'. ..  n 

an  action  brought  by  the  other  partners  to  have  it  declared  that  th'  :,t 

was  held  in  trust  for  the  firm,  that  the  proof  was  limited  by  the  Act.  An 
attempt  was  made  to  distiui^uish  this  case  from  that  of  Forrester,  but  the 
two  decisions  are  dilHcult  to  reccjneile. 

It  is  competent  for  third  parties  to  prove  trust  pront  dc  Jure,  as  the 
Act  only  applies  to  questions  between  truster  and  trustee.  Thus,  the 
creditors  of  the  granter  of  an  ex  facie  aljsolute  disj^osition  may  ]>rovc  jimut 
dejurc  that  it  was  in  reality  granted  by  their  debtor  in  trust  (  Winh,  18G7, 
6  M.  77,  see  opinion  of  Ld.  Benholme,  at  p.  82  ;  City  of  Glaagou-  Dank,  1K82, 

9  R  689,  per  Ld.  Pres.  Inglis,  at  p.  G92).  The  trustee  is  also  entitled  to 
prove  2^^'out  dc  jure  that  he  holds  only  as  trustee,  and  not  as  absolute 
])roprietor  (see  Murdoch,  1832,  10  S.  445).  Where,  for  example,  in  an 
action  for  damages  for  slander,  the  jurisdiction  of  the  Court  de|K?ndcd  on 
the  possession  of  heritable  property  in  Scotland  by  the  defender,  it  was 
held  to  be  competent  for  him  to  prove  prout  dc  jure  that  the  jiroj>erty  was 
held  in  trust  {Hastie,  1886,  13  \\.  843;  see  also  Unirirsitif  of  J'  '  i, 
1876,  3  1{.  1087,  4  \l.  (II.  L.)  48:  Stctvart,  1868,  7  M.  29s";  .)/  j, 
1861,  23  D.  526 ;  Harper,  1850,  22  Sc.  Jur.  577 ;  Elihanl;  1827,  6  S.  09). 

A  relevant  averment  of  fraud  in  the  constitution  of  the  title  will  let 
in  parole  proof,  but  the  fraud  must  be  something  more  than  the  mere 
denial  by  the  alleged  trustee  of  the  existence  of  the  trust.  "  That  frautl 
which  consists  only  in  denying  the  existence  of  a  trust  which  diK-.H  not 
appear  upon  the  face  of  the  deed  itself,  is  plainly  distinguishable  from  a 
fraud  which  induces  the  granting  of  the  deed"  (jkt  Ld.  Vw^.  I     '      in 

Tcnnanf,  1808,  6  M.  876;  see  also  opiniim  of  Ld.  J. -CI.  Inglis  in  .); U, 

1859,  21  D.  521). 

It  is  competent  to  prove  by  parole  evidence  the  loss  of  the  Iwick-liond, 
or  to  show  that  it  is  in  the  possession  of  the  trustee,  and  1  "  ii 
improperly  retained  by  him  {Kcnnoiray,  1752,  Elchies,  voce  ii...^i,*' 
No.  16  ;  Chalmers,  1845,  7  D.  805;    Waller,  1857,  20  1).  259). 

Where  the  defender  admits  that  the  al)Solute  disposition  docs  not 
represent  the  true  contract  between  him  and  the  pursuer,  but  that  it  is 

subject  to  qualifications,  parole  evidence  of  these  qualificati' •     •      ' ■'I 

{Grant's  Trs.,  1875,  2  R  377;   Murray,  1870,  8  M.  722;    /  !. 

10  S.  115  ;  Graiit,  1898,  6  S.  L.  T.  259).  Where  it  is  admittod  or  proved 
that  the  ex  facie  absolute  disposition  was  originally  granted  in  t-  ;t 

it  is  averred  that  the  parties  afterwards  agreeil  that  thf  ' > 

be  absolute,  the  question  is  not  one  regarding  the  cok.  .  . 

and  the  Act  does  not  apply,  the  onus  being  on  the  defender  to  prove  tlie 
alteration  of  the  original  contract  (  Walker,  1857,  20  1).  2 "  ^ 

The  Act  does  not  api)ly  to  a  case  in  which  the  trii  '  ' 

a  legal  disaliility,  and  whcr-e  the  alleged  trustee  is  .... 

relation  to  the  truster,  as  where  a  wife  avers  that  nion 

husband  in   his   own   name  was   in   reality  held  by  him  in  her  i 

(Anderson,  1898,  6  S.  L.  T.  260).  ,    ,  ,      ,  „        , 

The  Act  speaks  of  "a  declaration  or  back-bond  of  tn^^t  lawfully  pub- 


336  TliUST 

scribed  by  the  person  allegetl  to  be  the  trustee."    A  very  free  interpretation 
lias  been  put  upon  these  words  by  the  Court.     The  document  need  not  be 
probative.     In  spite  of  the  express  words  of  the  Act,  it  need  not  even 
be  signed  by  the  alleged  trustee.     Unsigned  entries  in  his  business  books, 
if  unequivocally  instructing  trust,  are  suUicient,  and  a  remit  may  be  made 
to  an  accountant  to  ascertain  the  purport  of  the  entries  founded  on  {Seth, 
1855.  17   1).   1117;    JFalker,  1857,  20  D.   259;  Knox,  1850,  12   D.  719; 
Thomson,  1873,  1  E.  65);  but  "it  would  be  quite  competent  by  evidence  to 
show  that  the  books,  rightly  understood,  did  not  import  a  trust"  {Scth, 
ut  supra,  per  Ld.  J.-Cl.  Hope,  17  D.  1124).     In  Thomson  (uf  supra),  entries 
in  the  business  books  of  the  deceased  trustee,  in  his  own  hand,  showing  that 
he  had  received  the  money,  and  a  letter  from  the  pursuer  to  him  found 
in  his  repositories,  and  proved  to  have  been  delivered  to  him  at  the  time 
the   entries   were   made,   explaining    the    transaction,   were    held    to   be 
equivalent  to  the  deceased's  writ,  and  competent  evidence  of  the  alleged 
trust.     Any  writing  under  the  hand  of  the  alleged  trustee,  or  any  writing 
signed  by  him,  is  sufficient,  so  long  as  it  clearly  shows  the  existence  of  a 
trust,  and  does  not  merely  give  rise  to  the  inference  (Macfarlane,  1837, 
15  S.  978;  Tayhr,  1833,  12  >S.  39  ;  3faclrii/,  1829,  7  S.  G99 ;  Ramsay,  1748, 
Mor.  12757).     Where  the  WTiting  founded  on  is  ambiguous,  it  is  competent 
to  inquire  into  the  circumstances  in  which  it  was  executed  and  delivered 
{Evans,  1871,  9  M.  801 ;    Stewart,  Vlll,  5  Br.  Sup.  631).     In  Evans,  an 
opinion  was  expressed  by  Ld.  Benholme  that  the  declaration  of  trust  con- 
templated by  the  statute  is  a  writing  in  some  way  delivered  to  the  party 
interested  as   truster   (9  M.   804).      Where   the   evidence   offered  was  a 
letter  by  the  agent  of  the  deceased  alleged  trustee,  professing  to  have  been 
written  by  his  authority,  it  was  deemed  insufficient,  and  the  parole  evidence 
of  the  agent  as  to  his  authority  was  not  admitted  {Marshall,  1859,  21  D. 
514).     The  result  might  have  been  different  had  the  pursuers  been  able 
to  produce  any  writing  under  the  hand  of  the  alleged  trustee  authorising 
his  agent  to  write  such  a  letter  {ih.,  per  Ld.  J.-Cl.  Inglis,  p.  523).    A  written 
acknowledgment  of  the  trust  by  the  executor  of  the  alleged  trustee  has  been 
held  sufficient  {Montgomcrie,  7  Feb.  1811,  F.  C). 

Trusts  arising  from  the  Operation  of  Laav. 

In  addition  to  trusts  constituted  in  writing  by  the  truster,  and  the 
outcome  of  his  deliberate  intention,  there  are  other  trusts  the  existence  of 
which  will,  in  certain  circumstances,  be  recognised  by  law.  Such  trusts 
may  be  either  Resulting  Trusts  or  Constructive  Trusts. 

(1)  Resulting  Trusts.— Where  property  is  held  in  trust,  and  the  trust 
purposes  declared  in  the  deed  do  not  exhaust  the  beneficial  interest  in  the 
estate, — "  without  such  declaration  of  purjioses  as  disposes  of  them  in  all 
events"  (per  consulted  judges  in  Boyle,  1858,  20  D.  943), — the  Court  will 
recognise  a  "  resulting  trust "  with  regard  to  the  residue  in  favour  of  the 
truster  or  his  heirs.  There  is  always  a  presumption  against  the  person 
who  holds  the  estate  as  trustee  having  himself  also  a  beneficial  interest  in 
it,  a  presumption  which  can  only  be  overcome  when  there  is  in  the  deed 
an  indication  of  the  truster's  intention  that  the  trustee's  interest  should  be 
beneficial  as  well  as  fiduciary  (see  Anderson,  1898,  25  E.  493  ;  Rogers,  1733, 
3  P.  Wms.  193;  Wych,  1712,  3  Brown's  Pari.  Cases,  44;  Hughes, 
1843,  13  Sim.  496).  Where  there  is  no  such  indication,  the  Court,  rather 
than  let  the  trustee  take  the  beneficial  interest,  will  recognise  a  resulting 
trust  for  behoof  of  the  truster  or  his  representatives. 

A  simple  case  of  a  resulting  trust  is  one  in  which  a  testator  leaves  his 


'na:.sT 


337 


estate  in  trust  for  the  payment  of  certain  legacies,  without  naming  a  ro»«i.lu- 

ary  legatee,  and  the  ]i;iyni('iit  of  these  legaeies  does  not  cxh;: 

Here  a  resulting  trust  will  lie  lieKl  to  arise  with  regard  to  t! 

behoof  of  the  truster's  heir-at-law  or  next  of  kin.     In  a  ti 

of  creilitors,  where  there  is  a  surplus  after  payment  of  the  dehlK,  l! 

may   be   said   to   l»e   a   resulting   trust  witli   re-ard   to   the  suri.hm   for 

behoof  of  the  truster;  but,  strie-Lly  speaking,  where  the  truster  ia  .    •  •'    ! 

to  the  reversion  of   tlic  estate   under  such   a  trust,  the  i^iymcuf 

surplus  to  him  should  be  considered  as  one  of  the  trust  puriKi-         I       .i 

the  English  case  of  ,S'//n7/i  (1891,  L.  Pi.  App.  Ca.  297)  it  appears  that  in 

order  that  the  truster  may  retain  an  interest  in  sucii  a  surplus,  a  ]■! 

to  that  eifect,  express  or  implied,  must  be  found  in  the  term-  nf  ?' 

deed.     In  this  case  the  deed  was  interpreted  as  being  a  con\' 

whole  estate  for  behoof  of  creditors  in  consideration  of  receiving  a  full 

discharge,  and  it  was  held  that  the  truster  had  no  right  to  the  surplus 

remaining  after  the  debts  had  been  paid. 

A  resulting  trust  arises  where  a  beneficial  interest  is  given  under  a 
trust  to  an  individual,  without  mentioning  his  heirs,  and  that  individual 
dies  before  the  trust  comes  into  operation.  Again,  where  at 
conveys  his  whole  property  to  trustees,  and  after  dealing  witii  pai  ^  ..  .i, 
he  reserves  power  to  deal  with  the  residue  in  a  subse(iuent  deed,  and  fails 
to  do  so,  he  will  be  held  to  have  died  intestate  quoad  the  undisj»o.'M.'d-of 
residue,  and  a  resulting  trust  will  be  held  to  arise  in  favour  of  his  heir-at- 
law  or  next  of  kin,  even  though  it  should  appear  from  the  deeil  ''  ■'  ''  was 
not  the  testator's  intention  that  the  residue  should  be  thus  <.  1  of 

{Sinclair,  1840,  2  D.  G94;  see  FnoJmi,  18G2,  31  L.  J.  (N.  S.)  402). '  Where 
by  marriage  contract  a  wife  had  conveyed  all  her  i»roperty  to  t  for 

behoof  of  her  husl)and  in  liferent,  but  only  to  the  extent  of  oii>-  ii.ui,  and 
to  her  children  in  fee,  and  had  not  disposed  of  the  liferent  of  the  other 
half  of  the  estate,  it  was  held  that  it  was  payable  to  her,  and  did  not  fall 
to  be  accumulated  with  the  fee  {Hi(j(jinhotham,  188G,  13  \\.  101 G).  "  Wliere 
anyone  creates  a  trust,  and  expresses  no  trust  purposes,  or  tl'    '"    "       > 

which  he  expresses  fail,  then  there  is  a  resulting  trust  for  h;:.     ■-• 

continues  in  life,  or,  if  not,  for  those  who,  nfter  his  death,  come  in  his 
place"  (per  Ld.  Young  in  Edinond,  1898,  1  F,  at  p.  1G3). 

"Where  property  is  left  in  trust,  and  the  trust  purjio.^is  are  .^' 
as  uncertain  or  inextricable,  a  resulting  trust  arises  for  liehoof  of  tl.^   .... 
of  the  truster  (Mason,  1844,  IG  Jur.  422).     So  also  where  the  disiH>sal  of 
the  estate  is  left  to  the  discretion  of  the  trustees,  e.g.  among  charities  to  be 
selected  by  them,  and  the  trustees  decline  oflice,  or  die  without  e^  •  _' 

the  discretion,  a  resulting  trust  arises  (7«*oW'iV,  1893,  20  II.  3o8).  .  ...  u 
where  the  trust  purposes  are  set  aside  as  illegal  (see  %/»«■.«,  1870,  9  I-lq. 
475).  When  a  direction  to  accumulate  income  is  struck  at  by  the 
Thellusson  Act,  a  resulting  trust  arises  with  regard  to  th<'  in-  '     '. 

cannot  be  accumulated  {Loqans  Trs.,  189G,  2.">  11.  848;  L'ld<r,  !.._._  ].. 
2 ;  Camphdl's  Trs.,  1891,  18  II.  992 ;  Maxwell's  Trs.,  1877,  5  R  24^  :  /-(/. 
18G0, 23  D.  Ill ;  and  other  c<ases  cited  ««/>?•«,  p.  330).    In  a  recent  c  r 

had  put  a  sum  of  money  into  the  hands  of  his  daughters  "  to  1 
for  behoof  of"  his  son.     The  daughters  had  authority  to  e- 
for  behoof  of  their  brother  at  such  times  and  in  such  w.  . 
think  proper,  and  there  was  a  further  provision  that  "  should  the  w : 
not  be  disposed  of  in  the  lifetime  of"   the  son.  "  my  said  ." 
dispose  of  the  balance  in  any  way  they  should  think  •  •   *    ' 
also  left  a  trust  disposition  and  settlement  with  a  i 

S.  E. — VOL.  xir. 


338  TRUST 

the  death  of  the  son,  part  of  the  money  was  still  in  the  daughters'  hands. 
It  was  held  that  neither  they  nor  the  son's  executor  had  a  beneficial 
interest  in  it,  that  tiie  direction  to  dispose  of  it  "in  any  way  they  should 
think  proper  "  was  not  a  good  and  enforceable  trust  direction  and  was 
void  from  uncertainty,  and  that  the  consequence  was  a  resulting  trust  for 
the  residuary  legatee  under  the  father's  settlement  {Anderson,  1898, 
25  K.  493). 

In  the  case  of  Edmond  (1898,  1  F.  154)  an  attempt  was  made  to 
set  up  a  resulting  trust.  Here  the  testator  had  left  part  of  his  estate 
to  trustees,  declaring  that  the  liferent  was  to  go  to  his  son.  There  were 
no  trust  purposes  disclosed  with  regard  to  the  fee  of  the  estate,  but  a  sealed 
envelope  had  been  left  with  instructions  endorsed  upon  it  that  it  was  not 
to  be  opened  until  after  the  death  of  the  testator's  son.  The  son  asked  for 
declarator  that  his  father  had  died  intestate  quoad  the  fee  of  the  estate, 
as  the  trustees  could  show  no  trust  purposes,  but  the  Court,  considering 
that  the  sealed  envelope  might  contain  the  trust  purposes  (which  it  did), 
ordered  it  to  be  opened,  in  spite  of  the  testator's  instructions,  rather  than 
declare  a  resulting  trust. 

Even  though  the  heir-at-law  or  representative  cOj  intestato  of  the 
truster  has  no  interest  under  the  trust  deed,  the  fact  that  the  trust 
purposes  may  at  any  time  either  wholly  or  partially  fail,  and  that  a 
resulting  interest  may  thereupon  arise  in  his  favour,  gives  him  a  title 
to  see  that  the  trust  is  properly  administered,  and  that  the  funds  are  not 
perverted  from  the  proper  trust  purposes  (Jl'Zeish,  1841,  3  D.  914). 

Constructive  Trusts. — A  constructive  trust  is  held  to  arise  wherever 
anyone  obtains  or  holds  property  to  which  he  is  not  equitably  entitled  for 
his  own  absolute  use.  Thus  a  heritable  creditor,  even  though  he  has  and 
may  exercise  a  power  of  sale,  is  not  entitled  to  treat  the  security-subject 
as  if  it  were  absolutely  his  own.  In  exercising  his  own  rights,  he  must 
have  regard  to  those  of  the  postponed  creditors  and  of  the  debtor,  and  to 
this  extent  he  is  constructively  a  trustee  for  them  (see  per  consulted 
judges  in  Bcveridge,  1829,  7  S.  281,  quoted  by  Ld.  Pres.  Inglis  in  Stewart, 
1882,  10  II.  203).  Soalso  a  liferenter  must  deal  with  the  estate  which  he 
liferents  in  such  a  way  as  not' "to  prejudice  the  rights  of  the  fiar,  and  an 
heir  of  entail  in  possession  must  have  regard  to  the  interests  of  future  heirs 
of  entail  (see  Quccnsberry,  1820,  6  Pat.  551,  per  Ld.  Eedesdale).  Exception 
could  be  taken,  for  exanip)le,  to  the  granting  of  leases  at  an  unreasonably 
low  rent,  especially  where  a  grassum  was  taken  {ib. ;  and  see  per  Ld. 
M'Laren  in  Montr/omerie,  1895,  22  R  at  p.  474).  In  Muirhead  (1858, 
20  D.  592)  the  question  was  raised  whether  an  heir  of  entail  could  be 
prevented  from  working  the  minerals  on  the  estate  to  his  own  profit, 
but  to  the  exhaustion  of  the  estate  and  the  injury  of  subsequent 
heirs  of  entail.  It  has  been  recently  held  in  England  that  where 
a  constructive  trustee  has  expended  money  upon  permanent  improve- 
ments on  the  estate,  he  iHjmmd  facie  entitled  to  be  recouped  to  the  extent 
of  the  increased  value,  irrespective  of  the  fact  that  he  is  entitled  to  the 
beneficial  liferent  of  the  estate  {Rowley,  [1897]  2  Ch.  503). 

As  a  trustee  or  any  person  holding  a  fiduciary  position  cannot  be  auctor 
in  rem  suam,  that  is,  cannot  make  profit  for  himself  out  of  his  position,  the 
law  assumes  that  any  profit  made  by  him  by  means  of  his  olfice  is  made 
for  behoof  of  the  beneficiary.  "  Where  an  agent  or  other  trustee  takes 
money  from  a  person  with  whom  he  contracts  for  his  constituent,  the  law 
assumes  that  lie  takes  it  at  the  cost  of  his  constituent,  and  admits  no 
evidence  to  the  contrary"  (per  Ld.  Young  in  Huntingdon  Cox)]Kr  Co.  1877, 


TRUST  339 

4  R  294,  5  11.  (11.  I..)  1).  A  truBtee,  therefore,  when  he  tmnnnrtF  xriih 
regard  to  the  trust  estate,  is  assumed  to  do  bo  in  the  intereHlB  of  ',  t« 

and  tlie   beneficiaries.      A    trustee   cannot   lawfully   j.ur- ' 

property  for  his  own  behoof,  and  such  a  purchase  will  Ix- 

for  behoof  of  the  estate,  and  there  will  be  an  obligation  up^ 

reconvey  (see   York  L'nildi),;/s  Co.,  1795,  3  Tat.  378;  HamxUon,  1839  ID 

673  ;  1842,  1  Ik^l's  App.  574). 

So  also  "one  i)artuer  cannot  treat  jaivately  and  behind  ♦'  -  '  ^  '  ),ia 
co-partners  for  a  lease  of  the  premises  where  the  joint  Ira.:.  ,|  • 

if  he  do  so,  and  obtains  a  lease  in  his  own  name,  it  is  a  trust  for  the 
partnershi])"  (per  Grant,  M.  M,\n  l'\athcrstonchnujh,\%\(i,  17  W.^.  Jun 
298,  quoted  by  Ld.  Cowan  in  M'Xivcn,  1808,  7  ^\.  181  •  see  K  -'  "  oq 
Jan.1815,  F.  C.,23Feb.l81G,F.C.;   irvVson,  1789,Mor.  1G37G;  /  "n 

1632,  Mor.  9503  ;  rahiur,  1684,  1  Vern.  276 ;  Grace,  1799,  1  Wm.  &  Pul.  :;7C).' 

Implied  TitusTS. — It  may  be  convenient  here  in  a  word  to  r«-fer  to  what 
are  known  as  Implied  Trusts.  The  oidy  peculiarity  of  an  Imj.lied  Trust  i« 
that  the  intention  of  the  testator  is  drawn  by  implication  and  not 
from  the  express  words  of  the  deed.  The  intention  is  found  in  the 
deed,  and  is  not,  as  in  a  constructive  trust,  what  the  law  presumes 
would  have  been  the  intention  of  the  truster  had  he  known  that  his 
declared  purposes  would  fail,  nor,  as  in  a  constructive  tru.'>t,  what  tin- 
law  creates  as  the  result  of  the  action  of  the  trustee.  It  is  (\\\'\\o  Pottlcil 
that  the  expression  of  a  truster's  wish  with  regard  to  the  d:  .f  his 

property  is  equivalent  to  the  expression  of  his  will  {('  '  ''  3  W. 

&  S.  329;  Dundas,  1837,  15  S.  427  ;  Mnr/s.  of  I) u mice,  1> ..  .\L.  .^.  153); 

and  wherever  he  points  out  the  property,  the  way  in  which  he  wihhes  tlmt 
it  is  to  go,  and  the  persons  who  are  to  Ite  lienefited,  a  trust  will  bo  implied, 
even  though  it  is  not  expressly  declared  (see  per  L<1.  Alvanley  in  "  '       1794, 

2  Ves.  Jun.  335;  3faffs.  of  Dundee,  nt  supra).     ""Words  which  ^..;  ...  '  

person  holds  property  '  on  behalf  of '  or  '  for  behoof  of '  another,  are  ■• 
which  come  up  to  and  satisfy  the  idea  of  the  word  '  tru-st,' just  as  much  as 
the  word  '  trust'  itself,  if  the  circumstances  of  the  case  are  cc:  '  •  •  •  with 
that  interpretation  "  (per  Ld.  Chan,  Cairns  in  Gillrspie,  1879.  G  K.  ^11.  I-  >  107X 
A  bequest  to  "A.  for  the  benefit  of  herself  and  of  her  .'^istc'r  I'.,"  implies  a 
trust  in  A.  for  behoof  of  B.  with  regard  to  li.'s  share  of  the  bequest 
{Macphcrson,  1894,  21  E.  386).  For  a  li.st  of  the  words  exprcs.'^ive  of  the 
truster's  wish  or  desire,  which  in  England  have  been  held  ccpiivalent  to  an 
expression  of  his  will,  see  Lewiu,  Trusts,  9th  ed.,  }».  137. 

There  is  a  distinction,  however,  between  a  wish  or  recommendation  by 
the  truster  that  a  particular  object  shoidd  be  benefited,  and  a  ;  'a- 

tion  that  a  particular  jiower,  such  as  a  power  to  selbcoi' 
trustees  should  be  exercised.     In  the  former  case  it  is  obi;..-.  .       , 
trustees  to  follow  the  recommendation,  in  the  latter  it  is  not,  but  is  left 
to  their  discretion.     Moreover,  some  phrases  have  been   lield   to  l»e  to<» 
indefinite  to  constitute  a  trust  by  imiilication.     A  recomn 
kind  to,"  or  "  to  consider,"  or  "  to  make  provision  for  " 
does  not  constitute  a  trust  for  that  i>in-pose,  and  the  c" 
property  under  no  legal  obligation  to  observe  the  recon.' 
1827, 1  Sim.  534 ;  Bardswell,  1838,  9  Sim.  319  ;  Jf'/m-/,,  1  - 
distinction  is  drawn  ])etween  the  expression  of  the  •"  "  '• 
persons  should  receive  a  definite  benefit  from  hi> 
an  expression  of  his  desire  that  those  whom  he  primarily  i: 
should  take  into  consideration  the  claims  or  i 
persons.     Where  a  conveyance,  which  is  itself  ab.-n.i- ,-.   ■ 


'r. 


■/ 


340  TRUST 

tion,  there  is  no  implied  trust  in  the  institute,  and  he'can,  "  in  the  character 
of  a'bsohite  fiar,  evacuate  the  substitution  by  a  deed  merely  gratuitous " 
(Ersk.  iii.  8.  44  ;  see  Grehj,  1833,  G  W.  &  S.  426  ;  MDou-all,  1847,  9  D. 
1284).  And  again,  where  the  gift  is  absolute,  but  is  accompanied  by  a 
request  that  the  property  should  be  disposed  of  in  a  particular  way  on  the 
death  of  the  grantee,  the  request  is  not  legally  binding  upon  the  grantee, 
but  may  be  defeated  at  pleasure  {Barclays  Executor,  1880,  7  E.  477 ;  see 
Hill,  [1897]  1  Q.  B.  483).  A  testamentary  writing  to  the  following  efiect : 
"  I  wish  to  leave  everything  that  may  be  considered  mine  .  .  ,  entirely  at 
your  disposal,  knowing  that  you  will  do  as  I  wish  with  it  .  .  .  I  would 
like  you,  out  of  the  interest  of  my  money,  to  give  A.  and  B.  a  handsome 
remembrance  of  me,"  was  held  to  import  an  absolute  gift,  and  not  a  trust 
for  the  purpose  of  carrying  out  the  testator's  wishes  {Wilson,  1878,  5 
E.  539).  "Where  a  testator  left  a  svmi  of  money  to  his  widow  upon  condition 
that  at  her  death  she  should  leave  "  at  least  two-thirds  of  what  may  Ije  at 
her  disposal "  to  his  relatives,  it  was  held  that  her  right  to  dispose  of  her 
funds  onerously  or  gratuitously  during  her  life  was  not  limited  {Murray, 
1895,  22  E.  927). 

Eevocation. 

PowEK  TO  Eevoke. — (1)  Trusts  inter  vivos. — Where  a  trust  deed  is 
unilateral,  the  truster,  unless  he  has  given  a  jus  qucesitum  in  the  deed  to  a 
third  party,  retains  the  right  to  revoke  it  at  pleasure.  Thus  where  a  person, 
in  order  to  protect  his  estate  from  his  own  acts,  conveys  it  to  trustees  for 
his  own  behoof,  the  trust  is  revocable  by  him  at  any  time  (see  Mackenzie, 
1878,  5  E.  1027).  Similarly,  where  a  lady,  in  contemplation  of  marriage, 
conveyed  her  estate  to  trustees  for  behoof  of  herself  in  liferent  and  the 
issue  of  the  marriage  in  fee,  it  was  held  that  the  conveyance  was  revocable, 
at  all  events  before  the  marriage  had  taken  place  {Murison,  1854, 16  D. 
529).  In  a  later  case,  a  deed  granted  in  similar  circumstances  was  held  to 
be  revocable  by  the  wife,  with  her  husband's  consent,  a  year  after  the 
marriage  had  taken  place,  there  being  no  children  of  the  marriage  in  exist- 
ence {Wait,  1897,  24  E.  330).  Such  trusts,  being  revocable,  would  not 
protect  the  estate  against  the  truster's  creditors. 

But  where,  V)y  delivery  of  the  deed  to  the  trustees,  the  truster  has 
vested  the  estate  in  them  for  behoof  of  his  creditors  or  of  beneficiaries  who 
are  in  existence  at  the  date  of  delivery,  the  deed  is  not  revocable  {Shedclen, 
1895,  23  E.  228 ;  Bohcrtson,  1892, 19  E.  849  ;  Downie,  1895,  32  S.  L.  E.  715  ; 
Spalding,  1874,  2  E.  237  ;  Tcnnent,  1869,  7  ]\I.  936  ;  Gilpin,  1869,  7  M.  807  ; 
Smitton,  1839,  2  D.  225;  Turnhull,  1825,  2  W.  &  S.  80),  unless  the  truster 
has  in  it  reserved  a  power  to  revoke  (see  Bohertson,  ut  supra).  The  delivery 
of  the  deed  may  be  constructive,  as  by  registration  (see  Tcnnent,  Smitton, 
ut  su2)ra).  The  fact  that  the  interest  which  the  beneficiary  takes  is 
contingent  upon  his  survivance  of  a  certain  period,  or  upon  some  other 
circumstance,  will  not  make  the  deed  revocable  (see  Bohertson,  ut  sup)ra). 
liut  when  a  trust  is  constituted  merely  for  the  administration  of  the  granter's 
allairs  in  his  lifetime,  it  does  not  divest  him  of  the  radical  interest  in  the 
estate,  and  he  retains  his  power  to  revoke  it.  And  this  may  be  so  even 
tliough  the  deed  contains  clauses  of  a  testamentary  character,  disposing  of 
the  fee  {Byres,  1895,  23  E.  332).  "  When  the  trust  as  originally  constituted 
contains  words  of  disposal  of  the  fee  or  reversion,  tlien  it  is  a  question  of 
construction  whether  an  irrevocable  right  is  intended  to  be  given  to  the 
beneficiaries,  or  whether  the  beneficial  provisions  are  properly  and  in 
substance  testamentary  "  (per  Ld.  M'Laren  at  p.  337).     "  In  general,  if  the 


TKUST  341 

beneficial  provisions  are  exprcsst'd  in  tlic  f.irm  of  a  ilir. .  ...i,  i  to 

divide  tlie  surplus  estate  at  the  graiiter's  death,  und  if  ilicn-  j  m 

the  deed  establisliiiig  an  intention  on  the  ))art  of  the  gruuter  to  .oe 

tlie  power  to  revoke  wliirli,  as  I  liave  said,  always  reinaiuB  to  him  !»e 

trust  is  for  administration,  then  1  should  s;iy  the  trust  is  one  for  a^  :a- 

tion  first  and  for  testamentary  ]>urposes  afterwards,  hut  that  if  ,,  ..  in 
given  to  anyone  in  the  truster's  lifetime,  l>ut  of  course  an  owner  of  pro- 
perty may  divest  himself  in  his  lifetime  of  all  his  riglits,inclu<!  lit 
to  revoke  the  deed  l)y  which  he  divests  himself.     There  ■     •  in 

framing  such  a  deed  as  wlien  delivered  will  give  an  ind.      to 

the  beneficiaries  named  in  it.  If  tlie  primary  puri>»jse  of  the  trust  is 
administration  for  the  grantor's  benelit,  then  I  think  the  ]»rcsuiiiplion  with 
reference  to  any  further  declaration  of  purposes  is  that  thf  "       '  ' 

part  with  the  power  of  future  disposal.     Jjut.this  prcsump..  ..  ;.. 
placed  by  a  clear  expression  of  the  intention  to  constitute  an  i:  it<« 

beneficial  interest  in  the  persons  favoured  "  (ib.). 

(2)  Tcstamcntarij  and  Marriage-Contract  Trusts. — AVith 

constituted  by  testamentary  settlements, — amongst  which  i.....  .•-: 

marriage-contract  settlements  whicli  regulate  the  succession  to  the  pro|H.'rty 
after  the  death  of  one  or  botli  spouses, — the  general  rule,  suliject  to  certain 
important  exceptions,  is  that  such  trusts  are  revocable  by  tl:  at 

any  time  during  his  life,  and  this  even  where  the  deed  cont ;.«<• 

declaring  it  to  be  irrevocable,  for  this  clause  itself  can  he  rev«iked  (k-o 
Mitchell,  1877,  4  E.  800,  per  Ld.  ( liilbrd,  at  p.  808).  The  first  exception  is 
the  same  as  that  just  referred  to  in  dealing  with  inter  ■«•,  viz. 

where  the  truster  has  put  the  deed  beyond  liis  control  !>;.  ■  '  Hio 

deed  to  trustees,  and  thereby  vesting  the  estate  in  tiicm  for  Ik!  :ie- 

ficiaries  in  existence  at  the  time  of  delivery  (see  crises  quoted  supra).  The 
second  exception  is  where  the  element  of  contract  enters  into  the  deed,  as 

frequently  occurs  in  the  ca.se  of  mutual  settlements  or  marria  • ■■••-■■'tB. 

In  the  case  of  a  mutual  settlement  executed  by  spouses,  wb'  'n- 

siderations  given  are  manifestly  unequal,  the  question  of  Donation  Intkk 
VIRU.M  ET  UXOKEM  (q.v.)  comcs  in,  and  permits  revocation.  And  a  mutual 
settlement  in  which  there  is  no  element  of  contract,  as  where  one  ]mrty 
provides  the  whole  of  the  ]n-operty  dealt  with,  is  revocable  (see  H'tin-t 
1895,  22  R.  G25 ;  Stivcn,  1873,  11  M.  2G2).  P:ven  where  a  mutual 
mont  reserves  a  power  to  the  parties  or  the  survivor  of  them  to  revoke.  Llic 
suryB^'^ronty'exSl'cise  this  power  with  regard  to  the  share  of  the 
property  which  belongs  to  him  (A'ay,  1802,  19  K.  1071;  ^''  ^  I'^^^o.  12 
K.  12G5  ;   Welsh,  1871,  10  M.  IG).     lUit  where  the  mutual  t  con- 

fers the  fee  of  the  property  of  the  predeceaser  upon  the  survivor,  the  result 
is   that  the   deed   becomes   merely   the   tesUimentajy   settleim-nt  of   xho 
survivor,  and  is  revocable  by  him  {NicoU's  E.crs.,  1887.  1^  !•   ■''^'~'      "'"'  '   ■ 
,subjectof  marriage-contract  trus^lSjjL-m''U'^*e  stated 
'tmsF^s^^Ctiqiratrnor  only  with  re<jard  to  the  parti-  but  w: 

re^^anftoIlie^cTnfdren    of    the   marriage,   and   cannul    U' 

^M^^^^^M7rm?>\  20  R.  (H.  L.)  88) ;  and,  further,  that  it '  .  •     • 

during  the  subsistence  of  the  marriage,  even  witii  the  c  -f  "H  " 

interested,  where  revocation  would  afVect  any  provision  niado  jor 

the  wife  in  the  event  of  her  survivance  (see  Amhr<^oi\.  1 

Pringlc,  1868,  6  M.  982;  Hope,  1870.  8  M.  099:  Mn^u^   .....  -  ^ 

Eliott,  1894,  21  R  975 ;  but  see  also  Eams^iy,  1871.  10  M.  120).     (On  tl.^ 

subject,  see  Fraser,  Husband  and  IFi/e,  1489,  1498.) 

Method  of  Revocation.— Revocation  may  l>e  either  ex]  ••  mipiicti. 


- 1 


342  TKUST 

Express  revocation  may  be  made  by  any  deed  probative  by  the  law  of  the 
truster's  domicile  or  by  that  of  the  place  of  execution.  A  deed  executed 
abroad,  which  is  not  valid  to  convey  heritable  property  in  Scotland,  may 
yet  operate  as  a  revocation  of  a  prior  conveyance  of  such  heritage  (see 
Icith,  1848,  10  D.  1137;  Purvis,  1861,  23  D.  812).  Eevocation  of  a 
testamentary  settlement  is  implied  by  the  execution  of  a  later  deed  or  of  a 
codicil  to  tbe  original  deed,  the  provisions  of  which  are  inconsistent  with 
those  of  the  former  deed.  Thus  a  testamentary  settlement  may  be  revoked 
by  a  marriage  contract  subsequently  entered  into  {Bertram,  1888,  15  IJ. 
572).  It  is  a  question  of  construction  in  each  case  whether  there  is  an 
implied  intention  on  the  part  of  the  testator  to  revoke  the  prior  deed  (see 
Mcllis,  1898,  25  E.  720 ;  Sutherland,  1893,  20  E.  925 ;  Fmc,  1893,  20  E.  826 ; 
DahjUsh,  1891,  19  E.  170;  Lo(jan,  1890,  17  E.  425;  Clouston,  1889,  16  E. 
937;  Dahjlish,  1889,  16  E.  559;  Wright,  1889,  16  E.  677;  Stirling  Stuart, 
1885,  12  E.  610;  Tronson,  1884,  12  E.  155;  Lindsay,  1880,  8  E.  281; 
Kirkpatrick,  1874,  1  E.  (H.  L.)  37).  There  is  a  presumption  that  a  testa- 
mentary settlement  which  makes  no  provision  for  children  nascituri  is 
revoked  by  the  birth  of  a  child  to  the  testator  after  the  date  of  the  settlement, 
and  this  even  though  he  had  children  at  its  date  {Elders  Trs.,  1894,  21  E. 
704,  and  cases  there  cited),  but  it  does  not  follow  that  a  prior  will  which 
has  been  expressly  revoked  by  the  later  one,  is  thereby  restored,  although  it 
contains  provisions  for  children  nascituri  (Elder's  Trs.,  1895,  22  E.  505). 
It  would  rather  seem  that  "  whenever  a  last  will  is  cut  down  by  the  opera- 
tion of  the  rule  or  presumption  that  we  are  now  considering,  all  previous 
testamentary  settlements  must  fall  along  with  it  except  such  as  are  obligatory 
and  matter  of  contract"  {ik,  per  Ld.  M'Laren,  22  E.  512).  Only  those 
children  of  a  testator  whose  interests  are  affected  by  the  deed  in  question 
can  take  advantage  of  their  implied  revocation,  and  maintain  that  the  deed 
has  been  revoked.  The  right  does  not  transmit  to  their  representatives 
{Colquhoun,  1829,  7  S.  709;  Watt,  1760,  Mor.  6401).  (See  Succession; 
Testament  ;  Eevocation.) 

Domicile  of  Trust  and  Jurisdiction. 

The  main  factor  in  determining  the  domicile  of  the  trust — that  is  to 
say,  under  the  laws  of  what  country  the  trust  is  to  be  interpreted  and 
administered — is  the  intention  of  the  truster.  Thus  a  truster  can  expressly 
create  a  foreign  trust  in  order  that  it  may  be  administered  according  to 
the  laws  of  the  foreign  country  {Attorney-General  v.  Fclee,  1894,  18  T.  L.  E. 
337;  Cigalas  Trusts,  1878,  7  Ch.  Div.  351;  see  per  Ld.  Pres.  Inghs  in 
Mitchell  and  Baxter,  ut  infra).  In  a  marriage  contract,  for  example,  there 
may  be  a  declaration  that  the  contract  shall  be  construed  and  regulated  by 
the  law  of  a  country,  which  may  not  be,  or  continue  to  be,  tliat  of  the  con- 
tracting parties  {Stair,  1844,  6  1).  904).  P.ut  apart  from  an  express 
declaration  by  the  truster,  the  presumption  is  that  he  intends  his  own 
domicile  to  be  that  of  the  trust  {Smith,  1891,  18  E.  1036).  This  pre- 
sumption, however,  yields  to  circumstances.  The  form  and  place  of  execution 
of  tlie  deed,  the  nationality  of  the  truster,  the  situation  or  origin  of  the 
trust  estate,  and  the  domicile  of  the  trustees  appointed,  have  all  a  bearing 
upon  the  interpretation  of  the  truster's  intention.  Thus,  where  a  marriage 
contract  was  entered  into  Itetween  an  Englishman  and  a  Scotswoman  in 
tlic  form  of  a  Scottish  deed,  executed  in  Scotland,  tlie  trustees  appointed 
being  Scotsmen,  and  the  marriage  being  celebrated  in  Scotland,  it  was  held 
to  be  tlie  presumed  intention  of  the  parties  that  the  construction  and  legal 
effect  of  the  deed  should  be  determined  by  the  law  of  Scotland  {Corhett, 


TKL'ST 


343 

;'..   ..r  a 

m 
lo  be  a 


187J,  7    II.  200).     A«,'uiii,  whero  a  wninaii  r,f   Scotti«li   mi  m., 

domiciled    Englisliinau,    l.y   a    dved    in    Scottijsh    form,   u 

Scotland,  conveyed  to  trustees  (a    majnrily   n-sidinj^  in  S 

(quorum)  a  fund  whieh  .she  was  entitled  t(j  di.spn.se  of  under  i: 

of  a  Scottish  testator,  and  which  was  secured  over  heritage  ii 

was  held  that  the  deed  must  he  interiireteJ  according  to  the  lu .. 

{Mitchell  and  Baxkr,  1875,  3  K.  208).     Again,  wlicre  a  testator,  l.y  a  will 

executed  in  Jamaica,  left  funds   to  trustees  resident  in  S     ■'    'l   for  the 

purpose  of   erecting  and    endowing   a    .school    there,  it  w.i     ...  ..i  that  all 

(luestions  with  regard  to  the   e.xecutioii   and  administration  of   the  tn?-! 

were  to  be  determined  l.y  the  law  of  Scotland  (/V;v/,^so;j,  lKr,3   15  I» 

see  also  I^ains/'onl,    1852,  1-4  1).  450;  Urown,  189U,  17  IJ.  1174,  jitT  Ul. 

Fraser,  Ordinary,  at  p.  1177).     Again,  "  the  presumption  seems  t*'  ' '  -r- 

come  when  the  testator  deliberately  clothes  the  expression  of  1,  in 

the  technical  law  language  of  his  native  country,  or,  it  mav  be,  the  country 
of  his  adoption,  though  not  of  his  domicile"  (M'Laren,  inils  and  SucctMwn 
i.  34). 

Capacity  of  Truster.— The  law  of  the  truster's  domicile  in  general 
decides  the  question  of  his  capacity  to  create  a  trust.  When  a  contract  is 
executed  in  a  country  by  a  person  domiciled  there,  wliu,  by  the  law  of  the 

country,  has  not  the  capacity  to  contract,  it  will  not  be  valid  in  an^ Ty 

(Cooper,  1888,  15  E.  (II.  L.)  21).     But  where  a  contract  is  entered  .  a 

person  capax  either  by  the  law  of  his  domicile  or  by  the  lex  loci  c  ■  'g, 

it  is  ^'alid. 

Execution  OF  Dekd. — Testamentary  writings  execVt^    ^ .i...    .    v.  i 

regards  moveable  property  if  they  are  executed  in  .. 
the  law  of  the  testator's  domicile  or  with  that  of  the  place  where  they  aro 
executed  (Purvis,  1861,  23  D.  812).     "  All  the  resjjcct  that,  by  the  law  of 
nations,  is  due  to  deeds  executed  abroad,  is,  that  they  .'^l    "  '     .    .  .  i    i  ,^^ 
if  they  had  l.)een  executed  here,  according  to  the  forma...  .      \u 

law"  (Bankt.  i.  1.  82).  "With  regard  to  heritable  property,  the  rule  is  tluit 
the  deed  must  be  validly  executed  according  to  the  hx  rci  sittr  {Lundos.  17S.*?, 
Mor.  15585,  2  Tat.  App.  018;  Cravford,  1774,  1  llailes,  550;  h        '•  IX, 

10  D.  1137  ;  Purvis,  ut  supra).     But  there  is  a  distinction  between  ..: A 

conveyance  of  herital)le  property,  and  the  revocation  of  a  prior  selllenient 
of  heritage.  The  latter  can  competently  be  made  by  a  deed  valid  only  by 
the  lex  loci  actus  (Leith;  Purvis,  ut  suj>ra).     Where  a  testator  had  >  -d 

his  whole  estate,  including  heritage  in  Sc(»tland,  by  a  wc-^'^  ■■  ..id 
executed  in  Scotland,  to  Scottish  trustees  for   certain  ju!:,  !  had 

afterwards  executed   a   testamentary   (\y:Q<\   in    Ireland,  l^oaring  to  be  bin 
last  and  only  will  and  testament,  appointing  other  truste* 
other  purposes,  but  which  was  improbative  by  the  law  e: 
insullicieiit  to  curry  Scotti.sh  heritage,  it  was  held  that  th.  «f 

Scottish  heritage  was  not  revoked  by  the  later  tleed,  luit  was  an  ctlwlunl 
conveyance  to  the  Scottish  trustees  f(»r  the  purpo.ses  declared  by  tli'  '  r 

in  the  settlement  or  in  sub.sequcnt  writings,  and  that  as  the  Iri'  i- 

tained  the  ultimate  testamentary  intentions  of  the  deceased,  h 

trustees  were  bound  to  give  effect  to  them  so  far  jus  they  were  able ;  ami 
were  therefore  bound  to  c(mvey  the  heritage  to  the  Irisli  •  'o 

purposes  declareil  in  the  Irish  deed  (PirJnnoiid,  18G4, ."»  M.  IK» .  «, 

1882,  9  R.    1040;  Sludd,  1883,  lU  B.  (If.  L)  53).     By   ^  -r 

testamentary  writings  executed  abroad  by  a  British  subject,  anti  valid  - 
by  the  lex  loci  actus,  or  by  the  hiw  of  his  domicile  at  the  t 
of  his  domicile  of  origin,  are,  with  regard  to  i»ersonal  eslai'-.  »•" 


344  TlfUST 

purpose  of  being  admitted  to  pioljate  or  of  coufirmation ;  and  any  such 
writings  executed  within  the  United  Kingdom  are,  fur  similar  purposes, 
held  to  be  well  executed  if  valid  according  to  the  law  of  that  part  of  the 
United  Kingdom  in  which  they  are  executed ;  and  no  subsequent  change  of 
domicile  aftects  their  validity,  or  alters  their  construction  (24  &  25  Vict. 
c.  114). 

JUKISDICTIOX. — Where  a  trust  is  constituted  in  Scotland  and  is  to  be 
executed  in  Scotland,  the  Scottish  Courts  have  jurisdiction  over  the  whole 
subject-matter  of  the  trust  {Kennedy,  1884,  12  II.  275,  per  Ld.  M'Laren ; 
Robertson,  1888,  15  E.  914;  Orr-Ewing,  1885,  13  R  (H.  L.)  1,  i)er  Ld. 
Watson,  at  p.  23;  Ashhurfon,  1892,  20  R  187;  Thomson,  1895,  22  R  8G6). 
Foreigners,  therefore,  who  are  trustees  on  Scottish  trusts,  are  amenable  ti » 
the  Scottish  Courts.  They  are  entitled  to  the  benefit  of  the  law  of  Scotland 
for  vindicating  or  protecting  the  trust  property,  and  therefore  when  a  claim 
is  made  against  them  which  affects  the  trust  property,  they  are  bound  to 
meet  it  in  the  Scottish  Courts  (see  Ferric,  1831,  9  S.  854).  But  they  are 
only  subject  to  the  jurisdiction  qua  trustees  and  not  qua  individuals.  At 
the  same  time,  it  is  the  law  of  Scotland,  and  not  that  of  their  domicile, 
which  measures  their  responsibility  in  matters  connected  with  the  trust 
estate.  The  jurisdiction  extends  to  questions  which  relate  to  the  existence 
of  the  trust,  as  well  as  to  those  which  concern  its  interpretation  or 
administration  (Ashburton,  ut  supra).  Where  the  trust  estate  consists  of 
heritable  property  in  Scotland,  the  Scottish  Courts  have  jurisdiction  with 
regard  to  that  property  (Martin,  1879,  7  E.  329;  Charles,  1868,  6  M.  772; 
and  as  to  converse  case  of  Scottish  trustees  holding  real  property  in 
England,  see  ffewit,  1891,  18  E.  793). 

The  fact  that  trustees  who  are  foreigners  have  taken  out  confirmation 
in  Scotland  under  a  Scottish  trust  deed  is  sufficient  to  subject  them  to  the 
jurisdiction  of  the  Scottish  Courts  in  questions  arising  in  connection  with 
the  trust,  even  though  they  are  not  personally  present  within  the  juris- 
diction. In  an  action  by  a  legatee  against  two  foreign  trustees,  Ld. 
Kyllachy  held  that  the  jurisdiction  constituted  against  them  by  their  having 
taken  out  confirmation  in  Scotland,  remained  unaffected  in  spite  of  the 
fact  that  they  were  not  in  Scotland,  and  that  the  whole  trust  estate  had 
been  distributed  twelve  years  before  {M'Gcnnis,  1891,  18  E.  817.  See 
also  Itobcrtson,  1888,  15  R  914;  Halliday,  1886,  14  R  251).  But  mere 
decerniture  as  executor,  without  confirmation,  is  not  sufficient  to  found 
jurisdiction  {Eobson,  1867,  6  M.  4);  nor  is  the  fact  that  the  trustee,  having 
lumself  a  foreign  domicile,  is,  as  an  individual,  proprietor  of  heritage  in 
Scotland,  where  the  trust  is  not  a  Scottish  one,  and  no  part  of  the  "^trust 
estate  is  situated  in  Scotland  {Machenzie,  1868,  6  M.  932;  MLachlan,  1831, 
9  S.  588).  It  has  recently  been  held  by  Ld.  Kyllachv  that  the  repre- 
sentatives of  Englishmen  who  had  been  trustees  in  a  Scottish  trust,  are 
subject  to  the  jurisdiction  of  the  Scottish  Courts  in  an  action  of  accounting 
raised  against  them  by  a  judicial  factor  on  the  trust  estate  (Eintoul,  1898, 
5  S.  L.  T.  382),  though  in  an  earlier  case  it  was  held  that  such  jurisdiction 
was  personal  to  the  foreign  trustee  himself,  and  did  not  extend  to  his 
representatives  (see  Trotters,  unreported,  referred  to  in  35  Jour7ial  of 
Jarispriidcnce,  p.  3).  Where  a  foreign  trustee  has  claimed  in  a  multiple- 
poinding,  the  fund  in  medio  being  situated  in  Scotland,  his  representatives 
are  subject  to  the  jurisdiction  of  the  Court  in  that  action  (Crockart,  1852, 
15  D.  202).  ^ 

It  must  be  noted  that  the  holding  of  investments  sanctioned  .  by 
sec.  3  of   the  Trusts  Act  of    1884  does  not  of  itself  subject  the  trustees 


TIJUST  ;-, 

to  the  jurisdiction  of  Llic  English  or  Irish  CourtH  (47  &   48  Virt    r   63 
s.  3). 

Where  a  trustee  u})on  a  forei;^ii  trust  is  personally  hul»j«_-ct  to  il, 
diction  of  the  Scottish  Courts,  these  Courts  have  jurisiliction  over  inm  .:i 
matters  connected  with  the    trust  estate,  even    though    the   esUite   in   xi'l 
situated  in  Scotland.     "  That  a  Scotch  Court  may  act  Vn  jyeraonam,  whi-n 
the  pursuer  and  defender  are  within  its  jurisdiction,  although  the  - 
matter  of  the  suit  may  not  he  so,  seems  indisjiulahle.     Jnhnatun  v.  J 
(Mor.  4788)  is  an  instance,  as  old  as  1570,  where  the  sultject-niaf 
real  estate  heyond  the  jurisdiction.     If,  in  the   case  of  inimovt 
aitusrci  does  not  exclude  the  jurisdiction,  there  is  no  intelligihlo  ]»rincii»le  on 
which  it  can  he  hold  to  he  excluded  hy  the  mere  .si7».s  in  the  ai.'^c  of  mo\  •    '  '     " 

(per  Ld.  Chan.  Ilalsbury  in  Orr-Ewimj,  1885,  13  li.  (II.  L.)  8;  see  /'< .  , , 

1796,  3  Pat.  App.  503  ;  J/omo/i,  1790,  lAIor.  4G01  ;  Pdcrs,  1825,  4  S.^  107; 
Macalistcr,  1834,  13  S.  171 ;  Macmiistcr,  1834,  12  S.  731 ;  Thommt,  1851,  14 
D.  217;  Boc,  1857,20  D.  11).  AvYeHtmcnis  jurisiUctiuu is /itu<hin(J(r  cauMi 
will  give  the  Court  jurisdiction  against  trustees  as  well  as  other  grounds  of 
iurisdiction  in  personam  {Innrrarity,  1840,  2  1).  813;  M'Morinr,  1845,  7  1>. 
270;  Ri[/hi/,  1833,  11  S.  25G;  Cami^hcll,  1809,  Hume,  258). 

FoiiUM   NON   CONVENIENS.  —  Thougli    the    Scottish    Courts    have   Buch 
jurisdiction,  they   do   not  always   exercise   it.    It  is  open   for  a   foreign 
trustee  who  is  summoned  hefore  the  Scottish  Courts  to  jilead  forum  non 
conveniens.      "The  reason  assigned  hy  the  Scots  Courts  for  declining  to 
entertain  actions  against  foreign  trustees  or  executors  when  they  come  to 
Scotland,  or  when  trust  or  executry  estate  is  under  arrestment  tl    ■■■    '^ 
not   that  the   Court   of  Session  is   an  incom})ctent,  l>ut  an  incon-. 
forum.     It  necessarily  follows  that  the  plea  of  forum  non  convenieiut  must 
fail  in  cases  where  the  trustees  are  not  liable  to  suit,  or  are  evading  an 
accounting  in  the  in'oyor  forum  of  the  trust,  which  the  law  of  Scotland 
regards  as  the  only  convenient  forum  so  long   as  the  jiursuer  can  tli<r<- 
obtain  the  redress  which  he  seeks.     In  Macmastcr  (1833,  11  S.  GS5)  the 
Lord  Justice-Clerk  (Boyle)  said :    '  The  decisions  go  to  this,  that  if   the 
executor  of  a  foreign  will  come  here  he  maybe  called  before  the  '" 
because  he  could  not  in   the  foreign  country.'      And  the  Lord  Ti'    . - 
(Inglis)  in  Clements  (186G,  4  M.  at  p.  592).  which  was  a  case  of  partnership 
accounting,  observed  that  'the  cases  in   wliich    ihe  plea  of   inconvenient 
forum  has  been  sustained  are  chiefly  of   two  classes:  1st,  where  foreiL'ii 
executors  have  been  sought  to  be   called  to  account  in  this  cotmtry  :•■! 
the  foreign  executry  estate  situated  in  another  country.     In  these  ca.M-.- 
the  question  always  was  whether  it  was  more  for  the  true  and  legitimate 
interest  of  the  executry  estate,  and  all  the  claimants,  that  the  d' 
should  take  place  where  the  executors  have  had  administration.      . 
of  course,  in  most  cases,  a  strong  presumption  in  favour  of  thnt  o! 
tion,  and  accordingly  the  plea  is  generally  sustained  in  such  <              I  have 
no  fault  to  find  with  the  ex})lanation  thus  given  by  the  ].re.>^eut  1 
the  Court  of  the  rationcs  by  which  ihofori'm  in  which  admi;'  "  ■' 
taken  place  has  also  been  held  by  Scots  Cmn-ts  to  be  the  o; 
forum,  to  the  exclusion  of  their  own  jurisdiction.    But  it  is  equally  a 
to  say  that  the  only  reason  which  has  induced  the  Courts  in  ^ 
such  cases  to   uphold  their   own  jurisdiction  has  been.  :• 
J. -CI.  Boyle,  because  the  trustee  or  executor  could  not  be 
in  the  more  convenient  forum.     I  am  not  aware  of  any  authority  m  the 
law  of  Scotland  for  entertaining  an  action  in  the  Court  of  Scs8: 
forei^^n  trustees  who  can  be  called   to   account  and   who  arc  " i,  -• 


346 


TRUSTEE 


account  in  the  proper  fornm,  though  action  has  been  sustained  in  cases 
where  they  were  neither  liable  nor  willing  to  answer  in  ih^i  forvm.  There 
is  another  and  intermediate  class  of  cases,  in  which  it  is  doubtful  whetlier 
the  Courts  of  Wiq  forum  conveniens  may  have  it  within  their  power  to  give 
the  pursuer  a  full  remedy,  or  to  enforce  their  orders  against  the  persons 
of  the  trustees  and  tlie  trust  estate.  In  such  cases  the  Court  of  Session 
will  not  dismiss  the  suit,  but  will  sist  procedure,  not  with  the  view  of 
superseding,  but  of  aiding  the  action  and  supplementing  the  powers  of  the 
foreign  Court,  in  order  that  full  justice  may  be  done  "  (per  Ld.  Watson  in 
Orr-Eu-inq,  1885, 13  E.  (H.  L.)  27  ;  see  also  Peters,  1825,  4  S.  107  ;  Macmastcr, 
1834,  12  S.  731). 

The  doctrine  oi  forum  non  conveniens  is  applied  in  cases  where  trustees 
are  called  to  account  generally  for  their  intromissions,  or  where  the  question 
is  one  raised  by  beneficiaries,  but  as  a  rule  a  creditor  is  entitled  to  sue  in 
any  Court  of  competent  jurisdiction  {Carron  Co.,  1857,  19  D.  318),  unless 
perhaps  where  there  is,  or  necessarily  will  be,  a  competition  among  the 
creditors  in  the  forum  conveniens  (ih.). 

JuiaSDiCTiON  £x  RECONVENTIONE. — Where  a  foreigner  claims  in  a 
multiplepoinding  or  a  sequestration  in  Scotland,  he  is  sul3Ject  to  the  juris- 
diction of  the  Scottish  Courts  in  any  action  raised  against  him  in  connection 
with  the  same  matter,  as,  for  example,  an  action  raised  by  the  trustee  in  the 
sequestration  for  reduction  of  an  illegal  preference  acquired  by  him  {Orel, 
1847,  9  D.  541);  or  for  implement  of  a  contract  entered  into  by  him  with 
the  bankrupt  {Barr,  1879,  7  E.  247). 

ScoTTLSH  Trusts  Acts  not  applicable  to  Engllsii  Trusts.  —  Where 
part  of  an  English  trust  estate  consists  of  heritage  in  Scotland,  the  Scottish 
Trusts  Acts  are  not  applicable,  and  petitions  for  the  appointment  of  new 
trustees  upon  such  trusts,  or  for  authority  to  sell  such  heritage,  will  be 
refused  on  the  ground  that  the  Courts  of  one  country  cannot  enlarge  the 
powers  of  trustees  who  are  answerable  to  the  Courts  of  another  country 
(see  Hall,  1869,  7  M.  667;  Broclde,  1875,  2  E.  923;  Carruthers:  Allan, 
189G,  24  E.  238). 

[See  list  of  authorities  cited  at  end  of  next  article.] 

Trustee. 

Definition 

TriLstees  witliin  Meaning  of  Trusts 
Acts      ...... 

Capacity  to  act  a.s  Trustee 
Appointment 

Nomination        .... 

Acceptance         .... 

nine  <iuo  non       .... 

Quorum 

Making  up  Title  to  E.state 

Gratuitous  Nature  of  Oftice 

Duties 

Payment  of  Debts 

Admiiiistraticjii  or  Di.stribution 
of  Estate         .... 

A  trustee  is  the  person  appointed  to  hold  and  administer  a  trust  estate. 
In  a  wider  sense,  the  word  is  held  to  include  any  person  who  holds  property 
in  a  fiduciary  capacity,  i.e.  in  whom  property  is  vested  which  he  holds  for 
belioof  of  another.  Thus  a  person  may  be  a  trustee  even  though  he  is  not 
definitely  appointed,  by  deed  or  otherwise,  to  the   office,   e.g.  in   a  con- 


PACE 

TAOE 

346 

Directions     ■which     cannot 

be 

carried  out 

.     359 

347 

Defeasible  Directions 

.     359 

348 

Executory  Trusts 

.     359 

349 

Powers  of  Administration 

.     300 

349 

Investments      .... 

.     371 

350 

Liability — 

3.')1 

to  Beneficiaries. 

.     382 

3.'J2 

to  Third  Parties 

.     385 

:)rr2 

for  Expenses 

.     389 

•srys 

Termination  of  Trust 

.     394 

3-).') 

Repugnancy 

.     396 

3.56 

Lapsed  Trust     . 

.     396 

357 

TRUSTKi:  :{47 

structive  trust  (sec  siqvv,  \>.  o^S).  As  has  been  seen  in  «leali!i'  with 
constructive  trusts,  a  heritable  creditor,  or  an  heir  of  entail  in  j  ..,n, 

or  a  liferenter,  may  occupy  a  fiduciary  position  with  rej^urd  to  the  iiroiK.Tty 
in  his  iKjssession.     .So  also  the  heritors  of  a  iiarish  hoM  the  pariNh  •  ' 
and  churchyard  as  trustees  for  the  parishioners  {lluxhuifili- .  isTC   :'.  1 
Steel,  1891,  18  R  911,  per  Ld.  Pres.  Inglis,  at  p.  917). 

So  wide  is  the  meaning  attached  to  the  word,  that  jierHonH  are  frequently 
spoken  of  as  trustees  when  their  position  is  in  reality  rather  that  of . 

The  real  test  is  that  in  trust  the  projjerty  belongs  to  the  trustee,  wIk. 

with  it  as  owner,  subject  to  an  equitaljle  obligation  to  aeeount  for  it  to 
someone  else.  "  The  property  of  the  thing  intrusted,  be  it  land  or  move- 
ables, is  in  the  person  of  the  iiitr\istcd,  else  it  is  not  jiroper  h-ust"  (Stair, 

i.  13.  7).     In  agency,  on  the  other  hand,  the  property  is  not  in  the  -■' 

he  deals  with  it  merely  as  a  mandatory,  sul)ject  to  the  instructions 
principal,  and  with  an  authority  which  is  terminable  at  the  will  of  hia 
principal.  The  directors  of  a  company  are  not  properly  trustees;  the 
property  of  the  company  is  not  legally  vested  in  them  as  directors :  they 
are  rather  in  the  position  of  managers  or  servants  of  the  eompany  (.'■(•<• 
Fmire  Electric  Co.,  1888,  40  Ch.  Div.  141;  Smith,  1880,  15  Ch.  Div.  247; 
Sheffield,  etc.,  Building  Society,  1889,  44  Ch.  Div.  412).     Hut  they  are  treated 

in  some  respects  as  trustees,  and  some  of  the  rules  ajiplicable  to  trust' ' 

applied  to  them,  for  example,  the  rule  whieh  jaevents  a  tru.stee  fr(»ni 
auctor  ill  rem  suam  (see  Aherdeen  Ewt/.  Co.,  1864,  1  Macq.  4G1  ;  Hitntingdon 
Copper   Co.,  1877,  4  E.  294,  5  II.  (if.  L.)  1;  Masonic  Assurance  Co.,  1891. 
8  T.  L.  E.  194).     The  olFieial  liquidator,  also,  of  a  cnni])any  is  in  a  >'■    '  - 
position,  though  he  is  not,  strictly  speaking,  a  trustee  either  for  the  cr-    ..   . 
or  the   shareholders,   his   position   being  that  of  agent  for  the  comjijiny 
{Knowlcs,    [1891]    1    Ch.    717,   and   cases    there   quoted;     Comfort,    1891, 
7  T.  L.  E.  475).      Several  branches  of  the  subject  whieh  w«iuld  naturally 
fall  to  be  considered  here,  have  been,  for  reasons  of  convenience,  already 
dealt  with,  and  reference  is  accordingly  made  to  the  separate  articles  on 
Appointment  of  Tiiustees;  Assumption  of  Trustees;  A.ssuMEnTia-.siEEs; 
Judicial    Factors    on    Trust    Estates;   Eemoval    of    Trustees;  and 
Eesignation  of  Trustees. 

Trustees  within  the  ^Meaning  of  the  Tru.sts  Acts. 

The  two  earlier  Trusts  Acts  of  18G1  and  18G3  (24  .1-  2."  Vict.  c.  84; 
26  &  27  Vict.  c.  115)  applied  only  to  trusts  constituted  by  virtue  of  any 
deed  or  local  Act  of  rarli;imc-nt"^  under  which  gratuitous  trustees  arc 
nominated.  The  Act  of  1867  (30  &  31  Vict.  c.  97),  whieh  was  iw.<vsed  on 
the  preamble  that  "  it  is  expedient  that  greater  facilities  should  be  given 
for  the  administration  of  trust  estates  in  Scotland,"  defines  (s.  1)  gratuitous 
trustees  as  "all  trustees  who  are  not  entitled  as  such  t<.  reniunurati«»n  f.T 
their  services  in  addition  to  any  benefit  they  nuxy  be  entitled  to  under  the 
trust,  or  who  hold  the  oflice  ex  officio,  and  shall  extend  to  and  include  nil 
trustees,  whether  original  or  assumed,  who  are  entitled  t«>  receive  any 
legacy  or  annuity  or  bequest  under  the  trust ;  provided  always,  that  no 
trustee  to  whom  any  legacy  or  lieiiuest  or  annuity  is  expressly  given  on 
condition  of  the  recipient  thereof  accejaing  the  oflice  of  trustee  under  the 
trust,  shall  be  entitled  to  resign  the  ollice  of  trustee  by  virtue  ■  '"  *'  ' '  or  of 
the  said  recited  Acts  "  (those  of  18G1  and  1863),  "  unless  other\s .  i  rt^jy 

declared  in  the  trust  .Iced."  The  Trusts  Act  of  1884  (47  k  48  Vict  c.  63), 
on  the  preamble  that  whereas  by  the  three  Acts  above  qu..UKi  "  certain 
powers    are    conferred    on    gratuitous    trustees   in   Scotland,"  and   after 


348  TRUSTEE 

enacting  that  it  and  the  three  recited  Acts  shall  be  read  aud  construed 
together,  provides  (s.  2)  that  "  in  the  construction  of  the  said  recited  Acts 
aud  of  this  Act,  '  Trust '  shall  mean  and  include  any  trust  constituted  by 
any  deed  or  other  writing,  or  by  private  or  local  Act  of  Parliament,  or  by 
resolution  of  any  corporation  or  public  or  ecclesiastical  body,  and  the 
appointment  of  any  tutor,  curator,  or  judicial  factor,  by  deed,  decree,  or 
otherwise.  '  Trustee '  shall  include  tutor,  curator,  and  judicial  factor. 
'  Judicial  Factor '  shall  mean  any  person  judicially  appointed  factor  upon 
a  trust  estate,  or  upon  the  estate  of  a  person  incapable  of  managing  his 
own  affair.^,  factor  loco  t uteris,  factor  loco  cibscntis,  and  curator  honis." 

Prior  to  the  passing  of  the  1884  Act,  it  was  held  that  the  Trusts  Acts, 
including  the  Act  of  1867,  applied  only  to  gratuitous  trustees  {Maclccnzie, 
1872,  10  M.  749),  and  the  Court  refused  to  appoint  a  trustee  on  a  non- 
gratuitous  trust  under  sec.  12  of  the  last-mentioned  Act.  But  in  a  later  case 
it  was  held  that,  in  virtue  of  the  definition  given  in  the  1884  Act,  sec.  12  of 
the  18G7  Act  applied  to  non-gratuitous  trusts,  and  that  the  Court  could 
competently  appoint  a  new  trustee  on  a  trust  for  behoof  of  creditors  {Royal 
Bank,  1893,  20  E.  741).  There  is  a  good  deal  of  difficulty,  however,  in 
reading  this  extended  definition  into  the  earlier  Acts,  and  there  is  a  great 
dearth  of  authority  upon  the  point.  It  seems  clear,  for  example,  that  the 
power  to  assume  new  trustees  given  to  gratuitous  trustees  by  the  1861  Act 
cannot  be  exercised  by  officers  of  the  Court  who  are  included  amongst 
trustees  by  the  later  Act.  On  the  other  hand,  it  might  be  maintained  that 
the  limitation  of  liability  accorded  to  gratuitous  trustees  in  1861  is  now 
applicable  to  all  trustees  as  defined  in  1884.  The  power  to  resign,  given  in 
1861,  is  perhaps  in  a  different  position,  for  the  proviso  in  sec.  1  of  the  1867 
Act,  above  quoted,  which  defines  gratuitous  trustees,  may  be  held  to  mean 
that  no  trustee  who  receives  remuneration  for  his  services  as  trustee  shall 
be  entitled  to  resign  in  virtue  of  the  provisions  of  the  Acts.  A  trustee,  of 
course,  who  is  an  officer  of  the  Court,  cannot  resign  without  the  authority  of 
the  Court  which  appointed  him ;  and  trustees  who  receive  "  a  legacy,  bequest, 
or  annuity"  under  the  trust  upon  condition  of  accepting  office  are  still 
bound  to  go  to  the  Court  forauthoritv  to  resign  (see  Alison,  1886,  23  S.  L.E. 
362;  Guthrie,  1895,  22  P.  879;  Scott,  1894,  22  P.  78;  Ori^hoot,  1897,  24  P.  871). 

Capacity  to  act  as  Trustee. 

Speaking  generally,  any  person  who  is  legally  capable  of  holding  and 
dealing  with  property  may  act  as  a  trustee.  It  does  not  disqualify  a  trustee 
that  he  is  himself  beneficially  interested  in  the  trust  estate.  Thus  it  is 
competent  for  the  husband  or  wife  or  both  to  be  trustees  under  their 
marriage-contract  trust.  But  wliere  a  trustee  is  or  becomes  the  sole 
beneficiary  under  the  trust,  tlie  trust  is  extinguished  confusione,  and  the 
property  vests  in  him  for  his  own  absolute  use. 

Minors. — It  is  quite  competent  for  a  minor  to  act  as  trustee  (/////, 
1879,  7  P.  68),  and  it  is  not  unusual  for  minors  to  be  appointed,  as,  for 
example,  in  testamentary  or  marriage-contract  trusts,  where  it  is  not 
expected  that  the  trust  will  come  into  active  operation  for  some  years;  or 
where  a  minor  who  has  entered  into  a  partnership,  becomes  a  trustee  to 
hold  heritable  property  for  the  partnership.  But  a  minor  who  has  curators 
f-annot  act  in  the  trust  without  tlieir  consent;  and  further,  all  deeds 
granted  by  a  minor  trustee  are  lialde  to  be  set  aside  by  him  during  the 
qumlricnnium  utile  on  the  ground  of  minority  and  lesion.  In  an  old  case 
It  was  decided  that  a  minor  could  not  be  appointed  trustee  upon  a 
sequestrated   estate  (Threshie,  30   May  1815,  F.  C),  but  it  is  not  incom- 


TRUSTKK  349 

petent  fur  liim  to  lie  clccernod  executor-iUlive  {Jnhnston  19?R  Ifl  q 
541).  '  "*   °* 

Markiki)  "Women. — A  niiirricil  woman  may  act  as  a  tru.sti;e  (  ,•/. 

30  June  1812,    V.  C).     She  cannot,  however,  act  witliout  her  I  Ib 

consent  {Laird,  1833,  12  S.  54;  /////,  1879,  7  IJ.  GS).     The  appoin. ,  of 

a  woman  as  trustee  does  not  fall  upon  her  marriage,  but  her  huslwud  is 
entitled  to  ol)je(t  to  her  continuing  to  act  as  much  as  to  her  acccptinR  a 
new  trusteeship.  15ut  if  he  does  object,  he  must  do  so  timooiiHJy  (JllU 
ut  supra;  see  Bell,  Com.,  5th  ed.,  i.  32).  Wiiere  a  husband  eon.sent^  Uj  Ins 
wife  undertaking  the  oflice  of  trustee  or  executor,  he  becomes  liablo  for  the 
obligations  incurred  by  her  in  that  character,  if  she  has  no  seiwrate  eatato 
(Fattisso)i,  1886,  13  E.  550);  but  if  she  has  separate  estate,  it  would 
probably  be  liable  in  the  first  instance.  Where  husband  and  w'*-'  ■■>■•  '  -tli 
members  of  a  body  of  trustees,  the  wife  is  entitled  to  act  and  %•<>  Iv 

from  the  husband  {Darlinr/,  1824,  2  S.  G07 ;  1825,  1  W.  &  S.  18»). 

COKPORATIONS     AND     PUBLIC     COMPANIES. — A    Corj.oration    can    act    88 

trustee,  unless  prevented  by  the  terms  of  its  constitution  ;  and  it  is  frequentlv 
appointed  as  such  where,  as  in  the  case  of  a  charitalile  trust,  continuity  o'f 
existence  is  desirable.  But  a  corporation  or  a  ]iuldic  company  which 
exists  for  the  purposes  of  trade  would  not  be  entitled  to  undertake  any 
obligation  beyond  those  which  were  contemplated  in  its  constitution. 

Appointment  of  Tkusteks. 

Nomination. — In  the  case  of  an  inter  vivos  trust,  where  the  purjHi.'ie  is 
tlie  extrication  of  tlie  truster's  aflairs,  or  the  payment  of  hi-    '  '    -.  it  is 

usually  found  convenient  to  appoint  a  single  trustee;  but  in  b _nLary 

trusts,  or  those  constituted  for  purposes  of  family  arrangements,  several 
trustees  are,  as  a  rule,  appointed,  in  order  that  the  administration  may 
receive  the  advantage  of  their  combined  discretion  and  diligence. 

In  trusts  of  the  latter  description  the  person  or  persons  whom  the 
truster  appoints  to  be  his  trustees  are,  as  a  rule,  named  by  him  in  the 
trust  deed.  The  usual  form  is  a  disposition  to  "  A.,  B.,  anil  C,  and  the 
survivors  and  acceptors,  or  survivor  and  acceptor  of  them."  But  where  lljo 
disposition  is  "  to  A.,  B.,  and  C,"  without  mention  of  survivors  or  ;!■■•'  '-ts, 
the  trust  will  not  fail  so  long  as  at  least  one  of  the  persons  n  .-d 

survives  and  accepts,  upon  the  princijile  that  "the  truster  prefers  that 
any  one  of  the  trustees  nominated  should  manage  the  estate,  rather  than  a 
jucUcial  factor"  (per  Ld.  Pros.  M'Neill  in  Findlay,  1855.  17  U  1014). 
Where  none  of  the  persons  nominated  survive,  or  wiiere  such  as  do  survive 
decline  the  office,  the  Court  will  appoint  either  new  trustees  or  a  judicial 
factor  to  administer  the  trust  (Graham,  18G8,  G  ^I.  058  ;  Jilachcood,  1894. 
1  S.  L.  T.  631  ;  Cairns,  1838, 16  S.  335  ;  Smart,  1854.  16  1).  1004  :  //  •  '' 
1855,  17  D.  1005).  Where  the  disi)Osition  is  to  certain  pei-sons  nam. 
their  heirs,  the  heir  of  any  one  of  the  persons  named  who  iloes  not  survive 
the  truster,  does  not  become  a  trustee  so  long  as  any  one  of  th-  •^ 

survives  and  accepts  the  office  (see  Gordon,  1851,  13  D.  13S1).  nu'ii  a 
trustee  who  has  accepted  dies  or  resigns,  the  office  transmits  to  the 
survivors,  and  the  trust  property  is  vested  in  them  (son  Osirald,  1879. 
6R461). 

It  is  not  necessary  that  the  trustee  should  bo  aciwaay  i 
trust   deed,   so  long  as  he  is  referred  to  in  such  a  way  as  :     ;. 
identification  possible.     Thus  he  may  be  pointed  out  as  the  holder  of  an 
office,  e.g.  the  minister  of  a  parish  {}fags.  of  Edinhimih,  1881,  8  K.  ( H.  L) 
140  ;  Presbytery  of  Deer,  1865,  3  :M.  402  ;  1867,  5  ^f.  (II.  L)  20  ;  Doc,  1857. 


350  TliUSTEE 

20  D.  11  ;  Murdoch,  1827,  .6  S.  180),  or  the  magistrates  of  a  burgh 
{Mcu/s.  of  EiUnhurijh,  ut  supra),  or,  again,  as  the  proprietor  of  an  estate  for 
the  time  being  (iVt/lic,  1850,  12  D.  1110).  l>ut  where  "the  chairman  of 
the  Parochial  Board  "  of  a  parish  had  been  nominated  as  an  ex  officio  trustee, 
it  was  held  that,  wlien  the  Parochial  Board  was  abolished  and  the  Parish 
Council  substituted  for  it  by  the  Local  Government  Act  of  1894,  the 
chairman  of  the  Parish  Council  was  not  entitled  to  act  under  the  deed 
(Parish  Council  of  Kilmarnoclc,  1896,  23  E.  833).  In  one  case,  where  a 
sum  destined  for  charitable  purposes  was  directed  to  be  administered  by 
"  the  resident  minister  of  the  Presbyterian  Churcli  and  the  two  highest 
civil  officers  in  the  town,"  the  minister  of  the  Estabhshed  Churcli  and  the 
Slieriff-Substitute  and  Sheriff-Clerk  Depute  residing  in  the  town  were  held 
to  be  the  persons  pointed  out  {Boe,  ut  supra).  A  destination  of  the  estate  to 
the  same  trustees  as  are  appointed  under  another  person's  settlement  is  a 
good  appointment,  if  the  trustees  can  be  identified  {Martin,  1892,  19  R. 
474).  Persons  nominated  as  "  executors  "  have  been  held  to  be  trustees, 
and  to  have  the  powers  and  privileges  of  trustees,  where  the  purposes  of 
the  testator's  will  involved  holding  and  administering  the  estate,  and  not 
merely  distributing  it  (Ainslic,  1886,  14  R.  209);  and  where  a  person  was 
nominated  as  "judicial  factor  to  carry  out  the  purposes  of  this  trust,"  he 
was  held  entitled  to  be  confirmed  as  executor-nominate,  and  would  there- 
fore be  in  the  position  of  a  trustee  if  he  had  to  do  more  than  distribute  the 
estate  {Tod,  1890,  18  Pt.  152). 

The  nomination  of  trustees  need  not  be  in  the  principal  deed  ;  or  the 
nomination  in  the  principal  deed  may  be  revoked,  and  a  new  nomination 
made  in  a  codicil  (see  Royal  Infirmary  of  Edinburgh,  1861,  23  D.  1213  ; 
Mackilligan,  1855,  18  D.  83) ;  but  the  withdrawal,  in  a  codicil,  of  a 
beneficial  interest  conferred  upon  the  trustees-nominate  in  the  principal 
deed,  does  not  involve  the  withdrawal  of  their  nomination  (Scott,  1870, 
8  M.  959). 

Where  the  radical  right  remains  with  the  truster,  he  has  power  to 
a,ppoint  new  trustees  when  those  originally  appointed  have  failed 
(Ncwlaads,  1882,  9  E.  1104;  Lindsay,  1847,  9  D.  1297;  Tovcy,  1854, 
16  D.  866).  Or  the  truster  may  reserve  a  right  to  appoint  new  or 
additional  trustees,  but  such  a  right  does  not  entitle  him  to  revoke  the 
nomination  of  trustees  already  in  office  and  substitute  others  (per  Ld.  Pres. 
Inglis  in  Welsh,  1871,  10  M.  10).  Where  spouses  had  executed  a  mutual 
settlement,  and  reserved  a  power,  "  during  our  joint  lives  or  to  the  longest 
liver  of  us,"  to  alter  or  revoke,  it  was  held  that  the  widow  could  not  recall 
the  nomination  of  trustees  contained  in  the  deed,  and  appoint  new  trustees 
upon  her  liusband's  estate  (  Welsh,  nt  supra). 

A  power  to  appoint  may  be  given  by  the  truster  to  another  (see 
Morison,  1834,  12  S.  307).  It  has  been  held  in  England  that  the  person  to 
whom  such  a  power  is  given  cannot  appoint  himself  (Skcat,  1889,  42  Ch. 
Uiv.  527).  According  to  an  old  Scots  decision,  such  an  appointment  is  not 
illegal,  but  is  "  ungenteel  et  contra  honos  mores"  (Bain,  1694,  1  Eount.  595). 
The  English  view  would  probably  now  be  taken. 

New  trustees  may  also  be  appointed  by  the  trustees  under  a  trust, 
acting  under  a  power,  express  or  implied,  to  assume  (see  Assumption  of 
Trustees),  or  in  certain  circumstances  by  the  Court  (see  ArPOiXTMEXT  of 
Trustees). 

Acceptance  or  Declinature  of  Office. — A  trustee-nominate  incurs 
no  responsibility  until  he  has  accepted  office,  and  no  one,  whether  appointed 
€x  officio  or  otherwise,  can  be  forced  to  accept  (.see  per  Ld.  J.-Cl.  Hope  in 


TRL'SJ-KK  3- J 

Shepherd,  1855,  17    D.    520).      The   fact   that   tlie   truHtce-nomiimt'-   ' 
jirdiuised  the  truster  (hiring  his  lifftiiue  that  lie  will  act,  does   not 
bind   him    to   accept  (•Diet!    when  the  trust  comes  into  (.jH-ration  (1^1    1 
Ecdesdale  in  Doyle,  1804,  2  Sch.  &  Lef.  2:;9  ;  per  \A.  Di-a:i  in  A-^-      ^      , 
5  AI.  288).     "When  a  trust  comes  into  ojieration,  the  i.ntjM.-r  cc  : 

the  persons  nominated  as  trustees  to  declare  definitely  whether  they  ac 
or  decline  the  ollice,  and  for  such  declaration  to  Ih;  minuted  in  tli»'  1      "       : 
the  trust.     But  a   formal  acceptance   is   not  necessary,  an< I   any  « 
that  the  trustee-nominate  knowingly  acted  as  trustee  is  sullicien't  t 
that   he   has   accepted   ollice   (see   Cillcqne,   1879,  6   \l  813-  Kcr    1879 
GR575,  6Pt.  (H.  L.)  52;  Mitchell,  1855,  18  D.  284).     Where   a  t"  ' 

nominate   attended   the    first   meeting  of  trustcesf  hut  found   !  ■■ 
opposition  to  his  co-trustees,  and  declined  to  act  further,  it  wa.- 
he  had  timeously  declined  (Banncrman,   1842,  5  ]).   229).     Such 
would   now   be   met   by  the   power   of   resignation   given   l»y   statute   to 
gratuitous  trustees.     ]\Iere  acceptance  for  a  temporary  puri>oKe,  such  a.s  to 
assume  new  trustees  in  order  that  the    trust  may  be  carried  on,  doe.s  not 
involve   the   trustee   so  accepting   in   liability   for   any    further  act.s    of 
administration  (Blain,  1836,  14  S.  301),  and  it  may  be  the  duty  of  a  iru.slee- 
nominate  to  accept  for  such  a  purpo.se  (see  per  Ld.  IJrougham  in  MiU'ir, 
1837,  2  S.  &  M'L.  889).     When  a  trustee  has  once    ileclmed,  he    wuuld' 
probably  not  be  allowed  to  withdraw  his  declinature  and  accept,  but  mere 
delay  in  accepting  does  not  necessarily  mean  declinature  (Barling,  1823, 
2  S.  607  ;  1825,  1  W.  &  S.  188).     Where  the  ministers  of  a  ]«irish  '     '  "  r 
upwards  of  a  century  taken  no  part  in  the  administration  of  a  trn-t         .,. , 
held  that  their  successors  in  office  were  not  barred  from  actin-  of 

Edinhurgh,  1881,  8  E.  (H.  L.)  140). 

Joint  Arpoixx.MENT — Sine  quo  nun. — Where  the  aiijioint! 
one,  e.g.  "to  A.  and  B.  jointly,"  it  has  been  held  that  the  no;..,..,... 
upon  the  failure  by  death  or  non-acceptance  of  any  one  of  tlie  no:, 
and  that  the  trust  conies  to  an  end  upon  the  death  or  resignation  of  jmy 
one  of  the  joint  nominees  who  has  accepted  (see  Dawson,  18G3,  2  M.  1'"' 
Drumore,  1742,  Mor.  14703).     Where  joint  trusteesare  appointed,  no  ...  : 
of  administration  can  be  performed   without   the   consent   of  all.     .lomt 
appointments  are  therefore  inconvenient  and  unusual  in  practice,  and  the 
Court  will  not  hohl  an  appointment  to  be  joint  unless  the  words  of  the 
deed  are  precise. 

It  is  more  common,  though  it  is  also  inconvenient,  to  find  the  ap|)oint- 
ment  of  a  sine  quo  nan.     Such  an  appointment  is  made  when  the  tru- 
desires  that  some  one  of  the  trustees  he  nominates  should  be  cc 
upon  every  act  of  administration,  and  when  he  therefore  d    '  •       *' 

person  shall  be  a   sine  quo  non.     The  eU'ect  of  the  failure  t 

upon  the  e.xistence  of  the  trust  is  doubtful.     The  one  view  is  i! 

acceptance  is  essential  unless  it  clearly  appears  from  the  deed  f 

acceptance  was  not  intended  by  the  truster  to  be  a  condition  of  lb 

tion  of  the  trust  (see  Bell,  Conveyancing,  ii.  940;  Stair,  i.   <V   i 

Notes;  Doncddson,  1770,  :^ror.  1G3G4  ;   Vcrc,  1791,  Mor.  IG 

1776,  5  Br.  Sup.  634).     The  other  view  is  that  "  the  right  of  veto  is  a 

personal  privilege  conferred  on  the  trustee  in  the  ■  "  ' 

whence  it   follows  that,  if   he  declined,  the  trust  m..,.  

quorum  of  the  other  trustees  in  the  ordinary  way"  (M'ljiron.  ^ 

^co«,  1775,  Mor.  16371;  Drumore,  11  ^2,  Mor.   14703.       '     ..n.  where  all 

the  trustees  fail  except  the  sine  quo  non,  the  bett«'r  oj. 

that  the  trust  does  not  fail,  as  there  is  no  reas-"  "iv  •<  •       ,. . 


352  TltUSTEE 

disqualified  from  coutiuiiing  the  trust  by  himself,  because  the  truster  has 
reposed  a  higlier  degree  of  confidence  in  him  than  in  his  co-trustees 
(M'Laren,  Trusts,  i.  226).  "Where  a  body  of  trustees  are  appointed  tutors 
and  curators  to  a  beneficiary  under  the  trust,  the  appointment  is  a  joint 
one,  and  one  of  the  trustees  cannot  accept  the  office  if  the  others  decline  it 
(Johnston,  1892,  20  E.  46). 

Quorum. — It  is  competent  for  a  truster  to  specify  how  many  of  the 
trustees  nominated  shall  constitute  a  quorum.  If  he  does  so,  it  would 
seem  to  be  necessary  that  enough  to  form  a  quorum  should  accept  in  order 
to  prevent  the  failure  of  the  trust  {Ramsay,  1672,  Mor.  14695 ;  Ireland, 
1833,  11  S.  626).  But  by  the  Trusts  Act  of  1861,  in  the  case  of 
(Gratuitous  trustees,  where  no  quorum  is  specified  in  the  deed,  a  majority 
of  the  accepting  and  surviving  trustees  is  a  quorum  (24  &  25  Vict, 
c.  84,  s.  ]).  Less  than  a  quorum  cannot  act  as  representing  the  trust, 
nor  will  an  action  at  their  instance  on  behalf  of  the  trust  be  sustained 
{Neilson,  1885,  12  E.  499  ;  Morison,  1873,  1  E.  116).  But  any  trustee  is 
entitled  to  act  for  the  protection  of  the  trust,  as,  for  example,  where  he 
avers  breach  of  trust  on  the  part  of  his  co-trustees  {Rcid,  1852,  14  D.  449  ; 
Birnic,  1891,  19  E.  334;  see  Neilson,  ut  supra,  per  Ld.  Shand,  12  E.  520  ; 
Mackenzie,  1886,  13  E.  507),  or  where  it  is  necessary  to  protect  himself 
from  liability  as  an  individual  {Taylor,  1836,  14  S.  817). 

A  quorum  cannot  act  in  any  important  act  of  administration,  such  as 
the  assumption  of  new  trustees,  or  the  sale  of  the  property  under  a  dis- 
cretionary power,  without  consulting  all  their  colleagues,  and  submitting 
the  proposed  act  for  their  consideration  {Rcid,  1852,  14  D.  449  ;  Kelland, 
1863,  2  M.  150  ;  Wysc,  1881,  8  E.  983) ;  but  if  this  has  been  duly  done,  the 
act  of  a  quorum  is  binding  upon  the  estate  (see  per  Ld.  Pres.  Inglis  in 
Alexander,  1883,  10  E.  1195).  A  minority  cannot  object  to  the  com- 
petency of  the  action  of  a  majority  and  quorum  on  the  ground  that  they 
were  not  formally  summoned  to  the  meeting,  if  it  appears  in  fact  that  they 
knew  that  the  meeting  was  to  be  held,  and  of  the  business  proposed  to  be 
transacted  at  it  {Darling,  1898,  25  E.  747). 

A  trustee  can  only  incur  personal  liability  in  respect  of  acts  done  by 
a  quorum,  either  when  he  is  one  of  the  quorum,  or  when  he  has  concurred 
in  or  homologated  their  act  {Cuninrjhame,  1879,  6  E.  679,  6  E.  (H.  L.)  98 ; 
Roberts,  1879,  6  E.  805 ;  Lumsden,  1864,  2  M.  695  ;  1865,  3  M.  (H.  L.)  89). 
He  is  not  liable  when  the  action  is  done  without  his  knowledge,  and  he 
disclaims  it  immediately  upon  becoming  aware  of  it ;  and  he  would  prob- 
ably escape  liability  even  for  an  action  of  which  he  approved,  if  it  were 
carried  out  by  his  co-trustees  in  a  manner  of  which  he  did  not  approve 
(see  Lumsden,  ut  siLpra). 

Making  up  Title  to  Estate. 

A  trustee,  when  he  has  accepted  office,  must  make  up  a  title  to  the 
estate.  In  the  case  of  moveable  estate,  this  is  done  by  confirmation  as 
executor  where  the  trust  is  a  testamentary  one,  or  by  delivery  or  intimated 
assignation  where  the  trust  is  an  inter  vivos  one.  A  title  to  heritable  estate 
is  made  up  when  there  is  a  direct  conveyance  to  the  trustee,  and  the  truster 
had  been  infeft  in  the  estate,  either  by  (1)  recording  the  deed  with  a 
warrant  of  registration,  or  (2)  by  expeding  and  recording  a  notarial  instru- 
ment in  the  form  of  Sched.  J  of  the  Consolidation  Act  of  1868  (31  &  32 
Vict.  c.  101,  s.  17).  But  where  there  is  merely  a  general  disposition  of  the 
estate  to  the  trustees  (see  Studd,  1883, 10  E.  (H.  L.)  per  Ld.  Watson,  at  p.  59), 
or  where  in  a  testamentary  or  mortis  causa  deed  there  is  no  direct  conveyance 


TliUSTEE 


3o3 


of  the  lands  to  the  trustees  or  executors  apijointed,  a  title  ia  luude  up  by 
expediugand  recording  a  notarial  instruniont  in  the  form  of  Sched.  L  of  tlu- 
Consolidation  Act  (;U  &  32  Vict.  c.  101,  s.  19;  37  &  38  Vict.  c.  94  s  4»J 
see  Maclcod,  1883,  10  li.  105G ;  Ainslic,  188G,  14  K.  209 ;  Kerr,  1888,  15  I{. 
520).  Where  the  truster  was  not  infeft,  the  trustee  may  make  up  hiw  title, 
whether  the  estate  is  directly  conveyed  to  him  or  whetlior  he  is  merely  the 
general  disponee,  hy  expeding  and  recording  a  notarial  instrument  in  the 
form  of  Sched.  J,  or  by  recording  the  conveyance  of  the  iiersi.n  last  infeft 
along  with  a  notarial  instrument  in  the  form  of  Sched.  N  of  the  Consoliila- 
tion  Act. 

As  in  a  mortis  causa  trust  the  condition  of  survivor8lii[)  is  implied 
{OsvmIiI,  1879,  6  Pi.  461),  upon  the  death  or  resignation  of  any  of  the 
trustees,  the  property  passes  to  the  remaining  trustees,  and  vests' in  them, 
even  where  the  nomination  is  of  certain  persons  and  their  heirs.  So  long  a« 
one  of  the  original  trustees  remains  in  office,  tlie  heirs  of  the  prcdeeeasers 
have  no  concern  with  the  trust.  l>ut  where  the  last  survivor  of  a  hody  of 
trustees  dies,  his  heir  may  complete  a  title  to  the  estate  in  the  manner 
provided  by  the  Consolidation  Act,  but  only  for  the  purpose  of  makhig  it 
over  to  some  person  appointed  by  the  Court,  or  by  some  person  authorised 
by  the  trust  deed  to  make  such  an  appointment,  or  by  the  beneficiaries,  for 
administration  (37  &  38  Vict.  c.  94,  s.  43). 

Sees.  11  and  12  of  the  1867  Act  provide  for  tlie  making  up  of  a  title 
to  the  estate  by  assumed  trustees  and  trustees  appointed  by  the  Court 
respectively. 

Gratuitous  Nature  of  Office. 

The  rule  is  that  in  the  absence  of  any  provision  to  the  contrary  in  the 
trust  deed,  the  trustee  is  presumed  to  give  his  services  gratuitously,  and 
further,  that  he  is  not  entitled  to  make  any  profit  out  of  his  position  as 
trustee.  Formerly,  even  a  trustee  for  creditors  was  held  to  fall  within  tliis 
rule  {Creds.  of  Johnston,  1738,  Mor.  13407,  reprinted  21  D.  1383) ;  but  it  was 
found  that  such  trusts  required  in  an  especial  degree  the  services  of  pro- 
fessional business  men,  who  could  not  be  expected  to  act  gi-atuitou.'<ly.  and 
the  custom  now  is  that  such  trustees  are  entitled  to  a  commission  in  the 
shape  of  a  percentage  on  the  money  which  passes  through  their  hands  (see 
Ball,  1870,  8  M.  1006). 

Trustee  cannot  Charge  for  Professional  Servkes. — lim  the  iru.siee 
is  not  entitled  to  anything  beyond  this  commission ;  and  any  trustee  who  acts 
as  agent  or  factor  for  the  trust,  either  liimself  or  through  a  firm  in  which  he 
is  a  partner,  can  claim  no  remuneration  for  his  ser\'ices,  though  he  is  entitled 
to  take  credit  for  his  actual  outlay  {Home,  1841,  2  Eob.  A]'!..  384 :  Cra;/, 
1856,  19  D.  1 ;  Manson,  1855,  2  Macq.  80;  Fajan,  1855,  17  U  114''.  ^'-  '■  ■^ 
1841,  4  D.  310  (gratuitous  trustees);  Lauder,  1859,  21  D.  1353  (tn.  r 

creditors);  Mitchell,  1878,  5  R.  1124;  Flmccrdew,  1854,  17  D.  203  (j"tl>c>al 
factor);  Graij,  lit  supra;  Kennedy,  1860,  22  D.  507;  Hohertson,  1840.  6 
Bell's  App.  422  (curator  bonis  or  factor  loco  tutoris).  The  rule  does  not 
apply  where  the  truster  has  authorised  the  trustees  to  ai-point  one  of  their 
own  number  to  act  as  agent  or  factor.  Such  an  office  being  in  its  imtiire 
remunerative,  a  power  to  appoint  is  held  to  imply  a  power  to  ] 
remuneration  (Goodsir,  1858,  20  D.  1141).     So  also  the  her-*  v 

either  expressly  or  by  implication  sanction  the  employment       ^ 
tion  of  one  of  the  trustees  as  agent  (Ommanncij,  18o4.  16  UyJl;  J^jjcov, 
1863,  2  M.  61 ;  Scott,  1868,  6  M.  753  ;  see  Aitkcn,  1871.  9  M.  ,  oG).     ^^  here 
one  of  the  trustees  acts  as  law  agent,  he  is  not  entitled  to  charge^  for  his 

S.  F.— VOT.  XII. 


354  TRUSTEE 

attendance  at  the  meetings  of  trustees  on  the  same  scale  as  if  he  had  as 
trustee  no  duty  of  attendance,  and  was  to  be  held  as  attending  simply  as 
law  agent  to  the  trust  {Tunicr,  1897,  24  E.  G7o). 

Trustee  caxxot  Contract  with  himself. — "It  is  a  rule  of  universal 
application  that  no  one  having  duties  of  a  fiduciary  nature  to  discharge 
shall  l.)e  allowed  to  enter  into  engagements  in  which  he  has,  or  can  have, 
a  personal  interest  conflicting,  or  which  possibly  may  conflict,  with  the 
interests  of  those  whom  he  is  bound  to  protect.  So  strictly  is  this  principle 
adhered  to,  that  no  question  is  allowed  to  be  raised  as  to  the  fairness  or 
unfairness  of  a  contract  so  entered  into"  (per  Ld.  Chan.  Cran worth  in  Aberdeen 
raiilwaij  Co.,  1854,  1  Macq.  461,  at  p.  471).  A  sale,  therefore,  by  a  curator 
honis  of  his  ward's  estate  to  a  company  in  which  he  is  a  director,  is  voidable 
at  the  instance  of  the  ward,  even  where  the  estate  consisted  of  shares  over 
which  the  company  had  a  right  of  pre-emption  {Dunn,  1897,  25  R.  247). 
So  also  a  contract  between  a  railway  company  and  a  firm  in  which  one  of 
its  dh-ectors  is  a  partner  is  illegal  and  reducible  {Aberdeen  Railway  Co., 
ut  supra) ;  and  where  the  common  agent  in  a  ranking  and  sale  purchased 
part  of  the  estate  at  a  judicial  sale,  the  purchase  was  reduced  {York 
BuUdinrjs  Co.,  1795,  3  Pat.'378;  see  also  Gillies,  1846,  8  D.  487:  Thorburn, 
1853,  15  D.  845;  Elias,  1856,  18  D.  1225;  Faulds,  1859,  21  D.  587).  The 
same  rule  applies  to  prevent  a  trustee  from  taking  a  lease  of  the  trust 
estate  {Attorney-General,  1810,  17  Ves.  491 ;  see  Montgomerie,  1895,  22  E. 
465).  But  such  contracts  are  not  in  themselves  void,  but  only  voidable  at 
the  instance  of  any  person  interested,  and  the  right  to  challenge  them  may 
be  lost  by  mora  or  acquiescence  {Buchner,  1887,  14  E.  1006;  Frascr,  1847, 
9  D.  415).  It  is  illegal  for  trustees  to  lend  trust  funds  to  one  of  their  number. 
"No  circumstances  will  justify  such  a  proceeding,  and  it  is  quite  ultra 
vires  of  any  l)ody  of  trustees  so  to  act "  (per  Ld.  Eres.  Inglis  in  Croskery, 
1890,  17  E.  700 ;  see  Perston,  1863,  1  M.  245).  Even  the  fact  that  the 
trustee  to  whom  the  loan  is  made  is  the  lifereuter  of  the  whole  fund,  and 
gives  suitable  heritable  security,  does  not  alter  the  application  of  the  rule 
{Ritchie,  1888,  15  E.  1086).  Where  trustees  were  sued  as  individuals  on 
the  ground  that  they  had  lent  money  to  one  of  their  own  number,  and  were 
not  called  as  a  body,  a  plea  of  all  parties  not  called  was  repelled  {Mackay, 
1897,  4  S.  L.  T.  466). 

Trustee  cannot  make  Profit  for  himself  out  of  his  Position. — 
"  Whenever  it  can  be  shown  that  the  trustee  has  so  arranged  matters  as  to 
oljtain  an  advantage,  whether  in  money  or  in  money's  worth,  to  himself 
personally  through  the  execution  of  his  trust,  he  will  not  be  permitted  to 
retain  it,  but  be  compelled  to  make  it  over  to  his  constituent "  (per  Ld. 
Pres.  Inglis  in  Huntingdon  Copper  Co.,  1877,  4  E.  298,  at  p.  308).  Where, 
therefore,  trustees  have  invested  the  trust  funds  in  a  trading  concern,  or  in 
some  other  way  not  authorised  by  their  deed  or  by  law,  they  are  not  only 
bound  to  rex^lace  the  money  if  it  is  lost,  but  in  the  event  of  the  investment 
Ijeing  profitable  they  are  bound  to  impute  the  wliole  profits,  and  not  merely 
legal  interest  on  the  money  invested,  to  the  trust  {Cochrane,  1855,  17  L). 
321 ;  Laird,  1855,  17  D.  984;  Torme,  1832,  10  S.  597 ;  Grant,  1869,  8  M.  77). 
Where  the  trustees  of  a  deceased  partner  of  a  firm  became  entitled  under 
the  contract  of  co-partnery  to  his  share  in  the  business,  they  were  held  to 
Ite  unable  to  enter  into  an  arrangement  with  the  surviving  partner,  who  was 
himself  one  of  their  body,  to  the  effect  of  increasing  his  share  of  the  profit  on 
condition  of  his  continuing  to  act  as  managing  partner  {Mackie,  1875,  2  E. 
312).  Where  a  trustee  liad  taken  what  was  practically  a  bribe  to  induce 
liim  to  make  a  particular  investment,  lie  was  held  to  be  bound  not  merely  to 


TliUSTEE  355 

make  guod  the  Inss  which  rL'sullod  from  the  invcfitinoiit,  hui 

nionoy  which  he  had  received,  as  being  luuiiey  lect-ivcd  hy  hr 

the  trust  estate  {Smith,  [1800]  1  Ch.  71). 

Duties. 

When  a  trustee  has  accepted  oflice,  it  becomes  his  duty  to  carry  ■■"'  ♦'•.• 
purposes  of  tlie  trust,  and  in  doing  so  he  is  bound  to  exercise  "t; 
degree  of  diligence  that  a  man  of  ordinary  prudence  would  e.xerciMc  in  the 
conduct  of  his  own  afUiirs"  (per  Ld.  Ilerschell  in  liars,  1.SS9,  10  11  (II.  L) 
33),  or  he  will  incur  liability  to  lliose  interested  under  the  In;-*  <'P-«« 
subject  will  be  dealt  with  at  greater  length  in  considering  the  /.  i 

trustees.)  He  must,  therefore,  be  diligent  in  realising  the  estate  so  as  to 
make  it  availaljle  for  the  purposes  of  the  trust. 

Where  the  purpo.se  of  the  trust  is  merely  the  ]»aynient  of  t!--  '•••-ter'8 
debts,  as  in  the  case  of  a  trust  deed  granted  for  beiioof  of  ci.  .  the 

duties  of  the  trustee  amount  to  little  more  than  realising  the  estate,  paying 
the  creditors,  and  then  handing  over  the  surplus,  if  there  be  any,  to  the 
truster,  or  in  accordance  with  the  directions  contained  in  tlic  deed. 

In  the  case  of  a  testamentary  trust,  the  first  duty  of  the  trustees  will 
probably  be  to  obtain  coniirmation  as  executors.  Trustees  nominated  under 
such  a  deed  are  by  the  general  practice  allowed  to  take  out  confirmation  as 
executors-nonimate,  even  though  they  are  not  nonn'nati-d  as  executors  in 
the  deed,  and  thev  are  not  tlierofore  called  upon  to  find  caution  (i  Coo.  iv. 
c.  98,  s.  2). 

Payment  of  Expense.s  of  Trust. — The  expense  of  taking  out  confi: : 
tion  is  considered  as  one  of  the  debts  of  the  testator,  and,  with  th'    ' 
bed  and  funeral  expenses  and  certain  other  privileged  debts,  c«  :  T 

the  whole  head  of  the  executry  and  not  off  the  dead's  part  only  (.'.' 
1713,   Mor.   3945).     (See   Privileged   Debts.)    Other  exi)en8es  projicrly 
incurred  by  trustees  in  administering  the  trust  are  a  proi>er  ■ '  -f 

the  estate,  and  maybe  taken  credit  for  by  the  trustees.     .".... 
include  the  reasonal)le  remuneration  of  agents  and  factors  (1807  A  i, 

the  expense  of  petitions  for  special  powers  under  the  Tnists  Acts,  or  oi  the 
discharge  of  trustees  resigning  during  the  subsistence  of  the  trust,  or  of  the 
representatives  of  trustees  who  have  died  (1867  Act,  s.  9 ;  see  Alifoii,  1880, 
23  S.  L.  Ix.  362),  or  of  obtaining  the  .sanction  of  the  Court  for  projK»se<l 
investments  of  the  trust  funds  {Crumpton,  1886,  14  P.  55 ;  MacUan,  1885. 
12  R.  529  ;  Lloyd,  1877,  5  R.  289).     With  regard  to  the  ■  1 

in  litigation  as  to  the  validity  of  tlie  trust  deed,  etc.,  see  i».  -.  ■  .     i  i  -■• 
trust  be  superseded  by  sequestration  or  by  the  apiiointnient  of  a  .  d 

factor,  the  private  trustee  does  not  lose  his  right  of  retention  of  the  trust 
estate  for  his  necessary  outlay  in  the  fair  administration  of  the  ti  r 

Ld.   M'Laren  in  M'Grcgor,  1808,  25  P.  482;  see  Krcntz,  1807.  '' 
But  an  agent  employed  by  a  private  trustee  cannot,  when  th. 
been  sequestrated,  claim  to  be  ranked  preferably  for  liis  account,  and  it  is 
doubtful  if  he  is  entitled  even  to  an  ordinary  ranking  (i7^).  ^     ^ 

Where  the  trust   is   a  continuing   one,  the  ordir  * 

ministration,  such  as  the  remuneration  of  agents  or  :..  . 

income  of  the  trust,  but  the  initial  expen-se  of  realising  the  and  all 

extraordinary  expenditure,  properly  form   a   chn'  anst   the 

(See  Pearson,  1840,  2   D.  1020;    Thomson,  1856,  !:>   i'.    I'-^O;   / 

Mitchell  18G4,  2  M.  015.)     Witliin  the  category  of  extraonhn.'»r}- .    . 

ture  will  fall  the  expense  of  applying  for  the  appointment  of  a  new  trus^ 

or  judicial  factor  where  the  trust  has  become  unworkable  (J ./.  man,  IWl, 


356  TKUSTEE 

9  K.  213),  aiul  as  a  general  rule  the  expense  of  applications  for  special 
powers  under  the  18G7  Act  (see  Hoicdcn,  1895,  23  W.  113).  The  expense 
connected  with  the  periodical  examination  of  investments  and  changes  in 
investments  falls  properly  upon  capital ;  but  in  making  changes  in  invest- 
ments, trustees  must  consider  the  interests  of  the  trust  estate  as  a  whole, 
and  nut  act  merely  to  obtain  a  larger  income  for  a  liferenter  to  the  detri- 
ment of  the  interests  of  the  tiar  (Smith,  1890,  18  E.  44).  Where  they 
make  changes  merely  in  the  interests  of  a  liferenter,  and  without  pre- 
judicing the  fiar,  they  should  stipulate  beforehand  with  the  liferenter  that 
"the  expense  incurred  should  be  defrayed  out  of  the  income  (ih.  per  Ld. 
Young,  at  p.  48). 

P.Xyment  of  Teuster's  Debts. — Trustees  are  bound  to  satisfy  the 
creditors  of  the  truster  before  they  distribute  the  trust  funds  among  the 
beneficiaries.  Where  they  pay  away  the  money  to  beneficiaries  without 
retaining  sufficient  to  meet  a  claim  by  a  creditor  timeously  made,  or  of  the 
existence  of  which  they  are  aware,  they  will  incur  personal  liability  to  the 
creditor  {Lamond's  Trs.,  1871,  9  M.  G62  ;  Heritable  Securities  Investment 
Association,  1893,  20  E.  675).  From  these  decisions  it  appears  that  if 
trustees  pay  away  any  part  of  the  estate  to  beneficiaries  before  all  the 
truster's  debts  are  paid,  or  if  they  pay  a  postponed  creditor  and  leave  a 
preferable  creditor  unpaid,  they  do  so  at  their  own  risk,  in  the  event  of  the 
estate  proving  to  be  insufficient,  unless  they  can  get  the  unpaid  creditor 
to  accept  the  security  of  the  part  of  the  estate  which  they  set  aside  to  meet 
his  debt.  Ld.  M'Laren,  who  dissented  from  the  judgment  of  the  Court  in 
the  second  of  the  cases  quoted,  expressed  a  strong  opinion  on  the  hardships 
which  would  result  from  the  application  of  this  rule,  "  because  it  means 
this,  that  wherever  there  are  outstanding-  obliirations — and  nothinu;  is  more 
common  in  trust  management,  where  the  testator  was  a  merchant  or 
manufacturer,  than  outstanding  ol)ligations — the  whole  estate,  heritable 
and  moveable,  is  to  be  laid  under  an  interdict,  and  not  one  penny  can  be 
paid  to  the  family  of  the  testator,  because  possibly  at  some  future  period 
investments  which  appeared  ample  may  fail,  and  the  creditors  will  hold 
the  trustees  responsible"  (20  E.  702).  The  rule,  however,  only  applies 
where  the  claim  upon  the  estate  is  that  of  a  creditor  of  the  truster,  and 
does  not  apply  where  beneficiaries  only  are  concerned.  Where  trustees 
have  set  aside  and  properly  invested  a  sum  to  meet  a  legacy  not  at  once 
])ayable,  and  have,  in  accordance  with  the  directions  of  the  truster,  made  an 
immediate  distribution  of  the  residue  of  the  estate,  they  will  not  be  per- 
sonally liable  if,  owing  to  a  fall  in  the  value  of  the  investment,  the  fund 
set  aside  is  eventually  insufficient  to  meet  the  legacy  (see  per  Ld.  Adam  in 
HcritalJc  S''curities  Tnvrsfmcnt  Association,  ut  sui^ra ;  Rohinson,  1880,  7  E. 
694;  1881,  8  E.  (H.  L.)  127;  Scott,  1895,  23  E.  52). 

Testamentary  trustees  are  in  this  respect  subject  to  the  same  rules  as 
executors.  They  are  bound,  therefore,  to  ascertain  to  the  best  of  their 
ability,  by  advertisement  and  other  means,  what  claims  on  the  estate  exist. 
Willi  the  exception  of  jrnvilcr/cd  dchts  (q.v.),  which  should  be  paid  or 
provided  for  before  any  other  claims  are  met,  no  debts  should  be  paid 
until  six  months  have  elapsed  from  the  date  of  the  truster's  death.  Debts 
paid  before  that  period  has  elapsed  are  paid  by  the  trustees  at  the  risk  of 
incurring  personal  liability  should  the  estate  turn  out  to  be  insufficient  to 
meet  all  the  claims  upon  it.  Creditors  doing  diligence  on  the  estate  within 
the  six  months  are  entitled  to  rank  2}ciri  passu  upon  it.  When  the  six 
months  have  expired,  trustees  may  pay  in  safety  ^r/-i:'?;?o  ■ccnienti,  unless  they 
have,  or  ought  to  have,  reason  to  doubt  the  solvency  of   the  estate.     A 


TIM'STKK  357 

creditor  who  comes  forward  afterwards  "  must  look  for  i>aynienl  not  to  the 
trustee,  who  has  honestly  and  in  guoil  faith  handed  over  the  fundB  to  tlm 

beneficiaries,  but  only  to  the  beneliciaries  or  legatees,  who  liave 
received  the  funds  themselves"  (per  Ld.  Oillbrd  in  JUUh,  1875,  W  i..  i  „. , 
see  Stewart's  Tvs.,  1871,  9  M.  810).  lint  where  a  creditor,  who  cluiniH  after 
the  exi)iry  of  the  six  months,  tinds  the  estate  still  undistributed  in  the 
hands  of  the  trustees,  he  is  entitled  to  be  ranked  pari  pcumi  on  the  estate 
with  other  creditors  who  have  already  obtained  decree  againBt  tin-  tru»<tecH 
(liimell,  1791,  liell's  Oct.  Ca.  217).  Tru.stees  may  safely  jiay  a  <  1  lim  which 
they  are  satisfied  is  a  good  one  without  requiring  tiie  creditor  t  •  .tul<j 

it  (30  &  31  Vict.  c.  97,  s.  2,  subs.  7);  but  where  the  estate  is  Bmall,  and 
the  amount  of  claims  uncertain,  or  whore  there  is  any  doubt  as  to  the 
existence  or  amount  of  an  alleged  debt,  the  trustees  are  entitleil  to  [.roicct 
themselves  and  the  estate  by  requiring  formal  constitution  (\>er  Ld.  Vtvh. 
Inglis  in  Jf'Gaan,  1883,  HE.  249).  When  the  six  months  have  expirwl. 
creditors  are  preferalde  in  the  order  of  the  dates  of  their  citations  {^!r<iy, 
1723,  Mor.  3140).  When  a  testamentary  trustee  has  himself  a  claim  \\\u\\ 
the  estate,  his  confirmation  as  executor  is  held  to  be  a  step  of  diligence  for 
recovering  what  is  due  to  him,  for  he  cannot  be  expected  to  raise  an  action 
against  himself.  He  is  entitled,  therefore,  on  the  expiry  of  the  six  months, 
and  if  no  other  creditor  lias  done  diligence,  to  pay  himself  out  of  tb'-  •  •  'e, 
or  to  relieve  himself  of  any  cautionary  obligation  he  may  liave  .  J 

on  behalf  of  the  truster  (.WDoiiaH,  1744,  Mor.  10007;  M'Lrod.  1837,  15  S. 
1043;  Elder,  1859,  21  D.  1122). 

The  fact  that  the  truster  has  acknowledged  a  particuku  .umL  in  the 
trust  deed,  does  not  give  the  creditor  therein  any  advantage  over  other 
creditors  who  claim  timeously  (Currichill,  1G24,  Mor.  3864). 

In  the  case  of  a  trust  expressly  constituted  for  the  payment  of  debla, 
or  for  the  extrication  of  the  truster's  affairs,  or  where  there  is  any  reasiin 
to  doubt  the  solvency  of  the  estate,  trustees  should  ascertain  the  full 
liability  of  the  estate  before  making  payment  to  any  creditor ;  and  in  such 
a  case  they  incur,  of  course,  personal  lialiility  to  any  cretlitor  who  has 
lodged  a  claim,  if  they  pay  away  the  estate  without  satisfying  him  Cm^ 
Cruickshank,  1893,  21  E.  257).  J5ut  where  the  trust  is  created  f..r  family 
purposes,  or  as  a  testamentary  settlement  of  the  truster's  affairs,  the  fact 
that  it  contains  a  provision  for  payment  of  the  truster's  debts  does  not  make 
it  a  trust  for  creditors  (see  S(r wart's  Truster,  189G.  23  K.  739;  O'h}^ 
Insurance  Co.,  1849,  11  D.  618  ;  1850, 7  Bell's  App.  296).  Trustees,  therefore. 
under  a  family  trust,  are  only  liable  for  the  debts  of  the  truster  to  the 
extent  of  the  estate  at  the  time  when  it  comes  into  their  hamli?.  They  are 
not  bound  to  segregate  the  estate  for  behoof  of  creditors.     "It  i 

if  he  retain  funds  ^jf  the  value  of  the  defunct's  estate  at  the-.-  ■  ...» 
death,  and  is  ready  to  pay  claims  to  the  extent  of  the  value.  If  lu-  i.-*  not 
bound  to  segregate  the  estate,  he  can  incur  no  liability  for  the  profiti<  whu-h 
he  may  make  from  the  use  of  the  estate"  {Stewart's  Tr.,  ut  sujyra.  \*er  Ifl 
M'Laren,  23  R.  745).  ,^,^         ,  ,    . 

Administration  ok   Distribution  of  Estate. —  u  hen   the  trusters 
debts  have  been  paid,  it  becomes  the  duty  of  the  trustees  either  to  |uiy  over 
the  estate  to  the  legatees  or  other  persons  taking  interest  un^ 
to  hold  and  administer  it  for  behoof  of  the  }'■''' 
terms  of  the  trust.      In  the  latter  case,  it  i:i  •..  ■■  _    . 
investments  for  tiie  funds  under  their  charge  (see  p.  371).     In  i; 
ment  of  legacies  to  special  legatees,  trustees  are  only  ('"t'J^'cj*  ^  "' 

ordinary  receipt  over  a  penny  stamp  (/'/o/uX'/.  1861.  23  I).  4-i..;,  ••"■•  * 


358  TRUSTEE 

receipt  for  a  legacy  which  is  neitlier  holograph  nor  tested,  is,  after  proof 
that  the  signature  is  genuine,  competent  evidence  of  payment  {M'Larcn,  1869, 
8  M.  106).  But  from  the  residuary  legatee  they  are  entitled  to  obtain  a  formal 
discharge,  which  involves  an  approval  of  the  administration  of  the  trust 
{Flcminy,  v.t  supra).  Payment  of  a  legacy  may  be  made  to  the  legal  guardian 
or  admiuistrator-in-law  of  a  minor  or  pupil  beneficiary  who  cannot  himself 
grant  a  discharge,  but  where  the  beneficiary  is  a  minor,  he  should  concur  in 
granting  the  discharge.  Where,  owing  to  the  financial  position  of  the  legal 
guardian,  the  trustees  are  doulttful  of  the  propriety  or  safety  of  making 
payment  to  him,  they  are  justified  in  requiring  him  to  find  caution  {Stevenson, 
18o7,  19  D.  462;  1861,  22  D.  (H.  L.)  1,  4  Macq.  80).  The  Court  will  not 
authorise  payments  to  be  made  to  the  fathers  of  minor  beneficiaries,  who  by 
the  law  of  their  domicile  are  not  administrators-in-law  to  their  children 
{Athcrstone,  1896, 24  E.  39  ;  Scddon,  1891, 19  E.  101),  unlessthey  are  appointed 
to  that  office  by  the  Court  of  their  domicile  (SccMon,  1893,  20  E.  675). 

"When  trustees  are  called  on  to  pay  a  legacy,  they  are  not  entitled  to 
demand  from  the  legatee  a  discharge  which  would  exclude  a  possible 
alternative  claim  which  he  might  have  against  the  estate.  In  the  event  of 
the  alternative  claim  being  successful,  the  legatee  would  be  bound  to 
account  for  the  legacy  paid  to  him  {Laing,  1895,  22  E.  575).    See  Legacies. 

Annuities. — Where  one  of  the  trust  purposes  is  the  payment  of  an 
annuity,  provision  must  be  made  for  this  before  the  amount  of  the  residue 
can  be  ascertained  or  the  trust  funds  paid  away.  When,  therefore,  the 
annuity  more  than  swallows  up  the  income  of  the  funds,  the  deficiency 
must  be  made  up  from  the  capital  {Knox,  1869,  7  M.  873).  Where  certain 
legacies  were  made  payable  three  months  after  the  death  of  the  testator, 
and  certain  others  upon  the  death  of  an  annuitant,  and  the  income  was 
insufficient  to  meet  the  annuity,  it  was  held  that  the  first  legacies  were 
preferable,  and  fell  to  be  paid  three  months  after  the  testator's  death,  and 
that  the  amount  necessary  to  make  up  the  annuity  must  be  taken  from  the 
capital  from  which  the  postponed  legacies  were  to  be  paid  {Kinmoncl,  1873, 
11  M.  381).  Unless  the  trust  deed  provides  otherwise,  the  trust  need  not 
necessarily  be  kept  up  merely  for  the  purpose  of  paying  an  annuity.  The 
annuity  may  be  renounced,  or,  with  the  consent  of  all  parties  interested,  the 
trustees  may  purchase  an  annuity,  and  then  distribute  the  estate  amongst 
those  entitled  to  it.  Or,  again,  the  annuitant  may  agree  to  take  a  bond  for 
his  annuity  from  the  residuary  legatee.  In  eitlier  of  these  cases  the  trust 
may  be  brought  to  a  close  (see  Watt,  1825,  3  S.  544).  Where  the  trustees 
are  merely  directed  to  pay  over  the  estate  under  burden  of  an  annuity,  they 
are  not  entitled  to  demand  heritable  security  for  the  annuity,  unless  there 
is^a  provision  to  this  etlect  in  the  trust  deed  {Kerr,  1858,  20  D.  562). 
When  all  tlie  trust  purposes  can  be  fulfilled  at  once  except  the  payment  of 
an  annuity,  the  trustees  may  set  aside  a  sum  sufficient  to  provide  for  the 
annuity,  and  proceed  to  distribute  the  remainder  of  the  estate  ;  the  trust 
being  kept  up  until  the  death  of  the  annuitant,  when  the  sum  set  aside  will 
fall  to  be  distriljuted  in  accordance  with  the  terms  of  the  deed  (see  Forsyth, 
1854,  17  D.  207  ;  Scheniman,  1832,  10  S.  759). 

Alimentary  Annuities.— But  where  the  annuity  has  been  declared  to 
be  alimentary,  it  cannot  be  renounced,  nor  are  the  trustees  entitled  to  pay 
over  the  estate  to  the  residuary  legatee  on  receiving  from  him  a  bond  for 
the  annuity,  even  with  the  consent  of  the  annuitant.  That  is  to  say,  a 
trust  duly  constituted  for  payment  of  an  alimentary  annuity  cannot  be 
brought  to  an  end  by  the  joint  action  of  the  annuitant  and  the  parties 
havnig  the  beneficial  right  to  the  fee  (per  Ld.  Watson  in  Hughes,  1892,  19 


TKUSTEK  359 

li.  (H.  L.)  33,  at  p.  35  ;  see  White,  1877, 4  K.  78G ;  Smith  ami  ( 
11  M.  G39;  Coscns,  1873,   11  M.  7G1  ;  J!nini,\    ISt.".  4  lU.-ir»  Atip.  L 
Menzics,  1875,  2K  507;  Muiitf/ouuri/,  IHSS,  15  i:.  :;i/J);  ihor  ' 
a  judicial  factor,  who  wasdirected  to  execute  an  entail  of  li 
was  held  entitled  to  convey  the  estate  b)  the  heir  of  entail  ujKjn  :  • 

annuity  a  real  ])urden  on  the  estate,  and  expressly  declaring  in  the  lieeii  of 
entail  that  the  annuity  was  still  payahle  to  and  prestable  l»y  him  f  " 
1878,  IG  S.  L.  IJ.  12G).  Even  where  the  alimentary  annuitant  coi;.  ...:  j 
the  beneficial  fee  of  the  estate  from  which  the  annuity  is  jjaid,  llie  tnjwt 
must  be  continued  during  the  annuitant's  life  in  order  to  pay  tlie 
{Duthic,  1878,  5  li.  858  ;  see  EUott's  Tr.,  1894,  21  K.  975  ;  llvyhcs,  I0J-,  i'J 
11.  (II.  L.)  33  ;  Uarron,  1887,  24  S.  L.  E.  735). 

A  wife  cannot,  stante  matrimonio,  discharge  an  annuity  provided  for  htr 
in  the  event  of  her  surviving  her  husband  by  an  antenujitial  marriage 
contract,  even  though  the  annuity  is  not  declared  to  be  al  K>r, 

1895,  23  E.  317  ;  Mcnzics,  1875,  2  E.  507):  and  in  such  a  c.     :...  t- 

not  entitled  to  purchase  with  the  trust  funds  an  annuity  payable  to  ; 
conthigently  on  her  surviving  her  husband,  and  to  distribute  the  rest  of  the 
estate,  in  respect  that  the  security  of  the  trust  funds  is  greater  tlum  that  of 
a  purchased  annuity,  and  that  a  purchased  annuity,  not  bein/  '  '•.  i..,  t.  .1  i.v 
the  trust,  could  be  alienated  liy  the  wife  (Ac/-,  ct  supra  :  but 
1898,  6  S.  L.  T.  334). 

Directions  which  cannot  he  CARrJED  out. — Directiuns  which  are  self- 
contradictory  or  which  cannot  be  carried  out,  or  the  carrying  out  of  which 
would  involve  an  illegal  act,  will  be  held  pro  non  scrij>to.  Thus  where 
trustees  were  directed  to  settle  a  share  of  the  estate  in  tiie  marriage  contract 
of  a  beneficiary  in  terms  similar  to  the  terms  of  the  settlements  of  her  two 
married  sisters,  and  these  turned  out  to  be  not  only  dissimilar  but  repugnant, 
the  direction  was  held  j^ro  non  scripto  {Murray,  1898,  G  8.  L  T.  \%'>). 
Where  there  is  a  bequest  to  a  beneficiary,  with  a  declaration  that  it  shall 
be  forfeited  upon  the  occurrence  of  a  certain  event,  but  nodi  n  of 

the  subject  in  the  event  of  forfeiture  being  incurred,  the  uc  '•  :» 
is  of  no  effect  {Lcask,  1808,  6  S.  L.  T.  207).  So  also  where  an  ..  .  .•-• 
fee  is  given  to  a  beneficiary,  and  an  attempt  is  made  by  means  of  the  trust 
to  adject  conditions  to  it,  the  conditions  are  of  no  avail,  and  the  beneficiary 
is  entitled  to  the  free  possession  of  the  esUite.  This  subject  will  Ik>  found 
more  fully  discussed  at  the  end  of  the  present  article  under  the  head 
Eepugnancy  (see  p.  390). 

Defeasible  Directions. — Where  trustees  are  directed  to  do  something 
for  behoof  of  a  beneficiary  which  could  be  immediately  un<;        '     '         - 
for  example,  to  purchase  land  and  convey  it  to  Inm  as  ,.^w....;.  . 
without  conferring  any  right  upon  third  parties   {Spcns,  1875,  3  R-^__' 
Gordon,  18G6,  4  M.  501),  or  to  purchase  an  annuity  for  him  {Do\c,  1877,  4 
E.  403;  Kippcn,  1871,  10  M.  134;  Tod,  1871.  9  M.  728),  when  the  I--; 
ficiary  could  at  once  reconvert  the  land  or  the  annuity  mto  mon<>  - 
Court  will  not  insist  on  these  directions  being  carried  <>ut.  and  the  • 
will  be  entitled  to  pay  the  money  direct  to  the  beneficiary 

Executory   Trusts.— An   executory   trust  has  been  delui.-d   a& 
simply  a  trust  under  which  an  act  has  to  be  done,  w'  •  ^     •  '—  '  ■  ■ 
case,  but  one  in  which  there  is  something  to  be  jk: 
defined  by  the  original  settlor;  where  he  lias  expre.-^scd  an  intontion  m 
general  words,  which  is  to  be  carried  out  in  a  complete  and  :  I'V 

the  persons  who  are  intrusted  with  the  estate"  (i«er  I-''-.  ^'^    '■  "  '" 

Ch-aham,  1855,  2  Macq.  295,  at  p.  325).     The  case  in  which  an  :y 


3  GO  TEUSTEE 

trust  most  frequently  appears  is  where  a  truster  has  left  his  estate  to 
trustees  with  dii-ections  to  them  to  execute  an  entail  upon  a  certain  series 
of  heirs.  "The  subject  of  an  executory  trust,  properly  so  called,  is  the 
particular  deed  or  instrument  which  is  to  be  made,  and  not  the  property 
which  is  cnmprised  in  it  "(per  Ld.  Westbury  in  Saclcville  West,  1870,  4 
E.  &  I.  App.  48o,  at  p.  565).  The  trustees  have  no  duties  to  fulfil  with 
regard  to  the  administration  of  the  estate;  their  trust  is  fulfilled  and 
exhausted  when  the  contemplated  settlement  has  been  made.  In  a  proper 
executory  trust  the  truster  confines  himself  to  "  a  compendious  indication 
of  his  general  intention,"  and  leaves  it  to  his  trustees  to  carry  out  this 
intention  in  the  best  way  possible.  But  where  the  truster  has  fully 
expressed  and  defined  the  manner  in  which  his  intention  is  to  be  carried 
out,  "  his  trustees  cannot  have  the  freedom  which  is  allowed  to  them  in 
the  performance  of  executory  trusts,  but  have  no  other  duty  than  that  of 
carrying  the  directions  given  to  them  into  effect,  even  although  they  may 
be  inelfective  to  attain  the  object  which  the  testator  may  be  supposed  to 
have  had  in  view"  (per  Ld.  Kinnear  in  Sandys,  1897,  25  E.  261,  at  p.  268). 
Thus,  where  a  truster  directs  his  trustees  to  make  a  valid  entail  of  lands, 
such  an  express  trust  will  not  be  impaired  by  a  specific  direction  to  insert 
clauses  which,  taken  alone,  would  be  inadequate  for  that  purpose.  But,  on 
the  other  hand,  where  he  has  conferred  no  power  to  make  an  entail,  but 
has  directed  his  trustees  to  carry  out  his  expressed  intention  by  a  definite 
method,  the  trustees  must  conform  their  action  exactly  to  the  directions 
given,  even  though  it  may  be  apparent  that  the  object  of  the  truster  cannot 
be  effectually  attained  by  the  methods  prescribed  {Sandys,  1897,  25  E.  261 ; 
see  cases  there  cited). 

Powers  of  Administration. 

A  trustee  derives  his  powers  to  administer  the  estate  either  from 
common  law,  from  the  trust  deed,  or  from  Act  of  Parliament.  The 
ordinary  powers  of  administration  he  possesses  at  common  law ;  these 
powers  have  been  to  some  extent  augmented  by  the  Trusts  Act  of  1867, 
and  certain  extraordinary  powers  can,  by  the  same  Act,  be  obtained  by  him 
in  certain  circumstances  from  the  Court. 

Powers  under  Trust  Deed. — The  truster  can,  of  course,  confer  upon 
his  trustees  any  powers  which  he  pleases,  and  may  also  by  express  words 
or  by  implication  prevent  the  trustees  from  exercising  powers  which  they 
would  otherwise  possess.  Where  the  power  granted  is  permissive,  it  is 
left  to  the  discretion  of  the  trustees  whether  or  not  it  should  be  exercised. 
In  exercising  such  a  power  the  trustees  must  use  "the  same  degree  of 
diligence  that  a  man  of  ordinary  prudence  would  exercise  in  the  manage- 
nient  of  his  own  affairs"  {Raes,  1889,  16  E.  (H.  L.)  33,  per  Ld.  Herschell). 
They  are  entitled  to  consult  the  beneficiaries  upon  the  subject,  but  the  final 
decision  must  be  their  own  (see  lioUnson,  1881,  8  E.  (H.  L.)  127,  per  Ld. 
<Jhan.  Selborne,  at  p.  129).  Where,  however,  the  power  is  peremptory,  the 
trustee  has  no  choice  but  to  exercise  it.  For  example,  a  power  to  sell  may 
be  given,  to  be  exercised  by  the  trustees  if  they  think  it  necessary  or 
•'xpedient  to  do  so  in  the  interests  of  the  trust  estate ;  or  it  may  be  given 
in  the  form  of  a  direction  to  sell,  in  which  case  it  is  the  duty  of  the  trustees 
to  sell  without  unreasonable  delay.  "An  authority  and  power  to  do  some- 
thing, which,  if  not  done,  would  result  in  intestacy,  is  equivalent  to  a 
direction  "  (per  Ld.  Stormonth  Darling  in  Brown's  Trs.,  1898,  6  S.  L.  T.  43). 

Powers  under  the  Trusts  Acts. — Ordinary  Powers  of  Adminis- 
tration.— The  Trusts  Act  of  1867,  s.  2,  gives  trustees  power  to  do  certain 


trusti:e  301 

acts,  most  uf  which  they  were  ah-eady  L'ntille<l    to  do  at  comiii'.i.  l.w 
Tliese  acts  are : 

(1)  To  appoint  factors  and  law  agents,  and  to  pay  tliem  a  ? 
remuneration. 

(2)  To  discharge  trustees  who  have  resi^nied,  and  the  repre«entalive8  of 
those  who  liave  died. 

(3)  To  grant  leases  of  the  licrital)le  estate  of  ii  duration  not  ex 
twenty-one  years  for  agricultural  lands,  and  tJiirty-one  years  for  muitjul, 
and  to  remove  tenants. 

(4)  To  uplift,  discharge,  or  assign  debts  due  to  the  trust  estate. 

(5)  To  compromise  or  to  submit  and  refer  all  claims  connecte<l  with  the 
trust  estate. 

(6)  To  grant  all  deeds  neces.sary  fnr  <iiiTying  into  ellcct  the  jjowcre 
vested  in  the  trustees. 

(7)  To  pay  debts  due  by  the  truster  or  by  the  trust  esUtc  without 
requiring  the  creditors  to  constitute  such  debts,  where  the  trustees  are 
satisfied  that  the  debts  are  proper  del)ts  of  the  trust. 

The  section  saves  the  powers  of  the  truster  by  declaring  tliat  tliese  acta 
can  only  be  done  when  they  are  "not  at  variance  with  the  terms  <»r 
purposes  of  the  trust."  Of  the  powers  thus  granted,  that  to  grant  Icast-a 
for  a  period  which  may  extend  beyond  the  terms  of  the  trust  administra- 
tion, and  that  to  submit  claims  to  arbitration,  are  jtrobably  tlie  only  lwi> 
which  trustees  did  not  already  possess  at  common  law. 

To  these  powers  has  been  added,  by  subsequent  legislation,  a  power  to 
make  abatement  or  reduction,  either  temporary  or  permanent,  of  rents 
under  agricultural  or  pastoral  (50  &  51  Vict.  c.  18,  s.  '2)  or  under  miuenil 
(60  Vict.  c.  8)  leases,  and  to  accept  renunciations  of  such  leases  (sec  Bertcick, 
1874,  2  Pv.  90).  This  power  can  be  exercised  by  judicial  factors  and  all 
other  persons  who  come  under  the  definition  of  trustee  contained  in  Krr.  2  «»f 
the  1884  Act,  without  applying  to  the  Court  for  special  powers  {'>'!  6c  53 
Vict.  c.  39,  s.  19 ;  Pattisons  Curator  Bonis,  1890,  17  R.  303). 

(1)  To  appoint  Factors  and  Lav:  Agents  and  to  pay  them  a  >" 
Remuneration.  —  This  is  a  power  which  the  trustee  already  ]X)S8e&ica  ai 
common  law  {Hay,  1861,  23  D.  594),  and  may  Ije  taken  to  include  his 
power  to  obtain  the  advice  of  counsel  {Shepherd,  1855,  17  I>.  516)  or  the 
professional  assistance  of  accountants  or  other  persons  of  skill  (P>ddi<-,  1800, 
22  D.  707),  where  the  circumstances  of  the  trust  render  it  U' 

so.     As  a  trustee  cannot  be  auctor  in  rem  sv.am  (q.v.),  he  cani...^  i. .- 

himself  as  agent,  make  any  charge  f(tr  his  services  as  agent  Iwyond  his 
actual  outlay,  whether  he  be  a  gratuitous  trustee  {Mitchtll,  1S7S.  5  11 
1124;  Gray,  1856,  19  D.  1 ;  Manson,  1855,  2  Macq.  80;  /  '-^■" 

5  De  G.,  M.  &  G.  160),  or  a  trustee  for  creditors  {Lniuh-  '  _  i  1 '_  i    ' 

or  a  judicial  factor  {Floiverdew,  1854, 17  D.  2G3).  or  a  en  us  (A'. 

1860,  22  D.  567).     But  the  truster  may  authorise  his  trustees  to  employ 
and  remunerate  one  of  their  own  number  as  agent,  and  a  iwwcr  * 
one  of  tlie  trustees  will  implv  a  power  to  rennniorate  him  {Gch 
20  D.  1141 ;  see  Ahereromhy,  1S97, 4  .S.  L  T.  441).     So  also  the  bt-: 
may,  expressly  or  by  implication,  sanction  the  employment  and  payment  of 
a  trustee  as  agent  {Omnianncy,  1854,  16  D.  721;  Dixon,  18G3.  2  M.  61 ; 
Scott,  1868,  6  M.  753;  Aitken,  1871,  9  M.  756).     A  tr :  "       •  ■■    •    '•  - 
is  not  entitled  to  employ  a  law  ag(?nt  except  for  law  bu  .:. 
intervention,  and  not  falling  within  the  proper  duties  of  a  •  »'« 

Tr.,  1863,  2  M.  9).     In  Ramsay  (1863,  2  .AI.  343)  it  was  held  :  a 

body  of  trustees  is  not  entitled  to  have  a  private  agent  at  the  c.vi.«<juie  of 


362  TEUSTEE 

the  trust — if  he  has  no  confidence  in  the  agent  of  the  trust,  he  should 
propose  a  change  of  agency ;  that  only  in  very  special  circumstances  can  a 
charge  for  double  agency  be  allowed ;  but  that  where  business  is  actually 
done  for  the  benefit  of  the  estate,  it  may  be  charged  for  against  the  trust 
estate,  although  there  may  be  no  specific  evidence  of  express  employment 
by  the  trustees  (per  Ld.  Cowan,  2  M.  345).  The  fact  that  the  truster  has 
named  an  agent  or  factor  does  not  prevent  the  trustees  from  superseding 
him  and  appointing  another  (Cormack,  1893,  20  E.  977,  distinguishing 
Fulton,  1831,  9  S.  442).  The  agent  appointed  must  be  a  person  in  good 
business  repute  at  the  time  of  the  appointment  ( IVcall,  1889,  42  Ch.  Div. 
674;  Thomson,  1838,  16  S.  560) ;  and  the  trustee  must  exercise  due  super- 
vision over  his  actions  (see  Home,  1837,  16  S.  142;  1841,  2  Eob.  App.  384). 
It  is  generally  advisable  to  appoint  a  law  agent  even  where  the  trust  estate 
is  small,  as  omission  to  do  so  on  the  ground  of  economy  will  not  excuse  the 
trustees  if  the  trust  gets  into  difficulties  (see  Taylor,  1876, 13  S.  L.  E.  268). 
The  cpiestion  of  the  trustee's  liability  for  the  actions  of  his  agent  or  factor 
will  be  considered  later;  it  is  not  aftected  by  the  power  given  by  this 
section. 

"What  constitutes  "suitable  remuneration"  must  be  decided  by  the 
trustee  in  accordance  with  the  discretion  which  would  guide  a  man  of 
ordinary  prudence  in  the  management  of  his  own  affairs,  and  unless  the 
payment  is  grossly  in  excess  of  the  ordinary  business  charges  the  Court  will 
not  interfere  (see  opinion  of  Kekewich,  J.,  in  Wcall,  1889,  42  Ch.  Div.  674). 
In  Thomsons  Trs.  (1851,  13  D.  1326),  where  the  trustees  had  allowed  their 
agent,  who  was  one  of  themselves,  a  commission  of  5  per  cent.,  the  Court, 
on  an  objection  being  raised  by  the  beneficiaries,  cut  it  down  to  2i  per 
cent. 

(2)  To  discharge  Trustees  who  have  resigned,  and  the  Hejircscntatires  of 
Trustees  loho  have  died. — A  trustee  who  has  resigned  is  not  liable  for  acts 
done  in  the  administration  of  the  trust  after  his  resignation  is  completed ; 
and  he  is  entitled  to  demand  a  discharge  from  his  co-trustees,  which,  how- 
ever, will  not  relieve  him  from  liability  for  acts  done  while  he  was  a  trustee. 
The  position  of  the  representatives  of  a  trustee  who  has  died  is  the  same 
{Duncan,  1882,  20  S.  L.  E.  8).     See  Eesignation  of  Trustees  ad  fin. 

(3)  To  grant  Leases  of  the  Heritable  Estate  of  a  duration  not  exceeding 
tu-enty-one  Years  for  Agricidtimd  Lands,  and  thiriy-onc  Years  for  MincrcdSy 
and  to  remove  Teimnts. — At  common  law  a  lease'  granted  by  trustees  was 
only  effectual  while  the  trust  administration  lasted,  and  was  not  binding 
upon  the  fiar  who  took  the  estate  when  the  trust  came  to  an  end.  This 
subsection  gives  the  trustees  power  to  grant  leases  which  may  outrun  the 
duration  of  the  trust,  that  is,  "  wherever  a  trustee  might  previously  make 
a  lease  at  all,  he  may  now  make  a  twenty-one  years'  lease,  or  a  thirty-one 
years'  lease"  (per  Ld.  Blackburn  in  Camplell,  1883,  10  E.  (H.  L.)  67). 
Tliough  it  has  not  actually  been  decided,  it  would  appear  that  trustees  are 
entitled  under  the  Act  to  open  up  and  grant  leases  of  new  mineral  fields 
(per  Ld.  Shand  in  Camjjhcll,  1882,  9  E.  725,  at  p.  729 ;  see  Laillie,  1898, 
6  S.  L.  T.  41),  but  the  profits  derived  from  such  new  mineral  leases  would 
not  go  to  increase  a  liferenter's  interest  in  the  estate  {Canvplell,  ut  siqwa). 
A  liferenter,  however,  is  entitled  to  the  proceeds  of  mineral  workings  whicli 
had  been  opened  up  and  carried  on  by  the  truster,  even  where  these  had  been 
abandoned  by  him  as  unprofitable,  in  the  event  of  their  being  taken  up  again 
by  his  trustees  {Baillic,  1891,  19  E.  220);  and  Ld.  Stormonth  Darling  has 
held  thcit  a  grant  of  "  tlie  free  annual  proceeds  of  my  estate  and  of  minerals 
therein  "  entitled  the  liferentrix  to  the  proceeds  of  all  the  minerals  worked 


TRUSTl!!.:  363 

by  the  trustees,  whether  they  Imd  Ijeen  worke<l  hy  the  lrn.mcr  or  not  (J'.aHU. 
1898,  6  S.  L.  T.  41 ;  see  also  Strain,  1893,  20  K.  IOlT.). 

(4)  To  uplift,  dischai'iic,  or  ussl;/n  Debts  due  to  the  Trust  Kst,ite.—  \  ,  er 
is,  ol'  cuursc,  iiecessaiy  fur  tlie  adiuiiiistr;iti(in  of  tlu -  •.    'ri,e  •• 

he  has  made  up  his  title,  as,  fur  example,  in  a  !•    ;        utary  i;  

firmation  as  executor,  is  the  only  jjerson  who  has  a  title  to  sue  for  a  tnu<t 

debt  (see  Home,  1848,  11  I).  141;  Hintou,  1883,  10  li.  1110;  I 

15    li.    1033,  per  Ld.  Shand ;    Henderson,   1889,  IG  K.  341,1^-r  Lt:.  lu.. 

Inglis),  and  the  only  person  who  can  grant  a  valid  dischar-.- f.-  ..  tm-- 

debtor  (Barnet,  1831,  10  S.  128;  Hinton,  vt  supra).     AVhcre  tb 

been  confirmed  as  executor,  his  discharge  is  only  valid  to  the  extent  oi  the 

sum  to  which  he  has  been  confirmed,  and  the  delator  is  not      ^    • 

larger  sum  (Buchanan,  1842,  5  D.  211).     A  beneficiary  is,  h  . ...  . .  . 

when  the  trustee  declines  to  sue  an  alleged  debtor  to  the  trust,  to  < 
use   of   the   trustee's   name   in  order  to  sue,  upon  giving  the  trustee  an 
indemnity   for   the   expenses   of   tlie  action  (Blair,  1894,  1  S.  L  T.  599 ; 
Henderson,  1889,  IG  II  341;  Brouii,  1888,  15  11  581;  Spencc,  1832,  11  S. 
212 ;  Sprot,  1828,  6  S.  1083).     But  where  an  action  was  rai.^-d  by  a  bene- 
ficiary against  one  of  a  body  of  trustees  as  an  individual,  alleging  that  she 
was  a  debtor  to  the  trust,  and  against  the  trustees,  alleging  that  they  wen- 
acting  in  concert  with  the  alleged  debtor,  the  Court  su.'^tained  the  ti'!--  • 
sue  (Watt,  1890,  17  E.  1201).     A  debtor  who  has  j-aid  his  debt  ; 
trustee,  and  has  received  a  discharge  from  him,  is  not  concernetl  with  the 
future  application  of  the  money  (i/«('t7i/507?,  1837,  15  S.  1100),  ■    "       he 
has  paid  it  knowing  that  the  trustee  intends  to  mis.-ij»]ily  it  (?•  r, 

1830,  4  W.  &  S.  444).     A  judicial  factor  or  curator  hunts  can  d.  ^'  a 

bond  and  disposition  in  security  belonging  to  his  ward  without  obtainiiig 
the  authority  of  the  Court  ( Wills,  1879,  6  11  109G). 

(5)  To  compromise  or  to  submit  and  7rfer  all  Claims  conn''  'he 
Trust  Estate. — Trustees  have  always  had  power,  at  common  '  n»- 
promise  claims  (see  City  of  Glasgoio  Bank,  1880,  7  It.  731 ;  An  1855, 
17  D.  596),  though  in  special  circumstances  or  cases  of  ditViculty  the  Court 
has  granted  authority  to  cumpromise  (M'lJouffall,  1853, 15  D.  77G  ;  . ' 

1857,  19  D.  329).     lUit  prior  to  this  Act  they  could  only  submit  <  :  ....  . 
arbitration  matters  falling  within  the  ordinary  administration  of  the  trust, 
"  such  as  references  for  the  a.scertainment  of  value,  or  for  the  fixing  of  an 
amount  due,  for  example,  on  a  professional  account"  (]'er  Ld.  J.  C.  V 
in   Thomsons  Trs.,  1867,  G   M.  150).     In  (luestions  oi  more  imv'  '  ■ 
not  being  ordinary  acts  of  admirristration,  they  had  no  power  ; 
{Thomson's  Trs.,  nt  supra),  unless  a  power   to  do   so  was  given   in   the 
trust  deed  (Mackintosh,  1863,  2  :M.  48).     When  a  question  is      '  '  t<i 

arbitration  by  trustees,  the  reference  does  not  fall  by  the  .   ibe 

trustees  who  have  submitted  it,  so  long  as  there  is  someone  to  carrv  .-n  tho 
trust.     The   party   to   the   reference   is   the   trust,  and   not   th. 
(Alexanders   Trs.,  1883,  10   II.    1189).     It  is  doubtful  v" 
could  compromise  a  claim  made  bv  one  of  themselves  a^i..^-.     .■ 
estate  (see  Laurie,   1892,  19  11.    675).     In  Scutt  (1897,   24  IJ.  -l^CV  I.d. 
Kincairney  expressed  his  opinion  that  a  curator  bonis  had  power  a;  n 

law   to   compromise   claims   relating   to   his  ward's  n. 

further,  that  the  Act  of  1884,  s.  2,  whicli  includes  a  ccn.  '■■• 

definition  of  trustee,  is  retrospective  in  its  etlects. 

(6)  To  grant  cdl  Deeds  necessary  for  carrying/  into  effect  the  Potccrs 

in  the  Trustees.— Trustees  have  always,  of  course.  p<iS5e55e<l  this  i^ower,  Ai.d 
the  subsection  calls  for  no  remark. 


364  TRUSTEE 

(7)  Toi^ay  Dchts  due  hi/  the  Truster  or  hi/  the  Trust  Estate  without  requiring 
the  Creditor  to  constitute  such  Dehts,  where  the  Trustees  are  satisfied  that  tJie 
Debts  are  proper  Debts  of  the  Trust. — This  power  enables  the  trustee  to  pay 
debts  without  requuiug  formal  constitution.  But  it  throws  upon  him  the 
responsibility  of  satisfying  himself  that  the  debt  is  really  owing,  and  does 
not  affect  any  question  that  may  arise  should  the  estate  prove  insufficient 
to  meet  the  claims  upon  it.  It  has  been  laid  down  that  "  though  a  decree 
of  constitution  is  not  always  necessary,  yet  where  the  executry  estate  is 
small,  and  the  amount  of  claims  uncertain,  and  the  existence  or  amount  of 
the  alleged  debt  at  all  doubtful,  the  executor  is  entitled  to  protect  himself 
and  the  estate  by  requiring  formal  constitution "  (per  Ld.  Pres.  Inglis  in 
M'Gaan,  1883,  11  E.  249).     See  PiaviLEGED  Debts. 

Special  Powers. 

The  third  section  of  the  1867  Act  enables  the  Court,  on  the  petition  of 
the  trustees  under  any  trust  deed,  to  grant  authority  to  the  trustees  to  do 
any  of  the  following  acts,  on  being  satisfied  that  the  same  is  expedient  for 
the  execution  of  the  trust,  and  not  inconsistent  with  the  intention  thereof: — 

(1)  To  sell  the  trust  estate,  or  any  part  of  it. 

(2)  To  grant  feus  or  long  leases  of  the  heritable  estate,  or  any  part  of  it. 

(3)  To  borrow  money  on  the  security  of  the  trust  estate,  or  any  part 
of  it. 

(4)  To  excamb  any  part  of  the  trust  estate  which  is  heritable. 

All  questions  of  expenses  with  regard  to  such  applications  are  to  be 
determined  by  the  Court,  and  "where  it  shall  be  of  opinion  that  the 
expense  of  such  application  should  not  be  charged  against  the  trust  estate, 
it  shall  so  find  in  disposing  of  the  application." 

The  section  also  provides  that  where  all  the  beneficiaries  under  the 
trust  in  existence  at  the  date  of  presenting  such  petition  are  of  full  age 
and  capable  of  acting,  "  it  shall  be  in  their  power,  by  deed  of  consent,  to 
grant  authority  to  the  trustees  to  do  any  of  the  said  acts,  the  same  not 
being  inconsistent  with  the  intention  of  the  trust";  such  authority  being 
equivalent  to  authority  granted  by  the  Court.  It  will  be  noticed  that  in 
the  case  of  authority  granted  by  the  beneficiaries,  the  condition  w^hich  binds 
the  Court  to  be  satisfied  that  the  proposed  act  is  expedient  for  the  exe- 
cution of  the  trust  is  omitted. 

In  deciding  as  to  the  expediency  of  the  proposed  acts,  the  Court  will 
in  general  make  a  remit  to  a  man  of  skill,  and  be  guided  by  his  report. 
The  phrase  "  not  inconsistent  with  the  intention  thereof "  has  been  inter- 
preted to  mean  "not  inconsistent  with  the  main  design  and  object  of  the 
tniat"  (Weir,  1877,  4  P.  876,  per  Ld.  Pres.  Inglis).  Where  a  sale  of  the 
property  would  have  l^een  "  expedient "  in  the  interests  of  the  liferentrix, 
but  detrimental  to  those  of  the  fiar,  the  Court  held  that  the  substantial 
interest  was  that  of  the  fiar,  and  that  that  of  the  liferentrix  was  subsidiary 
{Molleson,  1888,  15  P.  065).  Powers  asked  for  under  this  section  will  not 
be  granted  where  the  truster  has  prohibited  in  the  trust  deed  the  action 
contemplated  (see  Hay,  1873,  11  M.  094;  Whyte,  1891,  18  P.  376);  but 
the  mere  expression  of  a  wish  that  a  particular  course  should  not  be 
adopted  will  not  prevent  the  Court  from  granting  authority,  if  it  is  satisfied 
that  the  adoption  of  that  course  is  otherwise  expedient  for  the  proper 
execution  of  the  trust  (see  Jamieson,  1S72,  10  M.  755).  Express  words  of 
prohibition,  however,  are  not  necessary.  "An  express  direction  to  do 
sometliing  else  inconsistent  is  just  the  same  as  an  express  prohibition 
against  doing  the  thing  that  is  in  question  "  (per  Ld.  Young  in  Thomson, 


TKUST 


365 


1883,  11  j;.  403).     Tower  to  do  any  or  all  of  the  acUi  ijjentioiu.l  ij,  tV  ., 
section  may  be  given  to  the  trustees  in  the  trust  tleed,  and  in  ih 
application  for  authority  is  necessary.     Sucli  a  i)o\ver  will  be   ■ 
liuve  Ijeen  given  when  the  trustees  have  been  ex]tre.«sly  ijir- 
which  necessitate  the  jjossession  of  the  power.     Thus'  a  • 
debts,  or  to  divide  the  estate,  may  imply  a  i)Ower  to  sell  herit. 
1872,  10  M.  872;  Mciklam,  1852,  lo  J).  159;  Graham,  1850,  13  b.  420). 
A  direction  to  jairehasc  and  entail  land  has  been  held  to  imply  a  xntwcr  t<» 
expend  the  surplus  of  the  estate  in  building  a  mansion-house' on  the  laml 
(Sprot,  1830,  8  S.  712).     And  where  trustees  had  been  directe<l  to  keep  in 
repair  a  mansion-house,  and  to  alhnv  the  lifercnter  to  occupy  it,  the  mauhion- 
house  being  unfinished  at  llie  date  of  the  truster's  death,  they  wei.   '    '  '  to 
be  entitled  to  complete  it  at  the  expense  of  the  irui^l  t  J.'mtrl;^   1  \i 

1031). 

liut  where  a  truster  has  given  his  trustees  a  special  power  in  order  that 
they  may  carry  out  a  particular  trust  purjiose,  and  has  afterward    •       V^hI 

that  purpose,  the  grant  of  the  power  is  also  held  t<i  bo  i.-vnk.<l  i'      ay, 

1853,  16  D.  27). 

A  pow'er  granted  by  the  truster  is  personal  to  the  trustees  to  whom  it  ib 
granted,  and  does  not  pass  to  a  judicial  factor  appointed  in  their  room.  He 
can,  if  he  thinks  the  exercise  of  any  such  power  necessary  or  desiral»le. 
apply  to  the  Court  under  this  section,  and  the  Court  will  exercise  it« 
discretion  in  granting  or  refusing  the  authority  craved  (see  Mollcson,  1888, 
15  R.  6G5).  This  sul)ject  has  been  di.'^cussed  under  the  title  JuDirfAL 
Factor  on  Trust  Estate,  vol.  vii.  p.  212. 

(1)  PoAVEii  TO  Sell. — The  Act  here  refers  to  heritable  property,  for  no 
authority  is  required  by  trustees  to  enable  them  to  sell  moveable  pro|»orty 
belonging  to  the  trust  (see  liroimlic,  1879,  6  K.  1233,  per  Ld.  Shand,  at 
p.  1241  ;  Dahjlcish,  1849,  11  1).  1U30;  Linihay,  1849,  11  D.  1030). 

Where  no  power  to  sell  is  given  in  the  trust  deed,  a  sale  of  the  estate 
would  seem  strictly  to  be  inconsistent  with  the  truster's  intention ;  but  the 
Court,  under  this  section,  will  grant  authority  to  trustees  to  sell  where  the 
main  design  and  object  of  the  trust  can  thereby  best  lie  carried  out.  utiI       *'    - 
is  a  direct  prohibition  against  sale  in  the  deed.     \Vhere  the  main 
the  truster  was  to  provide  a  home  for  his  minor  children,  the  Court,  being 
satisfied  that  this  object  could  best  be  attained  by  a  sale  of  the  heritiible 
estate,  granted  power  to  sell,  there  ])eing  no  X)ower  given   in    the   liced 
{Weir,  1877,  4  E.  876).     So  also,  where  trustees  were   directed    to   hold 
certain  heritable  property  for  use  as  a  Roman  Catholic  school,  and  in  courtso  of 
time  these  subjects  became  unsuitable  for  the  purpose,  the  Court  auti 
them  to  sell  the  subjects  and  purchase  at  the  sight  of  the  C.'iut 
more  suitable,  on  the  ground  that  the  main  object  of  the  truster  w...    .. 
that  these  particular  buildings  should  be  maint^iined  as  a  sch'v»l,  but  that  a 
good  school  should  be  kept  up  (  Downic,  1879,  6  K.  1013  ;  -  n, 

1881,  18  S.  L.  R.  585;  rrcsbyterij  of  Aberdeen,  1860,  22  D.  Uu... .  • 
1804,  Mor.  15112).     Rut  where  "the  truster  has  expressly  j-rohibit 
the  Court  will  not  grant  autlmrity,  however  expedient  a  sale  m.iyai  j 
{Hay,  1873,  11  M.  694).     Where  the  truster  had  ])rohibited  his  trusHf«  from 
selling  imtil  a  definite  time  had  elapsed,  on  the  gi-ound  that  he  • 
the  property  would  rise  in  value,  the  Court  refused  authority  ! 
being   inconsistent  with  the  intenti'.n  of  the  truster,  th-.u-h  if 
unlikely  that  the  property  would  rise  in  value,  and  thniigh  a  ^  in- 

expedient for  the  main  purpose  of  the  trust  {Marshall s  Tr/^.,  i^  1. 

478).     But  in  a  recent  case,  where  a  truster  had  directed  his  »•        ..   to 


366  TEUSTEE 

hold  the  estate  until  the  death  of  the  longest  liver  of  his  daughters,  and 
liad  given  them  power  to  sell  it  upon  the  occurrence  of  that  event,  Ld. 
Low,  holding  that  the  main  design  of  the  truster  was  to  make  provision  for 
his  daughters  and  grandchildren,  and  that  if  he  had  anticipated  the  depreci- 
ation of  the  property,  he  would  have  given  a  power  to  sell  at  an  earlier 
date,  remitted  to  a  man  of  skill  to  report  on  the  expediency  of  a  sale 
{liichanhoji,  1898,  6  S.  L.  T.  313).  A  power  to  sell  the  heritable  property 
with  the  exception  of  certain  specified  lands  has  been  held  to  imply  a 
prohibition  against  seUing  these  lands  {Whyte,  1891,  18  E.  376).  But 
where  a  truster  had  directed  his  trustees  to  sell  his  whole  heritable 
property  except  a  certain  specified  estate,  the  Court  held  that  this  did 
not  prevent  it  from  granting  authority  to  the  trustees  to  sell  that  particular 
estate  when  circumstances  rendered  it  necessary  to  do  so  in  the  interests 
of  the  beneficiaries  {SutherlancV s  Trs.,  1892,  29  S.  L.  R  903).  The  expression 
of  a  wish  that  if  possible  the  estate  should  not  be  sold,  is  not  equivalent 
to  a  prohibition  against  sale  (see  Jamicson,  1872,  10  M.  755).  In  MoUeson 
(1888,  15  E.  665)  and  Gilligan's  Factor  (1898,  25  E.  876),  petitions  by 
judicial  factors  for  power  to  sell  were  refused  on  the  ground  that  a 
sufficiently  strong  case  of  expediency  had  not  been  made  out. 

"Where  the  main  purpose  of  the  trust  cannot  be  carried  out  without  a 
sale,  a  power  to  sell  will  be  implied  in  the  deed.  Thus  a  trust  to  pay  debts 
impHes  a  power  to  sell  as  much  of  the  estate  as  may  be  necessary  for  the 
purpose  {Graham,  1850,  13  D.  420 ;  see  also  Binnie,  1888, 15  E.  417  ;  1889, 
16  E.  (H.  L.)  23;  Henderson,  1841,  3  D.  1049;  Camphell,  1838,  1  D.  153; 
Ershinc,  1829,  7  S.  594).  Again,  a  direction  to  divide  the  truster's  "  means 
and  estate,  heritable  or  moveable,  or  the  proceeds  thereof,"  has  been  held 
to  imply  a  power  to  sell  engineering  works  which  had  been  carried  on  by  the 
truster,  and  other  heritable  subjects  (Thomsons  Trs.,  1897,  25  E.  19).  A 
power  of  sale  derived  from  the  trust  deed,  or  obtained  in  virtue  of  this 
Act,  may  be  exercised  either  by  public  roup  or  private  bargain,  "  unless 
<jtherwise  directed  in  the  trust  deed,  or  in  the  authority  given  by  the  Court, 
or  in  the  deed  of  consent  to  be  granted  by  the  beneficiaries,"  and  such  sales 
may  be  under  reservation  of  feu-duties  or  ground-annuals,  "  and  in  all  sales 
and  feus  it  shall  be  lawful  to  reserve  the  mines  and  minerals,  if  so  wished  " 
(1867  Act,  s.  4). 

Where  a  trustee,  whose  deed  gave  him  no  power  to  sell,  sold  lieritable 
property  without  obtaining  the  authority  of  the  Court,  a  petition  craving 
the  Court  "to  approve,  ratify,  and  confirm"  the  sale  was  refused  {Clync, 
1894,  21  E.  849).  Again,  where  a  judicial  factor  had  obtained  authority  to 
sell,  with  directions  to  expose  certain  heritable  subjects  for  sale  by  public 
roup  at  an  upset  price,  and  if  not  sold  to  re-expose  them  at  a  reduced 
upset  price,  or  to  sell  them  by  private  bargain  at  a  price  not  less  than  that 
at  which  they  had  been  exposed,  and  where  he  had  sold  them  by  private 
bargain  without  first  exposing  them  for  sale  by  public  roup,  the  Com^t 
refused  to  ratify  the  sale  {Drummond's  Judicial  Factor,  1894,  21  E.  932). 
Opinions  were  expressed,  however,  that  it  was  competent  for  the  Court  to 
ratify  such  a  sale,  and  that  in  special  circumstances  it  might  be  done.  In  a 
recent  case  a  judicial  factor  sold  by  public  roup  heritable  property  forming 
part  of  the  trust  estate,  subject  to  the  express  condition  that  if  he  did 
not  obtain  the  authority  of  the  Court  for  tlie  proposed  sale,  or  the  Court's 
approval  thereof,  he  should  be  at  liljcrty  to  resile  from  it.  A  petition  pre- 
sented to  the  Lord  Ordinary  on  the  Bills  (Ld.  Kincairney)  for  approval 
of  the  sale  was  granted  (Don  (Ogilvy's  Judicial  Factor),  3rd  May  1898,  not 
reported). 


TKUSTKE 

Trustees  who  have  ami  exercise  a  power  of  sale,  do  imt  inctir  i..  r^.n.il 
liability  for  any  loss  which  may  accrue  to  the  estate  owinp  to  the  *■ . 
as  they  have  acted  ])ru(k'iitly  ami  in  hvndfuh-  (see  JUm,      \      '•,  10  li.  (  H    I 
23,  per  Ld.  Watson,  at  p.  20;  FUmhvj,  1845,  7  D.  '.'...-,  CUUaiul.  l.^ji 
7  I>.  147).  '     ■ 

The  Trusts  Acts  do  not  apply  to  Eni^lish  trusts,  and  llie  Court  will  not 
grant  authority  to  Kn;^dish  trustees  to  sell  hcritahlc  prnj^orty  I"  4  to 

the  trust  situated  in  Scotland  (6Vn-;-?///(<'7-,s;  Allan,  1S!»0,  24  li.  _,        "•    • 
where  an  English  Court  has  decided  that  a  sale  is  expedient  in  liie  1 
of  the  trust,  and  might  have  been  carried  out  had  the  jtroiK-rty  Ijeen  i 

in  England,  the  Court  will  authorise  the  sale  (Allan,  1.S97,  24  IJ.  71 

In  the  exercise  of  its  )iohLle  ojjicium,  tlie  Court  will  grant  aull 
a  father,  as   administrator -in -law   to   his  pupil  child,  to  bcU   hi.  ..-...«• 
property  estate  belonging  to  the  child,  where  such  a  course  is  shown  to 
be  necessary  or  expedient  {Logan,  1897,  25  li.  51). 

Sales  umhr  the  Lands  Clauses  Consolidatkm.  A'-t. — In  addition  to  sales 
made  in  virtue  of  powers  obtained  under  the  Trusts  Act  or  from  !)"•  '"•'^l 
deed,  trustees  may  be  compelled  to  sell  lands  required  "  for  mide:  .  s 
or  works  of  a  public  nature,"  under  the  Lands  Clauses  Consolidation  Act  of 
1845  (8  Vict.  c.  19).  Special  provision  is  made  in  tliat  Act  for  llie 
application  of  the  price  of  lands  compulsorily  sold  (ss.  67,  G8,  09,  and  70). 
But  in  Dickson's  Trs.  (1889,  10  1\.  519),  the  Court  authorised  trustees  to 
invest  the  price  of  lands  compulsorily  taken  under  this  Act  in  accordance 
with  their  powers  under  their  trust  deed,  without  requiring  tliem  to  apply 
it  to  any  of  tlie  purposes  specified  in  the  Act. 

(2)  Power  to  feu  or  to  i  ;rant  Long  Lkase.'^. — Trustees  under  charilnMc 
trusts  have  power  to  feu  at  common  law  (Merchant  Comjxiny  of  Ed 

1765,  Mor.  5750),  and  therefore  a  petition  by  such  trustees  for  i«.\sei  lo 
iew  is  mmeccssary  (3fagistm(cs  of  Elf/in,  1882,  10  li.  342 1  ■•  •  •■ '  ■  the 
trust  deed  prohibits  the  sale  or  alienation  of  heritage  (./  i,  21 

S.  L.  K.  541).  But  where  the  truster's  intention  is  clear  that  tlie  proiK>rty 
should  not  be  feued,  the  Court  will  not  grant  authority  (Andcr^i,  1876. 
3  E.  639).  In  judging  of  the  expediency  of  the  proposed  action,  and  in 
interpreting  the  truster's  intention,  the  consideration.s  which  weigh  with 
the  Court  are  the  same  as  in  an  application  for  power  to  sell.  Execute  ts.  wlio 
were  in  the  position  of  trustees  in  having  to  hold  and  administer  the 
estate,  have  been  held  entitled  to  apply  for  power  to  feu  under  •'  ■  t 
(Pett}<jre\vs  Exrs.,  1890,  28  S.  L.  K.  14).  In  feus  granted  in  virtue  oi\, 
obtained  under  the  Act,  mines  and  minerals  may  be  reserved  (.".0  &  31  \ 
c.  97,  s.  4). 

As  regards  power  to  grant  long  leases,  it  has  been  held  ilui 
who  were  directed  "not  to  sell  or  dispose  of"  a  warehouse,  hut  t< 
in  good  repair,  were  not  entitled  to  let  it  on  a  lea.^e  for  ninety-ni; 
{Petric,  1868,  7  M.  64).     But  where  trustees  were  directed  to   hold  the 
estate  until  the  death  of  the  last  survivor  of  the  truster's  eh"' '  1 

then  to  sell  it  and  divide  the  profits  among  hi«    '  i.,u..-..- 

that  this  direction  did  not  imply  a  prohibition  .1^ 

l)efore  the  date  of  sale  arrived,  and  the  trustees  were  nuthorised  lopnuil  a 
999  years'  lease,  on  the  ground  that  this  would,  in  the  »>♦• 

rather  than  frustrate  the  truster's  intention  (Br' 

(3)  Power  to  uorrow. — A  trustee  cannot  l.> 

of  the  trust  estate,  even  where  it  appears  to  be  necc.'yyiry  for  the 

tion  of  the  estate,  unless  he  has  obtained  autlionty  tojjo  ^ 

the  truster  or  under  the  Act  (see  Ealston,  1882,  10  K.  <-V     i' ■•  •     ■      ■• 


368  TRUSTEE 

the  Court  would  not  grant  authority  to  borrow  when  the  deed  did  not 
confer  it  {Kinloch,  1859,  22  J).  174).  AVhere  a  trustee  has  an  alternative 
power  to  sell  or  to  borrow,  he  must  act  in  accordance  with  "  the  dictates 
of  ordinary  prudence  "  in  adopting  the  one  course  or  the  other  ;  and  if  he 
does  so  act,  he  will  not  be  personally  liable  for  any  loss  which  may  result 
to  the  estate  from  his  action  {Binnic,  1889,  16  K.\H  L.)  23).  In  M'Mill 
(1883,  21  S.  L.  R.  108)  trustees  were  directed  to  pay  the  income  of  the 
estate  to  the  four  daughters  of  the  truster,  the  fee  being  given  to  the 
children  of  the  daughters,  and  made  payable  to  the  family  of  each  on  her 
death.  The  truster  expressed  a  wish  that  the  estate  should  not  be  sold, 
and  authorised  his  trustees,  on  the  death  of  any  one  of  his  daughters,  to 
have  it  valued  in  order  that  they  might  allocate  it  and  divide  it  among 
the  families.  No  power  to  borrow  was  given.  On  the  death  of  one  of 
the  daughters,  a  valuation  was  made,  but  the  trustees  were  of  opinion  that 
the  estate  was  not  capable  of  division  for  the  purposes  of  the  trust.  The 
family  of  the  deceased  daughter  were  willing  to  accept  a  sum  of  money 
in  full  of  their  claims  upon  the  estate,  and  the  Court,  in  the  circumstances, 
granted  the  trustees  power  to  borrow  that  sum  u})on  the  security  of  the 
estate. 

(4)  Power  to  Excamb. — Xo  case  has  been  reported  upon  tliis  point. 
The  same  considerations  as  to  expediency  and  the  intention  of  the  truster 
would  weigh  with  the  Court  in  dealing  witli  an  application  for  this  power. 

Power  to  make  Advances  from  Capital. — By  the  seventh  section  of 
the  Act  of  1867,  the  Court  "may  from  time  to  time,  under  such  conditions 
as  they  see  fit,  authorise  trustees  to  advance  any  part  of  the  capital  of  a 
fund  destined,  either  absolutely  or  contingently,  to  minor  descendants  of 
the  truster,  being  beneficiaries  having  a  vested  interest  in  such  fund,  if 
it  shall  appear  that  the  income  of  the  fund  is  insufiicient  or  not  applicable 
to,  and  that  such  advance  is  necessary  for,  the  maintenance  or  education 
of  such  beneficiaries,  or  any  of  them,  and  that  it  is  not  expressly  prohibited 
by  the  trust  deed ;  and  that  the  rights  of  parties  other  than  the  heirs  or 
representatives  of  such  minor  beneficiaries  shall  not  be  thereby  prejudiced." 
Prior  to  the  passing  of  the  Act,  the  Court  held  that,  in  virtue  of  its  nohilc 
officium,  it  could  authorise  such  advances  where  the  beneficiaries  had  a 
vested  interest  in  the  fund.  For  example,  where  the  trust  estate  was 
liferented  by  the  widow  of  the  truster,  and  on  her  death  was  divisible 
amongst  such  of  her  cliildren  as  should  survive  her,  it  was  held  that  there 
was  a  vested  interest  in  the  children  as  a  class,  and  authority  to  make 
advances  was  granted  {Hamilton,  1860,  22  D.  1095).  But  where  the 
estate  was  liferented  by  the  spouses,  and  on  the  death  of  the  survivor  it 
was  directed  to  Ije  divided  amongst  the  children  of  the  marriage  then 
surviving,  with  a  provision  that  if  the  children  who  survived  the  dissolution 
of  the  marriage  should  predecease  the  survivor  of  the  spouses,  it  was  to 
be  paid  over  to  the  surviving  spouse,  it  was  held  that  there  was  no  vesting 
in  the  children  even  as  a  class,  and  tliat  the  Court  could  not  competently 
authorise  an  advance  (Mundcll,  1862,  24  IJ.  327). 

The  section  above  quoted  speaks  of  advances  being  made  to  "  bene- 
ficiaries having  a  vested  interest "  in  the  fund.  Tliis  has  been  interpreted 
as  meaning  "  beneficiaries  who  shall,  if  they  survive,  have  the  only  right 
and  interest  in  such  fund,  but  who  are  now  vested  only  with  a  contingent 
interest"  (per  Ld.  Cowan  in  Pattison,  1870,8  M.  575,  at  p.  578).  The 
l)roviso  that  the  right  of  parties  other  than  the  heirs  or  representatives 
of  the  minor  beneficiaries  shall  not  be  prejudiced,  means  that  "  the  right 
of  stranger  substitutes   must  not   be  affected  ;  but  the  provision  will  be 


TItUSTEE  3C9 

operative  iu  I'uvoui-  nf  luiunr  tlfsceiidants  of  the  truster,  •'    ■•  •'   •'     -  ' 
and  representatives  maybe  prejudiced  "  (it.).     Wl,.rc  \, 
until  the  expiry  of  a  liferent,  and  where,  if  all  or  any  of  the  I. 
predecease  that  date,  there  is  a  destination  over,  not  to  tlie  Burv, 

class  or  to  tlie  issue  of  jiredeceascrs,  but  Uj  third  \mr\'' '     ' 

power  either  at  common  law  or  under  the  Aetloauii    .  ^ 

capital  (7jVoV/(V,  1890,  3:5  S.  L.  i;.  589).  In  //',./,  Trs.  (1877,  4  R  87«j) 
there  was  held  to  be  a  lomiilete  compliance  with  the  conditionH  i  ! 

by  the  statute,  antl  authority  to  make  advances  wa.s  ^'ranted.     Ii 
Tn.  (1894,  21  11.  995),  trustees  held  an  estate  for  bcho(,f  ..f  the  t 
children,  who  were  all  minors,  subject  to  a  dirccticjn  to  divide  it  aiii 
children  or  the  survivors  on  the  youngest  child  attiiiidng  niajority,  and  with 
a  declaration   tliat    the    provisions   should    not   vest   until    tlic   i         1    «.f 

division.     There  was  no  destination  over  in  the  event  of  the  <: a  all 

dying  before  the  period  of  division,  and  there  was  n(j  direction  a«  to  the 
application   of   the    accruing    income.      A    petition   by  the   ti  for 

authority  to  apply  the  whole  or  part  of  this  income  to  the  ni;ui. 
and  education  of  the  children  was  granted,  in  respect  (1)  that   :..     ....- 

appropriated  income  formed  part  of  the  capital ;  (2)  that  although  the 
interest  of  each  child  was  contingent,  and  had  not  vestetl,  the  eliildren  as 
a  class  had  a  vested  interest  in  the  sense  of  the  statute;  and  (M)  that  no 
persons  had  an  interest  in  the  estate  other  than  the  chili Ireu  and  their 
heirs  and  representatives,  as  in  the  event  of  all  the  ciiiKlren  dying  U-fore 
the  provisions  vested,  the  estate  would  fall  to  be  dealt  with  aa  intciitatc 
succession  of  the  testator,  and  would  be  ]»ayable  to  the  rep'  tivesof 

the  eliildren,  his  next  of  kin  (see  also  Clark's  Trs.,  1895,  2-  J».  ,  ■■■■■ ,. 

In  BaircVs  Trs.  (1892,  19  11.  1045)  the  trust  estate  was  to  be  divided 
among  the  four  daughters  of  the  truster,  vesting  being  po.stponed  until  the 
youngest  attained  majority.     The  trustees  had  power  under  the  dectl  to 

make  advances  to  the  daughters  on  their  marriage,  such  ad' '     '--• 

imputed  to  their  shares.     The  trustees  paid  each  of  three  > 

were  married  during  the  subsistence  of  the  trust  a  sum  of   £1000.  and 

made  her  an  ainiual  allowance  of  £300.     It  was  held  that  ll  ■  ,' 

of  the  annual  allowances  was  ultra  rircs  of  the  trustees;  that   ' 

ances  paid,  with  interest  thereon  to  the  date  of  division,  were  to  i  ,         > 

to  each  daughter's  share  of  the  estate ;  that  the  interest  was  to  be  calcidalcil 

at  the  rate  which  the  rest  of  the  trust  fund  was  yielding;  and  that  no 

interest  was  chargeable  on  tlie  sums  of  .CI  000.     Again,  where  tr-  •         '     I 

power  to  make  advances  from  capital  for  behoof  of  one  of  the  i 

estate,  the  liferentrix  was  held  to  have  no  power  to  interfere  with  the 

trustees  in  the  exercise  of  their  discretion  (CaithiKss,  1877,  4  IJ.  ' 

The  Court  has  no  power  under  sec.  7  of  the   1SG7  Act  i  ••  n 

payments  alreadv  made  out  of  capital  for  the  maintenancn  of  1 
(i?os5, 1895,  3  >S.  L.  T.  308). 

Power  to  make  Adv^vnces  fuo.m  Income  i»ikectei)  to  db  a« 
Where  a  testator  has  directed  the  income  of  his  estate  t.    '  i 

until  a  certain  term,  tlie  Court  may,  in  the  exerci--"  <.f  ... 
authorise  the  trustees  to  make  advances  from  such  ^^L  ^  . 

persons  wlio   will   eventually  be   entitled   to  it  {Minr,   1SS7.  15    i 
Za««,  1880,  7  E.  881).     An  application  for  adv 
to  be  accuniulatod,  made  within  six  months  ..... 
refused  as  contrary  to  tlie  exi-ress  directions  of  the  t: 
in  any  case  premature  {Thomson,  188:'.  11   K.  401);  but  an 
made  three  years  later  by  anotlicr  set  of  beneficiaries  under  the  s^iuc  iruit 

S.  E. — VOL.  XII. 


370  TliUSTEE 

was  grauted  (  Wehster,  1887, 1-i  R.  501) ;  and  a  new  application,  subsequently 
made,  by  the  former  set  of  beneficiaries,  was  afterwards  granted.  These 
applications  were  made  alternatively  under  sec.  7  of  the  1867  Act,  or  as 
an  api>eal  to  the  nolile  officium  of  the  Court,  but  they  were  granted  in 
virtue  of  the  nolile  officium. 

Where  tlie  beneficiaries  are  not  mmor  descendants  of  the  truster,  the 
Trusts  Act  does  not  apply,  but  the  Court  may  act  in  virtue  of  its  nohilc 
officium  (see  Colquhoun,  1894,  21  R  671;  Ritchie,  1890,  17  E.  673; 
Thomson,  1888,  15  E.  719). 

Power  to  make  Allowance  from  In'co.me. — AVhere  trustees  hold  a  sum 
of  money  for  behoof  of  children  who  have  a  vested  right  to  it,  though  the 
period  of  payment  is  postponed,  they  are  bound  to  pay  out  of  the  income 
thereof  such  sum  as  may  be  necessary  for  the  maintenance  and  education 
of  the  children  {MacUntosh,  1872, 10  M.  933 ;  Stewart's  Trs.,  1871,  8  S.  L.  E. 
367).  In  Edmiston  (1871,  9  M.  987)  the  Court  authorised  trustees  to  pay 
an  allowance  of  this  nature  to  a  father  who  was  domiciled  in  England,  for 
tlie  maintenance  of  his  children.  But  in  Seddon  (1891,  19  E.  101)  the 
Court  declined  to  allow  trustees  to  pay  to  a  father  who  by  the  law  of  his 
domicile  was  not  the  legal  guardian  of  his  children,  until  he  had  been 
appointed  as  such  by  the  Courts  of  his  domicile ;  but  upon  his  being  so 
appointed,  they  authorised  the  trustees  to  make  payment  to  him  (Seddon, 
1893,  20  E.  675).  A  petition  by  Scottish  trustees  for  authority  to  pay  the 
income  of  legacies  to  the  fathers  of  minor  beneficiaries  domiciled  in 
England,  and  who,  according  to  the  law  of  England,  could  not  give  valid 
discharges,  was  refused  on  the  ground  that  the  Court  had  no  power  to  grant 
the  authority  craved  {Atherstones  Trs.,  1896,  24  E.  39).  Where  a  dis- 
cretionary power  as  to  the  amount  of  the  allowance  to  be  made  has  been 
given  to  the  trustees,  the  Court  will  not  interfere  "  unless  a  gross  case  of 
dereliction  or  misconception  of  duty  is  presented  "  (per  Ld.  Deas  in  Douglas, 
1872,  10  M.  943,  at  p.  946;  Sijcars's  Trs.,  1873,  11  M.  731).  But  where 
the  discretionary  power  was  in  the  hands  of  trustees  who  were  themselves 
interested  in  the  fund  being  kept  as  large  as  possible,  the  Court  interfered 
and  ordered  an  increase  of  the  allowances  made  {Thomson,  1888, 15  E.  719). 
Where  trustees  were  directed  either  to  accumulate  or  to  apply  "  for  the 
outfit  or  establishment  in  business  of  the  sons,  or  on  the  marriage  of  the 
daughters,"  the  income  of  a  fund  destined  to  the  truster's  children,  the 
Court  held  that  these  alternative  directions  did  not  exhaust  the  powers  of 
the  trustees,  but  that  they  were  entitled  to  make  such  advances  as  they 
might  think  desirable  for  the  maintenance  and  education  of  the  children 
{Christie,  1877,  4  E.  620;  see  also  Briggs,  1869,  8  M.  242).  Where  no 
discretionary  power  as  to  the  amount  of  the  allowance  has  been  expressly 
given  to  the  trustees,  the  Court  has  in  several  cases  interfered  to  fix  the 
amount  on  the  application  of  the  minor  or  some  one  on  his  behalf  {Muir, 
1887,  15  E.  170;  Baird,  1872,  10  M.  482;  MacJcie,  1872,  10  S.  L.  E.  49). 

Tower  to  apply  Trust  Funds  for  payment  of  Heritable  Debt. — 
Where  trustees  have  been  empowered  or  directed  to  invest  the  trust  funds 
in  the  purcliase  of  heritable  property,  they  may  apply  to  the  Court  for 
authority  to  apply  the  money  in  payment  of  any  debt  or  burden  affecting 
any  heritable  property  destined  to  the  same  series  of  heirs,  and  sul)ject  to 
the  same  conditions  which  were  to  be  applicable  to  the  property  directed 
to  be  purchased  (30  &  31  Vict.  c.  97,  s.  8). 

Procedure  in  Petitions  for  Special  Powers. — An  application  to  the 
Court  under  the  authority  of  the  Trusts  Acts  must  be  by  petition  addressed 
to  the  Court,  and  brought  in  the  first  instance  before  any  one  of  the  Lords 


s 


TlirSTKK  37, 

Ordiuary,  who  may,  after  such  iiitinmtinn  ami  iii(|uii  \        "  ^ 

dispose  of  it.     Tiie  power  of  the  Lonl  (  Mdiiiary  U-iu. „' 

is  enrolled  may  be  exercised  by  the  I/»rd  Ordinary  on  the   1  ,.» 

vacation,  and  all  such  petitions  are,  as  re8i)ect8   proec<lure,  •:  an3 

review,  subject  to  the  same  rules  and   regulations  vm  aj>plv   lo   i  ,» 

coming  before  the  Junior  Lord  (JnHnary  in  virtue  of  t'  ■•  ''"  -■■         ,,,  .^f 
Business  Act  of  1857  (20  &  21  Vict.  c.'2G)(;50  &  31  jr.). 

It  has  been  held  that  a  petition  under  the  Act  may  conijK'tently  Ijo  i  I 

in  vacation  to  tlie  Lord  Ordinary  on  llie  liills  (Sfarelcy,  1883,  20  S.  L  K.  /.or.). 
Where,  however,  the  exercise  of  tlie  iiobilc  oj/iriuni  of  the  Court  ■     •  ■    '  .  ! 
the  petition  must  be  presented  to  tlie  Inner  House,  and  cannot  .    ,  v 

be  dealt  with  by  a  Lord  Ordinary,  even  where  it  contains  subsidiury  i 
which  would  themselves  fall  within  liis  jurisiliction  {.}fifrh,-l/,  1S04,  2  M 
1378;  see  To^?,  1895,  23  1(.  3G).  A  petition  rested  aliernaUvL-ly  on  the 
nobile  officium  and  the  provisions  of  the  Act  is  competent Iv  ]ire.sente<l  t«« 
the  Inner  House  ( Welstc;  1887, 14  R  501 ;  Latta,  1880,  7  K."hh1  ).  Wh.-re 
trustees  under  an  English  trust  who  had  ajiitlied  for  autliorily  to  sell 
heritage  in  S^cotland,  and  had  been  refused  it  on  the  ground  that  the  Tru.«tfl 
Acts  did  not  apply  to  English  trusts,  presented  an  aj»jtlication  to  the  noltle 
officium  of  the  Court,  founding  upon  an  order  of  an  English  Court  author- 
ising them  to  apply  for  authority  to  sell,  the  ajtplication  was  made  to  the 
Inner  House,  and  the  authority  was  granted  {Allan,  1897,  24  II.  718). 

Investments. 

The  investment  of  the  trust  funds  is  one  of  the  most  inijx.rtant  and 
responsible  of  the  duties  wiiich  lie  upon  the  trustee.     He  incur-^  ;'  •  ' 

liability  to  the  beneficiaries  to  make  gond  any  loss  which  may  r-  i 

holding  unauthorised  investments,  while  at  the  sjime  time  he  is  i  i 

to  reap  any  personal  advantage  from  any  such  investment  whicli  turns  out 
to  be  profitable  (see  Cochrane,  1855,  17  I).  321). 

When  trustees  have  funds  belonging  to  the  trust  in  their  1 ^-  ••  -h 

their  duty  to  find  a  proper  investment  for  them,  ami  they  are  n<' 

to  allow  them  to  be  idle,  or  to  leave  them  in  l)ank  upon  deixisit  receipt 

{Melville,  1896,  24  li.  243),  though  this  latter  curse  is  the  j.r  > 

adopt  as  a  temporary  expedient  pending  the  finding  of  a  pro]>or 

{Melville,  ut  siqn-a).     When  trust  money  is  so  deposited,  awaiting  : ; 

the  receipt  should  be  taken  in  the  name  of  the  trustees,  and  not  in  that  >•( 

their  agent  {Fenjuson,  1898,  25  K.  097).     When  trustees  liacl  left  nmrn-y 

upon  deposit   receipt   for   nineteen  years,  they  were   hold    liable   to   th«' 

beneficiaries  for  the  difference  between  the  interest  actually  ciri:.  d    ai;! 

three  per  cent.,  the  rate  which  might  have  been  obtained  had 

been  properly  invested  {Mrlrillc,  ut  supra).     It  has  been  held  by  Ia\.  br^ 

that  trustees  who  were  authorised  by  their  deed  to  invest  " 

heritable  or  personal,  or  in  such  stocks  a.s  they  shall    i; 

entitled,  as  a  tem])orary  investment,  to  lend  the  money  to  a  h- 
security  company  of  limited  liability,  the  act  of  the  trustees  jn  !■ 
money  being  in  good  faith,  proper  inquiries  havi' 
company  being  in  good  repute  at  the  time  of  tb" 
20  S.  L.'R  575). 

Investment.^  under  1884  Act.— In  investmg  the  u 
must  be  guided  by  the  powers  of  investment  given  to  h;:.. 
or  l)y  the  investment  clause  of  the  Trusts  Act  of  l"^"^"'       ' 
48  Vict.  c.  63,  s.  3)  repeals  sec.  5  of  the  lStJ7  Act.  w! 
power  of  investment,  and   provides   that  "  trustees  under  a: 


372  TRUSTEE 

unless  specially  prohibited  by  the  constitution  or  terms  of  the  trust,  invest 
the  trust  funds — 

(a)  In  the  purchase  of — 

1.  Any  of  the  Government  stocks,  public  funds,  or  securities  of 

the  United  Kingdom. 

2.  Stock  of  the  Bank  of  England. 

3.  Any  securities  the  interest  of  which  is  or  shall  Ije  guaranteed 

by  Parliament. 

4.  Debenture    stock    of    railway   companies    in    Great    Britain 

incorporated  by  Act  of  Parliament. 

5.  Preference,  guaranteed,  lien,  annuity,  or  rent-charge  stock,  the 

dividend  on  which  is  not  contingent  on  the  profits  of  the  year, 
of  such  railway  companies  in  Great  Britain  as  have  paid  a 
dividend  on  their  ordinary  stock  for  ten  years  immediately 
preceding  the  date  of  investment. 

6.  Stock   or  annuities  issued   by  any  municipal   corporation  in 

Great  Britain,  which  annuities  or  the  interest  or  dividend 
upon  which  stock  are  secured  upon  rates  or  taxes  levied  by 
such  municipal  corporation  under  the  authority  of  any  Act 
of  Parliament. 

7.  East  India  stock,  stocks  or  other  public  funds  of  the  Government 

of  any  colony  of  the  United  Kingdom  approved  by  the  Court 
of  Session,  and  also  bonds  or  documents  of  debt  of  any  such 
Government   approved   as   aforesaid,  provided   such   stocks, 
bonds,  or  others  are  not  payable  to  the  bearer. 
(&)  In  loans — 

9.  On    the    security   of    any    of    the    stocks,    funds,   or    other 
property  aforesaid. 

10.  On  real  or  heritable  security  in  Great  Britain. 

11.  On   debentures   or  mortgages  of   railway  companies  in  Great 

Britain  incorporated  by  Act  of  Parliament. 

12.  On  bonds,  debentures,  or  mortgages,  secured  on  rates  or  taxes 

levied  under  the  authority  of  any  Act  of  Parliament,  ])y  muni- 
cipal corporations  in  Great  Britain  authorised  to  borrow 
money  on  such  security. 

13.  On  Indian  railway  stock,  debentures,  bonds,  or  mortgages  on 

which  the  interest  is  permanently  guaranteed  by  the  Indian 
Government,and  payable  in  sterling  money  in  Great  Britain : — 
Provided  that  the  trustees  shall  not  be  held  to  be  subject  as  defendants 
or  respondents  to  the  jurisdiction  of  any  of  Her  Majesty's  Courts  of  law 
or  equity  in  England  or  Ireland,  either  as  trustees  or  personally,  in  any 
suit  for  administration  of  the  trust  by  reason  of  their  having  invested  or 
lent  trust  funds  as  aforesaid." 

By  sec.  44  of  the  Local  Authorities  Loans  (Scotland)  Act  of  1891  (54  & 
55  Vict.  c.  34),  trustees  who  have  power  to  invest  in  the  mortgages, 
debentures,  or  debenture  stock  of  any  railway  or  other  company  "shall, 
unless  the  contrary  is  provided  by  the  instrument  authorising  the  invest- 
ment, have  the  same  power  of  investing  money  in  stock  issued  under  the 
provisions  of  this  Act  (other  than  stock  for  the  time  being  represented  by 
a  stock  certificate  to  bearer)  as  they  have  of  investing  it  in  the  mortgages, 
debentures,  or  debenture  stock  aforesaid. 

To  the  powers  given  in  sec.  3  of  the  1884  Act,  there  is  added  by  the 
Trusts  Act  of  1898  (61  &  62  Vict.  c.  42,  s.  3)  a  power  to  invest— 

(a)  In   the   purchase   of    redeemable    stock    issued    under   the   Local 


TKI  STKK 


37.1 


Authorities    Loans  (Scotland)  Acts    l.v  aiiv  1,.,  .1   •■"Oioritiw    in 

Scotland. 
{b)  In  loans  on  bonds,  dcluMiturcs,  or  njort^'a^'cs  secured  on  any  rate  or 

tax  levied    under    the   authority  of   any  Act  of    I'    "  'by 

any  local  authority  in  Scutlind  mhiIm.i  i-..,l  f..  ]...•      ,    ..c-y  on 

such  security. 
In  the  section  of   the    1884   Act  ahovc  (luoted,  the  use  of  the  U?nii 
"Great  Britain,"  as  distinguislieil  from  "  United  Kin^,'d<jni,"  wil!  "  !. 

This  excludes  Irish  railway  and  corporation  slock  from  the  li.-;  -■ 
ments,  and  also  prevents  the  loan  of  trust  funds  upon  real  or  1  .  .-• 
security  in  Ireland.  In  the  correspondin<r  English  Act  (52  &  53  Vict  c. 
32)  the  phrase  used  is  "Great  Britain  and  Irrjand."  The  j.lim«c  "Eaat 
India  stock"  occurring  in  subsec.  («)  7,  is  inleriireled  (s.  "_')  '  •■  -^  \--\ 
30  &  31  Vict.  c.  132,  s.  1,  as  including  "as  well  the  Kast  ln«lia  ii 

existed  previously  to  the  thirteenth  day  of  August  IS'.O,  .  .  ,  a.s  Kist 
India  stock  charged  on  the  revenues  of  India,  and  created  luider  and  bv 
virtue  of  any  Act  or  Acts  of  Parliament  which  received  Her  >f  •  'vh 
assent  on  or  after  the  thirteenth  day  of  August  1859."     It  will  bt-  d 

also  that  colonial  stocks  must  be  approved  by  the  Court  of  Session  before 
they  are  available  as  lawful  investments.  This  approval  must  be  olitaine*! 
in  each  case  where  such  an  investment  is  ]»ro]Kised,  the  ajiproval  in  each 
case  meaning  no  more  than  that  the  particular  stocks  ajijaoved  of  are 
eligible  investments  in  the  particular  case  before  the  Court  {Aoountanl  of 
Court,  1886,  14  K.  55).  But  it  would  seem  that  a  judicial  factor,  and 
perhaps  also  a  trustee  who  has  ]iut  trust  mider  the  sui^'rint.     '  *■  the 

Accountant  of  Court,  under  sec.  18  of  the  dudicial  Fact<irs  A  .  '  (sec 

infra,  p.  381),  will  be  safe  if  he  obtains  for  his  proposed  invi  the 

sanction  of  the  Accountant,  who  will  "  sanction  investments  approved  of 
by  the  Court  so  long  as  they  continue  eligible  "  (per  Ld.  Mure  in    '  '     t 

of  Court,  ut  su2)7'a).     In  several  cases  the  Court  has  .s;uictioncd  i;. .  "h 

in  colonial  stock  witliout  requiring  service  of  the  petition  u|Kin  t! 
ficiaries  imder  the  trust  (Andersoi,  Dec.  1892;  Ati(lcrson,25Xh  Jan.  Ieu3, 
not  reported).     The  following  reported  cases  of  stock  aj»]'r<'Vod  of  under 
this  subsection  may  l)e  referred  to:   Maclean,  1885.  12  K.   '■-"'     /"'  "^>^.. 
1893,  1    S.   L.   T.  399;  Shand,  1803,  1  S.  L.  T.  190;   Ih-  '     :?. 

1  S.  L.  T.  227 ;  Blackiuood,  1894,  2  S.  L.  T.  190 ;  Robertson,  1  S.  L  T. 

138;  M'Connell,  1898,  5  S.  L.  T.  404;  Wilson,  1898,  6  S.  L  1.  146.  By 
43  &  44  Vict.  c.  8,  s.  7,  securities  of  the  Government  of  t'  ■  T^-  '  '^^  ■»  "'•• 
put  in  the  same  position  as  Colonial  Government  securi:  . 

investments  by  trustees.  A  municipal  corporation,  in  the  sense  of  the 
Act,  means  a  town  council  or  county  council,  or  some  similar  !»■  r 

Ld.  Adam  in  Cowan,  1897,  24  B.  599);  and  a  body  nf  ' "    •■•   • 

consisting  of   the  magistrates  of   a    town  ami  certain    i  .>* 

shipowners   and   ratepayers,  docs  not   come   under  that  d<  •• 

The  rates  and  taxes  levied  by  such  a  liody  under  its  Act  t»f  1 
being  payments  made  in  return  for  services  rendered,  and  1    ■    ■  *' 
carious,  are  not  of  the  nature  of  the  rates  and  taxe^^  ■ 
Trusts  Act,  which  are  ratlier  rates   and   taxes  for   j 
municipal  cor]ioration  is  entitled  to  assess  the  community  (//»"'"'«.  1 
24  K.  851 ;  1898,  25  B.  (H.  L.)  23 ;  Cowan,  ut  snpra).  . 

In  a  case  occurring  before  1884,  the  Court  sjinctione*!  ccrtn-.n  ni\ 
ments  which  had  been  made  by  a  curator  kvtis,  which  v-  inHl  on 

rates  leviable  under  the  Aberdeen  County  and  Municii»nl 
and  other  Acts,  these  having  been  reported  by  the  Accounuuii  -.  *".»t 


a 


374  TKUSTEE 

to  be  miexceptionable  {Grainger,  187G,  3  E.  479).  There  was  in  these 
investments  no  element  of  speenlalion ;  and  they  differed  from  the  loans 
made  to  the  harbour  trustees  in  JIttftons  and  Cowan's  cases,  where  the 
security   depended   upon   the   success   of    tlie    harbour   as   a   commercial 

luidertakiut,'. 

By  the  "National  Debt  Conversion  Act  of  1888  (51  Yict.  c.  2,  s.  27), 
trustees  who  hold  stock  converted  by  this  Act  into  new  stock,  are  entitled 
to  sell  the  same  and  invest  the  proceeds  in  any  of  the  securities  recognised 
as  legal  trust  investments,  "notwithstanding  anything  to  the  contrary 
contained  in  the  histrument  creating  the  trust."  Thus  trustees  who  are 
explicitly  forbidden  to  sell  Consols  held  by  them,  are  entitled,  in  cases 
which  fall  under  this  Act,  to  sell  and  invest  the  proceeds  in  any  proper 
trust  investment  (TucJcett's  Trusts,  1888,  36  W.  K.  542). 

The  powers  of  investment  conferred  by  the  Act  of  Parliament  do  not 
restrict  or  control  any  power  of  investment  expressly  contained  in  the 
trust  deed  (30  &  31  Yict.  c.  97,  s.  6),  but  powers  given  in  the  deed  will  be 
strictly  construed  by  the  Court  (see  Bitchies,  1888,  15  E.  1080 ;  Iioy,  1895, 
3  S.  L.'  T.  330). 

Investments  undek  Powers  given  in  the  Deed. — A  trust  deed 
frequently  gi^■es  what  appears  to  be  a  very  wide  power  of  investment.  For 
example,  a  power  may  be  given  "  to  invest  the  trust  funds  in  any  of  the 
Government  securities,  or  upon  heritable  security  in  Scotland,  or  in  such 
other  way  or  on  such  other  securities  as  my  trustees  shall  think  i^oiier  "  (see 
Ritchie,  ut  supra).  But  such  a  clause  will  not  entitle  the  trustees  to  invest 
in  any  securities  which  are  not  recognised  by  the  law  as  "  proper  "  for  the 
investment  of  trust  funds,  and  only  an  express  permission  from  the  truster 
will  justify  them  in  making  such  an  investment.  And  even  in  choosing 
from  among  the  investments  which  are  expressly  permitted  by  the  trust 
deed,  a  trustee  has  not  the  same  freedom  as  a  person  sui  juris  dealing  with 
his  own  estate  would  have.  "  Business  men  of  ordinary  prudence  may,  and 
frequently  do,  select  investments  which  are  more  or  less  of  a  speculative 
character;  but  it  is  the  duty  of  a  trustee  to  confine  himself  to  the  class 
of  investments  which  are  permitted  by  the  trust,  and  likewise  to  avoid  all 
investments  of  that  class  which  are  attended  with  hazard  "  (per  Ld.  "Watson 
in  Learoyd,  1887,  12  App.  Ca.  727,  at  p.  733,  quoted  by  Ld.  Shand  in 
Maclean,  1888,  15  E.  985).  AVhere  trustees  had  made  an  investment  which 
undoubtedly  fell  within  the  class  of  investments  permitted  by  their  deed, 
but  which  ultimately  turned  out  to  be  a  bad  one,  it  was  held  that  if  they 
had  made  proper  investigation,  they  could  and  should  have  known  that  the 
security  oflered  was  insullicient,  and  that  the  investment  was  not  a  good  one 
of  the  class,  and  that  they  were  accordingly  liable  to  make  good  the  loss 
{Johnstone,  1899,  6  S.  L.  T.  439).  "Where  trustees  had  been  authorised  by  the 
truster  to  retain  securities  upon  which  his  estate  might  be  invested  at  his 
death,  and  had  accordingly  retained  certain  deposit  receipts  with  a  foreign 
bank  which  were  not  yet  payable,  and  which  could  not  easily  have  been 
realised,  it  was  held  that  they  were  not  liable  for  the  loss  which  was 
sustained  when  the  bank  suspended  payment  before  the  maturity  of  the 
receipts  {ScotCs  Trs.,  1895,  23  E.  52). 

To  make  trustees  liable  for  the  loss  sustained  by  a  fall  in  the  value 
of  securities  which  they  are  authorised  by  the  trust  deed  to  hold,  it 
is  necessary  to  prove  wilful  default,  including  want  of  ordinary 
prudence  on  the  part  of  tlie  trustees  {Chapman,  [1896]  2  Cli.  763).  But 
they  are  bound  to  exercise  ordinary  prudence  in  satisfying  themselves 
from  time  to  time  of  the  soundness  of  the  investments  {Thomson,  1890, 


TKl'STHK 


375 


18  1{.  24 ;  see  Euhinson,  1880,  7  K.  G94 ;  1881,  8  1;.  ( II    L)  1">7 •  Seott   1 
23  R.  52).  y  t  i-i  ,  .>-orr.  i 

PElisONAL  Seciiuty. — In  a  case  in  wliith  tiuslci-.s  hu.l  1„  r 

to  lend  the  trnst  funds  "on  such  .securities,  heritahle  or  j..  ...... li  >• 

may  think   proper,"  Ld.    ^\'atson   said :  "  A   ])ower   to  lend   on    i  il 

security  has  been  held  in  Scothmd  to  include  lending,'  on  i>en>onal  credit ; 
but  it  must  be  kept  in  view  that  in  reiiuirin^'  sonje  kind  of  security  to  l*e 
taken,  it  was  the  plain  object  ol'  the  truster  to  ])reserve  intact  th-  -  "  il 
of  the  trust  estate  for  the  benelit  of  the  persons  ultinmtelv  enlii.  .u 

It  appears  to  me  that  the  authority  to  invest,  which  he"give«  for  that 
obvious  j.urpose  and  no  otlier,  cannot  be  construed  as  a  licence  to  hin 
trustees  to  take  a  worse  instead  of  a  better  security, — that  is  to  sav,  to 
accept  a  bare  personal  obligation  so  long  as  it  is  possible  for  theiu  Ut 
obtain  a  pledge  of  heritable  or  movealjle  pnjperty.  The  |)Ower  to  lend 
trust  money  on  personal  credit  may  prove  very  useful  to  trustees  who  are 
in  search  of  a  permanent  investment ;  but  trustees  wlio  make  a  jH-nuan«Mil 
loan  on  that  footing  must,  in  my  opinion,  if  any  loss  results  from  il,  ju.stify 
their  action  by  showing  that  no  safer  investment  was  open  to  them" 
(Knox,  1888,  15  R.  (11.  L.)  at  p.  86;  see  same  case,  reixjrted  as  Millar x 
Factor,  1886,  14  R.  22). 

Where  a  loan  is  made  ujion  the  security  of  moveable  property,  the 
liability  of  the  trustee  would  be  limited  under  sec.  4  of  the  Act  ftf"  1891 
(quoted  infra). 

Heritable  Secukities. — At  common  law,  and  under  the  Act  t.i  1884. 
trustees  have  power  to  invest  in  loans  uj)on  "real  and  heritable  — -Mitv  jn 
Great  Britain."     Real  securities,  in  the  sense  of  the  Act,  have  i  ■  <l 

as  "securities  in  which  the  value  of  the  real  subjects  pledged  8h(iuld  l»e 
alone  or  primarily  looked  to  or  regarded  as  sidlicient  to  secure  rc|«iiynient 
of  the  proposed  loan"  (per  L<1.  Adam  in  Coican,  1S07,  24  R.  at  p.  598X 
Thus  harbour  trust  mortgages,  where  what  was  a.ssigneil  in  security  was 
"the  rates,  dues,  and  other  revenues  of  the  trust,"  and  where  there  were 
no  means  by  which  the  heritable  subjects  belonging  to  the  tru.st  could  |je 
attached  or  realised  for  payment  of  the  creditors,  were  held  not  to  U'  pnijier 
trust  investments  {Cotcan,  1897,  24  R.  590;  Anmn,  1S97,  24  K*.  ^51; 
1898,  25   R.  (H.  L.)  23;   Johnstone,  1899,  6  8.   I..    1".  4:59;  see  '  k 

ffarhour  Trustees,  1888,  15  R.  343).  But  it  has  been  held  tliat  an  Kugh^h 
will  which  empowered  the  trustees  to  invest  on  real  security  auth'  ••  '  '.u 
investment  on  a  railway  mortgage,  the  ground  of  tlie  juilgment  b'  ^  it 
such  a  mortgage  was  a  real  security  within  the  meaning  of  the  power 
"because  it  gives  to  the  mortgagee  the  security  of  tlie  whole  und.  *, 

— tliatis,  of  the  wdiole  real  and  moveable  i.r<»perty  of  the  coni}Min\  ii  i» 
true  that  it  is  a  security  which  cannot  be  made  avaihible  to  the  <Te<lilor 
by  the  ordinary  diligence  of  the  law.  Hut  he  has  a  dilVerent  kind  of 
diligence  in  his  riglit  to  obtain  the  ai.pointment  of  a  judicial  factor,  tlm»ugh 
whose  administration  the  undertaking  may  be  m.i'  or  di.-i  i  lor 

the  benefit  of  the  ccmipany's  creditors.     The  moi>_..__.  >    has  i;  the 

security  of  the  real  projierty,  wliicli  is  what  is  meant  by  a  re  . 
{BreatcUf,  1887, 14  R.  307,  per  Ld.  Kinnear  (Ordinary). quoted  by  1  .i 

in  Covan,  ut  supra;  see  also  Lloyil,  1877,  5  K.  2>;0 ;  Ihldane,  Ibai. 
669,  lOO::!). 

Buildings   in  course   of   erection   do   nut   form  a  jiropor  ^  •    for 

investment^of  trust  funds,  especially  where  it^ia  projxxscil  ;  ^ 

erection  by  means  of  the  money  borrowed  (^7»i/</.  1 ' 
1889,16  R.  (If.  L.)  31,  reversing  1888,  15  R.  103;;,  '- 


376  TRUSTEE 

1065).  "Wlien  trust  funds  are  lent  on  the  security  of  heritable  subjects 
any  part  of  which  is  iu  the  occupation  of  the  owner  or  unlet,  that  fact 
should  be  taken  into  consideration  in  estimating  the  amount  of  the  rental 
available  for  payment  of  the  interest  on  the  loan  {Maclean,  1888, 15  R.  966). 
Where  the  primary  purpose  of  the  trust  is  the  payment  of  an  alimentary 
annuity,  the  trustees  should  be  specially  careful  that  the  security  is 
sufficient  for  the  interest  on  the  loan  {ih.,  per  Ld.  I'res.  Ingiis,  at  p.  987). 

The  liability  of  trustees  lending  upon  heritable  security  has  been  limited 
by  the  Act  of  1891  (5-4  &  55  Vict.  c.  44),  which  provides  (s.  4): 

"  (1)  No  trustee  lending  money  ujjon  the  security  of  any  property  shall 
be  chargeable  with  breach  of  trust  by  reason  only  of  the  piroportion  borne 
by  the  amount  of  the  loan  to  the  value  of  such  property  at  the  time  when 
the  loan  was  made,  provided  that  it  shall  appear  to  the  Court  that  in 
making  such  loan,  the  trustee  was  acting  upon  a  report  as  to  the  value  of 
the  property  made  by  a  person  whom  the  trustee  reasonably  believed  to 
be  an  able  practical  valuator,  instructed  and  employed  independently  of 
any  owner  of  the  property,  whether  such  valuator  carried  on  business  in 
the  locality  where  the  property  is  situated  or  elsewhere,  and  that  the 
amount  of  the  loan,  by  itself  or  in  combination  M'ith  any  other  loan  or  loans 
upon  tlie  property,  ranking  prior  to  or  ^:)a?-i  2^assu  with  the  loan  in  question, 
does  not  exceed  two  equal  third  parts  of  the  value  of  the  property  as  stated 
in  such  report.  And  this  section  shall  apply  to  a  loan  upon  any  property 
on  wliich  the  trustee  can  lawfully  lend.  (2)  This  section  shall  apply  to 
transfers  of  existing  securities  as  well  as  to  new  securities;  and  in  its 
application  to  a  partial  transfer  of  an  existing  security,  the  expression 
'  the  amomit  of  the  loan '  shall  include  the  amount  of  any  other  loan  or 
loans  upon  the  property,  ranking  prior  to  or  7;«?'i  imssu  w^th  the  loan  in 
question " ;  and  (s.  5)  "  Where  a  trustee  shall  have  improperly  advanced 
trust  money  on  a  heritable  security,  which  would  at  the  time  of  the 
investment  have  been  a  proper  investment  in  all  respects  for  a  less  sum 
than  was  actually  advanced  thereon,  the  security  shall  be  deemed  an 
authorised  investment  for  such  less  sum,  and  tlie  trustee  shall  only  be 
liable  to  make  good  tlie  sum  advanced  in  excess  thereof,  with  interest." 
Both  these  sections  are  retrospective. 

Trustees  are  therefore  safe  in  lending  up  to  two-thirds  of  the  value 
of  the  property;  and  where  they  have  allowed  a  smaller  margin  than  one- 
third,  they  are  only  liable  to  tlie  extent  of  the  excess  of  the  loan  over  what 
they  were  entitled  to  lend.  But  the  Act  will  only  protect  them  if  they 
have  fulfdled  the  duty  laid  upon  them  of  obtaining  an  independent  report 
upon  tlie  value  of  the  property.  The  valuator  should  not  l)e  selected  or 
suggested  by  the  owner  of  the  property ;  and  if  the  usual  practice,  by  which 
the  cost  of  the  valuation  is  paid  by  the  borrower,  is  followed,  distinct 
evidence  should  be  preserved  that  the  valuator,  though  paid  by  the 
borrower,  was  selected  and  employed  by  the  trustees.  In  i?«es  (1889,  16 
R.  (H.  L.)  31,  reversing  1888,  15  R.  1033),  where  trustees  were  held  liable 
for  loss  resulting  from  an  investment,  the  valuation  had  been  made  by  an 
architect  employed  by  the  borrower,  and  the  trustees  had  obtained  no 
separate  valuation.  Again,  a  curator  bonis  lent  funds  upon  the  security  of 
buddings  in  course  of  construction,  on  a  valuation  by  an  architect 
employed  by  the  borrower,  and  made  solely  from  jdans,  tlie  buildings 
themselves  not  being  examined.  The  security  turned  out  to  be  inadequate, 
and  it  was  held  that  the  curator  bonis  was  personally  bound  to  replace 
the  money  lent  (Crabbe,  1891,  18  R.  1065;  see  also  Fry,  1884,  28  Ch.  Div. 
268;  Godfrey,  1883,  23  Ch.  Div.  483). 


TIirSTKK  377 

lu  a  recent  En|j;lisli  case,  a  trustee  was  hekl  not  to  be  entitled  to  relief 
where  he  had  acted  on  a  vahiation  which  stated  merely  iljt-  amount  for 
which  the  jivoporty  was  a  ^ocA  security,  and  where  he  !     '     "  re 

than  two-thirds  of  the  vahie  stated  in   the  valuation.      I.  ...»J 

been  employed  by  his  solicitor,  who  acted  also  for  the  m(»i  .    i  the 

trustee  could  not  allege  that  he  reasonably  believed  the  valuator  to  luive 
been  em])loyed  independently  of  the  owner  of  the  proj»erty  (iStuart,  [1897] 

2  Ch.  r.8;;). 

Trustees  are  not  entitled  to  act  solely  on  the  strength  of  the  valuator's 
opinion  that  the  security  is  suflicient.  "  If  they  cmjiloy  a  person  of 
competent  skill  to  value  a  real  security,  they  may,  so  long  a.s  thev  act  in 
good  faith,  safely  rely  upon  the  correctness  of  his  valuation.  I'.ut  the 
ordinary  course  of  business  does  not  justify  the  employment  of  a  valuator 
for  any  other  purpose  than  obtaining  the  data  necessary  in  order  to  enable 
the  trustees  to  judge  of  the  sufliciency  of  the  security  otlered.     'I  re 

not  in  safety  to  rely  upon  his  bare  assurance  that  the  security  is  miu:-  ..jit, 
in  the  absence  of  detailed  information  which  would  enable  them  to  form, 
and  without  forming,  an  opinion  for  themselves"  (per  lA.  Watson  in 
Learoyd,  1887,  12  App.  Ca.  at  p.  734;  sec  also  Crahhe,  1891,  18  i:.  10G:J, 
per  Ld.  M'Laren).  Where  prior  bonds  existed  over  the  j>roporty  upon 
which  the  money  was  lent,  and  a  sullicient  margin  was  not  left,  trusleea 
were  held  liable  for  loss  resulting  from  the  investment  (Knox,  1886,  14  K, 
22 ;  1888,  15  R  (H.  L.)  83). 

Investments  in  Trade  ok  Tkadino  Comi'amk.s. — Trust'  uui  euutlcd, 

unless  they  have  the  express  permission  of  the  truster.  In  .:...:  their  funds 
in  trade,  or  to  become  partners  in  a  trading  concern.  This  rule  prevent* 
them  from  purchasing  shares  in  a  trading  comjKiny,  as  such  a  purchase 
would  make  them  partners  in  the  company.  On  the  of  '  '  '  m  of 
trust  money  to  a  company,  where  the  trustees  stand  out.^...    ;..  -'V  aa 

creditors  and  not  partners,  may  be  a  good  investment.     Thus  in  7.  ^, 

15  E.  1086)  a  loan  of  trust  money  to  a  heritable  security  comj^any  on 
deposit  receipt  was  held  to  be  a  good  investment ;  while  a  ]'•     "      •■  of  fully 

paid  stock  of  a  limited  liability  company  was  held  to  be  »/.'• <   I'f  the 

trustees  (see  also  Grant,  18G9,  8  M.  77 ;  lamh,  1883,  20  S.  L  W.  575). 

In  order  to  justify  an  investment  of  trust  funds  in  a  trading  concenj, 
trustees  must  have  an  explicit  authority  so  to  invest  them  from  the  truster. 
The  fact  that  the  truster  lias  himself  invested  his  money  in  trade  or  in  a 
trading  company  docs  not  entitle  the  trustees  to  leave  it  lliere.     "  ^^  hat  the 
truster  may  haVe  done  in  his  life  is  no  rule  for  the  conduct  of  tr; 
appointed  by  him  for  the  management  of  his  estate  after  !  'h'   (jtr 

Ld.  Wood    in  Cochrane,  1855,  17  U  332;  see  Guthrie,  18:-...   ...    1>.  214; 

Laird,  1855,  17  D.  984).  It  is  their  duty  to  realise  the  mnnov  i:nl.-«  they 
have  been  given  power  to  keep  it  where  it  is : — "  to  put  t  -  in  a 

position  of  safety,  although  the  truster  may  have  left  them  in  u  i"  "» 

danger  "(per  Ld.  Shand  in  Broicnlir,niS),  G  K.  1241  :  '  X 

1881,  8  R.  (H.  L.)  127  ;  O.'^irahl,  1879,  6  i:.  401  ;  Jhmca  '_'- 

8).     In  realising  such  investments  the  trustees  arc  bourn  1  .^'. 

and  they  are  entitled  to  take  a  reasonable  time  in  ortler  thai  t  V 

realise  to  the  best  advantage  of  the  tru.'^t  e.sta*  ■ 

1858,  20  I).  117G,  per  Ld.  Deas,  at  ]>.  11.^4; 
Smith,  [189G]  1  Ch.  171;  OoirM^-r,  [1895]  2  ; 

retain  any  investment  made  by  the  truster  if  it  is  one  •  •[ 

have   been   entitle<l    to   make   under   the  p-^w  -itainca  in  men   u^-d 

{Robinson,  ut  supra,  per  Ld.  Watson,  8  II.  (H.  1-,*  •••■.»• 


378  TRUSTEE 

An  authority  to  retain  investments  made  by  the  truster  does  not  entitle 
trustees  to  purchase  shares  in  a  new  company  which  is  practically  a 
reconstruction  of  one  in  which  the  truster  had  held  shares  (Thomson,  1889, 
16  R.  517);  and  power  to  leave  money  invested  on  deposit  with  a  particular 
firm  will  not  hold  after  tliere  has  been  a  change  in  tlie  firm  (Tuclcr,  [1894] 
1  Q.  B.  724).  And  in  holding  investments  made  by  the  truster,  when  they 
have  authority  to  do  so,  trustees  must  exercise  ordinary  prudence,  and 
satisfv  themselves  from  time  to  time  as  to  their  soundness  {Thomson,  1890, 
18  R.' 24;  see  Scott's  Trs.,  1895,  23  R.  52).  So  long  as  they  do  this,  they 
will  not  be  held  responsible  for  loss  arising  from  them,  unless  they  have 
acted  negligently  or  in  bad  faith  (see  Euhinson,  1880,  7  R.  694;  1881,  8  R. 
(H.  L.)  127  ;  Chapman,  [1896]  2  Ch.  763).  An  express  prohibition  against 
investing  in  shares  of  an  unlimited  company  does  not  imply  a  power  to 
invest  in  those  of  a  limited  company  {Hardic,  1895,  2  S.  L.  T.  520). 

A  power  to  invest  in  "  bank  stock  "  has  been  held  to  include  stock  of 
any  of  the  Scottish  banks  in  good  repute  at  the  date  of  the  investment 
{Cunningham,  1879,  6  R.  1333).  But  where  trustees  had  power  to  invest 
in  the  stock  of  "any  chartered  bank,"  it  was  held  that  they  were  not 
entitled  to  invest  in  the  stock  of  a  bank  with  unlimited  liability  registered 
under  the  Companies  Act,  1862  {Sanders,  1879,  7  R.  157).  A  power  to 
invest  in  bonds  or  debentures  of  any  "  company  incorporated  by  Act  of 
l*arliament,"  does  not  authorise  an  investment  in  the  securities  of  a  company 
registered  under  the  Companies  Acts  {Davidson,  [1896]  2  Ch.  590  ;  see  Mre, 
[1891]  1  Ch.  501). 

Where  trustees  made  an  ultra  vires  investment  in  bank  stock,  which 
afterwards  rose  greatly  in  ^alue,  it  was  held  that  the  increase  in  value  fell 
to  be  added  to  the  capital  sum,  and  that  the  trustees  were  bound  immedi- 
ately to  realise  the  stock,  and  invest  it  according  to  the  provisions  of  their 
trust  deed  {Grant,  1869,  8  M.  77). 

A  truster  may  empower  his  trustees  to  carry  on  any  business  in  which 
he  may  be  engaged  at  the  time  of  his  death,  or  to  continue  his  interest  in 
any  business  in  which  he  mav  then  be  a  partner  (see  Zaiurie,  1892,  19  R. 
675;  Bcveridge,  18Q9,  7  M.  1034;  1872,  10  M.  (H.  L.)  1).  A  contract  of 
copartnery  may  provide  that  on  the  death  of  one  of  the  partners,  the 
Inisiness  shall  be  carried  on  by  the  surviving  partners  and  the  trustees  of 
the  deceased  partner  (see  Beveridge,  ut  supra) ;  but  wiiere  no  such  arrange- 
ment has  been  made,  the  surviving  partners  cannot  be  compelled  to  take 
the  trustees  of  the  deceased  partner  into  partnership.  Where  no  objections 
are  raised  by  the  surviving  partners,  trustees  who  have  power  to  carry  on 
their  truster's  business  are  entitled  to  enter  into  a  renewal  of  the  partner- 
ship arrangement  which  had  previously  existed.  But  where  the  other 
partner  is  liimself  one  of  the  trustees,  care  must  be  taken  to  give  him  no 
increase  of  interest  in  the  business,  even  in  consideration  of  additional 
tiouble  whicli  may  fall  on  him  in  managing  the  business  (see  per  Ld. 
M'Laren  in  Lau-rie,  ut  supra,  at  p.  683).  In  Mackie  (1875,  2  R.  312)  the 
trustees  of  a  deceased  partner,  who  were  entitled  under  the  contract  of  co- 
]jurtnery  to  his  share  in  the  business,  were  held  to  be  unable  to  contract 
with  the  surviving  partner,  who  was  himself  a  trustee,  to  the  effect  of 
increasing  his  share  of  the  profits  in  order  that  they  might  retain  his 
services  as  managing  partner.  Trustees  who  thus  become  partners  in  a 
business  are  collectively  one  partner,  and  each  trustee  individually  is  not  a 
I'urtner.  One  of  their  number  is  not  entitled  to  sign  in  name  of  the 
liartnership,  or  act  in  its  name  without  the  concurrence  of  the  other 
partners.     Xor   can   they   delegate   authority   so    to   act   to  one  of  their 


TiiUbTi:]-.  3-j^ 

numl.er.     "They  may  be  liaMc  as  partners  to  the  public;  ihcy  mar  be 
utble  as  represent ...Lc  tlien.selves  as  partners;  but  they  ccrlaiuly  lu»ve  ,.oi 
mat  quality  usseuUal  to  partnersliip,  vi/.  a  ri^-ht  U>  hhare  in  the  i 
iiu  obhgation  to  submit   to   tlie  losses  of  the  ccjueern.     ^\s  ;,.    . 
lietweeu  them  and  the  parties  whom  they  represent,  the  i 
whom  they  act  in  trust,  may,  I  think,  be  considered  n'jore  correctly  and  to 
a  greater  ellbet,  partners  of  the  company  than  the  truhtees  thenlhelve«" 
(per  Ld.  J.  0.  Patton  in  JJcvn-uhjr,  nt  sujn-a,  7  .M.  10-11). 

Where  trustees,  without  authority,  employ  trust  money  in  a  Indin- 
concern,  they  are  personally  liable  to  make  good  any  loss  which  may 
trom  the  venture;  and  in  the  event  of  there  being  a  gain,  tb         '    .  v*ili 
accrue  to  the  trust  estate  (see  laird,  ISr-o,  17  U  9«4-  /«i'/y/  '■  I) 

972;  Cochrane,  1855,  17   D.  321;  1857,  19  U    1019).     Wli.  .«' 

without  authority,  employed  the  trust  funds  in  a  business  in  which  they 
were  partners,  and  paid  the  1)eneficiaiies  live  per  cent,  on  the  capital  84. 
employed,  there  being  no  suggestion  of  mala  Julm,  it  was  held  •'  •  'he 
beneficiaries  were  entitled  to  claim  any  profits  realised  from  the  emj  nl 

of  the  capital,  over  and  above  the  five  per  cent.  i)aid  to  them  (Cwhrane. 
1855,  17  D.  321).  At  a  later  stage  in  the  same  case,  it  was  held  that  in 
ascertaining  the  amount  of  the  profits  made  on  the  trust  funds,  not  only 
the  capital  put  in  by  the  partners,  but  all  other  fun<ls  obtained  on  Itwin 
or  otherwise,  and  invested  in  the  business,  mu.st  be  taken  into  account,  and 
that  the  payment  to  the  beneficiaries  was  to  be  in  the  jnoportion  which 
the  trust  funds  bore  to  the  whole  funds  so  employed,  the  Court  U-ing  of 
opinion  that  the  capital  put  in  under  the  contract' of  copartnery,  u  .!  the 
periodical  docquets  fixing  the  interests  of   the  partners  in  the  .  ..f 

property  over  liabilities,  however  binding  between  the  partners,  were  oi  no 
importance  in  a  question  with  third  parties,  who  wt-re  not  entitled  to  share 
in  the  profits  qua  partners  (Cochrane,  1S57,  19  D.  Iul9). 

But  where  a  trustee  improperly  employs  trust  funds  in  a  business  in 
whicli  he  is  a  partner,  the  other  partners  in  the  business  do  not  incur  any 
liability  to  tlie  beneficiaries  under  the  trust  for  the  mon<  ■  '       '\. 

unless  they  have  had  notice  that  a  breach  of  trust  has  been  ( ■ .1 

trust  money  so  employed  may  be  followed  and  recovered  from  the  r- 

ship  if  still  in  its  possession  or  under  its  control  (53  &  54  Viet.  c.  lib,  s.  13; 
see  Zaird,  1858,  20  I).  972). 

Where  a  truster  directed  his  Inisiness  to  be  carried  on  by  !  •-  -  •  "  !:o 
had  been  in  partnership  with  him,  for  belujof  of  himself  ami  t  ;  s 

family,  and  gave  his  trustees  a  power  to  supervise  the  manaircment.  and  in 
their  discretion  to  dissolve  the  tirm  and  wind  up  the  !•  "    M 

that  the  trustees  were  not  partners  in  the  lirm  (Moj-risoti.  i.-.v,  -  .M t 

The  liability  wiiich  a  trustee,  who  invests  in  a  trading  concern  '-r  in 
shares  of  a  joint  stock  company,  incurs  to  creditors  of  the  firm  or  ■  y 

or  to  the  other  partners  or  shareholders,  will  be  considered  lalci  (nee 
p.  387). 

Loan  to  Trustee. — The  principle  that  a  trustee  cannot  1  -  tw 

rem  sucun,  and  cannot  make  prolit  out  of  the  trust,  prevents  In; 
ing  trust  money  to  one  of  their  own  number,  even  uj)Oii  •» 

loan  is  absolutely  illegal ;  "no  circumstances  will  .ju.'-t:i\ 
as  it  is  quite  ultra  vires  of  anv  bodv  of  trustees  ."^o  to  .. 
Inglis  in  Croshcry,  1890.  17  Ii.'697.  at  p.  700;  see  Prfsivn,  18G3.  1  M. 
Baird,  18G5,  4  M.  G9 ;  Hay,  ISGl,  23  1).  594;  lilain,  1836.  14  -  lu 

7i'/M?V5  (188S,  15  E.  108(3),  trustees  who  had  ad  '        '  t 

funds  to  one  of  their  own  numlier,  who  was  the  life:,.....     -  "-' 


380  TRUSTEE 

security  of  a  house  wliich  lie  was  erecting  for  his  occupation,  were  held  to 
have  acted  ultra  vires,  and  to  be  bound  to  replace  the  funds  so  lent. 

Ari'RorKiATiON  OF  Investments  to  Particular  Legacies. — Unless 
authorised  by  the  trust  deed,  either  expressly  or  by  implication,  trustees  are 
not  entitled  to  allocate  particular  investments  to  meet  particular  legacies. 
Each  legacy  is  entitled  to  the  security  of  the  whole  estate ;  and  where  loss 
accrues  to  investments  so  allocated,  that  loss  will  fall,  not  upon  the  legacies 
to  which  they  have  been  allocated,  but  upon  the  residue  of  the  trust  estate 
{Scott,  1895,  23  R.  52).  But  where  the  tenour  of  the  trust  deed  shows  that 
it  was  the  truster's  intention  that  such  an  allocation  should  be  made, — e.^. 
where  the  truster  evidently  intended  that  funds  should  be  set  apart  and 
invested  to  meet  certain  legacies  w^hich  did  not  fall  to  be  paid  at  once,  but 
that  there  should  be  no  delay  in  paying  over  the  residue, — any  loss  resulting 
from  the  investment  of  the  funds  so  allocated  will  not  affect  the  rest  of  the 
trust  estate  (Bohinson,  1881,  8  E.  (H.  L.)  127  ;  but  see  Teacher,  1890, 
17  R.  303). 

Trustees  cannot  set  off  the  profit  arising  from  one  breach  of  trust 
against  the  loss  resulting  from  another  (Wiles,  1854,  2  Drew.  258;  Deare, 
1895,  11  T.  L.  R.  183). 

Entailed  Money. — The  price,  or  the  surplus  of  the  price,  of  any  entailed 
estate  sold  under  the  orders  of  the  Court  may  be  consigned  in  bank  on 
deposit  receipt,  subject  to  the  orders  of  the  Court,  or  invested  in  Consols,  or, 
if  the  person  entitled  to  it  as  heir  of  entail  desires,  it  may  be  invested  in 
"  any  of  the  Government  stocks,  public  funds,  or  securities  of  the  United 
Kingdom,  or  heritable  security  in  Great  Britain,  or  m  stock  of  the  Bank 
of  England,  or  in  East  India  stock,  or  the  mortgages  or  debentures  or 
debenture  stocks  of  such  municipal  corporations  or  public  trusts  or  railway 
companies  as  may  be  approved  by  the  Court  after  inquu'y,  in  trust  for  the 
applicant  and  the  heirs  of  entail  in  their  order  "  (45  &  46  Vict.  c.  53,  s.  23, 
subs.  4).  In  such  a  case  the  trustees  to  hold  the  investments  are  appointed 
by  the  Court  (ib.).  In  a  recent  case  Ld.  Pearson  has  held  that  such  trustees 
are  bound  to  invest  the  money  in  accordance  with  the  subsection  quoted,  and 
are  not  entitled  to  select  from  the  more  extended  list  of  investments  open  to 
trustees  under  sec.  3  of  the  Trusts  Act  of  1884  (Queensherry,  1898,  5  S.  L.T. 
458).  Where  money  invested  under  the  Entail  Act  is  called  up,  or  where 
a  change  of  investment  is  desired,  the  trustees  are  not  bound  to  obtain  the 
authority  or  approval  of  the  Court  in  relation  to  new  investments,  "  but  may 
themselves  make  such  new  investments  in  accordance  with  the  provisions 
of  this  Act,  or  they  may  apply  to  the  Court,  if  they  think  proper,  for  s\ich 
authority"  (45  &  46  Vict.  c.  53,  s.  23,  subs.  5).  Until  the  first  investment 
is  found,  or  while  it  is  waiting  for  reinvestment,  the  entailed  money  must  Ijc 
left  in  bank  on  a  consignation  receipt  (ib.).     See  Entail. 

Approval  by  Beneficiaries. — Until  1891  the  approval  of  an  ultra  vires 
investment  by  the  beneficiaries  under  the  trust  did  not  relieve  the  trustees 
from  responsibility,  or  im])ly  an  obligation  on  the  part  of  the  beneficiaries 
to  relieve  them  of  liability  incurred  ito  third  parties  (Cifj/  of  Glasfjov:  Bank, 
1880,  7  Pi.  479);  though  in  certain  circumstances  the  beneficiaries  might  be 
barred  by  their  actings  from  challenging  the  action  of  the  trustees,  or 
claiming  repayment  of  money  lost  (see  Spencc,  1888,  15  R.  376;  Sanders, 
1879,  7  R.  157).  But  sec.  6  of  the  1891  Act,  which  is  retrospective  in  its 
action,  provides  that  "  where  a  trustee  shall  have  committed  a  breach  of 
trust  at  the  instigation  or  request,  or  with  the  consent  in  writing,  of  a 
beneficiary,  the  Court  may,  if  it  shall  think  fit,  and  notwithstanding  that  the 
beneficiary  may  be  a  married  woman  entitled  for  her  separate  use,  whether  she 


TlIlSTKK 


381 


has  or  has  not  powers  of  disposal  or  alienation,  make  f»»><  '•  -  ..^ -  -^  < 
Court  shall  seem  just  for  ap])lyii);;  all  or  any  jmrt  of  i  ,. 

beneficial y  in  the  trust  estate,  hy  way  of  iniU-nniity  to  the  I:  u 

clainiing  tiiinuv^h  liini."     It  will  he  nutiecl  that  this  ■  '  ^. 

Court    to   iutleninify   the  trustee  out  of  the  inlcre.~i   ...    >...     .,,.  -c 

possessed  by  the  beneficiary  at  whose  instigation  <<r  re<iueht   th.  ..  U 

of  trust  has  been  coniniitted,  and  does  not  alluct  his  liabjhly  to 
other  beneficiaries.     It  has  been  held  in   Kiii^dand,  where  :■  "        '       e 

exists  ill  the  Trustee  Act  of  1888,  that  the  words  "in  •,. ,,..,,^;  'i  i'«v 
to  and  qualify  only  the  word  "consent,"  and  not  the  wohIh  '■•  iuAliim- 
tion  or  request"  (^'/-////M,  [1802]  3  Ch.  105;  see  liukrlts,  1891,  64  L  T 
(N.  S.)  2G:!;  L'ol/on,  [1805]  1  Ch.  544).     A  verbal  instigation  or  i  m 

therefore  sufficient  to  give  the   trustee  the   benefit  of   this   -•••  •  .d 

probably  such  instigation  or  request  need  not  be  expressly  m.i  lU 

clearly  be  implied  from  circumstances.     It  would  appear  that  where  an 
alimentary  right  is  involved,  no  ajiproval  l)y  the  beneficiary  would  \ 
the  trustees,  who,  by  breach  of  trust,  have  hazarded  the  security  oi   uii? 
right  (see  Sanchrs,  1870,  7  II.  157  ;  Jfolf,  [1807J  2  Ch.  525). 

SurERINTENDENCE   OF   ADMINISTRATION  BY  ACCOUNTANT  OF  COUHT. — TIjC 

Judicial  Factors  Act  of  1880  (52  «&  53  Vict.  c.  .'59,  s.  18)  provides  Uiat 
"where  a  person  deceased  has  left  a  settlement  appointing  trr  •  or 
other  persons  with  power  to  manage  his  estate,  it  shall  be  comp.  .  .  .r 
such  trustees  or  other  persons  to  apply  to  the  Court  of  Session  for  an  order 
on  the  Accountant  to  superintend  their  administration  of  the  in  so 

far  as  it  relates  to  the  investment  of  the  estate,  and  the  .'    •    '  .f 

among  the  creditors  of  the  deceased  and  tlie  l>enci.  —  ...  .  .:ie 
settlement,  and  the  Court  may  grant  such  order  accordingly ;  and,  if  such 
order  be  granted,  the  Accountant  shall  annually  examine  and  audit  the 
accounts  of  such  trustees  or  other  persons,  and  at  any  time,  i'"  '  '  V»i 
fit,  he  may  report  to  the  Court  upon  any  question  that  may  e 

administration  of  the  estate  with  regard  to  any  of  the  foresaid  i.  .<! 

obtain  the  directions  of  the  Court  thereupon."  Though  the  terms  of  this 
section  seem  to  limit  its  application  to  the  case  of  trus'  'a 

testamentary  settlement,  it  would  ajipear  from  sec.  G  of  i..      ..  it 

trustees  appointed  by  the  Court  may  avail  themselves  of  its  \>u 

The  application  is  made  by  petition  to  the  Junior  bird  (>  .and 

it  would  appear  that  it  is  not  necessary  either  to  print  tl  'o 

serve  it  upon  the  beneficiaries  or  other  persons  interested  \  -I 

(Stcvc7isons    'frs.,  12th  June    1807,  unrej.orted).     The   init  t» 

application  is  thus  very  small,  while   the   annual  audit  fee.  c!  e 

against  the  income  of  the  trust,  amounts  to  "  not  more  than  7  ;  'i 

the  factor's  commission,"  or  about  £1,  Is.  for  an  estate  witl-  ^ 

£200  per  annum  ;  £2,  2s.  for  one  with  an  income  of  £500  ; 

The  section  has  been  descril^ed  by  Ld.  Pres.  Robertson  as  one  which 
"enables  the  trustees  under  any   private  trust   to   oh*  •    for 

their  acts,  in    the    important   articles  of  investment  a; 
subjecting  their  administration  to  the  supervi.sion  o{ 
Court"  (stair's    Trs.,  180G,  23   K.    1070).     I^yond  th; 
however,  nothing  in  the  reported  cases  to  show  tlint  t 
obtain  complete    immunity  with    regard    to    '' 
responsibility  for  them  is  altogether  thrown  ii  . 

of  the  Accountant  or  the  Curt;  but  at  tlio  same  time  there  c*n  I- 
doubt  that  the  section  ofVers  manifest  adva  #    »K« 

The   result   of    putting   a    trust    under    uie   i:iqH.-iii.i'-u<lenoe  of    Uic 


382  TEUSTEE 

Accountant  is  that  the  trustees  receive  from  him  annually  a  report  which 
brings  before  them  the  whole  position  of  the  trust  and  its  investments,  and 
directs  their  attention  to  any  matters  which  the  Accountant  thinks  should 
be  laid  before  them.  At  the  same  time  the  discretionary  powers  of  the 
trustees  are  preserved  intact.  The  superintendence  of  the  Accountant  only 
affects  the  matter  of  the  investment  of  the  funds,  and  the  distribution 
thereof.  The  section  "  does  not  '  throw  into  Court,'  to  use  a  popular 
expression,  the  whole  administration  of  the  trusts  coming  under  its  opera- 
tion. Those  trusts  go  on,  on  the  responsibility  of  the  trustees,  except  in 
the  matters  of  investment  and  distribution,  as  to  which  the  trustees  are 
entitled  to  the  direction  of  the  Accountant,  and  through  him,  of  the  Court  " 
(per  Ld.  Pres.  Robertson  in  Stairs  Trs.,  1896,  23  E.  1070).  It  is  not, 
therefore,  competent  for  the  Court,  upon  a  report  by  the  Accountant  under 
this  section,  to  give  directions  to  trustees  as  to  whether  or  not  they  should 
sell  heritable  property,  where  they  have  a  discretionary  power  of  sale 
(Stairs  Trs.,  id  supra) ;  nor  will  the  Court,  under  such  a  report,  decide  a 
question  as  to  the  competency  of  an  action  raised  by  a  beneficiary  against  the 
trustees  (Bonnar,  1893,  1  S.  L.  T.  68).  But  when  the  question  is  one 
which  concerns  the  investment  or  the  distribution  of  the  estate,  the 
guidance  of  the  Court  can  be  easily  and  cheaply  obtained  through  the 
medium  of  a  report  by  the  Accountant.  It  is  thought  that,  where  a  super- 
intendence order  has  been  granted,  the  approval  by  the  Accountant  of  a 
proposed  investment  in  colonial  stocks  or  bonds,  under  sec.  3,  subsec.  7  of  the 
Trusts  Act  of  1884,  would  be  sufficient  to  protect  the  trustee  from  liability 
for  miking  the  investment  (see  Accountant  of  Court,  1886,  14  K.  55,  per 
Ld.  Mure,  at  p.  59).  Particular  stocks  having  been  once  approved  by  the 
Court,  the  responsibility  of  seeing  that  they  continued  to  be  eligible  before 
they  were  sanctioned  for  another  investment  would  seem  to  be  thrown  on 
the  Accountant. 

Expenses.  —  The  expenses  incurred  in  making  investments,  or  in 
examining  them  from  time  to  time,  or  in  changing  them,  form  a  charge 
against  the  capital  of  the  estate  {Smith,  1890,  18  K.  44).  But  in  making 
changes  in  the  investments  of  the  trust  estate,  the  trustees  are  bound  to 
consider  the  interests  of  the  estate  as  a  whole,  and  are  not  entitled  to  make 
such  changes  solely  in  the  interests  of  a  liferenter  in  order  to  give  him  a 
larger  income,  and  to  charge  the  expense  thereof  against  the  capital. 

Liability. 

(1)  Liability  to  Beneficiakies.  —  This  subject  has  been  already 
partly  considered  in  dealing  with  the  duty  of  trustees  with  regard  to 
investments. 

The  general  rule  is  that  a  trustee  is  liable  to  the  beneficiaries  for  any 
loss  which  the  trust  estate  may  sustain  owing  to  want  of  dihgent  adminis- 
tration on  his  part.  The  degree  of  diligence  required  of  the  trustee,  is, 
both  in  Scotland  and  England,  "  the  same  degree  of  diligence  that  a  man 
of  ordinary  prudence  would  exercise  in  the  management  of  his  own  affairs," 
without  reference  to  the  business  capacity  which  he  himself  actually 
possesses  as  an  individual  (per  Ld.  Herschell  in  Baes,  1889,  16  11.  (H.  L.) 
33  ;  see  Knox,  1888, 15  R  (H.  L.)  83  ;  Carruthers,  1890, 17  R.  780  ;  Learoyd, 
1887,  12  App.  Ca.  727;  Kennedy,  1884,  12  R.  275;  Western  Bank,  1872, 
11  M.  96 ;  Seton,  1841,  4  D.  310).  This  rule  applies  as  well  to  the  initial 
realisation  of  the  trust  estate,  so  as  to  make  it  available  for  carrying  out 
the  trust  purposes,  as  to  the  subsequent  administration  of  the  trust  (see 
Forman,  1853,15  D.  362).     The  application  of  the  rule  is  the  same  whether 


TIM-STKK  ,^3 


the  trustee  does  or  does  not  receive  remuneration  for  hia  «cn-,ci«  i^^ 
Johson,  1892  [1893]  1  Ch.  71).  "cnjcca  ^aeo 

Clamc  of  Immvni(y.—\t  is  usual  fur  a  truster  to  jmt  inU)  the  l-  i 

a  clause  to  tlie  elVecl  that  each  of  his  trustees  "shall  only  ■  ,,, 

o\yn  acts  and  intromissions,  and  shall  not  he  liahle  T  •    ''- 
missions  of  co-trustees,  and  shall  not  be  liahle  for  om.  ,  ,/i" 

Act  (s.  1)  such  a  clause  is  read  into  every  deed  hvwhi.-h  ^,'raluiioiiM  trti^te^ 
are  appomted,  if  it,  is  not  already  there.  lU.t  anv  mk-I,  dause  will  i.nUecl 
a  trustee  only  to  a  linuted  exlenl,  and  the  clau.^e  n-ad  into  •-  ■  '  •  :,y 
the  1861  Act  affords  trustees  no  further  proteeti(.n  than  w.,  /^ 

at  common  law.  Dealing  with  a  clause  which  declared  that  thn  truiitoc* 
"shall  not  he  liable  for  omissions,  errors,  or  neglect  of  n.  ,ent  nor 

smguh  in  solidum,  but  each  shall  be  liable  for  his  r.wn  i;  '•  '  '    - 

Ld.  Watson  said :  "  I  see  no  reason  to  doubt  that  a  el    .  „ 

these  or  similar  terms  will  aflbrd  a  considerable  measure  of  i  ;,, 

trustees  who  have  hond  fide   abstained  from   closely   sujKjriir  •    the 

administration  of  the  trust,  or  who  have  committed  mere  ernjrs  r,i 
whilst  acting  with  a  single  eye  to  the  benetit  of  the  trust  and  of  tl.. 
whom  it  concerns;  but  it  is  settled  in  tlie  law  of  Scotland  tha; 
clause  is  ineftectual  to  protect  a  trustee  against  the  conse<juences  of  mlin 
/«/!«,  or  of  gross  negligence  on  his  i»art,  or  of  any  conduct  which  i  '  •;. 
sistent   with  bona  fides.     I  think  it  is  equally  clear   that   the  ■ '  !I 

atford  no  protection  to  trustees  who,  from   motives   however  :  u 

themselves,  act  in  ])lain  violation  of  the  duty  which  they  owe  to  the 
individuals  beneficially  interested  in  the  funds'which  thev     "  •       I 

agree  with  the  opinion  expressed  by  Lds.  lvory,Gillie.s.  and  ".Mm...i.  .:.  .v/u,i 
V.  Dawson  (4  D.  318),  to  the  effect  that '  clauses  of  this  kind  «lo  not  proUjct 
against  positive  breaches  of  duty'"  {Knox,  1888,  15  \{.  (M.  L)  86:  see  also 
Johnstone,  1899,  6    S.    L.  T.  439).      For   examides  of  anxiot;  "  "  1 

clauses  of  immunity  which  have  been  effective  in  affording  y  ■■> 

trustees,  reference  may  be  made  to  the  cases  r>f  /'rt.s5(lS80  4 
29  W.  R  332)  ami    WUkins  (1861,  3  Giff  116  ;  1862.  31  L  .l!  Ch.  41). 
Liability  for  Acts  of  Co- Trustees. — A  trustee  is  not,  at  common  " 

responsible  for  the  acts  of  his  co-trustees,  unle.«?s  he  '       '    ■■     '  •' 

or  acquiesced  in  them,  or  been  negligent  in  not  ii 

The  provision  of  the  1861  Act,  which  declares  that  .? 

shall  not  be  liable  for  the  acts  and  intromissions  of  his  co-ti  will 

not  protect  a  trustee  who  is  not  already  protected  bv  *' 

On  the  question  of  the  degree  of  diligence  required  of  a   : 

vising  and  interfering  with  the  acts  and  intronn'ssions  of  hi- 

is  not  easy  to  lay  down  a  hard-and-fast  line.     The 

amount  of  diligence  required   of   a  trustee  lias  b.-.-n  ..'.■ 

must  exercise  "  the  same  degree  of  diligence  that  a  m '" 

would  exercise  in  the  management  of  his  own  ali 

(H.  L.)  33,  and  other  cases  quoted  supj'a).     lie  musi 

the  active  administration  in  the  hands  of  his  co-' 

(1890,  17  K.  769),  one  of  two  trustees  had  be.-. 

and  continued  to  act  as  agent  and  factor  to  th 

who  lived  at  a   distance,  left   the  management  | 

The  management  having  resulted  in  a  loss  to  '' 

held  that  there  had  lieen  gross  neglect  of  du'v  ■ 

and  that  both  were  liable.     The  fact  that  tl. 

his  co-trustee  for  a  statement  of  the  aflairs  of  the  ' 

a  meeting  of  trustees,  did  not  avail  to  absolve  him  fr"!;i  i. 


384  TEUSTEE 

had  resulted  from  his  sugfjestiou  (see  also  Adair's  Factor,  1894,  22  R.  IIG  , 
Edmond,  18(3G,  4  M.  1011;  Scton,  1841,4  D.  310;  JrCli/mont,  1827,  5  S. 
o46).  But  a  trustee  residing  at  a  distance  is  entitled  to  place  reliance  on 
the  judgment  of  his  co-trustees  in  such  a  matter  as  the  personal  investiga- 
tion of  a  security  on  which  they  propose  to  lend  trust  money,  so  long  as  he 
has  no  reason  to  suspect  their  good  faith  {Kennedy,  1884,  12  R.  275). 
"Where  a  trustee  has  reason  to  believe  that  his  co-trustee  has  misappropriated 
trust  money,  it  is  his  duty  to  take  steps  to  recover  that  money,  and  to 
prevent  any  more  of  the  funds  coming  into  the  co-trustee's  hands ;  and  he 
will  be  guilty  of  cid2)a  lata  if  he  fails  to  take  such  steps  within  a  reasonable 
time  {Millar's  Trs.,  1897,  24  R.  1038).  But  where  a  trustee  can  show  that 
he  could  not  have  recovered  the  misappropriated  money  even  if  he  had 
raised  an  action,  he  will  not  be  held  liable  to  make  good  the  loss  to  the 
estate  {ib.).  In  a  case  of  misappropriation  of  trust  funds  by  a  co-trustee, 
a  trustee  will  not  be  held  liable  unless  he  has  unnecessarily  put  the  funds 
within  the  power  of  the  co-trustee ;  and  where  he  has  only  followed  the 
ordinary  course  of  business  in  allowing  his  co-trustee  to  have  control  of 
money,  he  will  not  be  personally  liable  {Gasqiioine,  1894,  10  T.  L.  R.  220). 
It  is  quite  proper  that  the  title  deeds  and  securities  of  the  trust  should  be 
left  in  the  custody  of  one  of  the  trustees  (see  Carritt,  1889,  42  Ch.  Div.  263) ; 
and  in  the  event  of  loss  resulting  to  the  estate  owing  to  his  fraudulent 
dealing  with  these,  his  co-trustees  will  not  be  liable,  unless  they  had  cause 
to  suspect  his  integrity  (see  Cottam,  1860,  1  J.  &  H.  243 ;  Isaac,  1892,  8 
T.  L.  R.  627 ) ;  but  where  the  securities  are  transferable  by  delivery,  particular 
care  should  be  taken  as  to  their  custody  {Lcicis,  1878,  8  Ch.  Div.  591). 

The  fact  that  one  of  the  trustees  has  been  appointed  agent  or  factor  to 
the  trust  does  not  involve  his  co-trustees  in  any  further  responsibility  for 
his  actings  as  such  than  if  he  had  been  a  stranger  to  the  trust  (see  Home, 
1841,  2  Rob.  App.  384,  per  Ld.  Chan.  Cottenham,  at  p.  433). 

Liability  for  Acts  of  Factors  and  Laiv  Agents. — In  appointing  a  factor  or 
law  agent  to  the  trust,  which  they  have  power  to  do  both  at  common  law  and 
under  the  1867  Act,  trustees  are  bound  to  see  that  the  person  appointed  is 
properly  (|ualified  and  in  good  business  repute.  They  are  further  bound 
to  exercise  reasonable  prudence  in  supervising  the  actings  of  the  agent 
or  factor,  and  in  seeing  that  he  remains  habite  and  repute  responsible. 
Subject  to  these  conditions,  they  are  entitled  to  delegate  to  him  ordinary 
acts  of  administration,  and  to  repose  reasonable  confidence  in  his  integrity 
and  capacity.  They  will  not  be  held  responsible  for  dishonesty  or  incapacity 
on  his  part  so  long  as  they  had  no  reasonable  grounds  for  suspecting  him 
{Home,  1836,  16  S.  142;  1841,  2  Rob.  App  384;  Cowan,  1836,  14  S.  744; 
Dalrymjde,  1784,  Mor.  3534;  see  Weall,  1889,  42  Ch.  Div.  674,  per 
Kekewich,  J.,  at  p.  677  ;  Sutton,  1871, 12  Eq.  373 ;  Hopfiood,  1870, 11  Eq.  74 ; 
Bostoch,  1865,  1  Eq.  26).  Eor  circumstances  in  which  trustees  were  held 
not  liable  for  loss  accruing  to  the  estate  through  the  defalcations  of  their 
agent,  they  having  taken  every  reasonable  precaution,  and  having  been 
deceived  by  the  agent,  see  Ferguson  (1898,  25  R.  697).  But  trustees  are 
not  entitled  to  rely  upon  tlie  representations  of  their  agent  as  to  the 
existence  of  the  trust  securities ;  they  are  bound  to  satisfy  themselves  ])y 
personal  inspection  (see  Dewar,  1885,  54  L.  J.  Ch.  830).  As  to  the  duty 
of  trustees  with  regard  to  the  custody  of  title  deeds  and  securities  belonging 
to  the  estate,  and  the  question  how  far  they  are  entitled  to  leave  these  in 
the  hands  of  their  agent,  see  Field  ([1894]  1  Ch.  425). 

The  beneficiaries  under  the  trust  have  no  title  to  sue  the  agent  in 
respect  of  loss  said  to  have  arisen  through  illegal  or  improper  investments 


TKL'STKK  3g5 

made  on  his  advice,  as  the  agent  is  not  employed  by  tlieni.     Th"5r  r.- 
is  against  tlie  trustees  (Jiaes,  1 888,  1 ;"  K.  1 0.U ;  1889.  IG  U.  ( H.  I.  \ 

it  is  no  jKirt  (tf  tlie  duty  of  an  a^^a-nt  to  vc.lunleer  Ms  advice-  to'iho  in. 
that  an  investment  made  by  the  truster  is  not  one  which  thev  ouuht  u* 
retain  (Currors,  1880,  IG  K.  355).  ^      * 

So  long  as  the  factor  does  not  act  vltra  vins,  the  estate  will  be  Unmd  hy 
his  encjagemonts  ;  but  a  trustee  can  only  be  made  jierHonally  nKimh  V 

acts  wliich  he  has  expres.sly  authorised  the  factor  to  j.crforui,  .-i  v. 
has  neglected  his  duty  of  su}>ervision  (see />W/HO/«/.  1  stir,  j  M  ton 
1848,  10  D.  1325). 

The  rule  as  stated  above  applies  also  with  iv^nnl  to  the  habilily  of 
trustees  fur  the  acts  of  other  persons  employe(l  by  them  in  ''  ■  '  •  •  •»«  of 
tlie  trust,  whether  professional  men,  such  as  accounUuits  oi  kern. 

or  servants.     Care  in  selection  and   reasonable  supervision  is  .i  i» 

required  to  protect  the  trustees  from  responsibility  for  the  dishonebty  or 
negligence   of   a   person  so  employed   (see   S}»iijh(,  1883,  9  App.  Ca    1 
liobinson,  [189G]  2  Ch.  415 ;   Jvhson,  1802,  [1803]  1  Ch.  71). 

Liability  for  Loss  resultiwj  from  Accident,  etc. — "Wlien  the  trust  eblato 
suffers  loss  owing  to  circumstances  beyond  the  control  of  the  trustee,  such 
as  accident  or  robltery,  the  trustee  is  not  liable  unless  it  can  be  .'•hown  that 
he  has  been  grossly  negligent.  It  would  seem  to  be  the  dut-  •*  ■  •••.stee. 
"as  an  ordinary  prudent  man  of  business,"  to  insure  the  iru.'-:  iii!«t 

fire,  where,  for  example,  it  consists  of  house  j»roperty,  and  in  > 
would  probably  be  so  held.     Dut  it  may  be  noted  that  in  Engluiiil,  while  u 
trustee  is  authorised  by  the  Trustee  Act  of  1888  to  ellect  .'^uch  insurance,  it 
is  not  obligatory  upon  him  to  do  so  (51  &  52  Vict.  c.  59,  s.  7). 

(2)  Liability  to   Tnnn>  rAKTiEs. — The  Hability  of  trustees  to  thinl 
parties,  creditors  of  the  truster  or  of  the  trust  estate,  may  or  n 
be  limited  by  the  value  of  the  trust  estate.     Where  a  trustee  liin.    '• 
on  behalf  of  the  trust  estate  an  obligation  to  a  third  party,  tl.' 
his  liability  for  its  performance  will  be  determined  by  the  nature  of  the 
obligation.     Thusitiscompetentfor  a  trustee  in  contracting  with  a  thi' 
to  limit  his  liability  to  the  extent  of  the  trust  estate  in  his  hand.s.     1 
limitation  must  expressly  appear,  and  the  other  contracting  j-iirty  l.  . 
in  a  position  which  enables  him  to  accept  such  a  limited  liability. 

Debts  of  tlie  truster,  which  devolve  upon  the  trustees  only  by  virlv. 
the  trust,  involve  the  trustees  in  no  liability  ultra       '  of  t! 

estate  (see  Cullcn,  1846,  8  D.  511,  per  Ld.  Fullerton,  at  j .    _  .  .  S^ctm        .    . 
1896,  23  Ii.  739).     But,  at  th.e  same  time,  tlie  trustees  are  U.un«l  to  nuike 
the  estate  forthcoming  to  satisfy  such  debts;  and  hence  the  ( 
truster,  as  well  as  the  beneficiaries,  have  a  right  to  -• 
are  duly  diligent  in  realising  and  administering  the 
protection,  conceived  by  the  truster  in  favour  of  his  t 
have  some  effect  in  a  question  with  beneficiaries,  will  nut,  in  a  t\ 
with  the  creditors  of  the  truster,  protect  the  trustees  fr.-in  th- 
of  any  want  of  diligence  on  their  part  (see  Couo'     1 -•'" 
Ld.  Glenlee,  at  p.  751 ;  Doyle,  1804,  2  Sch.  &  Lef.  2-      .       : 

Privileged  debts  (q.v.)  may,  of  course,  be  paid  at  once  by  the  u 
but   before   paying  debts  wliieh   do   imt  cme  w"' 
trustees  shoukf  satisfy  themselves  that  the  (-'■'■• 
claims  of  all  the  creditors.     I'.y  giving  a  pr- 
by  paying  his  debt  or  by  granting  him  security  lor  it.  tl. 
personal  liabihty  to  the  other  creditors  in  tl 

out  to  be  insufficient.     P.ut  creditors  must  lu..^.   v -     :^  -- 

i5 

S.  E. — VOL.  XII. 


386  TRUSTEE 

time ;  and  it  has  beeu  held  that  trustees  as  well  as  executors,  if  they 
reasonably  believe  that  all  debts  have  been  satisfied,  may,  after  six  mouths, 
pay  awav  the  trust  estate  even  to  legatees  without  incurring  personal 
liability  for  unpaid  debts  (Stctcart's  Trs.,  1871,  9  M.  813 ;  Beith,  1875,  3  E. 
185).  The  question  is  whether  the  trustees  knew  or  should  have  known  of 
the  debt  in  question,  and  whether  the  creditor  so  acted  as  to  lead  them  to 
believe  that  the  debt  did  not  subsist  (ih.).  It  may  be,  however,  that  if  the 
estate  has  from  the  first  been  insufficient,  the  legatees  will  Ije  obliged  to 
pay  back  what  they  have  received  to  the  creditor  {Stewart's  Trs.,  ut  siqrra). 
Where  the  trustees  overestimated  the  value  of  the  estate,  and  then 
proceeded  to  pay  ordinary  debts  without  retaining  sufficient  to  meet  a 
preferable  claim,  they  were  held  personally  liable  to  make  good  the 
deficiency  (Lamond,  1871,  9  M.  662).  Again,  where  trustees  borrowed  a 
sum  of  money  upon  the  security  of  the  trust  estate,  and  therewith  paid  the 
debt  of  one  of  two  creditors,  the  estate  being  at  the  time  sufficient,  accord- 
ing to  a  valuation,  to  meet  both  debts,  they  were  held  personally  liable  for 
payment  of  the  other  debt  when  the  estate  eventually  turned  out  to  be 
insufficient  (Young,  1841,  3  D.  1020). 

The  trustee  is  also  bound  to  satisfy  himself  that  the  debts  are  proper 
debts  of  the  trust ;  and  where  there  is  any  doubt  upon  the  point,  he  is 
entitled  to  require  the  creditor  to  constitute  his  claim  {M'Gaan,  1883,  HE. 
249).  A  trustee  under  a  voluntary  trust  deed  for  behoof  of  creditors  paid 
in  good  faith  a  claim  which  afterwards  was  held  to  be  invalid.  The  pay- 
ment was  made  in  spite  of  a  protest  by  the  truster,  and  so  precipitately 
that  the  latter  had  no  opportunity  of  interdicting  him.  The  trustee  \vas 
held  personally  liable  to  repay  the  money  {Buttcrcase,  1897,  24  E.  1128). 

When  the  obligation  is  one  created  not  by  the  truster  but  by  the 
trustees  themselves,  even  though  hond  fide  on  behalf  of  the  trust,  the 
trustees  are  personally  liable  for  its  fulfilment,  unless  they  have  expressly 
limited  their  liability  to  the  extent  of  the  trust  estate,  or  it  is  clear  from 
the  terms  of  the  transaction  that  the  creditor  expressly  took  the  trust 
estate,  as  distinct  from  the  individual  trustees,  as  his  debtor  (Cullen,  1846, 
8  D.  511,  per  Ld.  Fullerton).  In  such  cases  the  trustees  are  bound  to 
warrant  the  sufficiency  of  the  trust  funds  to  the  persons  with  whom  they 
deal  (see  Ctillen,  ut  sujjra;  Strathmore,  1853,  15  D.  752;  Maclean,  1850, 
13  D.  90;  Eaton,  imi,  It)  S.  1012;  Thomas,  1832,  11  S.  162;  Thomson, 
1829,  7  S.  787 ;  Jeffrey,  1821, 1  S.  102  ;  1824,  2  Sh.  App.  349  ;  Fairlie,  1821, 
1  S.  222).  Where  a  trustee  employs  an  agent  to  manage  the  estate,  or 
where,  taking  over  the  truster's  business,  he  employs  the  truster  to  act  as 
his  agent,  he  becomes  responsible  for  any  contracts  entered  into  by  his 
agent  in  the  ordinary  course  of  his  administration  {Ford,  1888,  16  E.  24; 
Macphail,  1887,  15  E.  47,  where  the  claim  was  restricted  to  the  value  of 
the  trust  estate).  But  it  must  be  clear  that  the  case  is  one  of  trust  as 
distinguished  from  security,  and  that  the  trustee  is  really  in  possession  (see 
Eaglesham,  1875,  2  E.  960;  Miller,  1876,  3  E.  548;  Stott,  1878,  5  E.  1104; 
Newcastle  Chemical  Co.,  1881,  9  E.  110;  Mess,  1898,  25  E.  398). 

Where  trustees  granted  a  heritable  bond  over  the  trust  estate  and  bound 
themselves  "  as  trustees  "  to  repay  the  sum  borrowed,  it  was  held  that  their 
habdity  was  limited  to  the  extent  of  the  trust  estate  {Gordon,  1840,  2  D. 
<139  ;  1842, 1  Bell's  App.  428).  But  "  there  are  many  cases  in  wliich  a  trustee 
is  personally  responsible,  even  though  he  may  have  contracted  expressly  as  a 
trustee.  If  he  draws  or  accepts  a  bill  of  exchange,  or  gives  an  order  for 
work  done  on  account  of  the  trust,  iu  these  and  similar  cases,  though  he 
contracts  as  trustee,  yet  he  is,  in  Scotland  as  in  England,  personally  liable 


TKL'S'IKK  3^7 

for  his  engagemenls  in  the  absence  nf  expresH  stipulation  '"  •'- 
Tlie  nature  of  the  contract  in  these  cascH  showK  that  the  j 
must  liave  meant  U>  hint]  himself  i>L-isunally.     Ordinary  ti 
buying  and  seHing  CDuld  nut  gi)  on  uj.mh  ' 

therefore,  in  all  such  vai^t's,  primd  facie  un  .  .   .      .  ; 

ing  of  the  persons  engaged.     The  true  (juestion  to  be  i- 

case  is,  whether  the  circumstances   do   fairly  show  that  the  ( 

parties  were  dealing  only  as  trustees,  and  were  not   int      " 

liability  beyond  the  amnunL  (jf  the  trust  fini-N")!.-!    I  •.    ;  ,,.,.„.,■„,  ju 

Lnmsdcn,  18G5,  3  M.  (H.  L.)  90). 

Liahilitjj    as    Shareholders    in    Public    Company.  —  Another    element. 
however,  enters  into  the  question  of  the  liability  of  tru-' 
in  a  public  company  to  the  other  shareholders  or  to  i 
company.     It  has  been  held  that  the  directors  of  a  join; 
not  entitled  to  accept  trustees  as  shareholders  on  the  footing  that  their 
liability  is  to  be  limited  to  the  extent  of  the  trust  estate  (Muir,  IKTS,  6  It 
392  ;  1879,  6  K.  (H.  L.)  21 ;  Lumscle,,,  1804,  2  I^I.  095  ;  ISO."..  :;  M.  'F   ' 
89;  Lumsdcn,  1806,  5  ]\I.  34  {curator  bonis)).     If  ihe  liability  of  t: 
could  be  so  limited,  the  result  would  be  that  "there  would  be  two  d. 
classes  of  partners  "  in  the  company :  "  one  of  persons  who  became  shan;- 
hoklers  in  the  ordinary  case,  and  who  would  be  partners  with  •    '•    '    ' 

liability;  and   the  other   of   trustees  who   took  shares  in    their  . ..  : 

character,  and  who   would   be  partners  with    limited  liabilitv  "  (\i^t  \A. 

Westbury  in  Lumsdcn,  1865,  3  M.  (II.  L.)  92).     Truster.s,  i'' 

hold  .shares  in  a  joint  stock  company  ;ire  ]»ersonally  liub' 

company  to  pay  calls  upon  the  sjjares.     The  fact  that  th'     ...      .... 

under  his  deed  to  hold  such  shares  does  not  affect  his  liability  in  a  cju 
with  the  creditors  of  the  company,  or  the  other  sharcholdere.     But  it  do« 
affect  his  position  with  regard  to  the  trust  funds.     Where  ih- 
was  one  which  he  was  authorised  to  make,  he  is  entitled  t"  \\:\.^.  ..  ...  :..■ 

trust  funds  so  far  as  thev  will  go  {Bobinmi,  1880,  7  R.  094  ;  ISSl.  8  R.  ( H  \,) 

127;  Ciminr/ham,  1879^,  0  R.  1333).     On  the  other  hand,  where  the  i- 

]nent  was  unauthorised  by  the  trust  dee<l,  the  trustee  is  not  entitled  • 

the  calls  made  upon  him  out  of  the  trust  funds,  and  will  be  \»'\v.\A  » 

good  any  loss  resulting  to  the  trust  from  the  investment  {.*<■: 

7  R.  157;  Brownlie,  1879,  0  R.  1233).     In  another  of  the  City  of  Uiatgov 

Bank  cases,  where  a  trustee  had  im])roperly  invested  in  l»ank  ■ 

liquidators,  after  exhausting  his  finids,  gi-anled  him  a  di-  '  ■•   •     ' 

un  assignation  of  any  right  couqietent  to  him  against  tl. 

beneficiaries  under  the  trust  had  approved  of  the  investment  i:  t  the 

Court  held  that  their  api>roval  did  not  imply  an  ob" 

trustee,  and  that  the  trust  fumls  were  not  liable  ((' 

Farl-hiirst,lSS0,7  II  749).     It  must  be  noted,  hov, 

1891  (54  &  55  Vict.  c.  44,  s.  6)  provides  that  where  n  trustee  c; 

breach  of  trust  "  at  the  instigation  or  re(|uest,  or  with  • 

of  a  beneficiary,"  the  Court  may,  if  it  think  f"'     '  " 

the  interest  of  the  beneficiary  in  the  trust  ■ 

to  the  trustee  or  person  clainnng  thnuiL'h  biti! 

"Where  two  partners  of  a  firm  were  r- 
of  them  for  behoof  of"  the  firm,  it  w     ' 

tories  jointlv  and  .severally,  and  not  ■■• 

by  them  (Gil/cyne  and  Pafrrsnn,  1879,  G  R.  714,  G  R-  (H.L)  1". 

Where  trustees,  who  had  ])ower  t"  1 
allocated  various  stocks  to  meet  legacies  to  iwu  ucueu.  ...--•-=  -  i-    -  • 


388  TEUSTEE 

rendered  separate  accounts  to  eacli  beneficiary,  they  were  held  to  have 
practically  created  two  trusts,  and  therefore  not  to  be  entitled  to  relief  from 
the  cue  in  respect  of  liability  arising  from  the  other  {Eohinson,  1881,  8  E. 
(H.  L.)  127 ;  rev.  1880,  7  E;694). 

Before  trustees  can  be  held  liable  as  partners,  it  must  be  clear  that 
they  have  authorised  the  transfer  of  the  stock  to  ih^iv  wq.\wq^  {Cuninghamc, 
187'9,  6  E.  679,  6  E.  (H.  L.)  98;  MEwcn,  1879,  6  E.  1315;  but  see 
Liunsden,  1865,  3  M.  (H.  L.)  89),  or  have  acted  in  such  a  way  as  to  preclude 
themselves  from  maintaining  that  they  are  not  partners,  e.g.  by  signing 
dividend  warrants  as  trustees  {Bobcrts,  1879,  6  E.  805;  Smith,  1879,  6  E. 
1017).  But  where  a  trustee  had  signed  a  mandate  authorising  the  bank 
to  pay  to  the  agents  of  the  trust  dividends  described  as  "  standing  in  our 
names,"  it  was  held  competent  for  him  to  prove  by  parole  that  he  had 
signed  the  mandate  under  a  mistake  {Gillespie,  1879,  6  E.  813). 

"Where  trustees  or  executors  find  that  the  estate  coming  into  their 
hands  consists  partly  of  shares  in  a  joint  stock  company,  they  may  either 
make  up  a  title  by  confirmation,  which  will  entitle  them  to  sell  the  shares 
without  going  on  the  register,  and  may  intimate  the  fact  of  confirmation 
to  the  company  as  a  mere  notice  that  they  have  made  up  a  title,  or  they 
may  intimate  the  confirmation  to  the  company,  and  request  that  the 
shares  be  transferred  to  their  names,  the  effect  of  which  will  be  that  they 
become  partners  in  the  company  (see  Wishart,  1879,  6  E.  1341,  per  Ld. 
Shand,  at  p.  13-1:9).  So  also  a  curator  honis  can  sell  stock  belonging  to  his 
ward  without  putting  his  own  name  on  the  register,  or  incurring  liability 
as  a  partner ;  and  where  a  bank  had,  without  the  curators  authority,  put 
his  name  upon  the  register,  and  sent  him  a  stock  certificate  in  his  own 
name  for  stock  belonging  to  the  ward's  estate,  it  was  held  that  the  curator 
was  not  personally  liable  as  a  partner  {Lindsay's  Curator,  1879,  6  E.  671). 

In  a  mortis  causa  disposition  to  trustees  the  condition  of  survivorship  is 
implied,  and  therefore  when  one  of  a  set  of  trustees  dies,  his  representatives 
have  no  interest  in  the  trust  estate.  So,  when  trustees  hold  shares  in  a 
public  company,  and  one  of  them  dies,  his  representatives  are  not  liable  for 
calls  made  in  respect  of  these  shares  subsequent  to  his  death,  though  they 
are  liable  to  the  extent  of  his  estate  for  any  obligations  incurred  by  him  as 
trustee  prior  to  his  death  {OsivalcVs  Trs.,  1879, 6  E.  461).  Where,  therefore,  a 
body  of  trustees  are  registered  as  shareholders  in  a  company,  the  death  of 
one  of  them  will  reduce  the  number  of  persons  liable  as  shareholders  for 
future  obligations,  and  this  whether  the  existence  of  the  trust  is  noticed 
on  the  register  or  not,  so  long  as  it  appears  in  fact  that  they  hold  jointly 
with  the  condition  of  survivorship  {ih.,  per  Ld.  Pres.  Inglis,  at  p.  470; 
Kirhy,  1871,  Eeilly,  Allcrt  Arbitration  Beports,  67,  per  Ld.  Cairns).  In 
the  ordinary  case,  no  intimation  of  death  is  necessary  to  dissolve  a 
partnership,  and  the  executors  of  a  deceased  trustee  are  under  no  obligation 
to  intimate  his  death  to  a  company  in  which  he  held  shares.  "  If  there 
was  a  duty  on  anybody  to  make  intimation  to  the  bank  of  the  death  of 
tliis  trustee,  it  was  a  duty  laid  on  his  co-trustees  and  not  upon  his  executors 
—upon  those  who  really  come  in  his  place  to  represent  him  in  regard  to 
that  trust  estate  of  which  he  was  originally  an  administrator.  But  I  am 
not  prepared  to  say  that  tliere  is  any  positive  obligation  upon  these  sur- 
viving trustees,  or  that  this  failure  on  their  part  to  make  sucli  intimation 
can  be  followed  Ijy  any  important  consequences.  And  therefore  it  really 
comes  to  this,  that  there  l^eing  nobody  in  such  circumstances  upon 
wlioni  there  can  be  imposed  any  duty  to  make  the  intimation  which 
IS  said  here  to  be  wanting,  the  bank   must  be  left  to  find  out  in  the 


TKrS'JKE  3^9 

best  way  they  can  when  one  of  three  co-trustees  whom  i 

fit  to  register   as  partners  of  the  hank  dit-s  uml   k-uvt 

vested  for  the  future  entirely  in  his  nurviving  collea^'ues' 

nt  siqrra,  per  Ltl.  Pres.  In-lis,  at  p.  4Go).     There  is  a  distineUoii.  i 

between  the  case  of  the  death  of  one  nf  a  body  of  trr  • 

death  of  a  hist  surviving    trustee.      In    the    hitter  >  . 

trustees   in   whom    the   property   vests   by   survivau' -       In    /.  ,       I 

(1879,  6  li.  830),  where  the  name  of  the  last  survivor  of  a  Ixnly  of  im  ' 

had  been  aHowed  to  remain  on  the  register  f(»r  six  vears  afN-r  h 

it  was  held  that,  though  the  company  was  all  the  linJe  awa<-  'f  ' 

and  though  his  executors  did  not   know  that  be  was  a  ; 

particular  trust,  or  that  he  held  stock  in  the  comjiany  aa  a  trustee,  yet. 

his  name  being  on  the  register  at  the  time  of  the  bt<Ji)iiage  of  t! 

his  estate  was  liable,  and  his  executors  were  cousetpiently  lu...    ^.•.  i,.. 

extent  of  the  executry  estate. 

The  effect  of  the  resignation  of  a  trustee  ujion  his  liability  for  sharcti 
held  by  the  trustees  has  been  already  considered  under  the  title  Y 
Tiox  OF  Trustees  {fi-v.);  but  it  may  be  mentioned  here  that  re- 
does not  intimate  itself,  as  death  does,  and  that  it  is  doubtful   .  ■  r 
even  intimated  resignation,  without  an    executed    tran.'ifer,  would  divc«t 
the   resigning   trustee   and    transfer   the   shares   to    Ids    co-trust' 
Sinclair,  1879,  6  11.  571 ;  Torhdti,  1879,  0  L'.  789).     But  where  i 
pany  is  not  in  liquidation,  a  trustee  who  has  duly  resigne<l  and  in  •! 
his  resignation  to  the  company  has  an  absolute  right  to  have  his  name 
removed  from  the  register  (Z>rt/v/cz5/<,  1885,  13  K.  223).     As  to  the  «: 
of  the  resignation  of  a  last  surviving  trustee  without  an  executed  transtti, 
see  Shaic,  1878,  G  E.  332. 

In  any  case  in  which  trustees  have  come  under  an  obligation  for  behoi.f 
of   the  trust   estate   which   involves   thera   in   liability  to  third   j«ai- 
whether,  for  examjile,  l»y  granting   a   bond    for   money  1"    ' 
holding  shares  in  a  joint  stock  company,  they  are  Imund  sin',.  .. 
to  make  good  the  oljligation.     "  Each  of  tiiem  equally  has  rt 
whole  money;  it  has  all  been  paid  equally  into  the  alVaire  of  each  oi  li    : 
— that  is,  the  trust  affairs, — and  each  must  be  liable  in  sol   ' 

it,  whether  out  of  the  trust  funds,  if  sufficient,  or  out  of  thL.;  ... 

if  necessary"  {Oswald's  Trs.,  1879,  G  II.  4G1,  per  Ld.  Prcs.  Inglis,  at  p.  -l" 
Commercial  Bank,  1841,  3  D.  939). 

ZtaJt7t%  singuli  in  solidum. — In  any  (piestion  of  liability  for, 
delict  or  quasi  delict,  trustees  are  liable  singuli  in  svlid'"'    " 
action  is  raised  against  only  one  nf  them,  a  i>lea  of  all  j  :    .  i 

will  not  be  sustained  (Mad-aij,  1897,  4  8.  L.  T.  4G6;  Crosktrt/,  lUifV,  17  U. 
697;  Western  Bank,  18G0,  22  D.  447).     Qxasi  delict  is  apj^lie-l  to 
which,  while  they  arc  not  of  a  criminal  nature,  are  s-"^-  —  '^''^ 
claim  for  pecuniary  reparation  for  damage  sustained, 
acts  by  trustees  are  therefore  of  the  nature  of  quasi  delict,  and  the  : 
committing   them   are   liable  si7i(juli  in   solidum   to  the 
whetlier  beneficiary  or  creditor  (sec  Croskery,  nt  supra;  .n.\-m,  ... 
310;  Blain,  183G,  14  S.  3GI). 

(3)  Liability   fok   Expexses.— When  an  action  is  raise*! 
trustee  qita  trustee,  it  is  not  competent  under  that  sw 
a  decree  against  him  personally  (Ilos^,  1S4G.  5  P* 
competent  in  such  an  action  to  lind  him  ]ier--rnl.- 
in  certain  circumstances  ihis  will  Ik?  don-        i 
trustee  who  incurs  expenses  in  litigating  on  behali  ol  Uie 


390  TEUSTEE 

entitled  tu  charge  such  expenses  against  the  trust  estate,  and,  if  he  has 
been  found  liable  in  expenses  to  his  opponent,  to  charge  these  expenses 
also  against  the  estate,  even  if  they  exhaust  the  funds,  before  paying  the 
creditors  of  the  trust  (see  Drummond,  1881,  8  E.  449).  Such  expenses 
will  come,  in  the  first  place,  off  the  residue  in  the  case  of  a  testamentary 
trust,  but  if  this  is  insuliicient  to  meet  them,  legacies  left  by  the  truster 
must  sutler  a  proportional  abatement  {Cameron,  1844,  7  D.  92).  Another 
(piestion  arises  when  the  whole  estate  is  insufiticient  to  meet  the  expenses 
found  due  by  the  trustees  in  an  unsuccessful  litigation,  and  this  will  be 
considered  immediately. 

The  rule  as  stated  above  is  subject  to  the  qualification  that  the  litiga- 
tion must  be  reasonable,  reasonably  conducted,  and  that  the  trustee  must 
be  in  good  faith.     It  applies  to  cases  where  the  validity  of  the  trust  deed 
is  challenged  {Ross,  1896,  25  E.  897 ;   Watson,  1875,  2  E.  344;  J/K7iro,  1874, 
1  E.  1039),  or  is  doubtful  {Whyte,  1881,  8  E.  940;  Drummond,  1881,  8  E. 
449 ;  Tcnnant,  1878,  6  E.  150 ;  Mitchell,  1877,  4  E.  800),  or  where  there  is 
difficulty  in  ascertaining  the  meaning  and  effect  of  the  deed  {Hamilton, 
1879,  6  E.  1216:  Ramsay,  1876,  4  E.  243;  Spens,  1875,  3  E.  50;  Graham, 
1850,   13  D.  420;  Speirs,  1850,  13  D.   81;   KirUand,  1842,  4  D.   613; 
Smitton,  1839,   2   D.  225).      Tutors   have   been  found  entitled  to  charge 
against   their   ward's   estate   the   expenses   of   an   unsuccessful    litigation 
entered  into  in  England    to   prevent  their  ward  being   made  a  ward  in 
Chancery  {Johnstone,  1856,  18  D.   343).     In  the  recent  case  of  Crichton 
(1898,  1  F.   24),  an  action  for  the   reduction   of   a  will,  the   issue  sub- 
mitted to  the  jury  was  framed  in  such  a  way  as  to  involve  the  trustees 
in  a  charge  of  fraud,  of  which  there  was  no  averment  as  against  them  on 
the  record.     The  will  was  reduced,  and  the  trustees  were  in  the  circum- 
stances allowed  their  expenses  out  of  the  estate ;  but  the  Lord  President 
observed  that  the  case  did  not  involve  any  finding  generally  to  the  effect  that 
trustees  who  are  not  charged  with  fraud  are  entitled  to  trv  the  case  at  the 
expense  of  the  trust  estate,  and  should  not  rather  go  to  the  beneficiaries 
and  say  that  they  could  not  defend  unless  they  were  kept  clear  of  expenses. 
It  would  seem,  therefore,  to  be  the  duty  of  trustees  in  such  a  case  where 
the  existence  of  the  estate  as  a  trust  estate  is  involved,  where  the  trust 
estate  is  so  small  that  there  is  a  danger  of  its  being  entirely  swallowed 
up  in  the  litigation,  to  consult  their  constituents  before  embarking  upon 
litigation    and  that  the  Court,  in  exercising  its  discretion  with  regard  to 
expenses,  will  take  into  consideration  the  fact  whether  or  not  the  trustees 
were  in  a  position  to  do  so.     A  distinction  can  be  drawn  between  the  case 
of  a  trustee  for  creditors  or  a   trustee   for   major   beneficiaries  who   are 
capable   of  giving  their  consent,   and   the   case   of   a   trustee   for   minor 
beneficiaries,  or  a  curator  bonis  to  an  insane  person,  or  trustees  who  are 
acting   under   statutory   authority   (see    Craig,   1896,    24   E.    6,   per    Ld. 
M'Laren,  at  p.    20;   Younr/,  1880,  7  E.   891,  per  Ld.  Young,  at  p.  898; 
Graham,  1800,  23  D.  41,  per  Ld.  J.-Cl.  Inglis,  at  p.  44;  Amjerstein,  1874, 
9  Ch.  479 ;  but  see  Ruttoii,  1899,  6  S.  L.  T.  4S0).     In  practice,  a  trustee  for 
creditors   or   an   official   liquidator   as   a   rule   obtains   an   indemnity  for 
expenses  from  his  constituents  before  embarking  upon  litigation. 

The  general  rule  applies  also  to  cases  where  a  trustee  has  a  reasonable 
ground  for  making  a  claim  on  behalf  of  the  estate  or  disputing  a  claim 
made  against  it,  even  if  he  is  unsuccessful  (see  Mackenzie,  1894,  22  E.  233, 
per  Ld.  M'Laren;  Dickson,  1829,  8  S.  99 ;  Xesson,  1898,  1  F.  36 ;  and, 
witli  regard  to  the  liquidator  of  a  company,  Bolton,  [1895]  1  Ch.  333). 
Again,  the  expenses  of  an  action  of  multiplepoinding  and  exoneration, 


TKrsTKK 

brought  by  trustees  to  enable  theiu  to  distribute  the  estat-  -ni  :.. 
be  allowed  out  of  the  estate  (./amzVso/j,  1888    IG  1{    15  •   / 
D.   54;  Taylor,  183G,  14  S.  817).      Such  aii  action  m'ay  L 
trustees  where  there  is  a  duubt  as  to  the  persons  .    ■  •'    '  ■ 
where  the  trustees  are  unable  to  obtain  a  valid  (i 
ticiaries,  even  though  there  are  no  competing  cla: 

distress  (see  per  Ld.  Pres.  Inglis  in  Conncli's  Tr.,  :,  K.  735^     Hut 

trustees  are  not  entitled  to  bring  a  niultiplepoindi 
of  a  claim  upon  the  estate,  unless  the  chum  is  01; 
cause  double  distress ;  and  trustees  bringing  au  hu 
nature  may  be  found  personally  liable  in  expenses  (see  J/a 
22   E.   233;  Conncli's   Tr.,  ut  supra).     Wheie  li  "     ' 

multiplepoinding   to   have  a   question  which    1,,..     ,.,,..   ,„.^,,. 
validity  of   the  deed  determined,  it   is   their   duty  to  Ifnlge  a 
trustees^,  for  the  whole  fund  for  the  purposes  of  administration  (7/ 
19  R  567).      Undue  litigiosity  in  the  conduct  of  the   i 
may  subject  the  trustees  to  personal  liability  {Farquharson ,  i   _...  .  . 
In   a  recent  case,  where  marriage-contract  trustees  had  resigned 
judicial  factor  had  been  appointed,  the  judicial  factor,  before  the  t: 
had  been  discharged,  sued  them  as  individuals  to  account  for  their  intro- 
missions   as   trustees.      They   w^ere  assoilzied :   and   in   their  .«•  ' 

petition  for  discharge,  it  was  held  that  they  were  entitled  to  1  :„ 

extrajudicial  expenses  incurred  by  them  in  the  action  out  of  the  trust 
funds  still  in  their  hands  {Ercntz,  1897,  25  li.  53). 

In  all  these  cases,  however,  the  question  of  liability  fur  e 
the  discretion  of  the  Court,  who  may  either  refuse  to  allow  ....    .. 

to  pay  their  own  expenses  out  of  the  trust  funds,  or  go  further  a:. 
them  personally  liable  for  expenses  to  their  successful  op|K»nente.     Thiw 
either  of  these  courses  may  be  adopted,  according  to  (' 

the   trustees  have  unsuccessfully   defended  a  deed  to ^. ..     . 

which  they  have  been  accessory  (see  Watson,  1875,  2  K.  344,  per  \.A.  Prcf 
Inglis),  or  where  they  have  unjustifiably  defended  an  action  or  i:  rly 

conducted  their  defence  (see  Zau',  1876,  3  K.  1092;  Graham,  \^  I). 

41;   Kay,    1850,    12   D.    845;   Morrison,   1848,    11    P    2^"     v  „.    x..J9. 
7  S.  777). 

Where  a  trustee  is  removed   from  oflice  fur  misconduct,  he  may  be 
found  personally  liable  for  the  expenses  of  the  petition  to  :  " 

he  will  not  be  allowed  to  charge  his  own  expenses  in  o] ' 
against  the  trust  funds  {Jackson,  18G."i,  4  M.  177;  7'/.  M 

336).     But  there  may  be  circumstances  in  which  a  trustee  will  be  allowed 
out  of  the  trust  funds  the  expenses  of  op]»osing  a  petition  for  tht  il- 

ment  of  a  judicial  factor  on  the  tru.'^t  estate,  even  where  t'        • 
unsuccessful  (Baxter  cO  Mitchell,  1864,  2  ^I.  915).     -Again,  : 
a  petition  for  the  appointment  of  new  trustees  on  a  trust  which  h 
unworkable  may  form  a  proper  charge  on  the  fund  (Aiktnan.  1  ■  -  i     '  U 
213).     In  Laicllaxcs  (1884,  11  \\.  481),  a   trustee  w'      '     '  •■    - 
defended  an  action  calling  on  him  to  denude,  was  1      .  . 
expenses  of  his  opponents,  and  was  nllowe<l  his  own  ex|>enftc»  out  of  the 
trust  funds. 

A   trustee    whose  action    involves  the  iru.-^t    m  ""■     ••*~* 

may  be  found  personally  liable   for  the  expen.^es  ; 

5  R.  1015).    Where,  for  example,  he  has  to  sue  for  th.  lU 

which  he  has  improperly  allowed  to  leave  his  ha*  ! 

to  charge  his  expenses  against  the  trust  {Hill,  iow'j,  xo  u.  oi'j;.     i-v'  -^ 


/ 


392  TEUSTEE 

where  he  imuecessarily  compels  a  beneficiary  to  take  steps  to  make  good 
liis  claim,  he  may  become  personally  liable  for  the  beneficiary's  expenses 
(see  Cameron,  1844,  7  D.  92 ;  Murray,  1831,  9  S.  631;  Ferguson,  1869, 
6  S.  L.  E.  238;  Adam,  1867,  6  M.  31;  MEachern,  1865,  3  M.  833; 
Chapman,  1895,  11  T.  L.  E.  177). 

When  trustees  have  acted  improperly  in  defending  an  action,  the  fact 
that  they  have  only  been  concluded  against  "as  trustees"  will  not  prevent 
the  Court  from  finding  them  personally  liable  in  expenses  {Kay,  1850, 
12  D.  845). 

In  actions  between  trustees  regarding  the  trust  estate,  the  expenses 
will  not  form  a  proper  charge  against  the  estate  {Father ingham,  1852, 
14  D.  427). 

The  question  whether  a  trustee  who  litigates  unsuccessfully,  but  reason- 
ably and  in  good  faith,  is  personally  liable  for  the  expenses  found  due  to 
his  opponent  in  the  event  of  the  trust  estate  being  insufficient  to  meet 
them,  is  not  free  from  difficulty.  The  balance  of  opinion  and  authority 
appears  to  be  that  he  is  so  liable  (but  see  Ld.  Young's  opinion  m  Craig, 
1896,  24  E.  6,  at  p.  13).  The  rule  would  thus  seem  to  h&  that  though 
there  is  a  fiduciary  relation  between  the  trustee  and  a  beneficiary,  the 
fact  of  his  fiduciary  character  has  no  effect  in  a  question  between  him  and 
a  third  party,  and  he  litigates  with  him  as  an  individual  on  the  ordinary 
terms  as  to  expenses.  This  has  been  held  in  the  case  of  a  trustee  in  a 
sequestration  {Gibson,  1833,  11  S.  656;  Torhet,  IS^d,  11  D.  694),  and  in 
the  case  of  the  liquidator  of  a  company  {Consolidated  Coi)per  Co.  of 
Canada,  1877,  5  E.  393 ;  see  also  Angcrstein,  1874,  9  Ch.  479).  But  in 
such  cases  the  trustee  or  liquidator  has  the  opportunity,  and  the  duty, 
of  taking  the  advice  of  his  constituents,  and  obtaining  from  them  an 
indemnity  for  his  expenses.  A  father,  also,  has  been  found  liable  for  the 
expenses  of  a  litigation  undertaken  by  him  as  tutor  to  his  pupil  child 
{White,  1894,  21  E.  649).  A  curator,  however,  may  be  in  a  different 
position.  He  merely  consents  to  an  action,  and  does  not,  like  a  tutor  or 
a  trustee,  litigate  as  an  individual  (see  per  Ld.  Adam  in  White,  ut  siqjra, 
at  p.  654;  Whitehead,  1893,  20  E.  1045,  at  p.  1049).  But  it  is  in  the 
discretion  of  the  Court  to  award  expenses  against  a  curator  where  he  has 
taken  a  prominent  part  in  the  action,  and  has  not  merely  given  a  formal 
consent  in  order  to  make  the  action  competent  (Frascr,  1892,  19 
E.  564). 

It  has  been  said  that  where  it  is  intended  to  make  a  trustee  personally 
liable  for  expenses,  should  the  trust  funds  not  be  sufficient  to  meet  them, 
he  should  be  decerned  against  personally  and  not  qua  trustee  {Davidson's 
Tr.,  1850,  12  D.  1069);  but  it  has  also  been  held  that  it  is  no  ground  to 
suspend  a  charge  for  payment  of  expenses  against  a  trustee,  who  has  been 
decerned  against  fiua  trustee,  that  he  has  no  trust  funds  in  his  hands 
{Gihson,  1833,  11  S.  656;  Seott,  1826,  5  S.  172;  see  Clyne,  1840,  2  D.  554). 
On  the  other  hand,  the  judgment  of  the  House  of  Lords  in  Gordon  (1842, 
1  liell's  App.  428)  appears  to  be  against  this  view ;  and  in  the  recent  case 
of  Craig  (1890,  24  E.  0)  it  was  held  that  a  judicial  factor  who  had  been 
found  liable  in  expenses  qxLa  judicial  factor  was  not  personally  liable  to 
make  good  a  deficiency  in  the  factorial  funds.  From  the  opinions  of  the 
judges  in  this  case,  there  would  seem  to  be  no  difference  in  this  respect 
l>etween  a  judicial  factor  and  any  other  person  who  htigates  in  a  fiduciary 
capacity,  and  the  result  would  appear  to  be  that  the  Court  may  in 
Its  discretion  limit  the  liability  of  a  trustee  to  the  extent  of  the  funds 
m  liis   hands   by  decerning  against   him   for   expenses   ciua   trustee.     In 


TKU.STKK  3.J3 

exercisiug  this   discieli(jn,  the   Cuiut  may  i.erliai.H  I  -    =•  •"' ■ 

consideration  wlietber  or  not  the  trustee  was  in  a  j 

constituents  before  embarking  upon  litigation.     A  truBtce  who  r- 

minor  beneliciaries  or  an  hirajxu-  may  be  in  a  very  dillicult  \ 

has  to  choose  lietween  neglecting  his  duty.by  refusii!-  '     •  ■••  ,j 

an  action  which,  in  the  exercise  of  his  judgment,  he  < 

benefit  of  the  estate,  and  running  the  risk  of  personal  liability  for  • 

in  the  event  of  the  action  being  lost.     In  one  case,  indeed,  it  lia«  I  •  A 

that  a   curator   lonis   to   an    incajuix,  who  had    been   found  liable    i-,    ma 

opponent  for  the  expenses  of  an  action,  was  only  liable  to  the  extent  .  f  f?..- 

estate  in  his  hands  {Fo7'hes,  1845,  7  L).  853).     At  the  same  time,  a  : 

of  the  judges  in  tlie  case  of  Craifj — four  to  three— expre.'^sed  the  oi»inion  thai 

a  judicial  factor  who  litigates  unsuccessfully,  whether  as  jiursucr  or .'  •  r. 

is    as   a    general   rule   personally   liable   for   expenses   to    the   k..    .....il 

party  (see  also  Drummond,  1881,  8  II.  449;  Ferguson  18G3,  IG  D.  2C0; 
Laiv,  1876,  3  E.  1192;  Young,  1876,  3  li.  991 ;  1880,  7  It.  891). 

A  curator  ad  litem  is  in  a  dillerent  position  from  other  tru.'-bts,  and 
cannot  be  made  personally  liable  for  expenses  {Frascr,  1847,  9  I).  liUwj. 

Expenses  incurred  in  Promoting  or  Opposing  Bills  in  Parliaincnt. — Th«* 
principle  involved  in  the  question  of  liability  for  parliamentary  cxj 
is  very  much  the  same  as  that  applied  to  the  expenses  of  litigation. 

A  judicial  factor  appointed  under  the  liailway  Companies  Act,  l'^'''"  "H 
the  undertaking  of  a  railway  comjiany  has  been  found  entitled  ;  y 

to  Parliament  for  an  Act  to  enable  him  to  sell  the  undertaking,  and  to 
charge  the  expenses  of  the  a]i])lication  against  the  factory  estate  {Jfaldanc, 
1881,  9  li.  253;  Haldanr,  1882,  9  L".  854). 

A  body  of  statutory  trustees  is  entitled  to  promote  in  Parliament  a  iSill 
which  is  necessary  to  remove  obscurities  in  the  Act  by  which  they  are 
appointed,  or  to  remove  practical  difficulties  in  the  way  of  the  trust  {Prrth 
Water  Commissioners,  1879,  6  R  1050,  per  L.  J.-Cl.  Moj— --'••  at  p.  lOoGK 
In  Brighton  (1847, 16  L.  J.  Ch.  255)  the  Trustees  of  the  1  •  .f  the  Iliver 

Ouse  were  found  entitled  to  the  costs  of  opposing  a  Hill  which  would  have 
injured  the  river's  banks,  the  Lord  Chancellor  (Cottenham)  exj '  .1 

every  trustee  is  entitled  to  the  fair  expense  of  defending  '^     ••  y 

(see  also  Lcith  Dock  Conunissioncrs,  1897,  25  E.  120;  Ctj    ^       .  IK 

397).  Private  trustees  also  may  be  entitled  to  charge  the  estate  with  the 
expenses  of   opposing  a  Bill,  if,  in  the  circumstances,  the  <  ■  -n  in 

justifiable  (Xicoll,  1878,  13  W.  N.  154;  Bcrkclcij,  1874,  10  Ch.  5o;. 

But  if  public  trustees  go  to  Parliament  for  powers  t«»  change  the  t  "t  • 
of  the  trust,  or  powers  to  do  something  not  fairly  within  I  Ik-  c<.nt« :  n 

of  the  trust,  they  go  at  their  own  risk  as  regards  exjx  i  The  ruir  is 

that  the   costs   of   parliamentary  ]irocedure   cannot  l-e  '  ■    •  .i 

public  trust  whore  thoy  are  not  incurred  in  the  fulfilme:..     .   ■-  ' 

or  clearly  implied   purposes   of   the  trust,  or   in  the   oxemiKe  of  f>«'- 
conferred  expressly  or  by  clear  implication  on  the  tn 
Mackenzie,  1872,  10  IM.; 578,  per  Ld.  Ardmillan.  at  y.o-j.}.     i 
entitled  to  charge  against  the  trust  funds,  or  again.'^t  «'■••  '  ^f'' 
levy,  the  expenses  incurred  in  promoting  a  Bill  I" 

If  the  Bill  is  passed,  they  will  ])robably  obtain  from  Parlinm'  ' 

charge  their  expenses  against  the  trust  fund.** :  but  if  it  : 
cannot  do  so  {Covan  and  Mackenzi*-,  v(  xuyra  :    ^'  '■ 
Atforncv-Gcncral,  1850,  19  L.  J.  Ch.  197).     They  .. 

puldic  Bills  unless  these  Bills  directly  affect  the  a.:  ^ 

trust  {Wakefield,  1878,  G  E.  259).     Where  the  Water  Lum:.  u  • 


394  TRUSTEE 

biu-gh  unsuccessfully  opposed  a  bill  pK'>raoLed  by  certain  inliabitants  to 
extend  the  water  supply,  it  was  held  that  they  were  not  entitled  to  charge 
their  costs  against  the  trust  funds  {Perth  Water  Commissioners,  1879,  6  E. 
1050).  "Much,  if  not  all,  depends  on  the  result  of  the  parliamentary  pro- 
ceedings. It  will  be  very  difficult  to  show  that  opposition  to  a  measure 
which  Parliament  has  declared  to  be  beneficial  was  due  administration  of  the 
trust.  This  may  not  be  conclusive,  as  success  may  not  be  conclusive  the  other 
way,  but  the  verdict  of  the  Legislature  is  an  important  and  formidable 
factor  in  the  result"  (per  Ld.  J. -CI.  Moncreiff,  6  E.  1057).  In  Leith  Dock 
Commissioners  (1897,  25  E.  126),  the  Magistrates  of  Leith,  who  had  success- 
fully opposed  a  Bill  for  the  purpose  of  amalgamating  their  burgh  with  the 
City  of  Edinburgh,  were  held  not  to  be  entitled  to  charge  their  expenses 
against  the  Public  Health  rate,  which  they  had  proposed  to  do.  The 
question  here  decided  was  that  they  were  not  entitled  to  throw  the  whole 
expense  upon  that  particular  rate,  but  opinions  were  indicated  by  all  the 
judges  that  the  expenses  might  properly  be  made  a  charge  against  the 
general  funds  and  property  of  the  burgh. 

Termination  of  the  Trust. 

The  Court  will  not  allow  a  trust  to  be  continued  after  its  purposes  have 
been  fulfilled,  and  its  machinery  has  therefore  become  unnecessary.  When 
nothing  remains  but  to  distribute  the  estate  amongst  those  beneficially 
entitled  to  it,  the  trustees  are  bound  to  make  this  distribution  and  bring  tlie 
trust  to  an  end.  They  are  at  the  same  time  entitled  to  a  discharge  of  their 
intromissions,  and  this  discharge  must  be  without  reservation  {Edmond,  1860, 
23  D.  21 ;  Elliot's  Trs.,  1828,  6  S.  1858  ;  Taylor,  1837,  14  S.  817).  But  the 
granting  of  a  discharge  by  a  beneficiary  does  not  prevent  him  from  after- 
wards insisting  that  the  business  accounts  of  the  trust  should  be  taxed,  if  he 
can  aver  that  there  have  been  overcharges  (M'Earlcme,  1897,  24  E.  574). 

As  has  already  been  seen,  a  special  legatee  need  not  give  more  than  an 
ordinary  receipt  on  payment  of  his  legacy ;  but  when  the  distribution  is  final, 
or  when  the  payment  is  to  the  residuary  legatee,  and  therefore  involves 
approval  of  the  administration  of  the  trust,  the  trustees  are  entitled  to  a 
formal  discharge  {Fleming,  1861,  23  D.  443).  Where  they  are  unable  for  any 
reason  to  •'obtain  such  a  discharge,  or  where  the  beneficiaries  refuse  to  grant 
it,  or  if  there  is  any  doubt  as  to  the  parties  amongst  whom  the  estate  should 
be  di.stribnted,  the  trustees  are  entitled  to  raise  an  action  of  multiplepoinding 
and  exoneration,  and  to  distribute  the  estate  under  the  authority  of  the 
Court.  It  is  not  necessary,  in  such  a  case,  that  actual  double  distress  should 
be  averred  ;  but  it  is  not  competent  by  such  an  action  to  settle  the  question 
of  the  validity  of  a  claim  upon  the  estate,  unless  the  claim  is  one  which,  if 
valid,  would  cause  douljle  distress  (see  Mackenzie,  1895, 22  E.  233  ;  Davidson, 
1895,  3  8.  L.  T.  249  ;  Gordon,  1895,  2  S.  L.  T.  540 ;  Frazers  Executrix,  1893, 
20  E.  374;  Connell,  1878,  5  E.  735  ;  Jamieson,  1888,  16  E.  15  ;  Blair,  1863, 
2  M.  284;  Dunbar,  1850,  13  D.  54;  Taylor,  1836,  14  S.  817;  M'Dougall, 
1830,  8  S.  1036).  L''nreasonable  delay  in  granting  a  discharge,  or  vacillating 
conduct  with  regard  to  granting  it  on  the  part  of  the  beneficiaries,  will 
entitle  trustees  to  obtain  judicial  exoneration  and  discharge  (Fotherinyham, 
1852,  14  D.  427).  A  judicial  factor,  being  an  officer  of  the  Court,  cannot 
"btain  his  discharge  in  an  action  of  multiplepoinding,  but  must,  after 
•listriljuting  the  estate,  present  a  separate  application  for  discharge  to  the 
Conn  {Campbell,  1870,  8  M.  988;  Carmichael,  1853,  15  D.  473). 

Where  the  trustee  has  difficulty  in  obtaining  a  discharge  from  the 
beneficiaries,  it  is  also  competent  for  him  to  bring  an  action  concluding  for 


TRl'STEK 

declanitor  tluiL  liu  has  fully  acc-ountcil  i,,,   , 
discharge  upon  his  paying  or  cnnvcying  the 
(see  J)avidson's  Trs.,  189G,  2:5  II.  1117).     In  such  ri  > 
and  if  tlie  trustee  is  fouml  i-ntitled  to  r  h,  he  is  ei. 

account  taxed  as  between  a|_'ent  and  cli.-ir,  .11  or'  :    ■' 
indcmnis,as  he  is  denuding  of  tlie  whole  tru.^^t  < 
Tiox  AND  Discharge. 

Whcie  the  existence  of  a  liferent  or  annuity  is  the  only 
bringing  the  trust  to  an  end,  it  is  not  always  n.  •    ' 

Unless   the   annuity  is   alimentary  (HV/iVr,    1    .  . ,    .    ;:    ,.  ,     ., 
Campbell,  1873,  11  M.  630;  Cosejis,  1873,  11  ^I.  7G1  :  J-Jliotr*  Tr 
R  975;  Hiujhcs,  1892,  19  li.  (H.  L.)  33  ;  Dvthie,  1878,  5  J: 
1887,  24  S.  L.  R  735),  or  provided  for  by  an  irr- 

23  R  317  ;  Menzies,  1875,  2  E.  507  ;  Torrif  AihUtm.., , 

ante,  p.  359),  it  can  be  renounced  by  tlie  annuitant ;  and  on  . 

the  beneficiaries  who  have  a  vested  interest  in  the  estate  can  call  o«  the 

trustees  to  denude  in  their  favour  (Louson,  1886,  13  II.  1003;   T 

1886,   14  R  112;   Ramsay,   1871,  10  M.  120;   Prdty,  18;'!    i'- 

Rainsford,   1852,   14  D.  450;  L'Amy,   1850,  13  D.  240;   i 

9  D.  152;  MMurdo,  1897,  34  S.  L.  R  339).      It  may  be  observe^l  that 

an  alimentary  liferent  reserved  by  the  truster  himself  may  be  r<  1 

by  him  so  as  to  set  free  the  fund  for  division  {Ilavulton,  1879.  '' 

The  claiming  by  a  widow  of  her  legal  provisions,  in  lieu  of  a  i 

vided  for  her  by  her  husband,  is  equivalent  to  a  renunciation  of  th« 

and  sets  the  property  free  for  division  {AnnandaU;  1847,  9  D.  1201>. 

the  renunciation  of  an  annuity  or  liferent  has  no  effecr    •   •'     ■     •■  • 

interests  under  the  deed.     "  In  cases  where  the  final  •..  .:  .    , 

estate  is  directed  to  be  made  on  the  death  of  an  annuitant,  and  it  ci 

appears  that  in  postponing  the  time  of  division  the  testator  had  ' 

object  in  view  tlian  to  secure  payment  of  the  annuity,  it  '     '  *     • 

power  of  the  Court,  upon  the  discharge  or  renunciation    . 

right,  to  ordain  an  immediate  division.     But  in  order  to  tlic  f 

that  power  it  is,  in  my  opinion,  essential  that  the  bencticiariea  to  v 

trustees  are  directed  to  pay  or  convey,  shall  have  a  veste<l  and 

interest  in  the  provisions.     That  principle  apjiears  to  me  to  l--  • 

and  to  be  firmly  established  l)y  Rohcrton  (1846,  9  D.  152),  R 

14  D.  450),  and  Pretty  (1854,  16  D.  667).     I  cannot  conceive  that  it  ahouUi 

be  in  the  power  of  any  Court  to  give  the  testator's  estate  t  "'  •  r 

than  those  whom  he  has  appointed  to  take.     It  may  nl-^' 

circumstances  supposed,  the  Court  would  be  justi(le<l  in 

tion,  although  no  beneficial  interest  had  vested,  if  application  were 

that  effect  by  the  entire  class  of  persons  to  whom,  or  t' 

the  beneficial  interest  must  eventuallv  belom,' "'  (per  Li.  V.         ... 

1890,  17  R.  (H.  L.)  45,  at  p.  48  ;  see"//?/?/"  ^.  1^02,  19  \l  (H.  L) 

1881,  8  E.  502). 

In  Ilaldane  (1895,  23  E.  276)  a  test^itor  had  : 
pay  the  liferent  of  his  estate  to  his  widow,  and  on  '■ 
provisions  to  his  son  and  four  daughters.     The  w 

her  liferent  in  regard  to  the  son's  j'rovision,  and  in  X'  > 

called  upon  the  trustees  for  payment.     In  a  .special  • 

the  trustees  were  not  hound  to  make  payni'  •  •  •     •'  ■* 

were  entitled  to  pari  passu  payment  along  ^'. 

that  when  the  date  of  pavment  arrived  the  estate  niiK^ht  not  t«  f 
to   pay  the  provisions  in  full.     But  it  was  suggcstcil  that  the  uusu^ 


396  TRUSTEE 

might  be  entitled  in  the  exercise  of  their  discretion  to  accede  to  the  son's 
demand. 

Kepugxancy. — "Where  the  fee  of  an  estate  has  vested  in  a  beneficiary, 
the  beneficiary  is  entitled  to  have  it  made  over  to  him  absolutely,  in  spite 
of  directions  to  the  trustees  to  retain  it  for  purposes  of  administration. 
Such  directions  are  void  from  repugnancy  {Ballantyne,  1898,  25  E.  621 : 
Stewart,  1897,  25  E.  302;  Grcenlces,  1894,  22  K.  136;  Ritchie,  1894, 
21  E.  679:  Millar,  1890,  18  E.  301;  Brown,  1890,  17  E.  517;  Clouston, 
1889,  16  E.  937;  Buthie,  1889,  16  E.  1002;  Jamieson,  1889,  16  E.  807; 
MNish,  1876,  7  E.  96;  Douglas,  1879,  7  E.  295;  Allan,  1872,  11  M. 
216 ;  see  Stainton,  1850,  12  D.  571).  Thus  where  trustees  were  directed  to 
hold  and  manage  the  estate  until  the  beneficiary  reached  the  age  of  twenty- 
five,  and  there  was  a  declaration  that  the  estate  should  not  vest  in  him 
until  he  reached  that  age  or  married  with  the  consent  of  the  trustees,  it  was 
held  that  on  his  marriage  with  that  consent  before  reaching  twenty-five  he 
was  entitled  to  call  on  the  trustees  to  denude  in  his  favour  {Millar,  v.t  siqjra). 
A  fee  thus  situated  will,  therefore,  fall  to  the  beneficiary's  trustee  in 
bankruptcy  (Mackinnon,  1892,  19  E.  1051).  Where  a  testator  had  left 
certain  property  to  his  wife,  and  had  declared  that  by  accepting  the 
provision  she  should  be  held  to  bind  herself  to  leave  a  proportion  of  it  to 
certain  of  his  relatives,  with  a  further  declaration  that  the  provision  thus 
made  for  these  relatives  should  be  of  an  alimentary  character,  and  should 
"be  invested  for  them,  and  not  paid  in  cash,"  it  was  held  that  as  he  had 
given  his  wife  no  directions  to  create  a  continuing  trust  to  preserve  the 
alimentary  character  of  the  provision  for  his  relatives,  the  latter  had,  on  the 
wife's  death,  an  -unrestricted  right  to  the  provision,  and  were  entitled  to 
immediate  and  unconditional  payment  thereof  {Murray,  1895,  22  E.  927). 
Where,  therefore,  in  order  to  prevent  the  actual  money  going  into  the  hands 
of  the  person  to  whom  the  fee  is  given,  it  is  practically  necessary  to  set  up 
a  new  trust,_  the  Court  will  refuse  to  do  so.  But  it"  has  been  held  that 
where  there  is  in  existence  a  trust,  and  the  trustees  are  expressly  directed 
to  retain  in  their  own  hands  money  which  has  vested  in  the  beneficiary, 
there  being  no  ulterior  purposes,  the  direction  is  one  which  the  trustees  can 
obey,  and  they  are  bound  to  retain  the  money  {Christie,  1889,  16  E.  913). 
This  case,  however,  does  not  seem  to  decide  more  than  that  in  such  circum- 
stances it  is  the  duty  of  the  trustees  to  maintain  the  trust  as  long  as  they 
can,  and  to  afford  such  protection  to  the  estate  as  it  is  in  their  power  to  do. 
It  is  not  easy  to  see  how  they  could  resist  a  demand  made  by  the  bene- 
ficiaries or  their  creditors. 

It  has  been  recently  decided  in  England  that  where  there  is  an  absolute 
vested  gift,  payable  upon  the  occurrence  of  a  future  event,  accompanied  by 
a  direction  to  the  trustees  to  accumulate,  and  to  pay  the  accumulations  of 
income  witli  the  capital  upon  the  occurrence  of  that  event,  the  Court  will  not 
enforce  a  trust  to  accumulate  in  which  no  person  has  an  interest  except  the 
legatee,  that  is  to  say,  that  a  legatee  mav  put  an  end  to  an  accumulation 
which  is  exclusively  for  his  benefit  ( Wharton,  [1895]  App.  Ca.  186 ;  see  also 
Lawman,  [1895],  2  Ch.  348).     See  Vesting. 

LAP.SED  Tru.st— Completion  of  Title  by  BENEFiciAr.v.— Provision  is 
made  by  the  1867  Act,  s.  14,  for  a  case  where  a  trustee  has  died  or  become 
incapaljle  of  acting  before  handing  over  the  property  to  the  person  entitled 
to  it.  That  section  provides  that  in  such  circumstances  a  beneficiary  who 
IS  entitled  "  to  the  possession  for  his  own  absolute  use  "  of  any  heritable  or 
moveable  property,  the  title  to  which  has  been  taken  in  the  name  of  a 
trustee  or  judicial  factoi;  may  apply  by  petition  to  the  Court  for  authority 


TRUST  DEED  Fni;  (KKDITons  397 

to  complete  a  title  to  the  property  in  his  own  name.     W-  - 

nominate,  who  had  ingathered  the  whole  estate,  died  h.  >' 

a  petition  by  tiiose  beneficially  interested  under  the  will  for  au 

make  up  a  title  under  this  section  was  granted  {('wpcr,  1807  o  S  1    1   ii/, 

But  this  procedure  is  only  competent  tcj  the  beneliciar'v  hin.k'lf  and  not  to 

his  assignee  {Machiifjht,  1875,  2  R  G67).  ' 

[See  Stair,  i.  12.  17 ;  i.  13.  7  ;  ii.  10.  5 ;  iv.  G ;  iv.  45.  21 :  More.  KoUs 
Ixxi,  cxhv,  elxix  ;  Erskine,  iii.  1.  32  ;  iii.  5.  8  ;  iv.  1.  45  ;  Bell.  /  1991' 

et  seq. ;  Bell,  Conveyancing,  942  d  f^eq. ;  Men/.ies,  Conrej/ancin>,,:i.u     \i  I      . 
Wills  and  Succession;  M'Laren,  Trusts:  Ilowden,  Trusts;  y'hn/'u-^    T 
Forsyth,  Trusts ;  Wood,  Trusts  Acts.] 

See  Appointment  of  Trustees;  A.s.sumed  Trustee.s;  A.^.m-mi-tion  op 
Trustees;  CiiAuiTAnLE  Trusts;  Judicial  Factok  on  Titf  -  t'tb- 
Legacies  ;  Ee.moval  of  Trustees  ;  Besignation  of  Trustees  ;  .-  js  '■ 

Testament;  Trust  Deed  for  Creditors;  Vesting;  Will."  *  ' 

Trust  Deed  for  Creditors A  trust  deed  f.r  crc(hi..r«  i> 

a  deed  by  which  a  debtor  conveys  his  estate  to  a  trustee  in  order  that  the 
latter  may  hold  it  against  the  granter  for  behoof  of  Iiis  creditors,  and  for 
distribution  among  them  towards  satisfaction  of  their  claims.  It  is  of  the 
essence  of  the  trust  that  the  trust  di.sponce,  wJiether  ■ '•  ■]  by  the 
debtor  or  by  the  creditors,  liolds  the  estate  conveyeil  as  n  ^ .  '  'Mvc  of 
the  creditors,  and  not  merely  as  the  mandatory  or  agent  of  the  ( Ilell 

Com.  ii.  383 ;  see  Mess,  1898,  36  S.  L.  E.  73).  His  right  in  the  estate  ia 
derived  from  the  voluntary  act  of  the  debtor  ;  but  being  once  duly  c<'  .J. 

it  is  not  revocable  by  the  debtor.  The  deed  is,  in  fact,  a  shftrt-hai,... ..  »ay 
of  handing  over  the  estate  to  the  creditors.  To  convey  it  direct  lo  ihi- 
creditors  themselves,  while  theoretically  possible,  is  not  a  practicable 
arrangement  where,  as  usually  happens,  the  creditors  are  a  nunier'  "v. 

hence  the  method  is  resorted  to  of  interposing  a  third  party,  as  r»  • 
tive  of  the  creditors,  who  undertakes  the  duty  of  realising  the  esta; 
interests,  and  of  dividing  the  proceeds  among  them  in  accordance  with  their 
legal  rights  and  preferences. 

It  is  obvious  that   the  execution  of  sucli  a  trust   conveyance  < 
in  itself  affect  the  rights  of  the  granter's  creditors  to  have  tJjeir  d<. 
estate  distributed  among  them  by  the  machinery  which  the  law  provide*. 
Accordingly,  the   efficacy  of  such   a  trust,  as  an  arrangement    for  extra- 
judicially liquidating  the  debtor's  aflUirs,  is  depemlcnt  upon  the  c  -       •    ■ 
the  creditors,  in  whose  option  it  is  to  accede  to  the  arrang^m.  ii* 
they  please.     Considerations  of  economy,  as  well  as  a  wil 
the  debtor  from  public  bankruptcy,  conduce  to  the  acceptance  of  pnvato 
trusts,  and  this  mode  of  extrajudicial  liquidation  is  very  common. 

A  trust  deed  for  creditors  is  re<lucible  under  the  Act  IdOO,  r  f?  if 
granted  after  the  constitution  of  notour  bankruptcy,  or  within  .•-.  >•» 

prior  thereto  (Mackenzie,  1868,  6  M.  833;  Xicolsou,  1872.  11  M.  1  d 

also  under  the  second  part  of  the  Act   1021,  c.  18.  if  it     "  '' 
diligence  already  begun  {Grant,  1835,  13  S.  424;  Much"  ■ 
from  the  application  of  these  statutes,  "a  voluntnry  tr;.  y 

a  party  insolvent  Init  not  Imnkrupt,  for  behoof  of  all  his  « :  y. 

and  containing  no  extraordinary  clauses,  will  be  ')'•■ 

and  good  and  availing  to  bind  non-acceding  as  wi 

the  estate  be  reduced  into  possession  by  the  trustee,  nn  >l 

rendered  notour  bankrupt  within  sixty  days.     The  "  owe. 

does  not  represent  the  debtor.     He  represents  the  cicai:ori  :n  iiicir  ju»l 


398  TRUST  DEED  FOR  CREDITORS 

proportions,  and  all  preferences  by  arrestment  are  excluded"  (per  Ld.  Deas 
in  Xieolson,  1872,  11  M.  179).  The  decisions  on  the  subject  do  not  yield  any 
general  definition  of  the  kind  of  "  extraordinary  clauses  "  in  a  trust  deed 
which  will  exclude  it  from  the  rule  thus  laid  down.  Clauses  as  to  the 
discharore  of  the  debtor  are  regarded  as  merely  an  excrescence  on  the  deed ; 
creditors  are  entitled  to  ignore  them,  Ijut  they  do  not  invalidate  the  trust 
{Henderson,  1882, 10  R.  185;  Ogilvie,  1887, 14  R.  399).  Professor  Bell's  opinion 
(Com.  ii.  384),  that  such  clauses  can  be  held^j?'o  non  scri2Jtis  only  where  the 
orranter  of  the  trust  deed  is  willing  that  they  should  be  disregarded  as  an 
essential  part  of  the  deed,  has  not  been  approved  (see  Henderson,  supra). 

In  order  to  exclude  the  diligence  of  non-acceding  creditors  under  the 
rule  above  quoted,  the  trustee's  title  must  be  completed  by  infeftment,  inti- 
mation, etc.,  as  the  case  may  be  (Bell,  Com.  ii.  386  ;  see  Lamb's  Tr.,  1883, 
11  R.  76). 

"While  a  trust  complying  with  the  conditions  of  the  above  rule  has  the 
effect  of  excluding  all  the  creditors  from  acquiring  preferences  by  diligence, 
it  does  not  prevent  a  non-acceding  creditor  from  using  arrestments  in  the 
hands  of  the  trustee  himself ;  but  such  arrestments  will  only  attach  any 
surplus  or  reversion  of  the  debtor's  estate  that  may  remain  after  fulfilment 
of  the  purposes  of  the  trust  {Marianski,  1871,  9  M.  673).  And  as  the 
existence  of  such  a  reversion  implies  that  all  the  creditors  at  the  date  of 
the  trust  have  been  paid  in  full,  arrestment  in  the  hands  of  the  trustee  can 
afiford  no  remedy  to  any  but  subsequent  creditors. 

If  the  trust  deed  be  reducible  under  the  Statute  1696,  c.  5,  or  at  common 
law,  non-acceding  creditors  are  entitled  to  ignore  it,  and  do  diligence  against 
the  estate  (Nicolson,  1872,  11  M.  179)).  If  it  is  founded  on  in  bar  of  their 
diligence,  they  may  plead  its  nullity  by  way  of  answer  (19  &  20  Vict.  c.  79, 
s.  10). 

A  trust  deed  for  creditors,  whether  containing  extraordinary  clauses  or 
not,  is  liable  to  be  superseded  at  any  time  by  sequestration  obtained  by  a 
creditor  who  has  not  acceded  thereto  (Bell,  Com.  ii.  391 ;  Lockie,  1837,  15 
S.  547  ;  Camjyhell,  1862,  24  D.  1097  ;  Nicolson,  siqna  ;  Kyd,  1880,  7  R.  884  ; 
Henderson,  1882,  10  R.  185).  An  acceding  creditor  has  been  held  en- 
titled to  resort  to  sequestration  where  the  object  of  the  trust  was  being 
defeated  by  the  hostile  proceedings  of  creditors  who  had  not  acceded  (Jojjp, 
1844,  7  D.  260;  Camphell,  1862,  24  D.  1097). 

A  trust  deed  may  be  superseded  by  cessio  obtained  at  the  instance  of  a 
non-acceding  creditor,  but  the  Sherifi'  is  entitled  to  exercise  a  discretion- 
ary power  in  granting  or  refusing  cessio  (43  &  44  Vict.  c.  34,  s.  9  (3) ; 
Robertson,  1888,  16  R.  235). 

The  usual  mode  of  constituting  the  trust  is  by  a  conveyance  qualified 
in  fjreniio  by  an  expression  of  the  trust  purposes.  The  essential  provisions 
are  :  (1)  The  realisation  of  the  estate,  (2)  Payment  of  the  creditors  according 
to  their  legal  rights  and  preferences,  and  (3)  Restitution  of  any  reversion  to 
the  debtor  (Bell,  Com.  ii.  385).  Tlie  right  of  the  trustee,  in  order  to  be 
effectual  against  non-acceding  creditors,  must  be  completed  by  infeftment 
in  the  case  of  heritage,  by  delivery  in  the  case  of  moveables,  and  by  intima- 
tion in  the  case  of  debts  or  other  such  incorporeal  rights  (ib.,  386).  It  is 
unnecessary  to  enumerate  the  creditors  in  the  deed  (^7^.,  387).  Such 
enumeration,  if  made,  seems  to  be  binding  on  the  debtor  {Ettles,  1833,  11  S. 
397 ;  Cruickshank,  1893,  21  R.  257),  and  elides  or  interrupts  prescription 
(Bell,  Prin.  s.  598  ;  Ettles,  supra  ;  Blair,  1858,  21  D.  45,  21  D.  1004). 

The  trust  deed  may  contain,  besides  the  essential  clauses  above  men- 
tioned, other  special  provisions,  as,  for  example,  that  the  trustee  shall  be 


TRUST  DEKl)  l(>i;  CliEDITnKS  399 

judge  of  the  creditors' claims,  or  a^.^dying  the  rul.  -  >.f  •...i; ■ 

Bankruptcy  Act,  or  providing  for  the 'debtor's  d. 

are  not,  apart  from  accession,  hiiiding  on  the  crediiorn  {Umnf  '1747    M 

1210;  Sut/tcrland,  1724,  M.    1191);  0(/ilvir,   1887,  14    l:.  399);' 

non-acceptance  by  a  creditor  does  not  bar  him  from  <i .;...;... ' 

(Ogilvie,  supra).     Nor  do  such  clauses  as  those  above  i: 

the   trust  (JFi/so?/,  17G2,  :\r.  1214;  Johnslo7ic,  IH70,  M.  App  "  liankrui.t  " 

Xo.  5  ;  Nicolson,  1872,  11  M.  179  ;  ILnffrrsou,  1882,  10  11   IsT. ,  /. 

11  IJ.    76).     The  authorities,  however,   recognise  that  a    irnht   .■ 

contain  clauses  so  exceptional  as  to  invalidate  it,  but  what  kind  ■ 

will  have  this  eilect  has  not  been  specifically  decided  (see  supra). 

Where  all  the  creditors  of  the  granter  accede  to  the  ] 
deed,  it  becomes  binding  on  them  ex  contractu  as  the  mod.-  . 
the  estate  towards  satisfaction  of  their  claims,  and  any  ehall- 
the  head  of  bankruptcy  or  insolvency,  or  resort  to  sequestration,  ia  ex. 

The  most  formal  mode  of  constituting  accession  is  by  an  exitr* 
under  the  hands  of  the  creditors  or  their  duly  authorised  mauda- 

Gibson,  1824,  3  S.  2G3 ;  ILnrij,  1897,  24  i:.  1045).     Acce.'^sion  m.:;. 

proved  by  the  oath  of  the  creditor,  and  also  rebus  ijjsis  etfadis;  but  in  the 
latter  case  a  distinction  has  been  drawn  between  the  effect  of  a<  sb 

binding  the  creditors  to  abstain  from  proceedings  hostile  to  the  tn 

binding  them  to   an  acceptance  of  extraordinary  conditi..!  ■-  of   :. 

(Bell,  Com.  ii.  393-5).     To  the  first  of  these  effects,  a^  :;  may  Iip  in- 

ferred from  attending  a  meeting  of  creditors  and  acquiescing  in  a  :  >m 

to  accede  {Heriot,  176G,  M.  12404;  Wilson,  17G2,  M.  1214;  I^a,  . 
S.  350  ,  Sturrock,  1851,  13  D.  7G2),  or  from  attending  Ti..-t;n.r<  f,,.,,, 
acquiescence  may  be  inferred  {Mackenzie,  1854,  IG  I'.  1  ' !  w- 

ledge  of  the  trust  is  not  sufficient  {Mackenzie,  supra,  per  1/1.  llulherfurd ). 
nor  lodging  a  claim  with  the  trustee  {Athyn,  1881,  18  S.  L  \\.  287;  A>/, 

1880,  7  R.  884),  nor  allowing  decree  to  pa.ss  in  nani'-  ■■*"  ''  ••  *•"-* ■.•...• 

the  creditor  for  a  debt  due  by  him  to  the  truster  ( .'/  .      \ 

Accession  binding  a  creditor   to  accept  extraordinary  conditions  of  the 

trust,  such  as  a  consent  to  discharge  the  bankrupt  on  jiayi 

or  to  make  the  trustee  judge  of  the  creditors'  claims  and  : 

grant  the  debtor  an  allowance,  will,  as  a  rule,  be  only  held  p: 

writing  (Bell,  Com.  ii.  395).     It  may  sometimes,  however,  be  ])roved  by  facta 

and  circumstances.     Thus  when  the  general  creditors  have  been  v 

forego  an  advantage  for  the  sake  of  gaining  the  benefit  of  tli' 

a  particular  creditor,  things  are  no  longer  entire,  and  the  ci' 

resile.     Thus  the  friends  of  the  debtor  may  agree  to  relinquish 

or  to  forego  the  opportunity  of   doing  diligence,  in  order  to  secure  the 

consent  of   other  creditors  to  the  arrangement.     CreiV*        •  '      '      -   -.  1 

acquiesce  in  the  proposal  at  a  meeting,  and  who  take  \ ... 

drawing  dividends  under  the  arrangement,  would  not  l)C  ■ 

that  the  deed  of  accession  had  not  been  signed  by  them  (Beii.  ■ 

It  is  an  implied  condition  of  accession  that  ■' 
a  footing  of  ecjuality,  in  the  sense  of  no  advant 
ticular  creditors  beyond  their  legal  rights  in  r.>: 

of  a  creditor  has  been    procured   by  a  secret  arm-  t  to  j  ■ 

larger  sum  than  the  dividend  which  he  wouM  in 
to  draw  from  the  estate,  the  other  crc'''-'--^  "'" 
contract,  or  to  demaml  rej>etition  of  wl 
a  communication  of  tiie  advantage  to  all  the  c 
see  Gordon   Mack,  25    Nov.    1814.  15  K.  C).      i;::i::>:.  ::••■ 


400  TRUST  DEED  FOE  CEEDITORS 

each  creditor  is  provisional  on  all  the  other  creditors  acceding;  and,  as 
has  already  been  pointed  out,  if  non-acceding  creditors  are  doing  diligence 
against  the  estate,  an  acceding  creditor  may  also  proceed  with  diligence 
(13ell,  Com.  ii.  395 ;   Watson,  1724,  M.  6397). 

Where  a  creditor  accedes,  the  accession  is  binding  (1)  on  an  assignee 
to  the  debt  in  respect  of  which  it  was  given ;  (2)  on  the  acceding  creditor 
personally  quoad  any  other  claim  on  the  estate  therccafter  purchased  by 
him  (Bell,  Com.  ii.  395 ;  Diclc,  1845,  8  D.  1.  As  to  claim  acquired  fortuit- 
ously, see  Bell,  Com.  ib.). 

It  is  the  duty  of  the  trustee  to  reduce  into  his  possession  the  estate 
conveyed  to  him,  by  infeftment,  intimation,  or  otherwise,  so  as  to  exclude 
diligence  at  the  instance  of  creditors.  He  has  no  title,  however,  to 
challenge  preferences,  unless  it  has  by  implication  been  conferred  on  him 
by  the  accession  of  creditors  having  a  title  to  a  trust  deed  containino-  a 
power  to  challenge  {Fleming's  Trs.,  1892,  19  E.  542).  He  must  conform  to 
any  express  provisions  of  the  trust  deed  relative  to  management,  and  quoad 
ultra  observe  the  rules  of  good  management  applicable  to  trust  administra- 
tion, as,  e.g.,  lodging  the  trust  moneys  in  bank  in  his  name  qua  trustee.  He 
may  be  sued  for  neghgence  or  malversation  {Bell,  1834,  12  S.  738),  and 
interdict  may  be  obtained  against  him  {Pender,  1831,  10  S.  19;  see  Cruick- 
shank,  1893,  21  E.  257 ;  Tecit,  1897,  24  E.  1128). 

"With  a  view  to  distribution  of  the  realised  estate,  the  trustee  adjudicates 
on  the  creditors'  claims,  and  ranks  them  according  to  their  rights  and 
preferences.  He  may  call  upon  a  creditor  to  constitute  his  claim  by  action 
if  not  satisfied  with  the  evidence  adduced  in  support  of  it.  A  multiple- 
poinding  is  not,  as  a  rule,  a  competent  proceeding  for  settling  disputes  as  to 
the  division  of  the  estate  {Kyd,  1880,7  E.  884;  Bohertson,  1899,  6  S.  L.  T. 
353),  the  remedy  of  non-acceding  creditors  being  to  obtain  sequestration, 
and  of  acceding  creditors  to  proceed  by  direct  action  against  the  trustee  {ib.). 
A  trustee  must  see  that  all  valid  claims  lodged  with  him  are  paid  before 
handing  back  the  estate  in  his  hands  to  the  truster,  otherwise  he  will  be 
personally  liable  therefor  {Cruichshanh,  1893,  21  E.  257). 

The  trustee  is  liable  personally  on  all  contracts  and  engagements  which 
he  enters  into  in  the  course  of  administering  the  trust  {MacplteUl,  1887,  15 
E.  47 ;  Ford,  1888,  16  E.  24),  unless  he  expressly  contracts  "  as  trustee  " 
only  {Gordon,  1842,  1  Bell's  App.  428;  see  Craig,  1896,  24  E.  6).  He  is 
similarly  liable  on  contracts  of  the  debtor  which  he  adopts.  Thus  where 
a  tenant  under  a  lease  excluding  assignees,  assigned  it  to  a  trustee  for 
creditors,  who  obtained  the  landlord's  consent  to  the  assignation,  and  entered 
into  possession  and  ingathered  the  crop,  the  trustee  was  held  liable  for  the 
current  year's  rent,  although  tlie  landlord,  in  giving  his  consent,  had  acceded 
to  the  trust  deed,  and  agreed  to  accept  a  renunciation  of  the  lease  by  the 
trustee  at  the  ensuing  term  of  Martinmas  {Moncreiffc,  1896,  24  E.  47).  The 
trustee  is  personally  liable  also  for  expenses  in  litigations  which  he  initiates 
or  adopts  (see  Buchanan,  1827,  5  S.  745  ;  Torlet,  1849,  11  D.  694).  But  a 
decree  against  him  "as  trustee"  does  not  infer  personal  liability  {Craig, 
1896,  24  E.  6).  Where  he  litigates  unsuccessfully  with  a  creditor  claiming 
a  ranking,  he  cannot  operate  his  relief  against  the  trust  estate  so  as  to 
diminisli  such  creditor's  dividend  {Clenhorn,  1827,  5  S.  187;  Carseivell, 
1832,  10  S.  677). 

Unless  a  remuneration  to  the  trustee  is  provided  for  in  the  trust  deed, 
or  arranged  to  be  given,  he  has  no  claim  therefor  {Johnstone's  Trs.,  1738, 
M.  13407,  and  21  D.  1383).  He  is  not  entitled  to  charge  professional  fees 
for  work  done  by  him  (see  Lauder,  1859,  21  D.  1353).     For  his  outlays  and 


TUG  AND  TOW 

advances  ami  it'iinineratkm  wIulIi  may  l.e  due  lo  hiui,  !  r 

the  estate  in  his  possession  {Thomson,  1880,7  \i.  lOlia';  ,, 

S.  L.  R  73);  but  in  the  event  of  sequestration,  ho  cannci-  f 

witlihold  tlie  estate  from  K<'<|iiostratinn  tnusteo  {Dnll,  1870,  rt  Ai.  lOuO;. 

The  trustee  may  bu  culled  uiuni  by  ilu;  cn-ditor-  •  k'uudc  in  their 
favour  (Bell,  Com.  ii.  392 ;  Allan,  1792,  \W\\'^  Oct.  Ca 

The  provisions  of  the  Trust  Act,  18U7,  aa  to  npiHiintnient  of  new 
trustees  by  the  Court,  have  been  lu-ld  ((.  apply  to  non-gruluiloi»8  Iruuta  for 
creditor  {lioijal  Bank,  Pclrs.,  189o,  2U  K.  741). 

The  radical  right  in  the  trust  estate  remains  with  fli.-  tn;^r.  r      TViis 
it  may  be  bequeathed  or  assigned  by  him  (Jxcnton,  1833,  1 
Farquhar,&  Co.,  1838,  IG  S.  948),  or  entailed  (M'Mill.,,,,   i 
alTd.  7  W.  &  S.  441);  and  his  heir-at-law,  in  making  up  iiilc 

service  to  the  truster,  and  not  by  cunveyaiice  from  the  tru.  .^    .' ..,-, 

1873,  11  M.  853).  In  virtue  of  his  radical  riglit  the  debtor  liaH  u  title  lo 
prevent  the  trustee  wasting  or  misapi)lying  the  estate  {J'ciider,  1831,  10  S. 
19;  Tail,  1897,  24  II.  1128),  and,  failing  accession  of  all  t1 

apply  for  sequestration  {Thomson,  1827,  ">  S.  441);  and  ul; n 

the  purposes  of  the  trust  have  been  carried  out,  lie  is  entitled  l«»  call  ui-.n 
the  trustee  to  account  for  his  intromissions  (Bell,  Com.  ii,  392;  /  ', 

1860,  23  D.  21;  JRitchie,  1881,  8  II.  747:  Tait,  supra;  of.  Martin.  i6J6, 
15  S.  227). 

Where  the  trust  deed  stipulates  for  a  discharge  to  the  debtor  upon  full 
distribution  of  the  estate  conveyed,  he  is  entitled  to  such  a  discharu'o  from 
all  creditors  who  have  acceded  to  the  trust  so  as  to  b.  '         "  "  "    » 

stipulation  (see  s?<j)ra),  and  have  received  their  pro}»er  .ii.i-i.  i...-  ,-,  .  ,», 
1824,  3  S.  263).  Otherwise  the  debtor  is  not  discharged  of  hi.s  debts, 
except  to  the  extent  of  the  dividends  received  I)y  the  creditors  from  the 
estate  (Bell,  Coin.  ii.  396). 

[Bell,  Co???,  ii.  382  et  scq.;  Goudy  on  J>'(()ikri(ptcy,  49H  tt  <>i.tliatn 

Stewart  on  Diligence,  54  et  scq.'\ 

Tug"  and  Tow. — When  one  vessel  employs  another  to  i  -, 

the  law  implies  an  engagement  that  each  vessel  will  i-erfonn  her  uwi_>  iii 

completing  the  contract;  that  proper  skill  and  diligence  will  Ik?  used  i>n 

board  of  each ;  and  that   neither   vessel,  by  neglect  or   mi.sconduct,  will 

create  unnecessary  risk  to  the  other,  or  increase  any  risk  which  m.i} 

incidental  to  the  service  undertaken  ( The  Julia,  1801,  Lush.  2'.' '  "  " ' 

tuff  must  be  efficient  and  jtropcrly  equij^pcd  for  the  service  ( i 

1886,L.  B.lir.D.46;  The  Iiala(a,L.  K.  [1897]  P.  118;  [1898]  A.  ' 

If,  e.g.,  the  master  of  the  tug  have  failed  to  suiij.ly  the  tug  with 

quantity  of  coal,  the  owners  of  the  tug  are  not  freed  f: 

this  want  of  proper  e([uipment  by  a  provision  in  tb- 

that  the  owners  of  the  tug  are  not  responsible  for  the  ' 

{The  Undaunted,  supra).     A  contract  to  tow  is  not,  however,  a  v 

tow  to  destination,  but  an  en<;agement  to  u.H"  b.'' 

skill  for  that  purpose  {The  Minnrhaha,  18G1,  b..  ...  •       ■      --   , 

of  the  stipulated  service  is  renderetl  impossible  l\v  viis  innj'or  or  n« 

contvactisat  an  end  {The  Minnehaha,  supr  "        .<.  L  1: 

90).     The  risk  is  assumed  to  be  no  more  than  oM:;n.iry.  .  • 

weather  (M'Lachlan,  Merchant  Shipping,  p.  293).     J».  V  . 

of  the  service,  caused  by  accident  to  the  tow,  will  n 

to  increased  remuneratiQ^i  {The  Jfjcmmdt,  1880,  L  It  5  i'.  ■ 

however,  the  towage  agreement  provides  for  demurr* 

S.  E. — VOL.  XII. 


402  TUG  AND  TOW 

tu^T  in  case  of  detention  arising  from  accident,  it  is  otherwise  {Neiv  Steam 
Tug  Co  1869,  7  Macph.  733).  If  a  vessel  is  damaged,  and  that  fact  is  con- 
cealed from  the  tu!:i,  towage  service  will  be  converted  into  salvage,  and  the 
luf^  entitled  to  salvage  reward  {The  Kingalock,  1854,  Spinks  E.  &  A.  263). 
For  the  distinction  between  towage  and  salvage,  and  for  the  conversion  of 
towac^e  service  into  salvage,  see  Salvage,  vol.  xi.  p.  74). 

It  is  the  duty  of  a  vessel,  even  a  steamship,  to  employ  a  tng  when  she  is 
in  such  circumstances  that  she  is  not  properly  under  control  without  one. 
She  will  be  responsible  for  damage  done  by  her  in  consequence  of  failure 
to  do  so  {The  Gertor,  1894,  7  Asp.  M.  C.  472).  It  may  be  proper  and 
necessary  for  a  vessel,  in  consequence  of  her  length  and  the  tortuous  nature 
of  the  channel  to  be  navigated,  to  have  a  tug  astern  to  assist  in  steering  {The 
Strathspey,  1891,  18  E.  1048,  op.  Ld.  Kinnear,  1057).  In  ordinary  circum- 
stances it  is  the  master's  and  not  the  pilot's  duty  to  engage  a  tug ;  that  is 
to  say,  where  the  tug  is  to  be  employed  solely  for  accelerating  speed,  the 
responsibility  of  employing  a  tug  rests  with  the  master  {The  Julia,  1861, 
Lush.  224,  226).  It  is  different  where  the  ship  is  in  distress,  and  it  is  a 
critical  question  whether  to  employ  a  tug  or  not  {The  Julia,  supra),  or 
where  a  tug  is  required  to  aid  the  manoeuvring  of  the  vessel :  there  the 
responsibiUty  is  with  the  pilot  {The  Strathspey,  1891,  18  E.  1048)._ 

A  tug  under  engagement  to  tow  a  ship  when  required,  is  not,  if  the  cir- 
cumstances are  perilous  to  her  own  safety,  bound  to  take  a  ship  in  tow 
upon  orders  from  the  master  {The  Julia,  1861,  Lush.  224). 

It  used  formerly  to  be  laid  down  in  absolute  terms  that  the  tug  is 
the  servant  of  the ''tow,  and  that  the  owners  of  the  tow  are  responsible 
for  the  acts  of  the  tug  {The  Kingston-by-Sea,  1850,  3  Wm.  Eob.  152  ;  The 
Mary,  1879,  L.  E.  5  P.  D.  14 ;  The  Sinquasi,  1880,  L.  E.  5  P.  D.  241).  This 
is  certainly  a  correct  statement  of  the  legal  relation  of  tug  and  tow  in  many 
instances,  but  recent  cases  show  that  it  cannot  be  universally  applied  {The 
Stormcock,  1885,  5,  Asp.  M.  C.  470,  opinion  of  Sir  James  Hannen  at 
p.  472  ;  The  Quickstep  1890,  L.  E.  15  P.  D.  196).  "No  general  rule  can  be 
laid  down.  The  question  whether  the  crew  of  the  tug  are  to  be  regarded  as 
the  servants  of  the  owner  of  the  vessel  in  tow  must  depend  upon  the 
circumstances  of  each  case"  (per  Butt,  J.,  in  The  Quickstep,  ut  supra,  at 
p.  200).  When  a  tug  has  a  number  of  barges  in  tow,  for  example,  she 
would  not  be  regarded  as  their  servant  {ih.,  p.  202 ;  Parsons,  Shiptping,  536, 
there  quoted ;  opinion  of  Ld.  Selborne  in  M'Coivan,  1891,  18  E.  (H.  L.) 
57,  58).  In  the  ordinary  case,  however,  the  tug  and  tow  are  engaged  in 
a  common  undertaking,  of  which  the  general  management  and  command 
belong  to  the  tow  {The  Niobe,  1888, L.  E.  13  P.  D.  55).  The  tug  is  bound 
to  obey  the  orders  of  the  tow  {The  Christina,  1848,  3  Wm.  Eob.  27,  6  Moo. 
P.  C.  C.  371 ;  The  Energy,  1870,  L.  E.  3  A.  &  E.  48 ;  The  Rohcrt  Dixon, 
1879,  L.  E.  5  P.  D.  54;  Spaight,  1881,  L.  E.  6  App.  Ca.  217).  Practically, 
the  tow  cannot  always  be  giving  directions  to  the  tug,  and  when  no  direc- 
tions are  given  by  the  vessel  in  tow,  the  rule  is  that  the  tug  shall  direct  the 
course  {The  St.  Lawrence  Tow  Boat  Co.,  1873,  L.  E.  5  P.  C.  308 ;  The  Altair, 
L.  E.  [1897]  P.  105).  Where,  however,  the  tug  is  proceeding  in  such  a  fashion 
aa  to  lead  the  tow  into  danger,  the  tow  is  not  justified  in  permitting  the  tug 
CO  do  so  unchecked  {St.  Lawrence  Tow  Boat  Co.,  supra  ;  The  Niobe,  1888,  L.  E. 
13  P.  D.  55  ;  The  Altair,  supra).  "  It  is  true  that  the  general  direction  is 
to  be  given  by  those  on  the  vessel  in  tow  ;  and  also  if  a  specific  order  is  given 
by  her  to  the  tug,  the  responsibility  must  rest  with  the  vessel  in  tow  for 
the  consequences  of  such  order.  But  it  does  not  follow  from  this  rule  that 
the  vessel  in  tow  is  to  be  constantly  interfering  with  the  tug :  it  must  depend 


tui:ni>ikk  a«  is  4^3 

on  the  place  ami  on  the  circumstances,  as  wlu-tlicr  t' 

vessels  about.     Tliuse  in  charge  of  the  tug  mu.st  ■  . 

and  must  not  be  constantly  expecting  to  receive  ord. 

tow,  wliich  may  be  a  considerable  distance  astern  of  them  '  (- 

llanuen  in   The  Isca,  188G,  L.  li.   V2  p.   1).  :54    .".5  •  see  also'  J 

1880,  L.  K.  5  P.  D.  241).     It  is  not  the  duty  of  those  oi.  '•  ■■-•■ 

control  the  movements  of  the  tug  when  the^owing  is  at 

long  scope  of  hawser  ( The  S/ormcock,  1885,  f.  Asp.  M.  C.  470).     In  one  iune  it 

was  held  improper  to  remove  a  slni.  by  means  of  a  tug  from  one 

another  ai!  ?ii;(7/<!!,  becau.se  in  such  circumstances  the  t<jw  b'  •    • 

control  over  the  tug  (The  Borussia,  1856,  Swab.  94).     It  ; 

tow  to  follow  exactly  tlie  manonivres  of  the  tug  (The  June  /laro,,,  IHTH,  27 

W.  E.  35).     AVhere  vessels  are  likely  to  be  luet,  the  tow  shoidd  have  the 

means  of  immediately  slipping  or  cutting  the  tow-rope  (i7/.).     It  i    •'      '■•-,- 

of  the  tug  to  keep  a  look-out  for  both  (ih.).     Put  that  d(.es  nc.t  fi. 

from  the  obligation  of  herself  keeping  a  look-out  (y^c  Niohe,  1S88.  L  IL  13 

P.  D.  55).     For  the  purposes  of  the  regulations  for  preventing  c  at 

sea,  the  tug  and  tow  are  regarded  as  one  vessel  {The  Cleadon,  1.--..-   i  ush 

158,  14  Moo.  P.  C.  C.  92;  >Ac  Warrior,  1872,  L.  P.  3  A.  k  E.  553;    The 

American  and  The  Syria,  1874,  L.  P.  G  P.  C.  127,  131  ;  the  law  is  the  same 

in  America— TAc  Civilta  and  The  Restless,  1880,  103  U.S.  (13  Otto)  699). 

But  a  steamship  with  another  vessel  in  tow  is  not  to  be  regar.'.  ' 

ship  in  the  sense  of  the  regulations,  so  as  to  be  bound  in  all  <  

to  act  as  a  steamship,  e.g.  by  stopping  and  reversing  lier  ( i  or  by 

keeping  out  of  the  way  of  a  sailing  ship  {The  Kimjstun-hy-Sea,  l«6u, .".  Wm. 
Kob.  152,154;  The  Independence,  18G1,  \a\^\\.  270;  18G1,  14  M.m..  P.  ('.  C. 
103  ;  The  American  and  The  Syria,  1874,  L.  P.  G  P.  C.  127  ;  7"/  •  /  /  /" '  -r, 
L.  E.  [1896]  P.  28).  She  is  not  absolved  altogether  fr..m 
rules  which  apply  to  steamers,  but  allowance  must  be  made  by  another 
vesselapproachingher  for  her  comparativelydisaldcd  condition.:'    '       '  ' 

caution  o\)S,qv\q([  (The  American  and  The  Syria,  nt  su]tra,iit.  ]>.  1.  .  .. 
towing  and  being  towed  exhibit  special  lights  and  sound  spti-ial  fog- 
(M.  S.  A.,  1894,  s.  418,  Order  in  Council,  27th  Nov.  1896,  Schcd.  I..  Articles 
3,  5,  15  (e)). 

As  to  liability  for  damages  caused  by  collision  in  wbii-b  '■   '  ■•■■'  *<»w  are 
involved,  see  Collision,  a7ite,  vol.  iii.  p.  98  ;  The  Mar)/  IIv  ■>.  L  IL 

4  P.  D.  204;  The  Mary,  1879,  L.  E.  5  P.  D.  14;  The  Stormc^k.  18S.-..5  Asj*. 
M.  C.  470;    M'Coivan,  1890,  17  E.  1016;  1891.  18  E.  (H.   L)  57:    Thr 

Quickstep,  1890,  L.  E.  15  P.  D.  196).     In  a  case  of  colli<'  ■•  '    ;i  two 

vessels,  one  of  which  is  under  tow,  it  is  the  duty  of  the  :  id  by 

the  injured  vessel  (M.   S.  A.,   1894,  8.  422:    The  Hannil^l,   1867.   L  R. 
2  A.  &  E.  53). 

There  is  no  maritime  lien  for  towage  ( ir<\s7/"y..  i-   "  '    ''        '  '    ''  l.'41>. 

[M'Lachlan,  Merchant  Shipping,  ch.  vi. ;  MarsdfMi  i.] 

Turnpike  Acts.— See  Eoaps  axd  BKii»iits;  HkJinvAVst. 


Supplemental    IMotes. 


t\ 


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By  John  Trayner,  one  of  the  Senators  of  the  College  of  Justice. 
Fourth  Edition.     Svo.     21s.     1894. 

Ferguson's  Railway  Law.  A  Summary  of  the  Law  relating  to 
a  Railway  in  Operation.  By  James  Ferguson,  Advocate.  Svo. 
18s. 

Ferguson's    Five    Years'    Railway     Cases,    1889-1893, 

with  Acts  ot  Parliament  and  of  Sederunt  ;  and  the  Railway  and 
Canal  Commission  Rules.  Demy  Svo.  5s.  nett.  1894.  Being 
a  Supplement  to  the  above  work. 

Both  Treatises  may  be  had  bound  in  1  vol.,  at  21s,  nett. 

Balfour's  Court  of  Session  Practice.     A  Handbook  of  Court 

of  Session  Practice  for  the  use  of  Students.  Second  Edition,  revised 
by  Robert  Berry.    Svo.     12s. 

Macdonald's  Criminal  Law.  A  Practical  Treatise  on  the 
Criminal  Law  of  Scotland.  By  J.  H.  A.  Macdonald,  Q.C.  (Lord 
Justice-Clerk).  Third  Edition,  greatly  enlarged.  Svo.  £1,  lis.  6d. 
1894. 

Kirkpatrick  on  Evidence.  A  Digest  of  the  Scottish  Law  of  Evi- 
dence. By  John  Kirkpatrick,  M.A.,  LL.B.,  Advocate.  Second 
Edition,  revised  and  enlarged.     Crown  Svo,     8s. 


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AA 


^VUlimn  Green  £  iioius. 


"''^™'"!f..:fl„Sf'5;^„  °»f  t  "-^  Se-.on  Style.: 

mak.;.  occuni,,,,"," r  til"  l^l^r'i'f  cZ"'"""„r'\  '■\r""  ^ 
bohcitor.     8vo.     5s.  '-tj,*.!!).      JJy    A.    Mai-kuxzik, 

Seton's  Registration  Acts.     \  i'ruti,..i  Air 

Advocate.    Fifth  K.liiio,,.    «";,'    rf     '  t',',     "^'  *''=°""»  S"~». 


cate.     Crown  8v(..     5s.  '  ^'""  ""''-'^  '^""'MUt,  LLJi.,  Advo- 

-ceiony,     ±!y  b.  1.  CoDPER,  Advocate.     8vo.     Us.     1884. 

Moncreiff  on  Review,     a  Treatise  on  the  Usv  of  i^,-  • 

Uiminul  Cases  by  the  Hif,'h  Court  and  Circuit  Court  ..f  J 

and  on  Procedure  in  Criminal  Ca^es  in  Inferior  Court.,  in  6v.ni„uu 

By  Hon.  H.  J.  Moncreiff  (Lord  Welhs-.,od).     8vo.    \i>, 

Lorimer's  Studies,  National  and  International    . . 

Lectures  delivered  in  the  University  of  Edinl.urKh.  lh<;j   i-  .'      ■ 
^I'Sm^'^'os'^h"""'  '"'"""■  "'■  '"'"•^  ^^^^'  L:«iven..v  or 

Styles  of  Writs  in  the  Sheriff  Courts  of  Scotland      \ 

James  JboRREsT,  Advocate,  and   \i.  JJ.  .S„K.\utu,  Wnur.  <, 
ovo.     12s. 

Scottish   Chamber  of  Agriculture   Series.    The  Aowccl. 

TUKAL    II0LUIXG.S    (,6cuTLA.\U;    Aci,   \>Ki.       j!s     I'      ' 

2s.  nett.      1894.     The    Faujieu's   Leual    Han, 

CONNELL,  Solicitor.     Crown  8vo.    3s.  6d.  iiW/.     18U4.     TiiKj.AWor 

i^NTAlL  :  A  Lecture.     Hy  Pinfi-ssor  W«>«»|.     r...,...'..        <i      l^y4. 

Manual  of  the  Law  of  Scotland,    i  v^  «f 

Students.         Jiy     WlLI.lAM      Kin.mulkuh      .'..  UUf 

Large  Volume.     12s.  nett.     18UG. 

Guide  to  Local  Government  in  Counties,  Parishes,  and 

Burghs,  o.ntaiuiii^'   ilie  Text   ..f  all    A 
and   i'arish  Councils  and  their  Duti.- 
ndt.     1898.