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Full text of "Green's encyclopaedia of the law of Scotland"

WILL 

Scots Revis 

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Conveyancing Statutes from the 13th Century to the 

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Cooper on Defamation. A Handbook of the Law of Defamation 
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Stewart on Mines and Minerals. A Treatise on the Law of 

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

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Pithie's Inland Revenue Cases. Summary Proceedings, together 
V, i. - . iiR-nt of Pr(.(edure in Appeals in Inland Revenue Cases 
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Mackay's Manual of Practice. A Manual of Practice in the 
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Irons on The Burgh Police Act, 1892. An Annotated Edi- 

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excyclopj:dia 



or 



SCOTS LAW 



TOLOiE xn 




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May 1899. 

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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. 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- 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 & 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, 
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, 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, 
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, 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, 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, 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, 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, ; 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, 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, 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, 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, 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, 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