Scottish Court of Session Decisions

This action was raised by Mrs Margaret Wilson or Robertson, wife of Lieutenant Robertson, 7th Hussars, for the purpose of establishing her marriage with the late Major Steuart, and for recovery of her jus relictæ.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 3d December 1872.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, proof adduced, and whole process, reduces, rescinds, decerns, and declares in terms of the whole reductive and declaratory conclusions of the libel, and decerns: Finds the pursuers entitled to expenses hitherto incurred, and remits the account thereof to the Auditor of Court to tax the same and report: Quoad ultra appoints the case to be enrolled, that the conclusions for count, reckoning, and payment may be proceeded with and disposed of.

Note.—This is an important, and in many respects a difficult case. Whatever view may be taken of the evidence, there is much that is unexplained, and indeed unaccountable, not only in the conduct of the late Major Steuart, but also in the conduct of the present pursuer, Mrs Robertson, and of the various members of her family. Possibly some of the anomalies might have been explained had it been competent to examine the pursuer herself as a witness; and the Lord Ordinary cannot help regretting that, in cases like the present, he has found himself obliged to exclude the evidence of the parties. An ingenious attempt was made to show that the evidence of parties was admissible in a case like the present, notwithstanding the express provision of the Evidence Act; but the Lord Ordinary found himself compelled to sustain the objection to the admissibility of the pursuer and her husband as witnesses.

After a very careful consideration of the voluminous and elaborate proof which has been adduced, both oral and written, the Lord Ordinary has come to be of opinion that a marriage between the late Major Steuart and the pursuer Mrs Robertson has been sufficiently established. There are no doubt great and serious difficulties in reaching this conclusion, but the Lord Ordinary thinks that the difficulties attending an opposite conclusion are still more serious, and are, indeed, to his mind insurmountable. Applying the law of Scotland as it at present exists to the evidence in the case, the Lord Ordinary has ultimately found himself quite shut up to the conclusion that the late Major Steuart and the pursuer Mrs Robertson were married persons, husband and wife of each other, and that their child, the deceased William George Drummond Steuart, was their lawful son, and if he had survived he would have been the heir of the Murthly estates. The present action does not involve the question of the succession to these large and valuable estates, but merely to the personalty or moveable succession of the late Major Steuart, which, however considerable, is small compared to the value of the entailed estates. But the Lord Ordinary has weighed the evidence, and has decided the cause, just as he would have done if the child had been still alive and claiming as heir-at-law the whole estates.

It is not necessary, and is not the intention of the Lord Ordinary, to attempt any analysis of the evidence. Any such attempt would involve details and minute examination of testimony and of circumstances quite unsuitable to a note like the present. It is right, however, that the Lord Ordinary should indicate as briefly as possible the leading grounds upon which his judgment has proceeded.

There is no question in the present case of a marriage constituted by habit and repute, or by promise subsequente copula. Both these modes of proving the interchange of matrimonial consent are excluded by the circumstances disclosed in the evidence. The pursuers rely, and rely exclusively, upon the de presenti interchange of matrimonial consent between the alleged spouses, a consent said to have been given at an irregular ceremony which took place on 13th February 1866, upon what followed immediately upon that ceremony, and upon the solemn, serious, and repeated admissions of Major Steuart, which admissions had all reference to the consent finally interchanged at the ceremony of 13th February 1866.

The Lord Ordinary thinks that it is sufficiently established in point of fact that there was an irregular ceremony on 13th February 1866, at which Major Steuart and the pursuer mutually accepted of each other as spouses; that this consent constituted actual marriage; that it was followed by cohabitation; and that both parties thereafter acted as the husband and wife of each other. The Lord Ordinary thinks it also sufficiently established that the late Major Steuart solemnly, seriously, and repeatedly stated and admitted that he was married to the pursuer, and that in circumstances which leave no doubt that he really meant and intended what he said, and that his statements and admissions were true.

(1) In the Lord Ordinary's view, the turning point of the whole case, upon which virtually everything depends, is the so-called ceremony of 13th February 1866, at which de presenti matrimonial consent was interchanged. If this ceremony and the consent given thereat be sufficiently established—if it be shown that the consent was solemn, deliberate, and serious—that the parties really meant to contract marriage—and that the ceremony and consent was not a mere screen and sham for something else, then actual marriage was thereby constituted. Nothing else is needed. The other evidence in the case may confirm the testimony of de presenti consent having been interchanged—it may exclude pretence and collusion, or deceit or jest—but except for such purposes it is not needed to establish the marriage.

On the other hand, if the ceremony of 13th

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February 1866 is not proved—if it could be shown that that was a more sham and farce—the parties not intending real marriage—and still more, if the conclusion could be reached that the witnesses who speak to that ceremony—to the consent given thereat, and to the incidents attending it—were false and perjured persons, then, and in such a case, the Lord Ordinary feels very strongly that it would not be very difficult to disregard and set aside all the other evidences of marriage on which the pursuers rely.

It is all important, therefore, to see and to consider the evidence by which the ceremony and consent of 13th February 1866 is sought to be established.

There are only two witnesses now surviving who were present during the whole meeting of 13th February 1866, and who saw the whole ceremony—George Wilson, the pursuer's brother, and Mrs Hannah Fyfe or Kellett. Both these witnesses were examined in most minute detail. They were subjected to a most able and sifting cross-examination, and the result upon the Lord Ordinary's mind was that they were truthful witnesses, upon whose testimony reliance might safely, and ought to be, placed. No doubt George Wilson is a near relative, and allowance must be made for this; but the Lord Ordinary could detect nothing which could lead him to suppose that he was wilfully stating anything that was not strictly true. Indeed, the evidence of Mrs Kellett, who is an entire stranger, without any interest whatever in the suit, is in some respects more favourable to the pursuer than the evidence of the pursuer's own brother. The minute variations between the estimony of these two witnesses, in conformity with a well-known rule, rather confirmed the evidence than derogated therefrom, and unless actual perjury is supposed—perjury of the most daring kind—the Lord Ordinary feels compelled to accept as actual fact the statements which the witnesses make.

Now, pausing for a moment here, the Lord Ordinary cannot help thinking that there is no room for mistake or doubt as to the nature and meaning of what took place. The Major's words, ‘aggie, you are my wife before Heaven; so help me, great God!’ his kneeling posture, the putting the ring upon the pursuer's finger, and the whole attendant circumstances, exclude every construction but one, or at least throw it upon the defenders to show that what appeared to be a solemn matrimonial consent was a mere device or screen contrived and intended by both the parties to cover and conceal something quite different. This has not been shown, and, the Lord Ordinary thinks, cannot be shown, and the result is, that believing the testimony of George Wilson and of Mrs Kellett, the late Major Steuart and the pursuer, Mrs Robertson, became lawfully married persons on the evening of 13th February 1866.

But besides the direct evidence of the two surviving witnesses, George Wilson and Mrs Kellett, the ceremony and consent is proved by the hearsay of old Mr and Mrs Wilson, both of whom are now dead. There is really no room for doubting that both Mr and Mrs Wilson constantly, consistently, and without a single deviation or contradiction, not only asserted that the marriage had taken place, but acted on this footing ever after 13th February 1866. Their statements and conduct are proved almost by scores of witnesses, and no real contradiction is established, although no doubt their conduct is open to very severe animadversion and remark.

Then there is the very important testimony of the servant Agnes Forbes, a most important witness, and whose evidence is all the more noteworthy as she shortly afterwards left Mr Wilson's service, and was only discovered by advertisement previous to the present trial. Agnes Forbes was not present at the ceremony, but she came into the room immediately after it to put fruit and glasses on the table. She heard words which implied that the marriage had taken place. She saw the marriage ring on the pursuer's finger, and she proved circumstances which afterwards took place, which (unless there had been a deep-laid conspiracy on the part of the pursuer herself to deceive) demonstrate that the marriage had taken place.

The evidence of Agnes Forbes is so important that the Lord Ordinary was not surprised at the defenders, in the course of their proof, more than a week after Agnes Forbes had been examined, proposing to recal her, not to ask her anything which had been omitted, but for the purpose of discrediting her by setting up contradictions about which she had not been asked at all. The Lord Ordinary, while anxious not to exclude any legitimate light, found himself compelled to disallow this proposal, which, if admitted, would, he thinks, be subversive of all rule in the regular examination of witnesses. The defenders had no excuse if they were not ready fully to cross-examine Agnes Forbes, for even if they had not had an opportunity of precognoscing her, it was all the more necessary that they should be fully ready with evidence of any former statements which she had made. It would be very bad practice if, after a witness was fully examined and cross-examined, the opposite party were to be encouraged to hunt out supposed contradictions, and then, after the trial had gone on for six days, to recal her for the sole purpose of discrediting her. The Lord Ordinary thinks that Agnes Forbes gave her evidence in a most truthful and straightforward manner.

Still further, the fact of the ceremony and the matrimonial consent is indirectly but most conclusively proved by the evidence of the pursuer's sister, Georgina; the pursuer's sister-in-law, Mrs Alexander Wilson; and the pursuer's brothers, Alfred and Edmund.

Georgina and Alfred Wilson had been at the so-called marriage party of 13th February 1866, but being young, they had been sent to bed by their father before the ceremony took place. The sending the younger children early to bed was in conformity with old Mr Wilson's usual practice, and though it was rather odd if he really expected the ceremony to happen, there seems no doubt of the fact. Georgina and Alfred had, up to 13th February 1866, occupied the same bed-room with their sister, the pursuer; they missed her from the bed-room that very night, and were told of the marriage next morning. Mrs Alexander Wilson, again, heard of the marriage on calling next day, and actually saw Major Steuart and the pursuer in bed together, and the other brother, Edmund, was informed of the marriage by letter. The most minute details are brought out in the evidence, such as the fish-dinner at Newhaven, and various statements of Major Steuart's, all bearing close and necessary reference to the ceremony of the 13th. Further corroboration is obtained from

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statements to third parties, both by the Wilson family and by Major Steuart himself.

For example, only to take two instances out of many; it is proved by the witness George Mortimer, a butcher from whom Major Steuart occasionally purchased meat, that Major Steuart told him, I got married last night,’ and though he at first doubted it, he afterwards believed it, and it was in strict accordance with the fact. In the same category may be placed the statements made to John Caw, the messenger-at-arms, who, within a week after the marriage, was employed to apprehend the Major for debt. He found the Major in bed with the pursuer, and was not only told of the marriage, but actually got the debt paid by old Wilson, the father-in-law, in order that the poor Major might not have to spend his honeymoon in gaol.

Without referring to further evidence in corroboration, the Lord Ordinary thinks that the facts of the ceremony and de presenti consent thereat, are sufficiently and indeed conclusively established. This conclusion is irresistible, without holding that four or five, and probably seven or eight witnesses, are deeply and deliberately perjured, and that they have got up a conspiracy of the most daring kind to set up a ceremony of marriage which never took place. A supposition like this is utterly inadmissible. Perjury in most, indeed in all the witnesses, is incredible, and no such conspiracy could have stood the test of the sifting to which the witnesses were subjected at the trial.

(2) The marriage—the ceremony of marriage which actually took place on 13th February 1866, was preceded by a courtship—not, it may be, a very delicate or refined courtship, but still a courtship, noticed, open, and almost avowed—which might very naturally terminate in a marriage. The fact of an attachment having arisen between Major Steuart and the pursuer is well established, and though there was great disparity in the rank of the parties, the Major's circumstances, and still more the Major's habits, were such as might very naturally induce the hope in the Wilsons and in the pursuer that a marriage might be brought about.

It is not against the pursuer's case, but in favour of it, if there was something like scheming on the part of old Wilson and his wife to bring about a marriage. All that can be said is, that the scheme was successful. The getting Major Steuart as an inmate of Mr Wilson's house, and then at a critical period representing that he must leave it, was not unlikely in the circumstances disclosed in evidence to bring the Major to the point. And even though it should be held that he was entrapped into a marriage, still if he freely and deliberately entered into the marriage with his eyes open, the scheming of the bride's father and mother, or of the bride herself, though it had been a great deal worse than it was, would not annul the marriage. Such things are not altogether unknown in higher circles than that in which the Wilsons moved. One thing is clear, that if the Major was entrapped, he saw the trap laid and baited for him; no deception was practised on him—he was a willing and deliberate victim.

(3) But it is much more important to notice that the marriage was immediately followed by cohabitation, which cohabitation continued, with considerable interruptions, till the Major left for England the spring before he died—that is the spring of 1868.

It seems quite established that no improper conduct, and no improper familiarities, ever took place between the pursuer and Major Steuart previous to the alleged marriage; and that thereafter, that is immediately after the ceremony, they cohabited together as husband and wife. They were bedded on that night, 13th February 1866, according to an old Scotch custom, happily nearly in desuetude.

The fact that there was no intercourse before the ceremony, and continued and open cohabitation after it, is a striking feature of the present case, which broadly distinguishes it from such cases as that of Roxburgh v. Watson, 23d October 1868, 7 M'P. p. 19, where the pursuer was not only a prostitute, but had actually long been the kept mistress of the man with whom she alleged marriage. The Lord Ordinary fully concurs in the opinion of Lord Neaves as to the extreme caution with which the Court should proceed in dealing with alleged marriages got up between a mistress and her paramour, but he humbly thinks that to a large extent these remarks are not applicable to the present case.

Every case depends on its own circumstances; in every case the question is a pure question of evidence; and the Lord Ordinary thinks it established in the present case. The Lord Ordinary thinks it quite clearly proved that the cohabitation began and continued solely upon the faith of the ceremony of 13th February. No doubt proof that the ceremony was a collusive device would get behind everything, but it would require to be very strong proof, and, in particular, it would require proof that the pursuer was a party to the device, and that she surrendered her person, as she did on the night of 13th February 1866, on another footing than that of marriage.

(4) And lastly, for the Lord Ordinary purposely omits all minute details, it is established by a host of witnesses, many of whom are above all suspicion or exception, that the late Major Steuart solemnly and deliberately, and under a great variety of different circumstances, admitted his marriage with the pursuer.

This is proved by about fifty witnesses of every rank and standing, and speaking to the most varied circumstances and occurrences. To examine them in detail would be to go over the whole proof.

It may be at once conceded that many of these witnesses give comparatively unimportant testimony, although in hardly any case does the Lord Ordinary doubt that the testimony is true.

Statements made to hotel-keepers or lodging-house keepers with the view of getting apartments do not go for much, as was well exemplified in the Blackwood's case, and the same may be said of many of the occasions when the Major spoke of the pursuer as Mrs Steuart.

But even a great deal of this kind of evidence is important in the present case, for the representations to hotel-keepers made by Major Steuart were not made when he and the pursuer were travelling alone, and the hotel-keepers were commonly not strangers, but old acquaintances of the Major. Many important statements were made during the trip to London and Paris, when the spouses were accompanied by the father and the

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sister of the bride. It is hardly conceivable to hold that all the Major said was for the purpose of deceiving, and then, when the Major spoke of his child as the ‘heir of Murthly,’ as he often did, and of Mrs Steuart as the future Lady Steuart, all this is quite different from a person carrying on an illicit amour, and occasionally calling his paramour by his name.

Even Major Steuart's casual conversations with boon companions are not to be disregarded; for what conceivable motive could he have for telling a boon companion that he was married to the pursuer, if it was not really the fact?

Undoubtedly, however, a good deal of the evidence of what Major Steuart said must be taken with careful limitation. But after making every allowance, there is much of this evidence which will not and cannot be explained away.

As examples, the Lord Ordinary may mention the evidence of Dr Middleton, the evidence of Mrs O'Brien, that of John Alexander, that of Mrs Cunningham, that of Mr Andrew Ramsay, and others of similar character.

But above all, and on this branch of the case, the Lord Ordinary thinks the strongest weight due to the testimony of Captain Cooper. The Lord Ordinary accepts without any hesitation every word of Captain Cooper's testimony as absolutely true. Not the slightest suspicion can be hinted against him, and he could not be mistaken.

Captain Cooper was the most intimate friend Major Steuart had in the world. His companion in arms in the same regiment, and co-recipient of the Victoria Cross, Captain Cooper visited Major Steuart on his death-bed, and received his latest statements and charges; and to Captain Cooper Major Steuart stated, under circumstances which excluded the slightest doubt in Captain Cooper's mind, ‘that he, Major Steuart, was married to the pursuer.’ In effect, Major Steuart died declaring the pursuer his wife, and their child his lawful son. Of course, this per se would not make a marriage, but taken with what went beforehand, it really wipes the last doubt from the Lord Ordinary's mind.

Having thus briefly indicated the grounds upon which the Lord Ordinary has proceeded, it may be right to notice in one or two sentences the opposing grounds, or considerations and circumstances which have to be overcome and disregarded, and these are certainly neither few nor small. The Lord Ordinary thinks they have been overcome, but there is undoubtedly great difficulty in doing so.

(1) The first and chief circumstances relied on by the defender is the correspondence with the Major, so far as recovered. None of the pursuer's letters to the Major have been found. Major Steuart must have destroyed them all. But there are a large number of letters from the Major to the pursuer, and there are some letters between old Wilson and the Major, Mrs Wilson and the Major, and there are a number of letters between the pursuer and Mr Melville Jameson.

Now, looking to these letters, and especially to Major Steuart's letters to the pursuer, they create a very serious difficulty and doubt. It is not too much to say that no such letters ever passed between a husband, said to be an attached husband, and his wife, as those addressed by the Major to the pursuer. The mode of expression used in those letters is inexplicable. The Major is represented by all who knew him best as a man of untarnished honour and integrity, notwithstanding all his vices. He was ‘a noble fellow,’ ‘a most perfectly honourable man,’ and ‘the bravest of the brave.’ The Lord Ordinary is most unwilling even to suspect him of wishing to draw back from his word; but the question does force itself, Were these letters not written with intentional constraint? as if to take care that, although there had been a marriage by oral consent, the pursuer should have nothing under the Major's hand to prove it. It is a damaging supposition for the Major's memory; but, alas! his own conduct has left on that memory many a stain, and were the defence in this case successful, there would lie against his memory a deeper reproach than that which the terms of his letters suggest.

After all, negative evidence—the non-indication of marriage in letters—can never overcome direct evidence of actual marriage, if this latter is strong enough. The Lord Ordinary thinks it is so in the present case.

(2) The defenders rely on the Major's own statements. To a great variety of persons, and in various circumstances, the Major stated he was not married to the pursuer, and these statements are relied upon by the defenders.

Now, the Lord Ordinary has the greatest possible doubts whether mere statements by Major Steuart, outwith the presence of the pursuer, are evidence against her at all. The question first directly arose in the examination of Dr Simpson, but it had previously occurred incidentally. Looking to the circumstances, the Lord Ordinary thought it safest to admit the evidence, reserving its effects. Major Steuart's statements were so much mixed up and interlaced with his conduct that it was very difficult to draw the line, and the Lord Ordinary followed what is often in such cases an expedient course—to record the evidence, reserving its effect, and thus save the risk and prejudice of the re-examination of a large, and, it may be, an unknown number of witnesses. Everything is now before the Court, but the question of the effect of the evidence is perfectly open.

The Lord Ordinary inclines to think that bare statements made by Major Steuart to third parties, not connected with or explaining Major Steuart's conduct, and outwith the presence of the pursuer, are not evidence against the pursuer. Major Steuart, if himself alive, could not have been a witness; and while his confession as a party may be evidence against him, he could not convert his bare and unconnected statements into evidence in his favour. This disposes of a good deal of what the defenders rely on as Major Steuart's mere statements.

But, besides, it is plain that on some occasions, and from some persons at least, Major Steuart wished to keep his marriage secret. He often said so, and although his conduct in this respect was anything but consistent, this must be attributed to his dissipated and irregular habits, which indeed go far to account for a great deal that is perplexing and for much that is painful in the present case. It is in vain to expect consistency, either in language or in conduct, from one who, however high he once stood, had become the slave and the victim of degrading intemperance.

(3) But there is some evidence that, even in the pursuer's presence, Major Steuart denied his marriage. Of course this is not conclusive of anything, for if concealment was wished, such denials

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might be necessary, or might be thought necessary.

But the evidence as to this is very meagre. It rests chiefly on the testimony of the valet Glover Budd, and of Mr and Mrs Hutton. But all these witnesses are seriously discredited—Budd fatally by Captain Cooper, who directly contradicts him, and Mr and Mrs Hutton hardly less seriously by the evidence of Mr Pople of the Birnam Hotel, and by that of Mr and Mrs M'Lagan. The Lord Ordinary would not feel warranted in resting much weight on the unsupported testimony of Budd and the Huttons.

The evidence of the witnesses now referred to (Pople and the Maclagans) has another bearing. It points to the existence of some kind of document or acknowledgment proving the marriage, which was in, or supposed to be in, Major Steuart's portmanteau, and which has been lost or destroyed. This may be material, not only in itself, but as explaining the pursuer's after conduct, when she found herself without a scrap of Major Steuart's writing to show that she was his wife.

(4) The pursuer's statements at the police trials of 1866 are much relied on by the defenders. But here there is a conflict of evidence, John Alexander and Agnes Forbes being opposed by the Laings, by Torrie, and Hunter. It is difficult to say where the preponderance rests, but it is not at all surprising that in the crowd and confusion of a police court there was, to say the least, room for misconception on the part of the bystanders who were watching the cases before that tribunal. At the worst, this is just one of the circumstances which it is difficult to get over, but which does not shake the independent structure on which the pursuer's case rests.

(5) Not very much weight, it is thought, can be attached to the circumstances attending the registration of the birth and the baptism of the pursuer's child: of the two, the registration of the birth is the most serious circumstance against the pursuer. The child is registered as illegitimate, and the pursuer signs the register. It appears, however (Collett's evidence), that there was an altercation between the pursuer and the registrar as to the legitimacy of the child, the registrar demanding that the father should come to the office before the registrar would enter him as husband and father. Major Steuart would not, at least did not, come, and this is another instance where a breath of suspicion crosses us that he was abstaining from committing himself in writing. No doubt this cuts two ways, but in the Major's absence the pursuer was nearly helpless in the matter of the registration.

The baptism of the child is really of little consequence. Undoubtedly the Reverend Mr Rigg believed the child illegitimate, and registered it accordingly; but nothing was said about legitimacy, and the registry was Mr Rigg's own act, and not the act of the pursuer. Mr Rigg had the name of the child on a slip in Major Steuart's own handwriting, “William George Drummond Steuart,” although he only baptised him “William,” and entered him as illegitimate.

(6) There is, next, the deed of settlement of old Wilson, which names the pursuer simply by her maiden name, although he mentions the married name of another daughter subsequently married. Here, again, there is difficulty, though only of a negative kind. Something may be attributed to the manner in which the instructions were given to Mr Denholm, and the mode in which he noted them, but still there remains an awkwardness which the pursuer must get over.

And there is great force in the observation that the case against the pursuer is strongest just where there should be writing, and writing in her favour. Wherever writing appears, it seems to ignore the alleged marriage. It was impossible to put this argument, and indeed the argument for the defenders throughout, more ably than was done by Mr Shand, and the Lord Ordinary was greatly moved by it. But then there was the alternative, and the Lord Ordinary has not been able to find that the defence was strong enough to overcome the pursuer's case. There is a choice of difficulties; the Lord Ordinary has taken the view which he thinks is attended with the least difficulty.

(7) Lastly, and omitting various topics of less weight, the Lord Ordinary was pressed with the pursuer's conduct both before the alleged marriage, during its subsistence, and after its dissolution, as inconsistent with the position and status which she claims.

Here again, undoubtedly there is much to be said against the pursuer.

The pursuer's general character was attacked, as well as the character of her father's house and family. This was of somewhat doubtful competency, and led to a question about proof in replication which the Lord Ordinary disallowed. The Lord Ordinary does not think that the character of the pursuer and of her father and his family has been successfully assailed to any extent bearing upon the present issue.

But the pursuer's conduct in not claiming the status of widow needs explanation, and perhaps is not fully explained. Her statement to old Mr Steuart may possibly have been in reference to her not possessing any document showing marriage, whereas he was referring to marriage itself. The evidence of the pursuer's sister, and the servant of Mr Steuart, points to this as a possible explanation, and allowance must be made for the pursuer's poverty and helplessness.

But whether fully explained or not, she could not unmarry herself, and even a misconception on her part would not take off the independent evidence of the marriage, if that evidence is to be believed, as the Lord Ordinary thinks it is.

On the whole, the question is a jury question, and the Lord Ordinary, acting as a jury, finds, not without difficulty indeed, but ultimately, and at last without much hesitation, for the pursuer.

This finding necessarily leads to the reduction of the decree in absence formally pronounced ex parte by the present Lord Ordinary. The Lord Ordinary has already held the reduction to be competent, and the whole question of the marriage to be open, notwithstanding the decree in absence.

The conclusions for count, reckoning, and payment are still undisposed of, but if this judgment stands these conclusions ought not to lead to litigation.”

The defenders reclaimed.

The Judges of the First Division being equally divided sent the case to the other Judges of the whole Court for their opinions. The Lord Justice-Clerk, Lords Cowan, Benholme, Neaves, Mure, Gifford, and Mackenzie sustained the interlocutor of the Lord Ordinary, and Lords Ormidale and Shand were for reversing.

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The following are the opinions of the consulted Judges:—