Scottish Court of Session Decisions

This was an action of declarator and interdict brought by John Paterson and two other inhabitants of St Andrews against the Provost, Magistrates, and Town Council of that burgh, and as such the Police Commissioners thereof, and also against James Bain and others or their authors, who, under the circumstances narrated below, had feued from the Magistrates of St Andrews about the year 1820 certain plots of ground which had at one time formed part of the links of St Andrews. The purpose of the action was to have declarator—“( First) that the Provost, Magistrates, and Town Council hold and are vested in the property of that portion of the links of St Andrews which lies to the east of the Swilkin Burn, subject to the burden and obligation of preserving the said links for the purposes of the game of golf, and for the recreation and amusement of the inhabitants of the said city; ( second) that the said Magistrates and Town Council have no right to encroach or authorise or permit any encroachment upon the said links, or any part thereof, which shall have the effect of diminishing the space available for the said game of golf or for the recreation and amusement of the said inhabitants; ( third) that, in particular, the said Magistrates and Town Council have no right to construct or authorise or permit the construction by the other defenders or any of them of a road for carts and carriages along the southern boundary of the said links, being the northern boundary of the several parcels of ground belonging to the other defenders, and feued out to the said defenders or their authors by the said Magistrates and Town Council in and subsequent to the year 1820; and ( fourth) that neither the said Magistrates and Town Council nor the said other defenders are entitled to use or authorise or permit the use of the portion of the said links adjoining the said northern boundary of the said parcels of ground as an access for carts and carriages to the said parcels of ground, or to the houses or premises of the said other defenders built or situated upon the same.” The pursuers also concluded for interdict against the defenders “constructing or authorising the construction of the said road, and from using or authorising the use of the said portion of the said links for the purpose of a cart or carriage access to the said parcels of ground and buildings or premises built or situated thereon, and from in any other way abridging the extent of the said links available for the said game of golf and for the recreation and amusement of the said inhabitants, and from interfering with the full and free use by the said inhabitants of the whole surface of said links for the purposes foresaid in any manner of way.”

The situation of the road about which the question at issue arose need not here be specified; it is fully explained in the note of the Lord Ordinary infra.

The pursuers averred, inter alia, that since the erection between 1870 and 1875 of certain houses on the feus granted in 1820 “the portion of the links in question” (that next the houses) “has gradually come to be used as a cart and carriage access to the said houses.” They also averred—“(Cond. 10) The effect of the said use of the said portion of the links has been seriously to encroach upon the area of the links, and seriously to interfere with the said servitude and privilege of golfing as enjoyed over the said links from time immemorial. The ground in question, which is within the ordinary golfing course, and close to one or more of the golf holes, has ceased, in consequence of the use to which it has been illegally put, to be covered with grass, and it is ploughed up with cart ruts, and especially in wet weather has become a source of inconvenience to golfers and a serious detraction from the amenity of the links. (Cond. 11) The individual defenders, or some of them, nevertheless insist upon using the said portion of the links for the purpose of a cart and carriage access to the said feus, and they profess in so doing to have the authority or permission of the defenders the Magistrates and Town Council. Moreover, negotiations have for some time been on foot between the said feuars and the Town Council for the purpose of having a regular made road constructed upon the said portion of the links along the said northern boundary of the said feus, and the said feuars and the majority of the Town Council are, as is believed and averred, about to proceed with the construction of such a road, to the great detriment of the links and the prejudice of the pursuers and the other inhabitants of the burgh. The present action has in these circumstances become necessary.”

The Provost and Magistrates in answer stated, inter alia—“(Stat. 3) The links … are held by the present defenders, as by their predecessors, from time immemorial for behoof of the inhabitants, and, inter alia, subject to the obligation of preserving the same for the purposes of the game of golf and for the recreation and amusement of the inhabitants. With due regard to these purposes, and acting for the public interest, the present defenders and their predecessors have always from time to time, as occasion arose, exercised powers of administration and management over the links now in question. (Stat. 4) Among such acts of administration and management by or by authority and permission of the defenders or their predecessors are (1) the letting of the pasturage and the regulation of bleaching clothes on the links; (2) the widening of the links to the north within the last forty years; (3) the opening of a new macadamised road across the links from Clark's Wynd to the sea, in lieu of an old road in the same direction, conform to minutes of Council dated 31st March and 7th April 1845; (4) the construction of the sloping walk or terrace referred to in the condescendence, conform to minute of Council of 15th October 1849; and (5) the levelling, filling up, and terracing of the ground to the south of the club-house, also referred to in the condescendence, conform to minute of Council of 1st June 1854 …. (Stat. 6) The question whether or not the road in dispute is to be allowed falls within the powers of administration and management which have been exercised in the like cases by the defenders and their predecessors from time immemorial. There

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has been for a considerable time a practice of carts or carriages passing over the south side of these links, and latterly this practice has increased. If this practice were regulated and the passage of carts or carriages confined to a properly made road along the south side of the links, the public convenience would be consulted, without detriment to the public use and enjoyment of the links, and the golfing course would be better preserved than at present. These defenders are not, however, under any obligation to allow any such road to be made, and their interest and object in their present compearance are to maintain their exclusive right to resolve and determine whether or not the road is to be allowed, upon due consideration by them of the public interest and of the purposes of golfing and others, for which these links are held by them.”

The defenders Bain and others averred that they were entitled (first) by prescription, and (second) by consent of the Magistrates, to the use of the ground as a cart and carriage access to their feus.

The pursuers pleaded, inter alia—“(1) The ground in question, forming part of the links of St Andrews, and being held by the defenders, the said Magistrates and Town Council, subject to the obligation of preserving the same for purposes of recreation, and particularly for the purposes of the game of golf, the conversion of the said ground into a road for the purpose of affording a cart and carriage access to the said feus and buildings thereon is illegal, and in violation of the rights of the pursuers and the other inhabitants of the city. (2) Separatim, and in any view, the construction of a road upon the said portion of the links, or the use of the said portion of the links for the purpose of a cart and carriage access is illegal, as being a material interference with the due exercise by the pursuers and others of their right of golfing over the said links. (3) The rights of the pursuers and of the inhabitants of the city in and over the said links, and the said portion thereof, being as hereinbefore set forth, the pursuers are entitled to decree in terms of the declaratory conclusions of the summons.”

The defenders the Provost and Town Council pleaded, inter alia—“(2) The question of the formation of the road falls to be determined exclusively by the present defenders in the exercise of their powers of administration and management. (3) The road in question being capable of being formed with advantage to the public, and without injury to the golfing and other rights over the links, the pursuers' conclusions against the present defenders are unfounded.”

The defenders Bain and others pleaded—“(2) The defenders are entitled to access to their properties by carts and carriages over the links (1st) by virtue of prescriptive right, and (2d) separatim, by the consent of the Magistrates and Town Council in the due exercise of their administrative rights over the said links, and decree of absolvitor should be pronounced accordingly. (3) The formation of a macadamised road by or with the consent of the Magistrates and Town Council being lawful and innocuæ utilitatis, the action, in so far as relating thereto, cannot be maintained.”

The Lord Ordinary ( Curriehill) allowed a proof, the import of which sufficiently appears from his Lordship's note and from the opinion of the Lord Justice-Clerk infra.

On 16th July 1879 his Lordship pronounced an interlocutor finding that the two first declaratory conclusions of the summons were unnecessary, and dismissing the same; quoad ultra assoilzieing the defenders from the remaining conclusions of the action, and decerning.

“ Note of opinion at advising.—This case involves questions of very considerable importance to the Magistrates and community not only of the burgh of St Andrews but of all burghs and public places in Scotland. Three persons, inhabitants of St Andrews, have raised this action against the Magistrates and Council of the burgh, and against certain persons who are feuars or occupiers of ground and houses adjoining the links of St Andrews, in which they ask for decree of declarator (1) that the Magistrates and Council hold the links subject to the burden and obligation of preserving the same for the purposes of the game of golf and for the recreation and amusement of the inhabitants of the city; and (2) that the Magistrates and Council have no right to encroach or authorise or permit any encroachment upon the links or any part thereof which shall have the effect of diminishing the space available for the game of golf and for the recreation and amusement of the inhabitants. There is no doubt that these two conclusions which the Court are asked to affirm are sound and correctlegal propositions; and accordingly it has never been disputed on the part of the defenders that the Magistrates hold the links for no other purposes than those which are here set forth. The Court, however, is not in use to affirm by judicial decree propositions which no one disputes; and I therefore purpose to dismiss these first two conclusions as unnecessary.

But then the summons goes on to conclude that the Magistrates and Council have no right to construct, or authorise the other defenders to construct, a road for carts and carriages along the southern boundary of the links—being the northern boundary of the several parcels of ground belonging to the other defenders, and feued out to them or their authors by the Magistrates in and subsequent to the year 1820—and that the Magistrates and Council are not entitled to authorise or allow the use of that road as an access for carts and carriages to the premises which have been built upon the feus.

The history of these feus seems to be, that somewhere about the year 1820 the Magistrates, clearly in violation of the rights of the community, feued out to a number of persons—the predecessors of the other defenders—a long narrow strip of ground which then formed the southern margin of the links; and they undoubtedly thereby made a very great encroachment upon the rights of the community. Nobody, however, appears to have interfered with them at the time in the way of taking legal steps to prevent the encroachment or to obtain the restoration of the ground to the community. And the ground has now been enclosed on the side of the links by a stone wall, and covered with houses and other buildings, most of which have their fronts to the turnpike road leading from the railway station to the town, although some—and particularly three large houses recently erected—have their fronts

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to the links. Very soon after 1820, however, the illegality of these feuing operations was recognised by the Magistrates themselves and the whole community; and ever since that time there has been a general understanding between the Magistrates and the community—and particularly the Royal and Ancient Golf Club, as representing the golfing portion of the community—that the northern boundary of these feus should in time coming be held to be the southern boundary of the links appropriated for the recreation and enjoyment of the inhabitants.

Now, it is proposed, with the sanction of the Magistrates, that a macadamised road about twenty-two feet wide shall he formed all the way along the southern margin of the links immediately under the northern boundary-wall of those feus from the Swilkin Burn up to the public street, which is now known as Golf Place, and it is proposed that the road when formed shall be used not merely by the feuars in question as an access to their houses, but by every member of the community who may desire to use it as a public road and thoroughfare for foot-passengers, carts, carriages, and other vehicles. The pursuers object both to the formation and use of the road on several grounds, which are stated in their pleas-in-law, and which are to the effect (1) that ‘the conversion of any part of the links, and particularly of the part in question, into a road for the purpose of affording a cart and carriage access to the said feus and buildings erected thereon, is illegal and in violation of the rights of the pursuers and the other inhabitants of the city;’ and (2), and separately, ‘that the construction of a road upon said portion of the links or the use of the said portion of the links for the purpose of a cart and carriage access is illegal, as being a material interference with the due exercise by the pursuers and others of their right of golfing over the said links.’ I apprehend that the distinction between these two pleas-in-law is this, viz., that the second assumes that on general grounds it is illegal for the Magistrates to convert any part of the links into a public road for carts and carriages to the prejudice of the public right of golfing and recreation; while the first rests on the special ground that it is an illegal encroachment on and violation of the right of the public to convert any part of the links into a road for the exclusive benefit of certain individual feuars as contradistinguished from the community. I do not think that as a general legal proposition this plea was seriously resisted by the defenders, and if the case presented by the pursuers at the proof had been of the nature assumed in this plea, I should have had little hesitation in sustaining the conclusions of the summons. But although it is impossible not to see that the feuars along the proposed line of twenty feet will probably benefit by its formation to a greater extent than other members of the community, it is quite clear that the whole public will have full use of the road. So that the first plea-in-law for the pursuers is unfounded in fact and cannot be sustained.

But while such is my opinion on this branch of the case, I desire it may be understood that I cannot hold that the defenders, the feuars, have made out any case in support of their plea that they have a prescriptive right of access to their feus by a road in the line of the proposed road. On the contrary, their case entirely fails in reference to that plea, and if they are to have access to their feus by means of this road, it is solely as members of the public, and not in virtue of any right privately acquired by prescription or otherwise. This was the impression which was made upon my mind by the evidence yesterday on this branch of the case, and it has not been removed by the remarks which have fallen from the counsel for the feuars to-day.

I am of opinion that the evidence upon this point is extremely meagre and very unsatisfactory. I do not think there is any evidence whatever of a defined line of road having ever existed in this particular locality except during a comparatively short period. Certainly there was none prior to 1820, when the feus were originally given off. There is some slight evidence that occasionally carts with clothes for bleaching were taken from the Scores across the links, in such a way probably as to avoid the golfing course, down to the bleaching green, which was on the banks of the Swilkin Burn; but that is a very different thing from the kind of case which is now being claimed by the defenders, who maintain that they, as proprietors of ground adjoining the links have by long usage acquired a prescriptive right to use this line of road. As their feus did not exist prior to 1820, they cannot found upon any usage which may have been allowed to the inhabitants of the northern part of St Andrews before that time. It seems that the feus were built upon and enclosed with a boundary-wall along the links somewhere between 1820 and 1830 or 1835, for the feus appear not to have been all occupied before 1835 or 1836. Then what is the evidence as to the use of this alleged road after those feus began to be occupied? Certainly it is quite clear there never was any formed road, or anything in the shape of a formed road, at all events prior to the terrace which was formed by Provost Playfair about 1849 or 1850. There does seem to have been an occasional use on the part of some of the feuars—not all of them—in the way of occasionally bringing a cart of coals to their backdoors in the wall; and a golf-club maker named Philip, who seems to have had some little business as a carpenter, occasionally sent a cart of wood down the side of the links to the public road; but with these exceptions, which were very occasional, there is no evidence at all satisfactory to my mind to establish the fact that any road existed or was in use as a regular access to the back grounds of the feus in question prior to 1849.

In order to acquire a prescriptive right to a road over the links the feuars must prove that their usage was regular and continuous, and in the line contended for, and was a usage adverse to the rights of the public, and of the Magistrates as the guardians of the public interests. But the proof shows that the alleged usage was at the most only tolerated, and that prior to 1849 it was only occasional, and was of such a kind as could not do any harm to the links or cause any interference with the privilege of golfing. We have it in evidence that the ground there was very rough and uneven, overgrown with rank grass, and full of hillocks and hollows, and that in 1849 Provost Playfair, who did so much for the embellishment of St Andrews, thought it would be an improvement to have the ground levelled, the hollows filled up with material obtained in

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the neighbourhood, and the whole covered with turf and kept in grassy sward, so that persons might walk along it and enjoy a view of the links with much more comfort and satisfaction than was practicable in the original state of the ground. It would also seem that after this terrace was formed short-holes were occasionally laid down there for the purpose of golf, although these have been long ago transferred to another part of the green. But the important matter in connection with the formation of this terrace is, that it was not made as a public road for carts and carriages, or even as a private access for carts and carriages to the feus in question. The best means, indeed, were taken to prevent it from being used in that way by a row of stobs or stakes being put across the terrace at either end, so that de facto the terrace was rendered impassable for carts and carriages; and these stobs remained until a few years ago. It. appears from the evidence that now and then a cart went round these posts and got to the back doors with coals, or took away a load of manure; but that was plainly an occasional and furtive use of the terrace, and I can only look upon the erection of these posts as an assertion on the part of the Magistrates of their right to interfere with the use of any part of the links, and particularly of the part in question, as a cart or carriage access to those feus only. And for a period of upwards of twenty years after 1849 the existence of these posts effectually prevented any regular or systematic use of the terrace as a road or access to the feus. As, therefore, no such road or access could have been in use prior to 1820, and as between 1820 and the present time there was an effectual interruption for twenty years of any such use of the terrace, even assuming such use to have been regular and general before 1849, it is impossible for the defenders to maintain successfully the plea of prescriptive right which they have put forward.

The feuars, however, plead that they have a right of access to their properties by carts and carriages over the links, and by the line of road in question, in virtue of the alleged consent of the Magistrates and Council, in the due exercise of their administrative rights over the links. This plea was maintained at the debate, not so much upon the evidence, as upon the assumed right of all the inhabitants of the burgh, unless and until prevented by the Magistrates, to traverse the links with carts and carriages. It was urged that they have a right as members of the community to use any part of the links as an access to their feus, either on foot or by means of carts or carriages or horses, in any way they may think proper, subject always to the regulation of the Magistrates, and that there is a presumption, unless there be a special regulation to the contrary by the Magistrates, that they may drive at will carts and carriages over any parts of the links to and from their respective properties. That is a proposition which I should be very slow to endorse, for I do not think that such is the nature of the right which individual members of the community have over a subject such as the links of St Andrews, which are held by the Magistrates for the recreation and enjoyment of the whole community. I do not think that traversing the links with carts and carriages conveying goods to the buildings of individual feuars, or carrying refuse from them, are purposes at all consistent with the uses which the public are entitled to exercise over the links. And it is, moreover, clearly established by the proof that the Magistrates have never consented to any such indiscriminate use of the links, and have never, until now or quite recently, consented to the formation or use of any line of road upon the links which could be available to the feuars as an access to their feus.

And this brings us to the consideration of that which is the main and most important question in the present case, namely, Whether the formation and proposed use of the road in question is a violation of the duty incumbent on the Magistrates to protect the rights of golfing, walking, and general recreation which the inhabitants are entitled to exercise over the links of St Andrews? We have had a great deal of evidence of various kinds as to the effect which the formation of this road will have upon the links. The pursuers maintain that it will be most detrimental to the links as golfing ground, and that every member of the community is entitled to golf over every inch of the links. Now, no doubt the community are entitled to golf over every available and practicable part of the links, but golf is not the only purpose for which those links are held by the Magistrates. They are held for the general use and recreation of the inhabitants, and for the advantage of the community generally. The question, therefore, really comes back to this, viz., Whether the formation of this road, assuming it to be otherwise an expedient proceeding, will have the effect of interfering to any appreciable extent with the right of the public to golf over the links of St Andrews?

Now, I must say that upon the evidence I am perfectly satisfied that it will not constitute the least interference with the right of golfing upon those links. It will be an operation innocuæ utilitatis, or, as that was felicitously translated by Mr Whyte Melville in his evidence—‘It will be no disadvantage to any, and a considerable advantage to many.’ It will be of great advantage to a large proportion of the inhabitants of St Andrews—those who inhabit the Scores and all the northern part of the city—as an access to and from the railway station. We must keep in view that the circumstances of St Andrews have been very considerably changed during the last twenty years and since the opening of the railway. The town is now very much more frequented than it ever was, and the proximity of Dundee and the facilities afforded by the opening of the Tay Bridge—as some of the witnesses have said—bring hosts of excursionists during the summer months, particularly from Dundee, who spread themselves over the whole town. It would be a very great advantage indeed to have, in addition to the turnpike road, another road in the proposed line to and from the railway station, by which parties going to and from the station can go along the side of the links without spreading over the whole course and interfering with the golfing. And it is to my mind clearly proved that the formation of the road will not to any extent interfere with the privilege of golfing. I therefore think that the formation of the road is unquestionably an operation innocuæ utilitatis, and falls fairly within the administrative powers which are vested in the Magistrates.

The rights of the public in a place like the

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links of St Andrews are of a very sacred description, and must not be lightly interfered with, and the Magistrates must not think that they have it in their power to make roads wherever they think fit over the links, and thereby interfere with the comfort and privileges of the community. They must have due regard to the rights of all classes of the community. There are some who wish to golf—a great proportion wish to golf—there are some who wish simply to walk, and there are others who wish to drive. But if it is possible to adapt the links to the use of all these classes of the community, so that each shall have his fair share in the enjoyment of the links, I think the Magistrates are quite entitled to do so, and unless it were made clear to the Court that they are abusing their discretionary powers the Court will be very slow indeed to interfere with their management. The case of Sanderson v. Lees, 22 D. 24, was referred to by the pursuers in support of their contention that the formation of this road is a violation of the rights of the community. But in that case, and in many others resembling it, the encroachments complained of and prohibited by the Court were substantially alienations of the links or public recreation grounds to private individuals, with the effect of absolutely excluding the public from exercising any right over the same. And if such had been proved to be the probable effect of the formation of this road, I would have without difficulty decided in favour of the pursuers. But, as I have already said, no such effect can be reasonably anticipated from the formation of the road now in question. None of the privileges or rights of the public will be interfered with by the mere formation of the road, and it will be the duty of the Magistrates to see that the road is not used in such a manner as to interfere with any class of the community, and for this purpose they may and ought to issue such regulations regarding wheel traffic as they shall think necessary or expedient. On the whole matter, I am of opinion that the pursuers have failed to make out any case for the declarator which they ask, or for interdict against the formation of the road. As I think that the first two conclusions of the summons are quite unnecessary, I shall dismiss them; and quoad ultra I shall assoilzie the defenders, with expenses.”

The pursuers reclaimed.

Before the case was put out for hearing in the Inner House rolls the Town Council, which defended the action, went out of office in ordinary course. The question relating to the road was the test question at the new election of Magistrates and Town Council, and when the new Council first met it appeared that out of 29 members 15 were in favour of the contention of the pursuers. Accordingly, at the first meeting of the new Council, held upon November 7, 1879, when the business consisted of the appointment of the several committees of Council according to the custom in burghs at the first meeting after the election of a new Council, and, inter alia, of the appointment of a law committee, it was resolved by a majority of one to instruct that committee to withdraw the defences which the late Council had stated to the action, and which the Lord Ordinary had sustained, “on condition that the pursuers should relieve the Town Council of any expenses which may have been incurred.” The law committee accordingly instructed the Edinburgh agents for the Council to communicate with the agents for the pursuers, with a view of arranging the case on this footing. The pursuers having agreed to these terms, a joint-minute was prepared in which counsel for the defenders “craved leave to withdraw the defences lodged in names of the Provost and the majority of the Magistrates and Town Council of the city as representing the community thereof, and as constituting the Town Council of the city, and counsel for the pursuers agreed to the same being withdrawn, and both parties craved the Court to allow that to be done, no expenses being found due to the pursuers by the defenders the Town Council. This minute was lodged in process on 14th November 1879, and on 18th November the counsel for the defenders the Town Council, and the counsel for the pursuers, both appeared at the bar and moved the Court to interpone authority to the joint-minute. Counsel for the feuars also appeared and objected to authority being interponed, on the ground that the feuars had a jus quæsitum in the matter, there being a contract of litiscontestation between them and the Town Council, by virtue of their being both defenders to the action which had proceeded to decree in the Outer House. The Court pronounced no interlocutor. On the same evening there was held a meeting of Council called by the Provost, in consequence of a requisition to him to call a meeting “to reconsider the resolution adopted by the Council on 7th curt. with reference to the links road case.” By this time, owing to a change of opinion on the part of one member, the majority of the Council had ceased to be in favour of the pursuers' contention, and was of opinion that the defences should be insisted in. The fifteen members who formed the new majority were the only members who attended the meeting called as above narrated for the evening of the 18th November. The minority however lodged a signed protest, which so far as material was in the following terms:—“(1) That the resolution adopted by the Town Council on 7th curt. has already been carried into effect, the pursuers having accepted the offer made by the Town Council, and agreed, on the defences for the town being withdrawn, to pay the whole expenses incurred by the Town Council, as the same may be taxed as between agent and client, and a joint-minute for the Town Council and the pursuers having since been signed by the counsel of both parties and lodged in process. (2) That it is incompetent, even if the resolution had not been carried into effect, to reconsider the proceedings of an ordinary meeting of the Town Council except at the next ordinary meeting, at which alone the minutes of the previous meeting can competently be read. (3) That the proposed special meeting is further incompetent, in respect the matter for which the requisitionists have required the special meeting is not res noviter veniens ad notitiam, and no notice of the proposed special meeting was given at the ordinary meeting by which the resolution was adopted. And we, the undersigned, further protest against any liability on the part of the Town Council, or ourselves as individuals, for expenses to which the Town Council or individual members may be subjected in consequence of any attempt at

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the proposed special meeting to rescind the resolution of 7th inst.; and having taken instruments in the hands of the town clerk, we hereby decline to attend the proposed special meeting.” The majority, however, passed a resolution reversing the decision of the Council of the 7th November, and the agents for the Council were instructed to proceed with the case.

The case was in the roll of the Second Division for 25th November, and when it was called on that day counsel for the pursuers moved for decree against the Town Council on the ground that by the joint minute lodged on 14th November, and which counsel for the Town Council had himself moved in Court on the 18th, the case as between the pursuers and the council had been settled by an agreement from which the latter had no power to resile.

They argued—(1) A minute signed by counsel for a party was as binding as if signed by the party himself— Duncan v. Salmond, January 4, 1874, 1 R. 329; while Duncan's Factor Duncan, June 3, 1874, 1 R. 964, showed that where a party had by minute abandoned his claim in a multiplepoinding and a decree of preference had followed thereon, he could not afterwards withdraw that minute. (2) A Town Council was as much bound by such a minute as an ordinary litigant— Smeaton v. Police Commissioners of St Andrews, December 10, 1868, 7 Macph. 206; March 20, 1871, 9 Macph. (H. of L.) 24. (3) Here, there being a bilateral agreement embodied in a minute signed by counsel for both parties, the authority of the Court was not required. There was no locus pænitentiæ. Cases of unilateral agreements, such as Cormack v. Waters, June 25, 1846, 8 D. 889, and Muir v. Barr, February 2, 1849, 11 D. 487, did not apply. (4) Even if the authority of the Court were required, it fell to be given as matter of course. It was enough that the parties moved the Court to interpone authority. Authority was not interponed when the minute had been moved in the Single Bills, only because of the opposition of the feuars. But they had no title to oppose the motion. There was no contract of litiscontestation between the two sets of defenders; each was called for his own interest, and maintaining a separate defence. Therefore authority ought to have been interponed when the motion was made, and it must now be held to have been interponed.

Argued for the Town Council—The authority of the Court was required to such a minute. Lord Fullerton in Cormack's case, supra. Until authority was interponed, counsel had the same right to withdraw the minute which he had to move it. The Town Council therefore craved leave to put in a new minute, withdrawing their consent to the former minute.

At advising—