Scottish Court of Session Decisions

The Act 1457, c. 71, enacts as follows:— “Item, As anent few-ferme, the Lordes thinkis speidful that the King beginne and give example to the lave. And quhat prelat, barroune, or freehalder that can accord with his tennent upon setting of few-ferme of his awin land, in all or in part, our Soveraine Lord sall ratifie and apprieve the said assedation, sa that gif the tennaudrie happenis to be in waird in the Kindis hands, the said tennent sail remaine with his few-ferme unremooved payand to the King siklike ferme, induring the waird, as he did to the Lord, sa that it be set till a competent avail without prejudice to the King.”

The Act 1597, c. 250, enacts as follows:—“Our Soveraine Lord and Estaites of this present Parliament have and consideration of the greate damage and skaith quhilk his Majesty and leiges of this realme sustenis throu evill and untimious payment of the few-duties of their lands set in few-ferme, Therefore statutis and ordainis that in case it sall happen in time cumming ony vassal or fewar hald and lands in fewferme to failzie in making of payment of his few-duty to our Soveraine Lordis Comptroller, or uther havand power of him, or to uther immediate superiour, or uthers havand power of him, be the space of twa zeires, haill and togidder, That they sail amitte and tine their said few of their said lands, conforme to the civill and common law, Siklike and in the same manner as gif ane clause irritant were specially ingrossed and insert in their saids infeftments of fewferme.”

This was an action of declarator of irritancy ob non solutum canoneM. Frank Stewart Sandeman, the pursuer, was proprietor, duly vest and seized, of part of the lands of Clepington near Dundee. The lands had been acquired from William Neish of Clepington by feu-contract between him and the pursuer and his then partner, a Mr Keiller, and had thereafter been conveyed by the pursuer and his partner to the pursuer as an individual, his title being recorded on 22d December 1875.

The pursuer by feu-contract, recorded 23d February 1876, feued part of the ground, to the extent of five acres, to William Stiven, accountant, and Henry Gibson, solicitor, Dundee, equally between them, pro indiviso, for an annual feu-duty of £480. The conveyance was declared to be “with the privileges and under the burdens, reservations, provisions, and declarations, so far as applicable to the said piece of ground, specified and contained in the said feu-contract betwixt” Mr Neish and the pursuer Mr Sandeman and Mr Keiller as trustees for their firm. These five acres of ground were situated in the midst of ground already or in course of being built upon, and of streets formed or in course of formation. The feu-contract contained certain stipulations as to the opening up of streets by the disponees. There was also a clause binding them to build and uphold houses on the ground feued. These conditions were to enter the register of sasines, and to be engrossed or referred to in all instruments to follow thereon, and future investitures of the feu. The entry to the subjects was at Martinmas 1875. The tenendas clause was as follows—“To be holden the piece of ground and others above disponed with and under the whole provisions, declarations, and obligations before specified or referred to, of and under the said Frank Stewart Sandeman and his foresaids in feu-farm. fee, and heritage for ever, for payment of the feu-duties and performance of the other prestations hereinbefore and after mentioned.” After the reddendo clause came the following provisions—“Declaring, as it is hereby specially provided and declared, that in case at any time two years' feu-duty shall be fully resting-owing and unpaid together, then this present feu-right, and all that may follow hereon, shall, in the option of the superior, ipso facto become void and null, without the necessity of any declarator or process of law to that effect, and the superior shall instantly and without any warning be entitled and at liberty to remove the said disponees and their foresaids from the said piece of ground …. And the said disponees further bind and oblige themselves and their foresaids to build and maintain a house Or range of houses of the value and description hereinbefore set forth, on the ground hereby feued, and to implement and fulfil all the other conditions, provisions, and declarations hereinbefore contained …. Declaring hereby, notwithstanding anything herein contained to the contrary, that the personal obligation hereby undertaken by the said disponees, and hereby incumbent on them, for payment of the feu-duty and performance of the several prestations and obligations foresaid, shall cease and come to an end so soon as a bona fide sale of the subjects hereby conveyed shall take place, and a notice of change of ownership of the feu be given to the superior, in terms of ‘The Conveyancing (Scotland) Act 1874,’ and the purchaser's infeftment has been duly registered in the appropriate register of sasines, provided that at the date of such notice there shall be erections of the description before mentioned upon the ground of the value before specified, as the same shall be ascertained in case of difference by two arbiters mutually chosen by the said first party and the said second party, or in case of the arbiters differing in opinion, by an oversman whom the arbiters may appoint.”

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By feu-contract recorded 26th February 1876, Stiven and Gibson sub-feued a portion of the ground, forming two lots on the feuing plan, and consisting of 22 1 2 poles, to Alexander M'Culloch at an annual feu-duty of £22, 12s. 4d. On 24th March 1876 M'Culloch disponed this piece of ground to the Heritable Securities Investment Association (Limited), who in turn, by disposition recorded on 24th January 1877, disponed it to the defenders the Scottish Property Investment Company Building Society. The ground feued by Sandeman to Stiven and Gibson was, as narrated by them in the deeds to be immediately mentioned, in reality held by them in trust for behoof of themselves and David M'Donald, grocer and spirit merchant in Dundee, and it was arranged between these parties to divide the ground, including the superiority of the portion sub-feued to M'Culloch. Stiven and Gibson accordingly executed three separate dispositions, all recorded on 5th December 1876, whereby they, with consent of David M'Donald, disponed to each of them a portion of the subjects, and allocated thereon a proportion of the cumulo feu-duty. M'Culloch's feu was included in the portion of ground allocated to Gibson. By feu-contract recorded on 1st May 1877 Stiven sub-feued the portion of the ground which had been allocated to him, consisting of 32·73 poles, to the defender David Crabb for a feu-duty of £32, 14s. 7d.

The feu-duty payable to Sandeman was paid by Stiven and Gibson up to and including Martinmas 1877. Thereafter both Stiven and Gibson became bankrupt, and no further payments of feu-duty were made by them or on their behalf. The trustees on their sequestrated estates refused to take up the property. With the exception of M'Culloch's sub-feu no part of the ground had been built upon. The feu-duties having thus run in arrear for three years, Sandeman, the present pursuer, on 8th December 1880 instituted a petitory action in the Court of Session against M'Donald and the present defenders, the Scottish Property Investment Company Building Society, for payment of the sum of £1440, being six half-years’ feu-duty, and payable to him as at that date under the feu-contract between him and Stiven and Gibson in respect of the subjects thereby feued. No appearance was entered in the action by M'Donald, and decree in absence was pronounced against him in terms of the conclusions of the summons on 29th December 1880. The action was defended by the present defenders, the Scottish Property Investment Company Building Society. The Court on 8th June 1881 assoilzied them from the conclusions of the action, on the ground that an over-superior had not a direct personal action for the whole cumulo feu-duty against a sub-vassal holding part of the feu ( supra, vol. xviii. p. 559 and 8 R. 790).

The feu-duty of M'Culloch's sub-feu was paid regularly to his immediate superior Gibson up to Martinmas 1878. That of Crabb had been paid to the 26th of February 1879, the date of Stiven's sequestration, and was thereafter consigned by him in bank. Crabb had erected on his feu buildings to the amount of nearly £3000, and had granted a security over the ground and buildings to certain other parties, who were also called as defenders to the present action. The feu-duty payable by Sandeman to his superior Neish was at the rate of 6s. a pole; that payable by Stiven and Gibson to Sandeman was at the rate of 12s. 6d. a pole; and that payable by Crabb to Stiven was at the rate of 20s. a pole.

On 17th January 1882 Sandeman raised the present action. He called as defenders Stiven and Gibson, and the trustees on their respective estates, M'Donald, M'Culloch, the Scottish Property Investment Company Building Society, and certain other parties, as the whole proprietors, occupants, or tenants of, or heritable creditors on, the subjects feued by him to Stiven and Gibson. He concluded for declarator that the feu-duties of these subjects from Martinmas 1877 to Martinmas 1881, amounting with interest to the sum of £2088, remained unpaid; that the defenders had thereby contravened the terms of the feu-contract, and incurred the irritancy specified therein and quoted above, and also the irritancy under the Statute 1597, c. 250, and had forfeited all right and title to the lands ob non solutum canonem, and that the feu-contract between himself and Stiven and Gibson had, “with all that has followed thereon, become null and void as if the same had never been granted, and that the pursuer may enter into possession of the subjects thereby conveyed, and dispose thereof at pleasure.” He also concluded for decree of removing against the defenders, and each of them, from the lands.

The action was defended by the Scottish Property Investment Company Building Society and David Crabb.

The pursuer pleaded—“(1) The feu-duty and interest thereon payable in respect of said subjects, and amounting in all to the sum of £2088, having remained unpaid for the years and terms libelled, the pursuer is entitled to decree of declarator in terms of the conclusions of the summons. (2) Separatim, The feu-duty for the said subjects having remained unpaid for more than two years, the pursuer is entitled to decree of irritancy ob non solutum canonem, with expenses as concluded for. (3) The defenders who have appeared having stated no relevant defence, decree should be pronounced as concluded for.”

The Scottish Property Investment Company Building Society stated that they had withheld payment to the mid-superior Gibson of the feu-duty of their sub-feu from the date of his bankruptcy. The amount of feu-duty thus in arrear was £67, 17s., of which with interest they judicially offered payment. They pleaded—“(4) The present defenders being sub-feuars of the foresaid portion of the said subjects vested in them, they are only liable for the feu-duty payable under the feu-contract thereof, and are entitled, on payment of the foresaid arrears of the said feu-duty, to absolvitor from the conclusions of the action. (5) In any event, the said Henry Gibson having, by the recording of the foresaid disposition in his favour, been entered with the superior in the portion of the subjects thereby conveyed, including therein the mid-superiority of the subjects vested in the present defenders, the latter are entitled to absolvitor on payment of the arrears of feu-duty effeiring to the portion of the said subjects thereby vested in the said Henry Gibson. (8) The action being groundless and untenable, the present defenders are entitled to absolvitor with expenses.”

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The defender Crabb set forth that, as above stated, he had consigned the feu-duty of his sub-feu since the date of Stiven's bankruptcy. He also averred that he had erected buildings on his sub-feu at a cost of £3000, and borrowed money thereon fom the heritable creditors who were called as defenders. He pleaded—“(3) This defender being a sub-feuar is only liable for the feu-duty payable under his feu-contract. (4) In any case this defender is only liable for the feu-duty effeiring to the portion of the said lands held by his superior, the said William Stiven. (5) This defender having regularly paid, and being still willing to pay, his feu-duty, ought to be assoilzied from the conclusions of the summons. (6) The feu-duty of said subjects having been allocated with the pursuer's consent, he is barred from insisting in this action. (7) The said lands having been feued for the express purpose of sub-feuing, the pursuer is barred from insisting in this action. (9) In any event, the present defender having erected buildings in the knowledge and with the acquiescence of the pursuer, is, in the event of irritancy, entitled to recompense for said buildings.”

The Lord Ordinary, after hearing parties on the debate roll, pronounced this interlocutor—… “Repels also the pleas founded on the alleged division of the feu, in respect that it is not relevantly averred that the pursuer was a party to or sanctioned the alleged apportionment and allocation of the feu-duty: Finds it not disputed that the feu-duty remains unpaid for the terms specified, but that the subordinate feu rights held by the said defenders David Crabb and the Scottish Property Investment Building Society, though not sufficient to entitle them to resist the action as against the original feuars William Stiven and Henry Gibson and the trustees upon their sequestrated estates, are sufficient to entitle the said defenders to maintain their possession of those portions of said feu which are described in their feu-contracts: And finds that the pursuer is not entitled to decree against them as contraveners of the feu-contract libelled, or to maintain the present action to the effect of forfeiting their rights as sub-feuars, and of removing them from possession of their portions of the feu: Therefore assoilzies the said defenders from the conclusions of the action in so far as the same may include declarator that they have lost and forfeited all right and title to those portions of the lands included in their feu rights, or decree of removing against them therefrom, and decerns: Quoad ultra, finds, declares, and decerns in terms of the conclusions of the summons, under burden of the feu-contract between William Stiven and Henry Gibson and Alexander M'Culloch, dated 23d and 25th February 1876, and recorded in the General Register of Sasines 26th February same year, and of the rights of the defenders The Scottish Property Investment Building Society under the same, and under burden likewise of the feu-contract between William Stiven and David Crabb, dated 27th and 30th April, and recorded in the General Register of Sasines 1st May 1877, and of the rights of the said David Crabb under the same: Finds the said defenders entitled to the expenses of process incurred by them,” &c.

Opinion.—The present action of declarator of irritancy ob non solutum canonem is founded upon the conventional irritancy provided by the feu-contract entered into in 1876 between the pursuer and the defenders Stiven and Gibson, as well as upon the Statute 1597, and it contains conclusions for decree of removing, directed not only against the principal feuars and their trustees in bankruptcy, but also against certain sub-feuars who have built upon their feus and are willing to pay their feu-duties.

It is defended by (1) The Scottish Property Investment Company, as in right of a sub-feu granted by Stiven and Gibson to Alexander M'Culloch, architect, Dundee, of 22 poles 18 3 4yards of the 5 acres held by them; and (2) David Crabb, builder, Dundee, as a sub-feuar from the defender Stiven of 32·73 poles of said 5 acres, and which are described in his feu-contract as a part of 266·50 poles allocated to Stiven at a division of the 5 acres said to have been made by Messrs Stiven and Gibson with consent of David M'Donald. No defence is stated by the original feuars or by anyone representing the subjects as a whole.

The fact that more than two years' feu-duty payable under the feu-contract with Stiven and Gibson remains unpaid is not disputed. The title of the pursuer appears to me to be complete…..

But it was maintained under the fourth, fifth, and sixth pleas stated in defence, firstly, that as sub-feuars of portions of land intended for building purposes the defenders are only liable in the feu-duties under their own feu-contracts, and are entitled to absolvitor from the conclusions of this action; and secondly, that in any event, as the original 5 acres had been divided into three portions by Stiven and Gibson, and each of the portioners was implicity entered with the pursuer as superior, in virtue of the Conveyancing Act 1874 (sec. 4), each of the defenders is entitled to absolvitor on payment of the arrears effeiring to the one-third share of the feu allocated to his immediate superior.

It was also contended that the pursuer having agreed to the allocation of the cumulo feu-duty, was barred personali exceptione from insisting in this action. But I hold that there is no relevant allegation of such an agreement.

There is another plea stated on record to the effect that the pursuer having resorted to a personal action for the arrears, and obtained decree against David M'Donald for the amount, is barred from insisting in the present action. But no argument was offered in support of this plea, and I assume that the pursuer's statement that the decree (a decree in absence) has not been extracted and is not to be followed out is accepted as sufficient. The rule that a superior cannot pursue for bygone feu-duties and also for declarator of irritancy is well settled. But an abandoned decree in absence against one of the vassals would probably not be held to exclude a declarator of irritancy. I pass by this plea, therefore, without giving any opinion upon it.

The principal point for consideration is the effect of the sub-feus held by the two defenders. That of the Scottish Property Investment Company flows directly from the original feuars, Stiven and Gibson. That of the defender Crabb was granted by Stiven alone after the feu had been divided into three portions. As I see no reason to doubt that this division was validly

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effected by the dispositions'referred to on record, though the effect of it as an apportionment and allocation of the cumulo feu-duty may be questionable, I think that no distinction can be drawn between the two rights as regards the effect of them in a question with the granter's superior, and no distinction was drawn by the pursuer's counsel at the debate. It is not disputed by the pursuer himself that the dispositions by which the tripartite division was effected were executed and recorded as alleged. He only denies that the allocation of the feu-duty is binding upon him; and in my view this is not important in the question, What is the effect of the sub-feuars' rights as against the over-superior suing a declarator of irritancy ob non solutum canonem, with conclusions for removing directed against the sub-feuars?

I am of opinion that the rights of the sub-feuars are valid and effectual as rights of property against the over-superior in this case, and that the pursuer as such over-superior is not entitled to forfeit these rights for non-payment of the cumulo feu-duty due and payable by the granters of them.

The feu-right granted by the pursuer to Stiven and Gibson was one which contemplated building and did not prohibit subinfeudation. Being granted subsequently to 1874, no condition prohibiting subinfeudation could have been effectually imposed by the pursuer upon the feuars. The validity of the sub-feus, therefore, as rights of property in those portions of the feu to which they apply, is unquestionable.

Moreover, being granted for a full and adequate avail of the lands, and at a rate exceeding the rate of feu-duty payable by the granters to the pursuer, I apprehend that the pursuer, as over-superior, is not entitled entirely to ignore them. He may be, and I think is, entitled to treat them as not excluding his right of poinding any portion of the ground for the whole cumulo feu-duty ( Creditors of Eyemouth, Br. Supp. 856). But they are rights secured by law, and which the superior is bound to recognise. Had he been enforcing his claim to a composition upon the entry of a singular successor to his original feuars, he would have been bound to accept a year's sub-feu-duty, and not a year's rent, as the measure of his right ( Ross v. Heriot's Hospital, June 6, 1815, 18 F.C. 392 and 2 Bligh's Reports, 709, also 2 Ross' L.C. 193). The principle of that judgment was that the right of a superior is burdened with the base rights which have been granted lawfully by his vassal. I think, therefore, that in declaring an irritancy against his vassal the pursuer in this case must recognise the rights of the defenders, and take up the rights of his original vassals under the burden of the rights held by them. As holders of proper sub-feus not requiring confirmation by the superior, they are in the same position as if the original feu-right had expressly authorised the creation of base rights, and are not liable to be dealt with by the superior as if their infeftments fell and became altogether void upon an irritancy of the original feu-right being declared. I admit that the lands as originally feued could not be burdened to the prejudice of the superior without his consent, and that by a declarator of irritancy they return to him as free as he gave them, except in so far as burdened by law or by his own consent. But I think that a feu which permits subinfeudation cannot return to him otherwise than under the burden of sub-feus which have been lawfully granted for a full avail of the land.

The only question which remains is, whether the superior is entitled to deal with the feu as undivided, notwithstanding the recorded dispositions referred to in the statement for the Scottish Property Investment Company. My opinion is that the vassals had right to sell and dispone the feu either in whole or in separate portions. In this sense they had power to divide the feu. But I do not think that they had power to apportion the feu-duty so as to limit the pursuer's rights without his consent. The implied entry of the Act 1874 is subject to the condition that it ‘shall not confer or confirm any right more extensive than those contained in the original charter.’ The statute saves the rights and remedies of the superior. Could it have been maintained that, apart from the statute of 1874, the superior could have been compelled to confirm an arrangement by the vassals for apportioning and allocating the cumulo feu-duty? I think not. The statutes (20 Geo. II. c. 40; 10 and 11 Vict. c. 48, sec. 6; 31 and 32 Vict. c. 101, sec. 97–99) which enabled purchasers and singular successors to obtain an entry from the superior either by resignation or by confirmation, conferred no right enabling vassals to divide the feu and compel superiors to confirm the apportionment of the feu-duty; on the contrary, they contemplated that the vassal must submit to clauses of tenendas and reddendo as contained in the original charter. I am of opinion, therefore, that the pursuer is not bound to deal with this feu as divided. He was no party to the apportionment of feu-duty, and the apportionment of the feu-duty is essential to a complete division affecting the rights and remedies of the superior ( Raeburn v. Geddes, 9 Macph. p. 20, per Lord Benholme).

The case of Wemyss v. Thomson ( 14 S. 233), which was cited for the defenders, appears to me to be an authority against the contention of the defenders. For the interlocutor of Court in that case found ‘that the pursuers, as superiors, were entitled to insist upon the defenders taking charters containing an obligation for payment of the whole cumulo feu-duty.’ It gave effect to the opinion of Lord Medwyn that ‘a superior cannot be compelled to divide a feu.’ That this was the view understood in practice among conveyancers appears from Mr Duff's Treatise on Feudal Rights, p. 80 and pp. 205–6.

The case of Knight v. Cargill ( 8 D. 991) was also cited for the defenders, but was so peculiar that little aid can be derived from it. That was a case where the superior attempted to pursue a declarator of irritancy against one of the holders of a divided feu for non-payment, not of his own feu-duty, but of feu-duties payable by another. This was held to be altogether unreasonable. But there is no such case here.

On the whole, I think that the pursuer is entitled generally to decree, but only under the burden of the sub-feus. As, however, the sub-feuars have been compelled by the form of the summons to appear and litigate in order to maintain their rights, I think they are entitled to expenses.”

The pursuer reclaimed, and argued—His vassals being two years in arrear with their feu-duty, he was entitled to irritate their feu-rights both under

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the statute of 1597 and in terms of the clause of irritancy in the feu-contract. It was of the essence of the feudal system that when the vassal's feu-right was irritated everything went with it—the whole estate reverted to the superior, including all subaltern rights granted by the vassal, unless the irritancy were purged by payment. The right of a sub-vassal, flowing only from the vassal, could not stand in the way of the result the pursuer contended for The subvassal had no position in regard to the oversuperior, who was entitled to take his feu-duty out of any part of the lands. Though the sub-vassal should tender his own part of the feu-duty, the over-superior was not bound to accept it and to recognise him. When the feu-right was irritated ob non solutum canonem the sub-feu was simply extinguished; it did not remain even as an encumbrance. That there was no decision to that effect arose from its having always been regarded as too clear for question. It was involved in several decisions on other points. Unless there had been an apportionment of feu-duty in the original charter, a superior was not bound to recognise any number of sub-vassals, and go to each for his portion of the feu-duty. He was not bound to accept only a part of his feu-duty from anyone, and he would, by doing so, prejudice his right to demand the whole. His right was good against the whole of the ground for the whole feu-duty, either by poinding or irritancy. From his dominium eminens he had a right to recover the whole lands, and he was barred only by such rights as he had himself granted.

Authorities— Wemyss v. Thomson, January 19, 1836, 14 S. 233; Mackintosh v. Tytler, May 20, 1870, 8 Macph. 772; Magistrates of Edinburgh v. Horsburgh, May 16,1834, 12 S. 593; Raeburn v. Geddes, October 24, 1870, 9 Macph. 20 (Lord Benholme); Hyslop v. Shaw, March 13, 1863, 1 Macph. 535; Sandeman v. Scottish Property Investment Building Society, June 8, 1881, 8 R. 790; Craig, ii. 3, 34—iii. 3, 22 and 23; Mon—creiff, 1630, M. 4185; Duff's Feudal Conveyancing, p. 80; Juridical Styles, Heritable Rights, ed. 1855, p. 30; Ross v. Heriot's Hospital, June 6, 1815, F.C., H.L. 2 Bligh, 707; Morrison's Trustees v. Welsh, May 16, 1878, 5 R. 801; Ersk. ii. 5, 79; Bell's Prin. 679, 701; Gilmour v. Balfour, January 22, 1839, 1 D. 406; Beveridge v. Moffat, June 9, 1842, 4 D. 1381; Hope v. Aitken, January 18, 1872, 10 Macph. 347; Guthrie and M' Connachy v. Smith, November 19, 1880, 8 R. 107; Abbot of Cambuskenneth v. Ramsay, 1525, M. 7179.

Argued for the Scottish Heritable Property Investment Building Society, whose argument was adopted by the defender Crabb—There was no authority to be found in any case or writer in the law of Scotland for the broad contention of the pursuer. The superior who feued for building purposes made the sub-feus as much a burden on the right given out by him as if they had been specified in the feu-contract. To seize the houses of the sub-vassals for the vassal's feu-duty would thus be a breach of contract. Hardships and inequity in a high degree attended the pursuer's demand. If the sub-vassal had no standing with the over-superior, his feu might be irritated behind his back, he knowing nothing of the state of matters between the mid and over-superiors. The sub-feu was an estate. The superior's estate consisted only of the feu-duty. The irritancy was no part of his estate. Irritancy ob non solutum canonem was, as a casualty, in marked distinction to ward or recognition, which forfeited the whole estate from the nature of the avail. The difficulty in making up a title on the part of the defenders was only apparent, for the irritating of the mid-superior's right was equivalent to resignation by the latter of his right in the hands of the over-superior ad remanentiam with procuratory, and puts the defenders at once in his place as vassals of the over-superior. The operation of the irritancy was similar to that of liferent escheat, which annihilated the mid-estate and joined the sub-vassal on at once to the oversuperior. The penal and resolutive conditions in the charter by Sandeman could not be pleaded against an onerous purchaser. The principle of the decision in the case of The Edinburgh Roperie and Sailcloth Co., v. Magistrates of Edinburgh, July 10, 1877, 4 R. 1032, was in point. The case of the Abbot of Cambuskenneth applied to kirk lands before the Reformation, and was therefore under the canon law.

Authorities—Menzies' Lect., p. 819; Stair, ii. 4, 5, and 15; 1693, c. 13; Ross v. Heriot's Hospital ( supra cit.) Anderson v. Marshall, Nov. 30, 1824, 3 S. 334; Campbell v. Westena, June 28, 1832, 10 S. 734; Stair, ii. 4, 23, 51, ii. 4, 66, ii. 5, 26; Erskine, ii. 5, 42: Johnston v. M. of Annandale, 1759, M. 4356; D. of Hamilton & E. of Selkirk v. Douglas, 1762, M. 4358; 1 Bankton, 621; Wemyss v. Thomson ( supra cit.); Knight v. Cargill, July 2, 1846, 8 D. 991.

At advising—