Scottish Court of Session Decisions

By charter of resignation and novodamus dated 18th July 1805, upon which infeftment followed, the Magistrates of Aberdeen feued out the lands of Rubislaw and others to James Skene.

By disposition dated 15th May 1861 James Skene “for various causes and considerations” disponed the lands of Rubislaw and others with certain exceptions to his son George Skene. The disposition contained the following clause:—‘And I grant warrandice under exception of the feu-rights and infefiments of certain portions of the said lands and others granted by me and my authors to our vassals therein.” The disposition was confirmed by writ of confirmation by the Magistrates of Aberdeen in favour of George Skene dated 26th April 1865.

By disposition dated 19th and recorded 21st June 1862 George Skene disponed his lands of Rubislaw and others to Sir Alexander Anderson for £56,541. In this deed the clause of warrandice ran—“I grant warrandice under exception of the current tacks and feu-rights of and affecting said subjects.”

By disposition dated 25th and 26th May and recorded 22nd July 1875 Francis Edmond, advocate in Aberdeen, trustee on the sequestrated estate of Sir Alexander Anderson, disponed the lands of Rubislaw and others, excepting certain portions therein specified, to the City of Aberdeen Land Association, Limited, for £105,000.

Numerous feu-dispositions of portions of the lands of Rubislaw and others were granted by the Aberdeen Land Association Limited and their authors, and many of the mid-superiorities thus created were sold to sub-vassals and others.

In these circumstances the Aberdeen Land Association, Limited, desired to redeem the casualties of, inter alia, the lands of Rubislaw and others. As they were unable to come to terms witn the Magistrates of Aberdeen as to the amount of the redemption price and the extent of the subjects on the yearly value of which it was to be estimated, they raised an action on 13th May 1898 against the Magistrates of Aberdeen, concluding for declarator that they were entitled to redeem the casualties in terms of the 15th section of the Conveyancing (Scotland) Act 1874, and for decree ordaining the defenders to discharge the casualties on payment of the redemption money.

Various questions were discussed in this action, and by direction of the Lord Ordinary the pursuers lodged a plan in which the portions of the land to which different questions applied were distinguished by colours. Of these questions the following seven are reported, each being distinguished by a number, and where applicable by the colour on the plan of the lands to which the question referred:—

First Question—Competency of Action.—The action concluded for declarator “that in terms of and in accordance with the said 15th section of The Conveyancing (Scotland) Act 1874, the pursuers, as proprietors in virtue of a disposition in their favour [the disposition of 1875 referred to above] of All and Whole the lands thereby conveyed to them, being the lands of Rubislaw … and others, excepting and reserving as there was by said disposition in their favour excepted and reserved [certain portions], the subjects of which the casualties are to be redeemed as after mentioned, being the parts in so far as

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belonging to the pursuers at the date of signeting hereof, of All and Whole the towns and lands of Rubislaw and others contained in the charter of resignation and novodamus [the deed of 1805 referred to above], are entitled, upon payment to the defenders as the immediate lawful superiors of the pursuers in said subjects of the amount of the highest casualty estimated as at the date of redemption, with an addition thereto of 50 per centum, to redeem the whole casualties of superiority incident to the lands and others belonging to the pursuers … and that the pursuers are entitled to insist upon the defenders granting and delivering to them, and are entitled to receive from the defenders, but always at the expense of the pursuers, a discharge in terms of said statute of all such casualties incident to the subjects belonging to the pursuers as aforesaid… . and payable to the defenders therefrom, subsequently to the date of signeting hereof, upon the pursuers making payment to the defenders of the sum of £3317, 16s. 6d., being the amount of the highest casualty owing and exigible therefrom, including the said addition of 50 per centum; or in the event of the defenders establishing any valid objection to the said amount, then of such other sum as shall be found in the course of the process to follow hereon to be the true amount of the said highest casualty, with the said addition of 50 per centum.”

In the course of the action it was ascertained that the pursuers were vassals of the defenders in other parts of the lands of Rubislaw besides those covered by the particular description of the lands in the summons, and the sum of £3317, 16s. 6d. tendered as the redemption price of the casualties was therefore less than the amount actually due. Section 29 of the Court of Session Act 1868 provides—“It shall not be competent by amendment of the record … to subject to the adjudication of the Court any larger sum or any other fund or property than such as are specified in the summons … unless all the parties interested shall assent to such amendment.” The defender founding on this section objected to the competency of the action.

Second Question— Green Lands.—The mid-superiorities of certain lands feued out by James Skene and George Skene were disponed for a price paid to various persons by James Skene prior to his dispositions of the lands of Rubislaw and others in 1861, and by George Skene prior to his disposition of these lands to Sir Alexander Anderson in 1862. The holding in these cases were either a me or a me vel de me, the disponees were infeft but never took entry with the defenders, and the dispositions of these mid-superiorities were not specially excepted in the general dispositions to George Skene and Sir Alexander Anderson.

The defenders contended that as there was no exception of these mid-superiorities in the general dispositions to George Skene and Sir Alexander Anderson, and as George Skene was entered with the defenders by writ of confirmation in 1865, the disponees of the mid-superiorities could not thereafter enter with the defenders, and were not entered by implication on the passing of the Conveyancing Act 1874, and that the pursuers must be treated in the present action as if the dispositions of the mid-superiorities had never been granted. The pursuers contended that these dispositions came under the general exception of feu-rights in the warrandice clauses in the general dispositions to George Skene and Sir Alexander Anderson.

Third Question—Brown Lands.— These lands were admittedly held by the pursuers of the defenders, and the casualties required to be redeemed, but the question was, how was the redemption money to be calculated. The lands had been disponed at different dates to various persons in consideration of sums (such as in one case £500, in another £959) paid to the disponer “as the agreed value of the same,” to be holden in feu farm de me, “for payment of a penny sterling at the term of Whitsunday, if asked only.”

The pursuers contended that the highest casualty at the date of redemption was a penny, and that this was all that they were bound to pay as redemption money, while the defenders contended that the highest casualty was the actual rent of the lands current at the date of redemption.

Fourth and Fifth Questions—Yellow Lands.—These questions also related to the redemption money to be paid for lands admittedly held by the pursuers of the defenders. They dealt with two sets of feus. (1) In some cases the feu-duty beginning at a substantial amount increased year by year till in four or five years it attained its full amount. Thus in a feu-disposition granted by the pursuers in 1896 the vassals were taken bound to pay in name of feu-duty £13, 4s. 2d. At each of the terms of Martinmas 1897 and Whitsunday 1898, twice that sum the following year, thrice that sum the next year, and thereafter the sum of £105, 13s. 6d. annually. In these cases the pursuers contended that the amount of the casualty was the sum actually payable in the year of redemption, while the defenders maintained that it was the highest rate of feu-duty contracted for in the deed. (2) In other cases the feu-duty was fixed at a substantial sum but the feuar was relieved from paying any feu duty during the first year after the date of the feu-charter, and this first year happened to be the year in which the redemption of casualties was claimed. The pursuers contended that in such a case the highest casualty for that year was the agricultural value of the lands, while the defenders contended that it was the amount of the postponed feu-duty.

Sixth Question—Construction of Streets.— In some cases before the lands were feued the pursuers had constructed streets on or adjoining the feus, and when the lands were feued had in the feu-charter taken the sub-feuars bound to repay the proportion of the amount expended in that way effeiring to their feus. For example,

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in a feu-disposition granted in 1896 this proportion of this expense levied upon the sub-feuars was £327, 9s., payable in four annual instalments of £81, 17s. 3d. The pursuers contended that this sum did not fall to be taken account of, while the defenders maintained that the amount must be taken into account as a grassum, and that the year's rent on which the casualty applicable to the lands was based must include not only the feu-duty but interest at five per cent. on the grassum.

Seventh Question— Blue Lands.—In certain cases the pursuers, prior to the raising of the action, had disponed portions of the lands to third parties, but had never intimated the change of ownership to the defenders. The pursuers maintained that they were not bound to redeem the casualties on such lands, as a superior would never recover a casualty except from the successor of the vassal in the lands, whether by conveyance or otherwise, “whether he shall be infeft or not,” in terms of section 4 (4) of the Conveyancing Act 1874. The defenders maintained that in these lands the pursuers must still be regarded as their vassals, in respect that no notice of change of ownership had been given under section 4 (2) of the Act of 1874.

On 22nd August 1900 the Lord Ordinary ( Low) allowed the parties a proof of their averments.

After a proof the Lord Ordinary on 29th January 1902 pronounced an interlocutor containing, inter alia, the following findings—“(2) That the pursuers are not bound to redeem the casualties of those portions of the lands coloured blue upon said plan which they have alienated although notice of change of ownership was not given to the defenders… . (4) That for the purposes of redeeming the casualties the pursuers fall in the circumstances to be regarded as the vassals of the defenders in the estate of mid-superiority of the lands (coloured green upon the said plan) which were feued by James Skene prior to the date of his disposition to George Skene in 1861 and by George Skene prior to the date of his disposition to Sir Alexander Anderson in 1862, and which mid-superiorities were sold by the said James Skene or George Skene but excluding therefrom … the four feus which are specially excepted by description from the conveyance by George Skene to Alexander Anderson dated 19th, and recorded 21st June 1862.” …

On 16th April 1903 the Lord Ordinary pronounced the following interlocutor:—“Finds and declares that in terms of and in accordance with the said 15th section of The Conveyancing (Scotland) Act 1874 the pursuers, as proprietors of All and Whole the towns and lands of Rubislaw and others contained in the charter of resignation and novodamus granted by the Provost, Bailies, Council, and community of the burgh of Aberdeen, in favour of James Skene of Rubislaw, dated 18th July 1805, and in an instrument of sasine following thereon in his favour, dated the 4th, and recorded in the General Register of Sasines at Edinburgh the 8th, days of June 1841, with the exceptions hereinafter enumerated (it being declared that the boundaries shewn on the plan hereinafter mentioned, and the numbers marked thereon, are referred to herein subject and without prejudice to the descriptions of the respective parts and portions as set forth in the titles relating thereto), viz.”—[ here followed a description of eight excepted parts in detail]—“are entitled upon payment to the defenders as the immediate lawful superiors of the pursuers in said subjects, other than those excepted as aforesaid, of the amount of the highest casualty estimated as at 13th May 1898, the date of signeting the summons, with an addition thereto of 50 per centum, to redeem the whole casualties of superiority incident to the said subjects, and that the pursuers are entitled to insist upon the defenders granting and delivering to them, and are entitled to receive from the defenders, but always at the expense of the pursuers, a discharge in terms of the said statute of all such casualties incident to the said subjects, and payable to the defenders therefrom subsequently to the 13th day of May 1898, being the date of signeting the summons, upon the pursuers making payment to the defenders of the sum of £6128, 18s. 7d. sterling, being the amount of the highest casualty owing and exigible therefrom, including the said addition of 50 per centum with interest on said sum at the rate of 4 per centum per annum from the said date of signeting till payment to the defenders: And further ordains the defenders to execute and deliver to the pursuers at the pursuers' expense such discharge upon the pursuers making payment to the defenders of the said sum of £6128, 18s. 7d., with interest as aforesaid, but reserving always to the defenders, notwithstanding such redemption of the casualties of superiority, full right and title to levy the future feu-duties payable from the said subjects in the same manner and to the same effect as they have heretofore been and are at present entitled to do; and also reserving to them the right and option to insist, if so advised, that the said principal sum of redemption money to be paid by the pursuers shall be commuted into an annual sum or feu-duty equal to 4 per cent. upon the capital.”

The Lord Ordinary's judgment on the seven questions dealt with in this report appear in opinions which his Lordship issued on various dates, from which the following extracts are made:—

First Question—Competency of Action—“The only question which I can dispose of at this stage of the case is that raised by certain criticisms which were made upon the conclusions of the summons which deal with the lands of Rubislaw, and which the Solicitor-General contended justified him in asking that these conclusions should now be thrown out.

It was, in the first place, pointed out that the sum mentioned in the summons as the amount for which the pursuers are entitled to redeem the casualties is based only upon the rental of the lands coloured

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yellow upon the plan, although the pursuers seek to redeem casualties applicable to other lands. That seems to be the case, but the pursuers do not tie themselves down in the summons to the sum which they specify, but add the words ‘or such other sum as shall be found in the course of the process to follow hereon to be the true amount.’ If therefore the sum specified is too small the true amount can be ascertained under this summons.

“It was also maintained that the description of the lands in the summons does not square with the plan which the pursuers have now lodged for the purpose of showing precisely what are the lands the casualties of which they seek to redeem. Whether that is so or not I am unable to judge at this stage, but assuming it to be the case I do not think that it would be fatal to the action. The leading parts of the conclusion of the summons with which I am dealing are quite distinct. The conclusion is to the effect that the pursuers as proprietors in virtue of a disposition dated in 1875 of ‘All and Whole the lands thereby conveyed to them of Rubislaw and others under certain exceptions are entitled … to redeem the whole casualties of superiority incident to the lands and others belonging to the pursuers' upon payment of the highest casualty estimated as at the date of redemption with an addition thereto of 50 per cent.

That seems to me to state distinctly enough what the pursuers' claim is, and the questions which are in controversy between the parties are—(1) What are precisely the lands the casualties of which the pursuers seek to redeem and are entitled to redeem? and (2) What is the amount of the redemption money? If it turns out that there has been an error or omission in the description of the lands, I am inclined to think that that is a matter which could be put right by an amendment of the summons, as being an amendment which was necessary to determine the real question in controversy.

I am therefore of opinion that a proof must be allowed for the purpose of ascertaining in what part of the lands contained in the disposition of 1875 the pursuers are still vassals of the defenders and liable to payment of feu-duties and casualties, and what is the amount at which the pursuers are entitled to redeem the casualties.” …

Second Question—Green Lands— (Opinion of 29th January 1902)—“There is next a question in regard to the mid-superiorities of certain of the lands coloured green upon the plan. These were lands which were feued by James Skene prior to his disposition to George Skene in 1861, and (I think in one case only) by George Skene prior to his disposition to Sir Alexander Anderson in 1862. The mid-superiorities of these feus were sold by James and George Skene respectively, the holding being either a me or a me vel de me. The purchasers were infeft, but never took entry with the defenders.

The defenders maintain that as there was exception of these mid-superiorities in the dispositions to George Skene and Sir Alexander Anderson, and as George Skene was entered with the defenders by writ of confirmation in 1865, the disponees of the mid-superiorities could not thereafter enter with the defenders, and were not on the passing of the Conveyancing Act in 1874 entered with them by implication. Therefore it was contended that, so far as the present action is concerned, the pursuers must be treated as if the disposition of the mid-superiorities had never been granted.

The pursuers, upon the other hand, founded upon the general exception of feu-rights in the warrandice clauses in the dispositions to George Skene and Sir Alexander Anderson, and they relied upon the principle laid down in the case of Cheyne, 10 S. 622, and Pringle, 17 R. 1229.

If the rights taken by the disponees of the mid-superiorities had been proper feu-rights, then I am inclined to think that the general exception in the warrandice clauses of the dispositions to George Skene and Sir Alexander Anderson would have been sufficient to render the right of the latter to the lands subject to that of the holders of the mid-superiorities. But the dispositions of the mid-superiorities were dispositions of the lands for a price paid. In like manner the dispositions to George Skene and Sir Alexander Anderson were dispositions of the lands—the former ‘for various causes and considerations’ and the latter for a price—and so far as their form went carried the mid-superiorities in question. There were therefore two disponees—or rather two sets of disponees—of the same estates of mid-superiority, but the disponees whose conveyances were later in date first completed their title by taking entry with the superiors. It seems to me that that entry operated as an impediment to the disponees under the earlier conveyances entering with the superiors. If they had demanded an entry, the answer would have been that the fee was full, and therefore I do not think that there was any room for the implied entry under the Conveyancing Act.

The result is, that in a question between the pursuers and defenders the former must, in my opinion, be regarded as still being the vassals of the latter in the mid-superiorities in question.”

Third Question— Brown Lands—(Opinion of 31st May 1902)—“The next point is, how the casualty can be calculated in a case where the lands have been feued out for a price, and where there is also, in order to keep up the recognition of the superiority, a nominal duty. I have always understood that in such a case the casualty is the duty plus interest upon price. Now, the Solicitor-General said there was no evidence that it was a fair price for the lands. I agree very much with what Mr Campbell said on that subject. The disposition bears to be the sale of the lands for a price fixed, and the presumption is that it was a fair and

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reasonable price; and I think if it be contended it was a special transaction, and not a fair price at all, then really it lay on the defenders to shew that that is the case, so that in the cases to which I understand No. 149 of process applies I should take the casualty to be the 5 per cent. upon the price.”

Fourth and Fifth Questions—Yellow Lands—(Opinion of 18th July 1902.)—“The next question with which I shall deal relates to cases in which the full feu-duty was not payable during the first few years of the feuar's possession. In such cases the pursuers contend that the sum actually payable for the year, in reference to which the amount of the casualty falls to be fixed, must be taken as the year's rent. Further, I understand that in some cases the feuar was relieved from any payment during the first year (which happened to be the year in which redemption of the casualties was claimed), and in such cases the pursuers contend that, although the feuar was possessing under a feu-charter or feu-contract, the feu-duty falls to be altogether disregarded and the agricultural value of the lands taken.

I am of opinion that the pursuers' contention is not well founded. It is settled that where lands have been sub-feued for an adequate value at the time, the sub-feu-duty is to be taken as the rent in a question with the superior, and that the latter cannot demand a year's rent of houses built by the sub-feuar under a contract to which he was no party. In the cases with which I am dealing, there is no question what the feu-duty is. That was unequivocally fixed by the titles, but it was agreed between the mid-superior who sub-feued the lands and the sub-feuar that for a certain time the full feu-duty should not be exacted. I do not think that such an agreement can affect the rights of the superior to demand payment of the full feu-duty as the annual value of the subjects.”

Sixth Question—(Opinion of 18th July 1902)—“The next question relates to cases in which, before feuing their lands, the pursuers had constructed streets, and when the lands were feued, had taken the sub-feuars bound to repay the amount expended in that way. The defenders argued that in suchacase the feu-duty did not adequately represent the value of the subjects, but that the sum paid in respect of the streets was truly a grassum, and that therefore in calculating the amount of the casualty interest at the rate of 5 per cent, upon the sum paid for the streets fell to be added to the sub-feu-duty.

In my opinion the sums in question were not of the nature of a grassum. A grassum is a capital sum paid in anticipation of rent or of feu-duties, so that the rent or feu-duty is necessarily smaller than it would have been if the grassum had not been paid. In the cases in question, however, I see no reason to suppose that the payments made for the streets had any effect upon the amount of the feu-duty, because, if the sub-feuar had not paid the mid-superior for making the street, he would have had to incur the expense directly by making the street himself. I am therefore of opinion that the payments do not fall to be taken into consideration.”

Seventh Question—Blue Lands—(Opinion of 29th January 1902)—“The next question with which I shall deal relates to certain portions of the lands (coloured blue upon the plan No. 34) which the pursuers have alienated altogether, but in regard to which the defenders contend that they must still be regarded as their vassals, in respect that notices of change of ownership in terms of the Conveyancing Act were not given.

I am of opinion that as regards lands in which the pursuers are in fact no longer vassals of the defenders, the former are not bound to redeem the casualties, even although notice of change of ownership was not given.

Notice of change of ownership of a feu was introduced by section 4 (2) of the Conveyancing Act 1874, to protect superiors against results which might otherwise have followed the entry implied by infeftment.

Under the law prior to the Act there could not be a change of vassal without the knowledge of the superior, but when the implied entry was introduced, the superior might know nothing of the transaction whereby a new vassal was entered with him. Further, by the old law the entry given by the superior to a new vassal discharged the old vassal and his representatives of all personal liability for feu-duty or the other obligations of the feu. If, therefore, some provision had not been made to meet the case, the result of the implied entry might have been that the only person liable to the superior in feu-duty and the other obligations of the feu was one whom he knew nothing about. It was accordingly provided ‘that notwithstanding such implied entry, the proprietor last entered in the lands, and his heirs and representatives, shall continue personally liable to the superior for payment of the whole feu-duties affecting the said lands, and for performance of the whole obligations of the feu, until notice of change of ownership of the feu shall have been given to the superior … without prejudice to the right of the proprietor last entered in the lands and his foresaids to recover from the entered proprietor of the lands all feu-duties which such proprietor last entered in the lands or his foresaids may have had to pay in consequence of any failure or omission to give such notice.’

I do not think that the casualties of non-entry fall within the scope of that provision. Further, these casualties are dealt with in the 3rd and 4th sub-sections. By the latter non-entry is abolished, and for a declarator of non-entry there is substituted an action of declarator, and for payment of a casualty. I do not know of any other way in which a superior can recover a casualty, and the action can only be directed against the ‘successor of the vassal in the lands … whether he shall be

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infeft or not,’ and nothing is said about notice, or want of notice, of change of ownership. In regard, therefore, to the portions of the lands with which I am now dealing, it seems to me that the defenders could in no circumstances have enforced payment of a casualty from the pursuers, and that accordingly the latter cannot be compelled to redeem the casualties.”

The defenders reclaimed against the decision of the Lord Ordinary in the first, third, and sixth questions, and the pursuers took advantage of the reclaiming-note to submit to review his judgment on the second, fourth, and fifth questions. The Lord Ordinary's decision on the seventh question was not challenged by either party.

Argued for the defenders— First Question— Competency of Action—The description of the lands in the conclusions of the summons was a specific description. The parenthetical words at the close of the description were merely exegetical of what went before and did not extend the scope of the description. That the description was specific was further shown by the fact that the amount of the redemption money proposed was the exact amount of the rental of the lands, the casualties of which the pursuers at that date thought they were bound to redeem. It now turned out that the pursuers were vassals of other lands than those specifically set forth in the summons. This rendered the action incompetent, because it was impossible to enlarge the scope of an action without the consent of all parties, and the whole casualties incident to the lands must be redeemed in the one action— Leslie's Trustees v. Magistrates of Aberdeen, 6th July 1898, 35 S.L.R. 855. In the case of a summons such as this, it was specially necessary that it should be construed strictly, as it was brought for the purpose of depriving the superior of former rights, Second Question—Green Lands— The decision of the Lord Ordinary on this point was correct. The mid-superiorities of these lands were included in the general conveyance to George Skene and Alexander Aitchison and did not fall under the exception in the warrandice clauses, that exception dealing only with feu-rights and not with dispositions of the mid-superiority. George Skene having entered in 1865, this excluded any possible entry by implication in 1874 of the special disponee of the mid-superority. The pursuers as disponees of the lands held by George Skene were still the vassals of the defenders in these mid-superiorities— Ceres School Board v. Macfarlane, December 12, 1895, 23 R. 279, 33 S.L.R. 158. In both Cheyne, infra, and Pringle, infra, the specific deed excepted was set out in the warrandice. Third Question— Brown Lands—The Lord Ordinary had held that interest at 5 per cent on the grassum was the rent of the land on which the amount of the casualty was to be calculated. This was erroneous in law. Where there was a full and adequate feu-duty at the time when the feu was granted that was looked upon as the annual value of the land at that date. A feu for which a bona fide feu-duty was paid was looked upon as a perpetual tack, and for all time the amount of the feu-duty would regulate the amount of the casualty. The ground on which a feu-duty was accepted as the rent of the feu was in order to encourage feuing. But where there was no real feu-duty, but merely an elusory feu-duty or blench duty, that was looked upon not as a year's maills but simply as a recognition of the superior's position. If there was no full and adequate feu-duty, as in the present case, the superior, in calculating the amount of the casualty, was entitled to regard the year's maill as a year's rent of the lands at the date of the redemption—1469, c. 36; 1681, c. 17; Tenure Abolition Act 1747 (20 Geo. II, c. 50), sec. 13; Stair, ii, 3, 33, ii, 4, 21, ii, 11, 13, iii, 2, 27; Bankton, ii, 3, 52 and 53, ii, 4, 31; Erskine, ii, 5, 36 and 44; Ross v. Governors of Heriot's Hospital, June 6, 1815, F.C., aff. July 24, 1820, 6 Paton's App. Cas. 640; Anderson v. Marshall, November 30, 1824, 3 S. 334; Lord Blantyre v. Dunn, July 1, 1858, 20 D. 1188, opinion of Lord Mackenzie, 1194. The case of Campbell v. Westenra, June 28, 1832, 10 S. 734, on which the Lord Ordinary relied, was a bad decision, and since the date of the Lord Ordinary's judgment had been disregarded by the House of Lords in Earl of Home v. Lord Belhaven and Stenton, May 25, 1903, 5 F. (H.L.) 13, 40 S.L.R. 607. Fourthand Fifth Questions— Yellow Lands.—On these questions they were content with the Lord Ordinary's judgment. The rent on which the casualty was calculated was the highest rent for the lands, and it did not matter that by arrangement the payment of the feu-duty or part of the feu-duty was not exacted for a year or two by the landlord. Sixth Question—Construction of Streets.—The sum paid in respect of streets was a grassum, and 5 per cent. should be added to the feu-duty in calculating the entry-money.

Argued for the pursuers and respondents — First Question—Competency of Action.—They admitted that they did not know when they brought the action that certain of the lands, since ascertained to be within the feus were in that position. But the conclusions of the summons were purposely made wide enough to cover all the lands of Rubislaw, &c., held by the pursuers of the defenders, and for which casualties were found to be due. Second Question— Green Lands.—The judgment of the Lord Ordinary should be reversed. The midsuperiorities were included in the general exception in the warrandice clause. The exception included not only feu-rights, but infeftments of every description. This included infeftments of property sold. It was thus left open to the special disponees of these mid-superiorities to go to the superior at any time for entry, and on the passing of the Conveyancing Act of 1874 they were entered with the defenders by implication— Cheyne v. Smith, June 7, 1832, 10 S. 622; Pringle v. Pringle, July 17, 1890, 17 R. 1229, 27 S.L.R. 954. Ceres School Board, supra, did not apply, as in that

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case the ground of judgment was that the exception only covered feu-rights completed by infeftment. Third Question— Brown Lands.—Where there was a nominal feu-duty or blench-duty the practice in Scotland had been, since the date of Campbell v. Westenra, supra, to consider interest at 5 per cent. on the grassum as the rent of the land in calculating the amount of casualties. The judgment ih the House of Lords in the case of the Earl of Home v. Lord Belhaven, supra, did not necessarily overrule this decision. None of the judges in that case took exception to the proposition laid down in Campbell that where the feu-duty was elusory the superior was not entitled to the full rent of the subjects at the time of redemption. There was not a word in any of the statutes about full or fair or adequate rent. Where there was a feu-duty, however nominal, the Court were not entitled to inquire as to whether the feu-duty was adequate or not. If the principle laid down in Campbell, supra, had been overruled, all the superior was entitled to calculate his casualty on was the annual maill or value that the vassal was in fact receiving at the date of the redemption— Monkton v. Lord Yester, February 15, 1634, M. 15,020; Cowan v. Elphinston, March 29, 1636, M. 15,055; Almond v. Hope, March 9, 1639, M. 15, 056; Ross v. Governors of Heriot's Hospital, supra, opinion of Lord Glenlee, quoting MS. notes of Lord Elchies on Stair, 18 F.C. pp. 404 and 405; Wellwood v. Wellwood, July 12, 1848, 10 D. 1480; Earl of Home v. Lord Belhaven and Stenton, supra, opinion of Lord Davey, 5 F. (H.L.) p. 16, 40 S.L.R. 608. Fourth and Fifth Questions— Yellow Lands—On this question the decision in the Earl of Home, supra, provided a complete argument against the decision of the Lord Ordinary. The rent must be taken in the year of entry, “year's maill as the land is set for the time,” in the words of the Statute 1469, c. 36. It followed that in the case of the increasing feu-duty the sum actually payable for the year was the year's rent, while in the case where no feu-duty was payable for three or four years, and the date of entry occurred within that period, the agricultural rent of the land must be taken for that year, and not the amount of the feu-duty payable in a succeeding year— School Board of Neilston v. Graham, November 16, 1887, 15 R. 44, 25 S.L.R. 51. Sixth Question—Construction of Streets—The sums paid by the sub-feuars in respect of streets were repayments for work done by the pursuers, which if it had not been done by them would have had to be done by the sub-feuars themselves. Such repayments had no connection in any way with the annual rent of the subjects. The Lord Ordinary's judgment on this point was right.

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