Scottish Court of Session Decisions

The Feudal Casualties (Scotland) Act 1914 (4 and 5 Geo. V, cap. 48), section 5, enacts—“(1) The compensation payable on the redemption of casualties under this Act shall (failing agreement) be fixed as follows:—( a) In cases where casualties are exigible on the death of the vassal the compensation shall be such sum as will, with the addition of simple interest at the rate of four per cent. per annum, produce one and a-half times the highest casualty on the arrival of the time at which the next casualty might be expected to become exigible: Provided that if at the date as at which compensation is to be fixed, and after payment of such casualty (if any) as may then be exigible, the state of the title is such that the next casualty may be relief, and the amount of such relief is less than the amount which would be payable as composition, the compensation shall be fixed on the assumption that the next casualty will be payable on the expiry of the period of twenty-five years from the date as at which compensation is to be fixed, or otherwise on the arrival of the time when the next casualty might be expected to become exigible, whichever period is the greater (2) The compensation payable on the redemption of casualties under this Act shall (failing agreement) be fixed as at the date of notice given in terms of section 11 of this Act. …”

The Lord Advocate, on behalf of the Commissioners of Woods, Forests, and Land Revenues, pursuer, brought an action against the Marquess of Zetland, defender, concluding for decree—“(First) that a notice dated and served on 16th March 1916, in virtue of the provisions of the Feudal Casualties (Scotland) Act 1914 (particularly section 11), by the Crown Receiver upon the defender as proprietor of the lands and others particularly described in a charter of resignation and confirmation by His late Majesty King George III in favour of Sir Thomas Dundas, Baronet in liferent, and the heirs-male of his body, dated the 6th day of August, written to the seal and registered the 31st day of October and sealed the 1st day of November, all in the year 1787, and hereinafter libelled, and requiring the defender to redeem all the casualties exigible in respect of the Crown's estate of superiority in the said lands, is valid and effectual and binding upon the defender: (Second) that the defender is bound under the provisions of the said statute to redeem as at 16th March 1916 all the casualties incident to the Crown's said estate of superiority and exigible in respect of the defender's estate of property and mid-superiority in the said lands, and to make payment to the pursuer of the compensation provided in terms of the said statute; and (third) that the said compensation payable on the redemption of said casualties falls to be fixed or adjusted on the basis that the Crown is entitled to assess casualties of composition payable to the Crown's said estate of superiority at one year's real free rent of the said subjects; and whether decree is pronounced in terms of the foregoing declaratory conclusions or not the defender ought and should be decerned and ordained by decree foresaid (1) to exhibit and produce before our said Lords a statement or account showing the particulars and amounts of the real rental of the lands and other heritages embraced in the said notice, and of feu-duties, public burdens, cost of repairs, and other usual deductions recognised by law in ascertaining the free rental thereof.”

The pursuer pleaded, inter alia—“2. The compensation payable to the Crown's estate of superiority in respect of the redemption of the casualties on the estates mentioned in the said notice falls to be fixed on the basis that the Crown is entitled to assess casualties of composition at one year's real free rent of the said subjects, and decree ought to be granted in terms of the third declaratory conclusion of the summons.”

On 4th April 1917 the Lord Ordinary ( Cullen) found—“(1) That the defender is, under the Feudal Casualties (Scotland) Act 1914, bound to redeem as at 16th March 1916 all the casualties incident to the Crown's estate of superiority in the lands mentioned in the summons held by the defender of the Crown; (2) that according to the defender's tenure of the said lands the amount payable by the defender by way of redemption of casualties as aforesaid is regulated by the provisions of section 5 (1) ( a) of the said Act; and (3) that on an application of these provisions to the present case the words ‘the highest casualty’ occurring in them import the amount of ‘a year's maill as the land is set for the time’ within the meaning of these words as used in the Act 1469, cap. 36,” and reserved all questions as to the amount payable by the defender not covered by the above findings, and granted leave to reclaim.

Opinion, from which the facts of the case appear:—“The defender is Crown vassal of the lands referred to in the summons. The present action has been brought against him by the Crown to have him ordained to redeem the casualties incident to the Crown's estate of superiority in terms of the Feudal Casualties (Scotland) Act 1914. The case is one falling under section 5 (1) ( a) of the Act—that is to say, a case where casualties are exigible on the death of the vassal. The redemption value turns on the amount of the ‘highest casualty’ within the meaning of said section 5 (1) ( a). There is no taxation of casualties under the tenure, and if the defender had held the lands of a subject-superior the highest casualty ruling the calculation of the redemption money would have been the composition of one year's rent payable in respect of the entry of a singular successor. The Crown here seeks to apply the same rule. The defender disputes the claim, maintaining that the composition of a year's rent in respect of the entry of singular successors has no place in Crown holdings. He has offered to redeem on the footing of taking as the measure one-sixth of the valued rent of the lands in place of one year's rent. The question thus raised is of general application to Crown holdings such as that of the defender.

The origin of the composition of one year's rent to which subject-superiors at least became entitled in respect of the entry

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of a singular successor to a feu is well understood. But it may be desirable to resume the matter briefly by way of opening up the arguments of the parties.

Originally feudal fees were strictly personal and held for military or analogous services. In course of time feudal practice came to admit the right of the vassal's heir to take up the grant. Later, under changing conditions of social life, there came in gradually the more modern conception of a feu whereby grants were made by superiors for a reddendo in money or money's worth. Until the passing of the Clans Act of 1747, however (20 Geo. II, cap. 50), no superior, at least no subject-superior, was under any obligation to grant an entry to a singular successor under a voluntary transmission of the feu presenting himself for entry as such. But long prior to 1747 a way to the entry of singular successors had been opened up by statute, and although the way in the case of voluntary disponees was originally and technically an indirect and circuitous one, it latterly had in practice come to be a direct one.

The leading statute is that of 1469, cap. 36, dealing with apprisings. But before referring to it in more detail I may observe that long prior to it there had existed in Scotland provision for diligence against a debtor's lands for payment of his debts. The matter is, of course, somewhat obscure at this distance of time. In the reign of Alexander II there was passed an Act (cap. 24) which provided that if a landed debtor or his tenants had moveable goods, these goods should, first of all, be distrained for payment of the debt, but that failing satisfaction of it in this way the sheriff and King's servants should sell the debtor's lands, and on such sale taking place the sheriff if the lands were held of the King was directed to ‘infeft the buyer by ane precept.’ In the case of lands held ‘of ane baron’ the baron was given an option to buy them, failing which and if there was another buyer the sheriff was directed to infeft that other buyer in the lands ‘in sic forme as the debtour possessed them.’ And it was further enacted that the baron, at the command of the sheriff, should receive the buyer ‘to be his tennant, and should give him sic possession as the debtour had.’ Anticipating the argument a little, I may point out that under this ancient statute power was given to the sheriff to grant infeftments to buyers in the case where the lands sold were held of the Crown equally as in the case where the lands were held of a ‘baron’ or subject-superior.

The Act of 1469, cap. 36, proceeds on a preamble setting forth the hardships to tenants of a landed debtor pursued for his debt in having their moveables distrained for such debt, and it goes on to make provisions for alleviating the hardship. The details of these I need not go into at length. The material point is that the Act provided for the ‘apprising’ of a debtor's lands and, inter alia, enacted that the ‘overlord’ should be bound to give an entry to the appriser on payment of ‘a year's maill as the land is set for the time.’

The more ancient form of ‘apprising’ of a debtor's land came to be superseded by the process of adjudication. By the Act 1669, cap. 18, it was enacted that ‘the superiors of lands’ should not be bound to enter adjudgers save on the same condition of payment of a ‘year's rent of the lands’ as had applied to apprisers.

Following on the Acts of 1469 and 1669 above referred to, the disponee under voluntary transmission (in the case of lands held of a subject-superior at least), although not thereby provided for, found his way of forcing an entry. He could not present himself to the superior in the guise of a voluntary disponee. With the co-operation of the disponer, who granted the necessary bond, he presented himself, after due procedure on the bond, as an appriser or adjudger, tendered as such the necessary year's rent, and obtained an entry. This circuity of procedure on the part of the voluntary disponee was of no special advantage to the superior. And thus prior to 1747 it had become the general practice for subject-superiors to grant entries to voluntary disponees on payment of the amount of a year's rent of the lands without requiring them to go through the procedure necessary to enable them to present themselves in the guise of apprisers or adjudgers. This result of the Acts of 1469 and 1669 was deeply deplored by conservative feudalists like Sir Thomas Craig, who resented it as a species of fraud on superiority rights.

The ‘Clans Act’ of 1747 (20 Geo. II, cap. 50) was aimed mainly at breaking up the power of the ‘clan’ system in Scotland. Inter alia it enacted by section 12 as follows—‘And whereas the methods of procuring entry by heirs or singular successors or purchasers of lands in Scotland that are held of subject-superiors, heretofore practised, are tedious and expensive, be it therefore enacted by the authority aforesaid that from and after the said twenty-fifth day of March it shall and may be lawful and competent for any person who shall be duly served and retoured heir to any of his predecessors in any lands or heretages in Scotland, and to any person who shall purchase or acquire such lands or heretages from the former proprietor or vassal who was duly vested and seized therein, and who shall obtain from such vendor or former proprietor a disposition or conveyance, containing a procuratory of resignation in favour of such purchaser or disponee, to apply to the Ordinary on the Bills in the Court of Session for the time being, praying a warrand for letters of horning to charge the superior, of whom such lands or heretages were respectively held, to receive or grant new infeftment to such heir or purchaser respectively; and upon production to the Lords of Session of a special retour of the petitioner or party so applying in any such lands or heretages, or upon production of a disposition or conveyance bearing a procuratory of resignation in favour of such petitioner, it shall and may be lawful for

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the said Lords of Session, and they are hereby authorised and required, to grant warrand for letters of horning, upon flfteen days, to charge the superior or superiors in the lands contained in such special retour or procuratory of resignation to receive or grant new infeftment to such heir, purchaser, or disponee respectively.’

This enactment, it is to be observed, is expressly limited to feudal grants held of subject-superiors. On this fact the defender, as I shall hereafter mention, founds an argument.

Section 13 went on to enact as follows—‘Provided always that no superior shall be obliged to give obedience to such charge unless the charger at the same time shal pay or tender to him such fees or casualties as he is by law entitled to receive upon the entry of such heir or purchaser; and that it shall and may be lawful for every such superior to show cause why he ought not to be compelled to give obedience to such charge, by offering a bill of suspension in the usual manner to the Court of Session.’

On the terms of this enactment it is to be observed that it purports to speak of the casualties which a subject-superior ‘is by law entitled to receive on the entry of a purchaser, whereas, strictly speaking, a purchaser as such could not prior to the Act have forced an entry, nor was the superior ‘entitled to receive’ any casualty from him save by refusing him an entry and resorting to a declarator of non-entry until the purchaser, by adoption of indirect methods, was enabled to present himself for entry in the guise of an appriser or adjudger tendering a year's rent as such. The due construction of section 13 of the Act of 1747 was in the case of Earl of Home v. Lord Belhaven and Stenton, 1903, 5 F. (H.L.) 13, 40 S.L.R. 607, authoritatively held to be that the casualty which the superior is therein spoken of as ‘entitled to receive’ was the year's maill of the lands which by the Acts of 1469 and 1669 an appriser or adjudger was bound to pay for entry, although the superior was not entitled to receive it save in the indirect manner I have indicated.

The Clans Act thus made this change on the pre-existing law that a disponee under voluntary transmission of a feu held of a subject-superior thereby became entitled as such to obtain an entry from the subject-superior on paying the year's rent formerly available as a condition of entry only to apprisers or adjudgers. It was a change in form. The voluntary disponee was relieved from the necessity, according to the previous law, of presenting himself by a circuity of procedure in the guise of an appriser or adjudger.

I pass over various statutes subsequent to 1747 dealing with the simplification of titles to land, and in particular the modes of obtaining infeftment and entry, and come to the Conveyancing Act of 1874 (37 and 38 Vict. cap. 94). This Act made a very sweeping innovation on previous feudal practice and conceptions. Prior thereto entry to a feu required a writ from the superior, in the absence of which when the occasion arose the lands fell into non-entry. I do not think it necessary to set out in great detail the provisions of the Act. It introduced the novel conception of implied entry with the nearest superior whose right of superiority was not defeasible at will, obtained by the due recording of a title in the Register of Sasines, thus superseding the need for any writ by progress from the superior. But it safeguarded the superior by enacting, section 4 (3), that ‘Such implied entry shall not prejudice or affect the right or title of any superior to any casualties, feu-duties, or arrears of feu-duties which may be due or exigible in respect of the lands at or prior to the date of such entry; and all rights and remedies competent to a superior under the existing law and practice, or under the conditions of any feu right, for recovering, securing, and making effectual such casualties, feu-duties, and arrears, or for irritating the feu ob non solutum canonem, and all the obligations and conditions in the feu rights prestable to or exigible by the superior, in so far as the same may not have ceased to be operative in consequence of the provisions of this Act or otherwise, shall continue to be available to such superior in time coming; but provided always that such implied entry shall not entitle any superior to demand any casualty sooner than he could by the law prior to this Act, or by the conditions of the feu right, have required the vassal to enter or to pay such casualty irrespective of his entering.’

And sub-section (4) of section 4 enacted—‘No lands shall after the commencement of this Act be deemed to be in non-entry, but a superior, who would but for this Act be entitled to sue an action of declarator of non-entry against the successor of the vassal in the lands, whether by succession, bequest, gift, or conveyance, may raise in the Court of Session against such successor, whether he shall be infeft or not, an action of declarator and for payment of any casualty exigible at the date of such action, and no implied entry shall be pleadable in defence against such action; and any decree for payment in such action shall have the effect of and operate as a decree of declarator of non-entry according to the now existing law, but shall cease to have such effect upon the payment of such casualty and of the expenses (if any) contained in said decree; but such payment shall not prejudice the right or title of the superior to the rents due for the period while he is in possession of the lands under such decree, nor to any feu-duties or arrears thereof which may be due or exigible at or prior to the date of such payment, or the rights and remedies competent to him under the existing law and practice for recovering and securing the same; and the summons in such action may be in or as nearly as may be in the form of Schedule B, hereto annexed.’

It will be observed, on the terms of subsection 4 of section 4 above quoted, that it provides a remedy to the superior, notwithstanding an implied entry, for recovery of ‘any casualty exigible by him.’ A casualty of composition in respect of the entry of a

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singular successor was never ‘exigible by’ a superior in the sense of his having a direct petitory action concluding for payment of it. The superior's remedy in the case of a feu becoming vacant was an action of declarator of non-entry, decree in which gave him right, inter alia, to the fruits of the feu after decree, until the price of entry—a year's rent—was tendered by the singular successor. The Act of 1874, while abolishing non-entry, gives the superior from whom a writ by progress is no longer required an equivalent remedy that is to say, he is authorised on the occurrence of what would have been but for the Act of 1874 a vacancy of the feu to pursue a statutory form of action, the effects of which are equivalent to the effects of a declarator of non-entry prior to the Act, until he is tendered payment of the casualty which under the prior law would have avoided or terminated the operation of a declarator of non-entry. The said statutory form of action does not give a direct petitory claim to the superior. Against it no implied entry by virtue of the Act can be pleaded as excluding it. Thus the superior, notwithstanding an implied entry, is left by the Act virtually in the same position as he held before it quoad recovery of casualties.

So far as I have gone in the foregoing historical survey, limited to the position of the subject-superior, I do not think I have stated anything which is controversial between the parties. I now turn to consider the defender's case, which consists in differentiating Crown superiorities from superiorities held by subject-superiors quoad the conditions of entry.

The broadest position maintained by the defender is that the Crown never had at any time in the history of the feudal law right to refuse an entry to a singular successor. This remarkable proposition is sought to be founded on two passages in Bankton's Institutes, iii, 2, 53, and ii, 3, 48. In the first of these Bankton says—‘In adjudications of lands holden immediately of the Crown, no year's rent is exigible by the Barons of Exchequer at passing the charter, which is compounded for according to the stated rules of Exchequer; for the lieges are all alike the King's subjects, and therefore there is no reason for exacting a composition for the change of the vassal.’

In the second passage Bankton says—‘If the superior pleases, he may according to the provision in the old statute refuse to receive the adjudger, and may undertake payment of the debt, at least to the value of the lands, and take the lands to himself, which is termed Retractus feudalis; but that will not hinder the creditor from insisting for the remainder against the debtor if the value of the lands does not satisfy his debt, nor the debtor from redeeming within the legal in the same manner as if the right had remained with the creditor; nor can the superior in that case demand a year's rent, the adjudger not having been received. This option is never used by the Crown, but charters on adjudications pass of course, as indeed they do on voluntary rights; all the lieges being the King's subjects, he cannot have prejudice by the change of his vassals.’

The above extreme proposition for the defender was not urged with much insistence by his counsel, and I do not say more about it than that I reject it.

The next alternative position taken up by the defender is that the Crown long ago, and prior to the Act of 1469 already mentioned, relinquished, so as to become legally divested of, the right to refuse entry to singular successors of vassals in Crown holdings, whether these singular successors were voluntary disponees or were apprisers or adjudgers, and that the Act of 1469 and also the Act of 1669 do not relate to Crown holdings at all but relate solely to holdings of subject-superiors, so far as regards obligation to enter and the corresponding price of entry. This proposition appeals to what has been the practice of the Crown in granting entries.

Now there is no doubt that while relief duty has admittedly always been exacted by the Crown on the entry of heirs in Crown holdings, there has prevailed for several centuries a practice on the part of the Crown of freely entering singular successors, whether by way of voluntary transmission or under real diligence, on easy terms. The actual terms exacted were for a long time varying, but the rule intended to apply was that the applicant for entry should pay the reasonable expenses connected with the granting of entry to him.

Subject to such payment the general practice of the Crown seems to have been not to refuse an entry. There is no dispute between the parties as to the long existence of this practice. The difference between them is that while the Crown maintains the practice to have represented an indulgent course towards Crown vassals, the defender maintains that it defined and limited the Crown's legal right.

The said Crown practice, which is referred to by institutional writers in terms which I shall advert to in a moment, goes back to some period prior to the Act 1578, cap. 66, but it is impossible to assign more definitely a date to its beginning. The Act of 1578 was one ‘anent double confirmation of feus of kirk lands and lands holden immediately of our Sovereign Lord.’

The preamble of the Act is as follows—“‘Forsameikle as it is statute and ordained, be Act of Parliament maid in our Soveraine Lordis dearest Mother's time that na infeftment of Kirk-landes, set sen the viij. day of March the zeir of God ane thousand five hundreth lviij. zeiris, suld be of ony force or effect without the samin war dewlie and lauchfullie confirmed be our Soveraine. And als forsameikle as it happenis that doubil infeftments of few-ferme of ony portion of land is given be ane Ecclesiastical person to divers persones, & sum times be divers Ecclesiastical persones, to wit, the predecessour and successour, to divers persones in few-ferme, and zit nouther of the saidis infeftments can take effect or be of avail without they be dewlie and lauchfullie confirmed be our Soveraine Lord. And alswa it is oft-times seene that confirmations

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are granted of baith, the saidis divers infeftmentes, at divers times be the sute of the parties: like as it is founden be sundry ordinances of the privie Councel that our Soveraine Lord, and his hienesse Compositours, aucht not to deny his confirmation, upon the reasonabil expenses of the partie, suitand upon their awin peril. And likewise, divers alienations of landes, halden immediatelie of our Soveraine Lord, being maid be ane person to divers persones, double confirmationes ar granted be our Soveraine Lord thereto, quhair as ane of the saidis confirmations aucht and can only take effect in all clauses above specified. And notwithstanding it is the occasion of great debait amangis the lieges, to their great expenses, alsweill in payment of their compositiones, as that the samin breadis the occasion of great pley.’

The remedy enacted was that the first confirmation of an infeftment valid in itself should prevail.

The importance of this Act in the present connection lies in the reference made in its preamble to the ordinances of the Privy Council whereby it had been found that the Sovereign and his compositors ‘aucht not to deny his confirmation upon the reasonabil expenses of the partie suitand at his own peril.’ The object of the reference is to explain how it came about that several infeftments relating to the same lands were equally confirmed by the Sovereign, thus leading to a wasteful competition of rights which the statute set about to remedy.

It is common ground in the present case that it is not practicable to ascertain the dates of the ordinances of the Privy Council referred to in the Act of 1578. They may or may not have been earlier than the Act of 1469. This, however, is clear, as I think, that the Act of 1578 does not make any legislative enactment fixing an obligation on the Sovereign to grant a confirmation or entry to anyone who asked it, and does not go further than to record the fact that the King had been advised by his Privy Council that he ought to grant confirmations freely ‘upon the reasonabil expenses of the partie suitand at his own peril.’

These ordinances of the Privy Council, whatever their dates, would appear to be the origin of the Crown practice, which has prevailed, from some time prior to the Act of 1578, down to the present time, of granting entries in Crown holdings, in the case of singular successors, on easier terms than those insisted on by subject-superiors.

I may now advert to what is said by institutional writers on the subject. There is no great body of authority, nor does it seem to me to be of decisive import.

Lord Stair (Inst. ii. 3, 43), dealing with the topic of entails being broken or changed with the consent of the superior, says—‘But infeftments holden of the King have this privilege that they are not refused, either upon resignation or confirmation, as the fiar purchaser pleaseth: Yea, it is declared by several ordinances of the Privy Council that the King or his Commissioners ought not to deny his confirmation upon the reasonable expenses of the party; which ordinances are repeated in an Act of Parliament (1578, c. 66), and although the design thereof gave not occasion to ratify the same, yet they are contained in the narrative, as motives of that statute, and therefore are not derogate from but rather approved. And though several kings have revoked infeftments granted by them, from heirs of line to heirs-male and of tailzie, yet the effect of such revocations hath never been tried by suit or decision.’ This is the passage in Stair on which the defender, I think, mainly founds as indicating Stair's view of the effect of Privy Council ordinances mentioned in the Act of 1578. I am unable to extract from it that Lord Stair meant to say that these ordinances were obligatory on the Crown. He stops short of that with the remark that while they received no legislative ratification by the Act of 1578, they were ‘rather approved,’ and the further remark, that while kings did not always follow the ordinances, the question of the legality of their actions in that respect had never been raised for decision. In another connection Lord Stair incidentally remarks that confirmations by the King ‘pass of course’ (Inst. ii. 4, 36).

Erskine (Inst. ii. 7, 6), speaking of the right of a superior to refuse entry to singular successors, refers to the case of apprisers under the Act of 1469, and that of adjudgers under the Act of 1669, and to that of purchasers of bankrupt estates at judicial sales under the Acts 1681, c. 17, and 1690, c. 20. He observes—‘Notwithstanding these particular statutory restrictions on the superior's right, which were enacted merely for the behoof of creditors, the general right of refusal competent to superiors in the case of voluntary transmissions by the vassal long continued from the most early times of our feudal plan, unimpeached by statute, except one in the reign of Robert I, soon to be taken notice of. But from the period that commerce began to be attended to as a point essential to the public interest, vassals were considered in a more favourable light, not as simple beneficiaries, but as proprietors, who ought to have full power over the feudal subject contained in their charters. Hence our Sovereigns did, by several Acts of Privy Council mentioned in 1578, c. 66, give up this right for the public utility; so that purchasers of lands holden of the Crown were from that period secure of being received as vassals by the King, upon their reasonable expense, i.e., on a composition to be paid by them to the Treasury, which is fixed by practice to a sixth part of the valued rent of the lands.’

Erskine here speaks of the original right of the Crown to grant or refuse entries to singular successors in Crown holdings having been ‘given up’ for reasons of public utility, and of the security of entry which purchasers of Crown holdings thereby obtained. This may mean either of two things, (1) that the Crown, ex sua sponte, initiated and adhered to a practice of freely entering singular successors in Crown holdings on payment of ‘their reasonable expence,’ or

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(2) that the Crown became legally divested of its original right to refuse such entries and became bound by law to grant them in all cases to applicants on such payment. I prefer the former view, because I do not clearly see how ordinances of the Privy Council advising the King how he ‘aucht to’ act could, without the stamp of legislative enactment following on them—and as Lord Stair points out the Act of 1578 did not amount to that—legally divest him of his inherent rights as superior of Crown holdings; and if so, how Crown practice following voluntarily on these ordinances could in itself create such a divestiture. In another passage Erskine, referring to the entry of apprisers under the Act of 1469, explains that on the refusal of the subject-superior or superiors in order, the ultimate resort of the appriser was to the Sovereign, ‘who never refuses to receive any vassal upon payment of the composition established in Exchequer.’

Sir Thomas Craig, writing of the practice whereby voluntary disponees were wont under the Acts of 1469 and 1669 to force an entry in the guise of apprisers or adjudgers by what he considered a fraud on that Act, explains that the ultimate resort of the claimant for entry, if the immediate superior and intervening over-superiors refused his demand, was to apply for an entry to the King, ‘ qui nunquam solet recusare’ ( Jus Feudale, iii, 2, 20, top of page 458 of Editio Tertia). I was not referred to any other passage in Craig bearing on the matter in question, nor have I been able to find any. On the passage referred to, it is to be observed that Craig does not represent the King as being bound to grant an entry to anyone who asked it. He only says that it was the custom of the King never to refuse an entry. I place some stress on the way in which the matter is thus put by Craig, who was a writer saturated with knowledge of feudal law.

I have already quoted passages from Bankton bearing on the topic.

From a more modern point of view I may refer to what is said by Prof. Menzies in his Lectures on Conveyancing. Writing on the subject of transmission of feus (Lectures, 3rd ed., p. 610) he says—‘More than a century before these last-mentioned statutes [1672, c. 19 as to adjudgers, and the Acts of 1681 and 1690 as to purchasers at judicial sales of bankrupt estates] the Crown, under a sense of the unsuitableness of the feudal fetters to the exigencies of advancing freedom and commerce, had adopted a liberal course towards its vassals, having laid down the rule, as appears from 1578, c. 66, to grant confirmation upon payment of expenses by the party.’

By way of explaining the matter further I may now refer more fully to what the practice of the Crown has been in granting entries to singular successors. From the references in the Act of 1578 to the Privy Council ordinances it would appear that prior to these ordinances, whatever their date, the Crown had in practice exercised a power of granting or refusing confirmations at discretion. The ordinances were to the effect that the King ‘aucht not to deny his confirmation upon the reason-abil expenses of the partie suitand at his own peril.’ This left the amount of the ‘reasonabil expenses’ in the hands of the Crown acting through the authorities in Exchequer. So far as the citations given to me go, no statute has ever laid down any rule defining the amount of the payment so to be made by the applicant for entry in a Crown holding. The more modern statutes as to procedure in obtaining Crown charters provide, inter alia, machinery for settlement of disputes about the amount, but they do not legislate on the subject of the amount, and appear to leave the matter to depend on a due application of current practice in Exchequer.

It is impossible to find out how, in the early periods of the application of the rule of the Privy Council ordinances, the amount of the ‘reasonabil expenses of the partie’ were regulated. In later days, and prior to the Royal Warrant of Queen Anne in 1709 mentioned on record, it would appear that no regular rule was observed in practice; that the Lords or Barons of Exchequer acted in a variable and arbitrary way; and that a good deal depended on the amount of influence which the applicant for entry was able to bring to bear on those in power for the time being.

This absence of uniformity in the exactions of the Exchequer led to the issuing of the aforesaid Royal Warrant by Queen Anne in 1709, the terms of which are fully quoted on record. It referred to the fact that no certain rule had been observed by Exchequer in fixing compositions due to the Crown at the passing of signatures in favour of purchasers commonly called singular successors, and it announced the royal will and pleasure to be that the amount of composition to be taken in future should be one-sixth of the valued rent. The word ‘composition’ occurring in the warrant is used in a wide sense. Payments made in Exchequer for charters or writs by progress were formerly compounded for or settled at the sight of officials called ‘compositours.’

It is obvious that according to the conception of this Royal Warrant the fixing of the ‘compositions’ payable by purchasers or singular successors at one-sixth of the valued rent, ‘as a moderate’ sum, was regarded as entirely a matter of the royal will and pleasure. And no statute so far as I am aware has ever fixed that or any other amount as the amount to be paid by purchasers or singular successors in Exchequer.

It appears that Royal Warrants corresponding in effect to that of Queen Anne were issued successively by the Sovereigns who followed, down to and including Queen Victoria, but that none was issued by King Edward VII, and that none has so far been issued by his present Majesty, King George V.

Since the date of the Warrant of Queen Anne the practice in Exchequer conforming to it has been to exact from purchasers or singular successors under voluntary transmissions

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one-sixth of the valued rent in respect of an entry. This does not, however, apply without variation to the case of adjudgers who have been wont to be entered on different terms, the payment made by them in Exchequer having been primarily based on the amount adjudged for, with the option of paying one-sixth of the valued rent. So far as I am aware, this special rule for adjudgers rests on Exchequer practice, and not on express Royal Warrant.

On a consideration of the sources of authority above referred to, I am of opinion that the Crown never became legally divested of the original right which, in common with subject-superiors, it had of refusing entry at discretion to singular successors under voluntary transmissions, and that the freedom of entry in Crown holdings at moderate charges which has prevailed for so long has not represented more than what Professor Menzies calls ‘a liberal course’ on the part of the Crown towards its vassals. I think that Craig states the position accurately when he says the King ‘ nunquam solet recusare.’ It is certain that the actual amount exacted in respect of entry in Crown holdings has always been regulated directly or indirectly by the royal will and pleasure, and that no statute has ever fixed it.

On the assumption of the view which I have just stated, the defender advances a second line of argument. He argues that the question involved here is not to be solved by holding merely that the Crown prior to the Conveyancing Act of 1874 was entitled in law to refuse entry to singular successors under voluntary transmissions. There remains the question of the year's rent which the Crown now seeks to make the measure of the redemption money under the Act of 1914. The Crown's view, as I have already stated, is that on an application of the Act of 1914 to such a Crown holding as the present, i.e., where casualties are under the tenure payable on death and untaxed, the highest casualty is to be taken as a year's rent. The defender concedes that a year's rent would be the measure if the feu were one held of a subject-superior, because (1) under the Acts already referred to the subject-superior had prior to 1874 been given the right to a year's rent as the condition of receiving a singular successor; and (2) the Act of 1874 had carried on this right with a variation of remedy adapted to the implied entry introduced by that Act. But, he says, the course of legislation from which the subject-superior derived his right to the year's rent, as that right stood at the passing of the Act of 1874, did not apply to Crown holdings. At the date of the passing of the 1874 Act, the Crown may or may not have been entitled to refuse entry to singular successors, but the Crown, he says, stood outside the whole course of legislation under which at that period a year's rent had become ‘exigible by’ subject-superiors in respect of the entry of singular successors.

This aspect of the argument carries one back in the first place to the Act of 1469. It is from that Act, as I have already mentioned, that the right of the subject-superior to a composition of a year's rent in respect of the entry of a singular successor is historically derived. It dealt with apprisings. The ‘overlord’ was put under obligation to enter the appriser. But he was given right to exact payment from the appriser of ‘a zeires maill as the land is set for the time,’ which measure of payment has been carried forward and still rules— Earl of Home v. Lord Belhaven and Stenton ( cit.).

Now on the terms of this Act it is quite clear that it includes the case of apprisings of Crown holdings. The defender agrees as to this, subject to a material qualification. That qualification is that on his view the latter part of the Act which obliges the ‘overlord’ to receive the appriser and gives him right to a year's maill from the appriser does not, unlike the earlier part of the Act, apply to the Crown. The ‘overlord’ contemplated in it was, he says, only a subject-superior. This seems to me to be a very arbitrary way of dealing with the terms of the Act, and on a construction of them I can see no adequate foundation for it. The defender suggests that the word ‘overlord’ as used in old Scottish statutes had an application limited to subject-superiors, and that by way of contrast ‘Our Soveraine Lord’ was the style used for referring to the King. The word ‘overlord’ as used in the institutional writers is a synonym for superior. Further, it is not difficult to find old Scottish statutes in which the word ‘overlord’ is used in this general sense and as including the Sovereign as superior, as, for example, the Act 1400, cap. 19, which prescribed the just and lawful causes for recognition of feudal holdings.

The defender, in the matter of this Act of 1469, points out that it did not specifically provide the appriser seeking entry with an effectual remedy, ad factum prcestandum, against the superior of the lands apprised, and that where an immediate subject-superior, or other superiors above him and below the Crown, refused an entry, even on tender of the year's rent, the ultimate resort of the appriser, as explained by Craig in the passage I have referred to and by other institutional writers, was to the Sovereign, ‘ qni nunquam solet recusare,’ as Craig says. From this the defender argues that the Crown had, at the date of the Act of 1469, become legally obliged to enter all singular successors, whether by way of voluntary transmission or of real diligence. This appears to me to be a non sequitur. The sanction of a legal right is sometimes imperfect. The appriser under the Act of 1469 might have been given a direct remedy ad factum præstandum against the subject-superior of a holding which he had apprised. As it was he was not given such a right, and had to seek the best remedy he could, which in the last resort he found in the liberal course adopted towards his vassals by the King ‘ qui nunquam solet recusare.’ And the customary willingness of the King to grant entries does not imply that the appriser obtaining entry in accordance therewith was legally absolved from paying for it with a year's rent, although the King,

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subsequent to the Privy Council ordinances mentioned in the Act of 1578, was in custom to accept as the price of entry the ‘reasonabil expenses’ of the party, modified according to the royal will and pleasure.

There followed the Act of 1669, cap. 18, which was directed to the improved process of adjudication, and whereby it was enacted that the ‘superiors of lands’ should not be bound to enter adjudgers save on payment of the year's rent which had previously applied to the case of apprisers. There is nothing in the terms of this Act to exclude the application of it to the Crown as a ‘superior’ within its meaning entitled vi statuti to payment of a year's rent in the same way as subject-superiors as the price of an entry to be granted to an adjudger.

I have already indicated how, following on the Acts of 1469 and 1669, which did not apply to singular successors under voluntary transmissions, such singular successors in practice obtained entry by circuity of procedure. This circuity of procedure was of no advantage to the superior, and thus it came about that superiors commonly accepted for entry singular successors under voluntary transmissions without requiring them to go through it.

The Clans Act of 1747 (20 Geo. II, cap. 50), as I have already said, made an essential change as regards entry of singular successors in lands held of subject-superiors. Section 12 thereof gave, inter alia, a direct right to singular successors by way of voluntary transmission to obtain entry from a subject-superior. Section 13 enacted that the singular successor must pay to the superior, as the price of the entry demanded by him, such fees or casualties as the superior is by law entitled to receive. And the enactment has as I have said been construed as meaning that a singular successor demanding entry under it must pay, as the price of such entry, the amount of a ‘year's maill’ within the meaning of the Act of 1469— Earl of Home v. Lord Belhaven and Stenton ( cit.). As at the date of the Clans Act the subject-superior was only ‘by law entitled to receive’ a year's rent for entering a singular successor by voluntary transmission in this sense that he could refuse to receive such a singular successor as such, and was only bound to receive the singular successor if he went through the procedure necessary to enable him to present himself for entry in the guise of an appriser or adjudger tendering a year's rent under the earlier statutes.

If I should be right in the views which I have so far expressed, the Crown, prior to the Act of 1747, stood in the same position as did subject-superiors quoad the entry of singular successors. That is to say, neither the Crown nor the subject-superior was under direct legal obligation to enter singular successors under voluntary transmission, but both were under statutory obligation to enter apprisers or adjudgers in exchange for payment of a year's rent as the price of entry. But while the Act of 1747 made the radical change I have mentioned quoad the entry of singular successors under voluntary transmissions in the case of feus held of subject-superiors its enactments did not apply to holdings of the Crown. They are expressly limited to holdings of subject-superiors. From this fact the defender derives an argument to the effect that the said limitation of the enactments of the Act of 1747 goes to show that there was a preexisting legal obligation on the Crown to receive singular successors under voluntary transmissions which made it superfluous and inappropriate to include Crown holdings within the scope of said enactments. This is a conjectural view as to the policy of the Act of 1747. I prefer the conjecture for the Crown, which is that the reason for the exclusion of Crown holdings from the said enactments of the Act of 1747 probably was that the main object aimed at by the Act was to break up the military power of subject-superiors which had proved to be so inimical to the Crown and the peace of the realm.

Passing from the Act of 1747 the argument moves on to the Conveyancing Act of 1874. That Act, as I have said, made in various respects a great inroad on previous feudal law and practice, and it did so in particular in the matter of entry with the superior. Charters or writs by progress were swept away as unnecessary to entry thereafter. There was introduced implied entry, which is vi statuti an effective entry although obtained without the intervention of the superior under a writ by progress granted by him. Infeftment, without deed of sasine and by way of due registration of a disposition or other equivalent title in the appropriate register of sasines, had been introduced by intervening statutes. Section 4 (2) of the Act of 1874 enacted as follows—‘Every proprietor who is at the commencement of this Act or thereafter shall be duly infeft in the lands, shall be deemed and held to be, as at the date of the registration of such infeftment in the appropriate register of sasines, duly entered with the nearest superior whose estate of superiority in such lands would, according to the law existing prior to the commencement of this Act, have been not defeasible at the will of the proprietor so infeft, to the same effect as if such superior had granted a writ of confirmation according to the existing law and practice, &c.’

If the Act had stopped at this provision the value of estates of superiority would have been materially depreciated, inasmuch as the effect would have been to deprive them of the ingredient in their value consisting in the pre-existing right of superiors to levy payments in respect of entries asked from them and theretofore obtainable only under their writ. The Act of 1874, however, while aimed at economy in procedure in the matter of entry, is careful to preserve the value of superiority rights. Sub-sections 3 and 4 of section 4 I have already quoted.

It will be observed, under the provisions of sub-section (4) of section 4, that while no lands after the commencement of the Act can fall into non-entry, a superior of lands which but for the Act would have fallen into non-entry is given a substituted remedy in the form of ‘an action of declarator and

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for payment of any casualty exigible at the date of such action.’ Also that no implied entry by virtue of the Act is to be pleadable in defence to such action. The effect of a decree obtained in such an action is practically equivalent to the effect of a decree obtainable by a superior prior to the Act under a declarator of non-entry.

I draw attention to the words ‘any casualty exigible’ used in sub-section (4), which are of importance in the present argument. In their application to the particular case of a singular successor a casualty as the price of entry was never ‘exigible’ by the superior in the sense of his being in a position to sue for it by direct action. The superior was entitled to have a vassal. When the fee fell vacant, then if no person either as heir or singular successor offered himself for entry to fill the fee, and tendered the amount fixed by law as the price of such entry, the superior's remedy was to resort to the indirect compulsitor of a declarator of non-entry. If the feu was a valuable one, that is to say, worth more than the burden of the superiority rights, the declarator of non-entry was an effectual compulsitor. The point here is that while the Act of 1874 speaks of a casualty ‘exigible’ by the superior, no superior could prior to the Act exact a casualty by a direct petitory action, but solely by the indirect method mentioned.

Now if I am right in the views which I have expressed regarding the position of the Crown quoad the entry of singular successors, as it stood prior to the Act of 1874, the position was (1) that the Crown was not under legal obligation to give entry to a singular successor under a voluntary transmission, but (2) that under the Acts of 1469 and 1669 the Crown was under legal obligation to give entry to an appriser or adjudger who tendered a year's rent as the price of entry, and (3) that a singular successor by voluntary transmission in the case of a Crown holding was enabled, like a singular successor in the case of a feu held of a subject-superior prior to the Act of 1747, to force an entry in the guise of an appriser or adjudger, tendering a year's rent as the price of entry, although the Crown had in practice taken a more ‘liberal course’ towards its vassals by granting entry on easier terms.

On this hypothesis I am of opinion that the words ‘casualty exigible’ used in subsection (4) of section 4 of the Act of 1874, cover the case of a casualty of a year's rent ‘exigible’ by the Crown in respect of the entry of a singular successor under voluntary transmission, although the remedy of the Crown in order to exact such ‘exigible’ casualty was an indirect one. As regards the use of language in the statutes referred to, I may recall that the Act of 1747, dealing with the case of feus held of a subject-superior, speaks in section 13 of the casualties which the subject-superior was, prior to the date of that statute, ‘entitled by law to receive,’ while there is no doubt that the subject-superior was prior to the date of that Act ‘entitled to receive’ a casualty in respect of the entry of a singular successor under voluntary transmission only in this sense, that failing payment of it he could obtain a decree of declarator of non-entry. He could not directly sue for such a casualty. The words ‘casualty exigible’ in the Act of 1874 appear to me to be susceptible of a similar construction.

I may sum up my views so far as being as follows—(1) That prior to the Act of 1874 the Crown had not come under legal obligation to grant entry to singular successors under voluntary transmission in Crown holdings; (2) that the Crown had prior to said Act been laid under legal obligation by the Acts of 1469 and 1669 to grant entry to apprisers or adjudgers, but that only on receiving from them the amount of the ‘year's maill' prescribed by the Act of 1469; (3) that while the Crown was not by law entitled to ‘exact’ by direct process a casualty of a year's rent in the case of a singular successor under voluntary transmission, the Crown was entitled to exact it, if it chose to do so, by refusing entry to such a singular successor unless he tendered himself for entry in the guise of an appriser or adjudger, and so presenting himself offered to pay for his entry the amount of the ‘year's maill’ prescribed by the Act of 1469; and (4) that the casualty of a year's rent so indirectly exigible in respect of an entry of such a singular successor was a ‘casualty exigible’ by the Crown within the meaning of those words as used in the Act of 1874,

The only actual decision referred to at the hearing which seems to bear with any directness on the rights of singular successors under voluntary transmission on the one hand, and of apprisers or adjudgers on the other hand, to obtain entry from the Crown is that of Clelland v. Dempster, 1685, M. 15,032. The report of the case is very brief, and is somewhat obscure as to the nature of the action, which involved a competition between a decree obtained by Dempster of Pitlever before the Sheriff of Fife and a decree obtained by Clelland before the Court of Session. Pitlever's decree was the prior in date. The earlier citation, however, was in Clelland's action, and he was preferred. One of Pitlever's pleas, which is the subject of the report, was that he had before the date of Clelland's citation presented a signature in Exchequer. The Lords repelled this plea ‘in respect the signature was on a voluntary right and not in a course of diligence by apprising cr adjudication, and that in voluntary rights it is arbitrary to His Majesty, as it is to other superiors, to receive or not receive a vassal; yea, he may compone and take money, and might retard the other's signature.’

It does not appear from the brief report of the case whether the position of the Crown as enunciated in the judgment was a matter of controversy in the case. If it was the judgment would be all the more important. But in any case the judgment of the Court contains an unambiguous although brief enunciation of the legal position of the Crown towards singular successors under voluntary transmission applying for entry, as the matter was understood by the Court of Session in 1685. The ‘liberal course’ of the Crown towards its vassals had then been in exercise for more than a century

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at least. The position of the Crown as so enunciated involved a distinction between applicants for entry in Crown holdings deriving right under voluntary transmissions and applicants for entry proceeding by way of diligence as apprisers or adjudgers, and it was laid down that in the former case it was ¹ arbitrary to His Majesty’ to receive or not receive a vassal.

If the contentions for the defender in the present case are sound it follows that the judges who decided Clelland v. Dempster in 1685 entirely misunderstood and wrongly enunciated the legal position of the Crown towards applicants for entry in Crown holdings under voluntary transmissions, inasmuch as the defender maintains that it was not ‘arbitrary to His Majesty’ to grant such entries, but that, on the contrary, the Crown had come under legal obligation to grant them when asked.

A part from the case of Clelland v. Dempster the argument for the Crown in the present case drew attention to several cases where the position of the Crown towards the entry of singular successors has been touched on by judicial dicta.

There is, in the first place, the well-known case of Stirling v. Ewart, 1842, 4 D. 684. It related to the entry of an heir-substitute under a deed of entail of lands held of a subject-superior, the question being whether he was bound to pay a composition of a year's rent as a singular successor or to pay only relief duty as an heir. It was held by a majority of the Whole Court that in the circumstances of the case relief duty only was payable. The decision is not here in point. The case is, however, interesting in respect of some observations made from the Bench bearing on the superiority rights of the Crown. The Lord Justice-Clerk (Hope) said in his judgment—‘Neither has notice been taken of the important practice of the prime superior of the whole land in the country, and attention has not been paid to the alarming claims which could open to the Crown against the subjects. On the argument of the superior the Crown would have a claim for a year's rent in every case in which the heir asking for an entry had no other right than that of heir of provision whether in fee-simple or tailzied destination.’ The learned Judge went on at some length to refer to the practice of the Crown, the point of which reference is to show that ‘one composition, and one composition only, has hitherto enabled the Crown vassals, on obtaining right to their lands, to name any heirs of provision or tailzie they chose.’ It will be observed that Lord Justice-Clerk Hope speaks of the superior's argument in the case as calculated to open up a claim by the Crown ‘for a year's rent’ in corresponding cases relating to entry of heirs of tailzie in Crown holdings. In the same case Lord Medwyn, after referring to the Act of 1469 and the practice following on it, said—‘Superiors, it may be presumed, were generally satisfied with obtaining a year's rent for the transference, and this came to be fixed as the price for foregoing their right to refuse an entry which might thus have been forced on them circuitously, more especially after the example set by the Sovereign, for the Act 1578, cap. 66, mentions that by several Acts of the Privy Council purchasers were secure of being received as vassals by the Crown upon their reasonable expenses, i.e., on a composition to be paid to the Treasury, which practice fixed at a reasonable rate, one-sixth of the valued rent. The favourable manner in which the Sovereign has always treated vassals as to their entry makes the circumstance that the Crown makes no such claim as the superior here does, which your Lordship says is the case, of less weight than it might otherwise have. A subject-superior is entitled to and exacts a year's rent from a purchaser although the Crown only claims a small portion of the valued rent. That, however, will not affect an ordinary superior's right.’

In the case of The Advocate-General v. Swinton, 1854, 17 D. 21, the question was whether the Crown as superior was entitled to composition from an institute of entail. According to the report the composition which the Crown claimed was a year's rent, and it was held not due in respect of a composition of a year's rent having been paid by the entailer's heir, who had entered as a singular successor. The merits of the decision are not here in question. I was informed by counsel for the defender that the report of the case is wrong in speaking of a year's rent having been claimed by the Crown, and that the claim, at least as ultimately insisted in, was for a composition of one-sixth of the valued rent, and I understood counsel for the Crown to acquiesce in this correction. The Session papers in the case are not available. It is noticeable, however, that the judges who decided the case, in referring to the Crown's claim, speak of a year's rent as if it formed the legal measure of composition in the case of the Crown as in the case of subject-superiors. Lord Deas, as was pointed out by the defender's counsel, speaks of ‘a composition of a year's rent (or whatever sum the Crown is in the practice of exacting in name of a year's rent),’ thus showing that he had the Crown's practice present to his mind. But the words quoted rather point to his conception of the matter being that it was only a voluntary course on the part of the Crown to accept a modified composition in lieu of a year's rent.

In the case of Lord Advocate v. Moray, 1894, 21 R. 553, 31 S.L.R. 432, the question was whether an heir of entail was liable in composition or only in relief, the latter alternative being held the right one in the circumstances. Lord Kinnear, who delivered the judgment of the Court, speaks, on page 559 of the report, of the Crown as ‘claiming a year's rent as composition.’ On page 561, referring to the fact that although the institute under the entail had been legally liable for composition, relief only had been accepted from him in respect of his entry (an implied entry under the 1874 Act), Lord Kinnear, after observing that if there had been a charter of confirmation. in favour of the institute in accordance with former feudal practice there was

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nothing to suggest that it would have contained any exceptional condition or reservation except the fact that the payment demanded for entry was less than the superior was entitled to demand, added—‘But that might be accounted for in various ways. He knew that the extreme rights of the Crown were not always enforced on the completion of Crown titles, and a vassal might be admitted for relief who was liable for composition either because the Crown chose to waive its right or because the Crown officers were mistaken as to the extent of their claim.’ The summons in the case concluded for £5000 in name of ‘a casualty of composition on the untaxed entry of a singular successor,’ but I was given to understand by counsel that the claim of the Crown, as it came to be ultimately insisted in, was for only one-sixth of the valued rent in name of composition, in accordance with the Crown practice. I do not think that fact, however, displaces the point sought here to be made by counsel for the Crown on Lord Kinnear's observations so far as they go, which is that they recognise that the Crown practice in granting entries has not always involved an enforcement of the Crown's extreme legal rights, and that Lord Kinnear must be presumed to have been speaking with particular reference to entries granted by the Crown to singular successors, seeing that, as is here admitted, the practice of the Crown on the entry of heirs has uniformly been to exact the full amount of the relief duty.

In the case of Duke of Argyll v. Riddell, 1912 S.C. 964, 49 S.L.R. 342, the question again was whether the appropriate casualty for the entry of an heir of entail was composition or relief, the former alternative being held the right one. The superior was a subject-superior. The question of the measure of the Crown's right to composition on the entry of a singular successor in a Crown holding was not involved. Lord Dunedin, however, in the course of his opinion observed—‘It is quite within one's knowledge that superiors do not always insist on their extreme rights. The Crown, for instance, gives entries for less than could be demanded. The Crown in the case of Drummond Moray, mentioned by Lord Johnston, gave entry for less, and I know that subject-superiors have acted in the same way.’

None of these four cases the dicta in which I have referred to involved the question raised here. I found the opinion which I have already expressed independently of the dicta which they contain. At the same time I think that counsel for the Crown were justified in saying that these dicta are more in consonance with the view which they here maintain than with that maintained by the defender. These dicta, on the part of very distinguished judges highly skilled in feudal law, seem to recognise that the Crown practice in the matter of entries to singular successors has been to exact less than the Crown's legal right; and further, several of these judges have spoken of the year's rent on the footing of it representing the Crown's legal right in the case of entry of singular successors.

A further alternative question, however, is raised by the argument in this case. I have held that the Crown at the date of passing of the 1874 Act was, quoad the entry of singular successors under voluntary transmission, in a position similar to that in which a subject-superior was prior to the Act of 1747—that is to say, was not bound to enter a singular successor under a voluntary transmission presenting himself for entry as such. It may be, however, that I am wrong in so holding, and that the Crown, by its practice originating in the Privy Council ordinances referred to in the Act of 1578, had lost its original privilege, and that, contrary to the judicial view expressed in Clelland v. Dempster, the entry of a singular successor under voluntary transmission in a Crown holding had ceased to be ‘arbitrary’ on the part of the Crown, and had become a matter of legal right on the part of such singular successor. On the other hand it may be that I am right in holding, in accordance with the views which I have expressed, that the Acts of 1469 and 1669 applied to Crown holdings as well as to holdings of subject-superiors both as obliging the Crown to give entry to apprisers or adjudgers and as entitling the Crown, like subject-superiors, to payment of a year's rent as the price of such entry. Assuming this position of matters, the question is how it is to be applied in measuring the redemption money under the Act of 1914.

The present case is, as I have said, one falling under section 5 (1) ( a) of the Act of 1914—that is to say, a case ‘where casualties are exigible on the death of the vassal.’ In such a case the measure of the redemption money under the Act depends on the ‘highest casualty’ possibly exigible on the next occasion. The Crown maintains that on the next occasion the person from whom the price of an entry becomes ‘exigible’ may be an adjudger, entered under an implied entry, and that, on the hypothesis stated, the year's rent exigible from such an adjudger would be the highest casualty in the sense of the Act of 1914. This contention appears to me, on the hypothesis stated, to be sound. It does not seem to me to be an adequate answer to it to point out, as the defender does, that an adjudger, for his security, was by statute made entitled to an immediate entry, although the fee was still filled by his debtor, the last-entered vassal. An adjudger might demand immediate entry or not as he chose. Ordinarily he demanded entry for his security. It still remains, however, that in a case such as this the person liable (indirectly) for the price of entry on the next occasion might be an adjudger bound to pay, on the hypothesis stated, a year's rent.

Following the views which I have expressed, I shall make findings in accordance therewith and continue the cause.”

The defender reclaimed, and argued—The superior's right to refuse entry, originally absolute at least in theory, was modified as traffic in land increased. In the case of the

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Crown the modification was conditioned by the Crown's unique position as ultimate feudal superior who, failing all other, could give entry, and if the Crown had refused an intolerable deadlock would have arisen. The King was not superior by right of conquest, but a constitutional monarch whose title depended on agreement and to whom the lands were resigned. Originally he could refuse entry—Bell's Lectures, 3rd ed., p. 683—but to obviate the deadlock referred to which would necessarily have arisen when subject-superiors could not be compelled to give entry, the King as ultimate superior had to surrender the right to refuse. His duty as constitutional head of the feudal system came to concur with his subjects' interests. His sole personal interest was to see that he received reimbursement for the reasonable expenses of the entry which he gave. His surrender of the right to refuse was not voluntary but compulsory. The Act 1457, c. 71, was either declaratory of the practice of the Crown or was passed because a particular monarch had been recalcitrant. Alienations in feu-farm were allowed by the Acts 1503, c. 90 and c. 91; in the case of an alienation under the latter the King could have refused entry only if there was reasonable cause, e.g., if the lands were in recognition, when the King's charter would have excluded his claim for recognition, but he could not act capriciously or force the vassal to pay any sum he asked—Dallas, Styles, pp. 83–84. The King's duty not to refuse entry was impressed upon him by ordinances of the Privy Council and expressly enacted as a duty, the only charge being the reasonable expenses—Act 1578, c. 66. The later part of that Act showed that that duty was not confined to kirk lands but applied to all lands; further, it applied to both manners of holding, for confirmation applied to both and was so used in the Act—Stair, Inst. ii, 3, 28; Ersk. Inst. ii, 7, 9 and 14. According to Stair the King received vassals as matter of course—Inst. iv, 26, 8; charters of confirmation or resignation were granted periculo petentium—Inst. iv, 35, 13; and when the King acquired the dominium utile, e.g., & as ultimus hæres, as he could not hold of a superior, he had to present a donatar—Dirleton's Doubts, 3rd ed., p. 141—who entered without payment of a casualty— The Laird of Blair v. Lord Montgomery, 1680, M. 15,045; Duke of Gordon v. Commissioners for Managing the Forfeited Estates Annexed to the Crown, 1771, M. 15,050, at p. 15,052; the King acted from duty, not benignantly, in refusing no one—a settled practice declared by the ordinances of the Privy Council, which were approved by the Act of 1578, which applied generally—Inst. ii, 3, 43. The Crown surrendered the right to refuse entry for reasons of public utility and received vassals on payment of reasonable expenses—Ersk. Inst. ii, 7, 6. Willing acceptance of vassals was regarded as being a settled practice obligatory on the Crown—Craig, Jus Feudale, iii, 2, 20, p. 458; Mackenzie, Observations, p. 188, Inst., 8th ed., ii, 12, 3–5, pp. 155 and 157. The King acted from duty and not as an act of grace—Bankton, Inst. ii, 4, 32, and iii, 2, 53, where the reason given was that all the lieges were the King's subjects which could not apply to other than the King; the fee paid was the reasonable expenses—ii, 3, 48. Bankton's reason was repeated in Hay v. Baillies of Aberdeen, 1634, M. 15,031, and by Dirleton, who took the same view—Doubts, p. 22. Modern writers regarded the king's obligation to accept a vassal as a commonplace requiring no comment—Menzies, 1900 ed., p. 584; Duff, Feudal Conveyancing, p. 254; Bell's Lectures, 3rd ed., p. 758; Ross's Lectures, ii, p. 300; Begg's Conveyancing Code, p. 153. Accordingly it was clear that in 1578 the settled feudal custom was that the King should not refuse an entry but must enter vassals upon payment of the reasonable expenses of the entry. But the feudal custom was the law; further, it had been embodied in the written law by the Act of 1578. The reasonable expenses necessarily varied and were ultimately fixed at a proportion of the valued rent; practice varied as to the proportion to be taken—Royal Warrant of 18th August 1709. The hereditary revenues were later surrendered in exchange for the Civil List—Anson on the Constitution, part ii, p. 165. When the Court of Exchequer was established in Scotland the Crown's rights were carefully investigated— Stirling v. Ewart, 1842, 4 D. 684, per Lord Justice-Clerk Hope at p. 723—and the Royal Warrant of 18th August 1709 was issued fixing the proportion at one-sixth. Similar Royal Warrants were issued by the succeeding sovereigns except Edward VII and George V. They were not evidence of the Crown's willingness to accept less than its legal due, but were meant to fix for the life of the issuing monarch the amount which would be accepted as reasonable expenses. Till the abolition of the Court of Exchequer and the transference of the administration of Crown lands to the Woods and Forests Department by the Hereditary Land Revenue Act 1832 (2 and 3 Will. IV, cap. 112), entry with the Crown was obtained by presenting a signature in Exchequer. Compositors then compounded with the presenter for the price, which was one-sixth of the valued rent—Clark and Scrope, Historical View of the Forms and Powers of the Court of Exchequer in Scotland, p. 187; Bell on the Forms of Deeds, 3rd ed., vol. i, p. 235; 6th Report of Commissioners on Courts of Justice in Scotland, 1819, p. 43. When signatures were abolished—Crown Charters (Scotland) Act 1847 (10 and 11 Vict. cap. 51), section 1—evidence of the valued rent had still to be produced to fix the charge for entry (sections 2, 6, 11, and 12), and the singular successor of a Crown vassal “prayed” for an entry (section 2, Schedule I), whereas entry was demandable from a subject-superior. Those provisions were repeated in the Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict. cap. 101), section 64. The office of Presenter of Signatures was abolished and his functions were transferred to and were now exercised by the Sheriff of Chancery—Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94). The one-sixth of the valued

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rent had became insufficient, and the Act of 1847 authorised the charging of further fees (section 7), which were to be fixed by Act of Sederunt (section 28). That was the only reference to any payment other than one-sixth of the valued rent. Consequently from the earliest times the Crown had never received or exacted a year's rent, and both by feudal custom and statute and in the opinion of institutional writers its action was to be attributed to the legal surrender of the right to refuse entry not to benignity. Prior to 1578 modification of the subject-superior's right to refuse entry had begun. It arose out of the hardship to creditors who being singular successors could not attach the debtor's land and get entry. Justicedemanded that the subject-superior's right to say who was to be his vassal should give way to creditors' claims. The whole series of Acts to that effect were an excrescence on the common law— Stirling v. Ewart ( cit.), per Lord Fullerton at p. 706. Those Acts were unnecessary in the case of the Crown, and the composition of a year's rent came into existence solely in connection with those Acts; it was a statutory payment, not a common law true casualty, i.e., incident of feudal tenure like relief. Further, as the King never refused when the debtor was a Crown vassal the procedure and payments differed in his case from the procedure and payments when the debtor held of a subject successor. That was so in the earliest statute, the Act of Alexander II, c. 24—Craigie, Conveyancing Statutes, p. 1; Scots Acts (Record ed.), vol. i, 735 (red ink); Regiam Majestatem (5th ed.), p. 337—which compelled subject-superiors to enter creditors and that without any payment. The authenticity of that statute was sufficiently vouched. Stair did not refer to it, but Brodie's and More's notes to Stair, Inst. iii, 2, 14, did. Erskine considered it the origin of apprisings, and stated that it was acted on—Inst. ii, 12, 2 and 3—which was confirmed in Kames' Historical Law Tracts (2nd ed.), 319, and App. No. 8, and the Register of the Great Seal, vol. ii, No. 375, p. 86. Bankton regarded it as a compulsitor on the subject-superior, the Crown giving entry as matter of course—Inst. iii, 2, 25. Its authenticity was further vouched by Dalrymple, Essay on Feudal Property, 1757, p. 121, and Bell's Lectures (3rd ed.), pp. 824–5. Prior to 1469, therefore, the Crown gave entry to creditors freely and without payment, while the baron was under a compulsitor to give entry without payment. The Act of 1469, c. 36, re-enacted the compulsitor to enter apprisers but gave the subject-superior the right to exact a year's rent as the payment therefor. Failing reception of the singular successor the overlord had to take the land himself and undergang the debts. That provision did not apply to the Crown. The old Scots Acts differing from modern Acts— Somerville v. The Lord Advocate, 1893, 20 R. 1050, per Lord Kyllachy at p. 1064, 30 S.L.R. 868—did not require to mention the King expressly to bind him, but in them the King was generally referred to expressly. An apprising might perhaps be directed against Crown lands, and the word “overlord” might include the Crown, but the King was generally distinguished from other superiors—Acts 1457, c. 71; 1474, c. 57; 1503, c. 90; 1503, c. 91. The Lord Ordinary was wrong in thinking that in the Act 1400, c. 19, “overlord” included the King; that Act applied to subject-superiors only, for it used overlord as equivalent to lord, and the word “lord” was never found used in any Act so as to include the King, The word “overlord” was indecisive. The Act of 1469 referred expressly to the King. But the concluding clauses (which referred to the “overlord” and were in question) could not apply to the King, for he could not take the lands to himself as he could not hold of a subject-superior, neither could he undergang the debt. Further, if the appriser was refused by superior after superior and ultimately came to the Crown, either the King would have been bound to take the lands and undergo the debt, which was impossible, or the appriser found his remedy in the practice of the Crown not to refuse an entry. The practice being as stated, the remedy enacted was not required in the case of the Crown, and the Act was never intended to apply to it. Further, the onus was upon the pursuer to show that the Act applied to the King, for all the writers were unanimous that the King never refused entry, and the Act of 1578 expressly laid him under obligation to give entry. If the Act of 1469 had applied to the Crown the Act of 1578 would have referred to it and not to the ordinances of the Privy Council. It was immaterial that the King upon that argument had to receive a vassal blindfold, because if the Act of 1469 applied to the Crown the King equally had to receive a vassal of whom he knew nothing. The object of the Act was not to provide compensation for the loss of the casualty by recognition when lands held in ward were apprised, for, if so, the loss to the Crown was infinitesimal compared with the compensation given. Recognition was of little value to the Crown, for it was only enforced where the vassal neglected to get his right confirmed— Lord Halton v. Earl of Wemyss, 1673, M. 6461; Maitland v. Leslie, 1669, M. 13,382 (Stair's report); Cockburn v. Cockburn, 1676, M. 13,389; Stair, Inst. ii, 11, 23. If the right was confirmed (and the Crown always received vassals) no recognition was incurred. Recognition to the Crown could only be incurred in rare cases, for there was no alienation unless the creditor was infeft and in possession— Donatar of Ward v. Creditors of Bonhard, 1739, M. 16,453—so that recognition could only arise where the vassal had possessed for forty years without confirmation. Consequently the Crown would have lost little by being compelled to receive apprisers in ward holdings. Further, the procedure in apprisings showed a marked difference between the King and the subject-superior, and while the compulsitor under the Act of 1469 was complete against the subject-superior there was no compulsitor on the Crown except by reason of the practice not to refuse an entry and its recognition under the Act of 1578. Apprisings were known before the Act of

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1469, they originated in the Act of Alexander II, and the charter given by Kames showed their nature. The appriser used letters of four forms charging the superior to enter him; if the superior refused he went to the next higher superior, and if he refused to the next, and so on, using letters in each case until he came to the Crown, which never refused an entry. Letters of four forms were not only improper but unnecessary as against the Crown—Ersk. Inst. iii, 8, 79; Bell's Lectures (3rd ed.), p. 788; Craig, Jus Feudale, iii, 2, 20. Where the apprising was against a debtor holding of the King, the Crown never demanded the year's rent, and when the lands were held of a subject-superior the year's rent had to be tendered; the title to proceed was regarded as based on the Act of 1469, and the procedure was different from that followed when the lands were held off the Crown—Dallas, Styles, pp. 33, 40, 41; cf. also, in treating of adjudication, pp. 83, 214, 225; Hope's Minor Practicks (1st ed.), pp. 60–67, 108–9 (3rd ed.), xi, 12, 13, 14, 15, p. 347; King v. Hunter, 1742, M, 5743—as to the nature of the allowance in the case of subject-superiors—Stair, Inst. iii, 2, 28. In the case of the Crown the composition depended not on the year's rent but on the amount of the debt—Ersk., Inst. ii, 12, 24. The observations of these writers and the records of practice therefore showed that the Crown was outwith the Act of 1469 altogether in so far as being compelled thereby to enter apprisers on payment of a year's rent. Had the Act of 1469 applied to the Crown, it could not have exacted the year's rent, for the appriser would have been entitled to claim a gratuitous entry with the Crown in fulfilment of its common law duty recognised in the Act of 1578. That contemporaria expositio was of the very highest importance— Seafield v. MacBrayne, 1906, 8 F. 947, 43 S.L.R. 705—more especially where, as here, the Crown could not point to any instance in which a year's rent had been exacted. Apprisings were superseded by adjudications. Adjudications originated in custom and in the courts, and were later regulated and extended by statute. They were originally only in implement and contra hæreditatem jacentem; adjudications for debt were introduced by statute—Graham Stewart, Diligence, pp. 626–627. Adjudication in implement was originally a form of apprising—Craig, iii, 2, 23. The creditor sued for damages, and having obtained decree brought an apprising—Brodie, Note to Stair, p. 460. The earliest example of an adjudication in implement was in 1611—Stair, iii, 2, 53; Stirling v. Ewart, 1842, 4 D. 684, per Lord Cunninghame at p. 690. Up to 1621 adjudications for debt were unnecessary; comprisings were still in use and were regulated by the Act 1621, cap. 6. Adjudications against a deceased debtor were regulated by the Act 1621, c. 7, which Act was silent as to the year's rent. The Act of 1469 was extended by custom to adjudications in implement, and contra hcereditatem jacentem except as to the year's rent, which the courts refused to allow, as there was no statutory warrant for it, although the occasion for giving it was in substance the same as under the Act of 1469— Grier v. Closburn, 1637, M. 15,042, 1 B. Supp. 365; Stair, Inst. ii, 4, 32, iii, 2, 45, and 49. Both Stair and Bankton, iii, 3, 52, considered the year's rent on adjudications as a pure creation of statute to remedy the subject-superior's grievance caused by the decision in Closburn's case. The Act of 1669, c. 19, provided the remedy. It applied the “constant practick” of the realm in comprisings to adjudications, viz., in the case of a subject-superior to make payment of a year's rent the condition of every entry. There was no such practick in the case of the Crown, and consequently the Act of 1669 gave the Crown no warrant to demand a year's rent, the constant practick of the Crown was to charge the reasonable expenses. The Act of 1669 was the only statute dealing with adjudications in implement against a living debtor. Erskine, Inst. ii, 12, 50–52, was generally to the same effect as Stair, but he added that all kinds of adjudications were placed on the same footing and were assimilated to comprisings, and an adjudger taking entry was bound to pay the year's rent upon entry, not on the vassal's death as was suggested by the pursuer—section 52. The Act of 1672, c. 19, introduced adjudications for debt and superseded comprisings in all their forms; it did not apply to the Crown because it could not be charged. Erskine regarded that form of adjudication as almost identical with apprisings—ii, 12, 41. The Act 1681, c. 17, introducing judicial sales of bankrupts' lands again distinguished between the Crown and the subject-superior; in the former case a signature passed in Exchequer, and a year's rent was not exacted; in the latter the buyer had to pay a year's rent—Bell's Lectures (3rd ed.), vol. ii, p, 825. Judicial sales were further regulated by the Act 1690, c. 20. The difference between the Crown and the subject-superior was also exemplified in the matter of ranking. Ranking was first regulated by the Act 1661, c. 62, and was made to depend on the obtaining of the first real right or the first “exact diligence” for obtaining the same. Exact diligence was complete in the case of the Crown by presenting a signature in Exchequer; in the case of a subject-superior by a charge—Ersk. Inst. ii, 12, 31—and a year's rent was paid upon the charge but not upon presenting the signature. This matter of exact diligence was found in the Act 1747 (20 Geo. II, c. 50), section 12; in the Act of 1814 (54 Geo. III, c. 137), section 11; the Conveyancing Act 1847 (10 and 11 Vict., cap. 48), section 6; Judicial Procedure, &c. (Scotland) Act (19 and 20 Vict., cap. 91), section 6; and the Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict., cap. 101), section 97. In effect all that was required was the presentation of the signature or the executed charge, and that was regarded as giving a a real right in a question with co-creditors—Stair, Inst. iii, 2, 24. Purchasers next used the Acts designed for the benefit of creditors to enable them to force an entry by means of a fictitious debt followed by a comprising or adjudication. That was at

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first regarded as a fraud—Craig, Jus Feudale, iii, 1, 13—but the device became generally recognised in the case of subject-superiors, who frequently, recognising that their hands could be forced, received purchasers without compelling them to go through the fiction, but the device was never required in the case of the Crown, for it never refused entry—Hope, Minor Practicks, p. 68 (1st ed.); Ross, Lectures, ii, pp. 267, 300; Bell's Lectures (3rd ed.), vol. i, p. 571; Erskine, ii, 7, 6. In those circumstances the Act of 1747 was passed, which by sections 12 and 13 compelled the subject-superior to enter a purchaser directly on payment of a year's rent, entry being by resignation. That Act certainly did not apply to the Crown, yet if it was necessary to enact that a purchaser must pay a year's rent on entering with a subject-superior, and if the Crown and the subject-superior were on exactly the same footing, it would have been equally necessary to enact that a purchaser entering with the Crown should be bound to pay a year's rent if the pursuer was right. The pursuer's argument that the Crown at that date had fully recognised that a purchaser could force an entry upon payment of a year's rent, and that consequently there was no need to apply the Act to the Crown, was unsound, for the whole process of fictional debts had by that time so developed that the subject-superior equally was aware that the purchaser could force an entry—Ross, Lectures, vol. ii, p. 300. Stair, Inst. ii, 4, 6, regarded the right of the subject-superior to refuse to receive a purchaser as dead at his time. Erskine's Inst. ii, 7, 6, regarded the Act as abolishing the need to proceed indirectly. That Act did not refer to the year's rent but merely to the fees or casualties which the superior might be entitled by law to receive. The object of that phraseology was probably to cover the normal case where the year's rent was payable, and rarer cases where the casualties were taxed—Bell's Lectures, 3rd ed., vol. i, p. 623. Further, the position of the purchaser under the Act of 1747 had been held to be exactly the same as the position of adjudgers under the earlier Acts— Duke of Argyll v. Riddell, 1912 S.C. 694, per Lord Kinnear at p. 721, 49 S.L.R. 342; Shirley v. Ewart, 1842, 4 D. 684, per Lord Fullerton at p. 708; Hill v. The Merchant Company, January 17, 1815, F.C., per Lord Balgray at p. 143, 2 Ross, L.C. 320. If so, as the Act of 1747 did not apply as between the purchaser and the Crown the Acts from 1469 to 1747 did not apply as between creditors and the Crown, and those Acts alone authorised the exaction of a year's rent. The Act of 1747 merely carried on the right to the year's rent formerly existing in favour of an appriser or adjudger and applied it subject to the limits of its former application to the purchaser— Earl of Home v. Lord Belhaven and Stenton, 1900, 2 F. 1218, 37 S.L.R. 990, 1903, 5 F. (H.L.) 10, per Lord Robertson at p. 19, 40 S.L.R. 607. The singular successor next became entitled to demand entry by confirmation upon payment of a year's rent—Transference of Lands (Scotland) Act 1847 (10 and 11 Vict. cap. 48), sections 6 and 13—which Act applied only to subject-superiors. That was repeated in the Titles to Land (Consolidation) Act 1868, section 97. Finally by the Conveyancing Act 1874 writs of progress were abolished and implied entry was introduced subject to the proviso that the superior's rights were not to be thereby prejudiced. The pursuer's claim was under the Feudal Casualties (Scotland) Act 1914 (4 and 5 Geo. V, cap. 48). That Act applied to Crown holdings, for it was to be construed with the Act of 1874—section 3—and in that Act superior included the Crown—section 3. The Act of 1914 only applied to casualties in existence when it was passed, and entitled the Crown to claim redemption money on the basis of the highest casualty exigible according to the pre-existing law. These casualties were those regulated by the Act of 1874, which again merely preserved the right to casualties which existed prior to its date. But in 1874 the Crown could not claim any casualty of one year's rent at common law, for it was certain that the year's rent rested on statute alone. Further, the Crown could not claim under the Act of 1469 and the other Acts regulating apprisings for apprisings had long been extinct before 1874. Further, the Crown could not claim as for a singular successor entering by confirmation or resignation or implied entry, for the statutory provisions relative thereto did not apply to the Crown. Consequently the Crown's claim must be as for the casualty paid by adjudgers under the Acts of 1669 and 1672. But those Acts did not apply to the Crown, or if they did then the Act of 1914 did not apply to those casualties. For an adjudger's casualty differed from a singular successor's casualty; an adjudger had to pay a year's rent immediately on entry as above explained; he could not take advantage of the alternative manner of holding and postpone payment of the casualty until the vassal's death; he paid upon infeftment, and if the debtor-vassal died he would have to pay again—Graham Stewart on Diligence, p. 626; Transference of Lands Act 1847, section 19; Titles to Land Act 1868, section 62, repealed, and re-enacted in the Conveyancing Act 1874, section 62. Hence while the adjudger was assimilated to a disponee, unlike the disponee he was bound to pay a casualty though the lands were not in non-entry. Consequently the adjudger's casualty was not one payable on the vassal's death. But the Act of 1914 provided for redemption of casualties upon certain “terms,” which failing agreement were set out in that Act, section 4 and section 5. None of the cases figured under section 5 applied to adjudger's casualties. Section 5 (1) ( a) founded upon by the Crown was not applicable, for it only applied to casualties exigible on the vassal's death. Further, casualties under section 5 (1) ( a) were to be calculated upon expectancy of life—section 6—and that could not apply to adjudgers. Section 5 (1) ( e) dealt with cases where by agreement the casualties were payable on each sale or transfer of the lands, and none of the other cases in section 5 (1) applied. In fact the Act of 1914 did

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not apply to adjudgers or creditors' casualties at all but to the ordinary true vassal's casualties. It applied to the casualties contemplated in the Act of 1874, section 4 (3). In burgage holding, which was always off the Crown, there were no casualties. The attempt to claim a year's rent there failed— Hay v. Bailies of Aberdeen ( cit.) There was no decision in point; the matter was touched upon only in judicial dicta. Cleland v. Dempster, 1685, M. 15,032, 2 Brown's Sup. 71, merely decided that the presentation of a signature in Exchequer upon a voluntary right as opposed to a judicial transference had no effect as a diligence. It did not decide that the Crown was entitled to refuse a vassal, nor did it raise any question of the terms for entry. The argument negatived probably was that a signature upon a voluntary right should be assimilated to a signature upon an adjudication. Dundas v. Officers of State, 1779, M. 15,103, was very strong evidence of the custom as to the Crown, for Crown counsel repudiated the proposition that the Crown was entitled to a year's rent as composition. Stirling v. Ewart ( cit.), 3 Bell's Ap. 128, was not in point. The question was the enfranchisement of a deed of entail, and there was no question of a Crown holding. Lord Ivory (concurred in by Lord Cockburn and Lord Murray), at p. 697, dealt only with the general feudal law, so did Lord Fullerton at p. 706, and Lord Medwyn at pp. 725 and 731. Lord Justice-Clerk Hope at p. 723 showed that the Crown's rights were carefully scrutinised in 1707; his reference to a year's rent was simply a reference to the casualty whatever it might be, and did not involve that the casualty was a year's rent. In the House of Lords, per Lord Cottenham at p. 250, the general law was also examined. The Advocate-General v. Swinton, 1854, 17 D. 21, was badly reported or argued and did not decide the present question. The report bore that a composition of a year's rent was paid to the Crown. The judgment at p. 25 showed that the sum consigned and paid could not have been the year's rent of the estate in question. The memorial in the case showed that the sum consigned was one-sixth of the valued rent. If so the decision was in favour of the reclaimers. Lord Advocate v. Moray, 1894, 21 R. 553, per Lord Kinnear at p. 559, 31 S.L.R. 432, merely decided whether composition or relief was to be paid, no question as to the amount of the composition was raised, and the dicta of Lord Kinnear were not to the effect that the Crown was entitled to one year's rent. In any event they were obiter, and read in the sense maintained by the respondent were inconsistent with Lord Kinnear's opinion in Earl of Home v. Lord Belhaven and Stenton ( cit.). Duke of Argyll v. Riddell, 1912 S.C. 694, per Lord President Dunedin at p. 744, 49 S.L.R. 342, was not a decision upon the amount of the composition payable to the Crown, and there was no citation of the practice as to the Crown. Earl of Home v. Lord Belhaven and Stenton ( cit.) did not raise the present question, and the whole opinion of Lord Robertson at p. 19 proceed upon a reference to the Act of 1747, which did not apply to the Crown. George Heriot's Trust v. Paton's Trustees, 1912 S.C. 1123, 49 S.L.R. 852, was not in point. The Crown from earliest times as in execution of its duty gave entry for reasonable expenses, which were afterwards fixed at one-sixth of the valued rent, which sum the defender was willing to pay. But whether that was or was not the case, the Crown was not bound by any of the Acts enabling creditors or singular successors to demand an entry on payment of a year's rent. That was established by the contemporaria expositio, backed by the opinions of writers, which when the present claim was being made for the first time laid a heavy onus on the pursuer which had not been discharged. In any event the highest casualty in the present case falling under the Act of 1914 was relief. The Lord Ordinary's interlocutor should be recalled and the defenders assoilzied. The following were also referred to:—Stair, Inst. ii, 4, 5, and 36, iv, 26, 8, and iv, 35, 13; Duke of Athole v. H. M. Advocate, 1760, M. 4766; Countess of Sutherland v. Creditors of Skelbo, 1771, M. Sup. and Vas., Appx. No. 1; Kames, Historical Law Tracts (2nd ed.), Appx. No. ix, p. 461; Farquharson v. Farquharson, 1748, Elchies' Sup. and Vas., No. 10, and Elchies' Notes, p. 438.

Argued for the pursuer (respondent)—The Lord Ordinary was right. Prior to 1469 creditors of vassals could not attach their debtors' lands. No argument could be founded upon the Act of Alexander II, cap. 24. Its authenticity was doubtful. It appeared only in Regiam Majestatem (5th ed.), p. 337, and in the Record edition of the Scots Acts was inserted in an appendix of doubtful Acts—Scots Acts (Record ed.), vol. i, pp 34 and 735, red ink. Regiam Majestatem was a doubtful authority—Stair, Inst. i, 1, 16 (More's ed., at p. 13). Ersk. Inst. ii, 12, 2, regarded it more favourably, but the charter in Kames' Historical Law Tracts (2nd ed.), p. 443, Appx. No. 6, quoted by Erskine, did not show that that Act had been acted upon, for that document was of the nature of an adjudication in security and was redeemable, whereas the Act of Alexander II dealt with irredeemable infeftments. Further, the sasine in Kames' Historical Law Tracts (2nd ed.), p. 427, Appx. No. 1, was inconsistent with the existence of that Act and of any practice upon it. Judicial opinion attributed the first step towards forcing an entry only to the Act of 1469— Hill v. Merchant Company, January 17, 1815, F.C., per Lord Balgray at p. 142; Heriot's Trust v. Paton's Trustees ( cit.), per Lord Dunedin at pp. 1129 and 1135 of 1912 S.C. Further, the Act itself did not appear to belong to the period to which it was assigned. Further, if it was genuine the Act of 1469 would have been a retrogression, for the earlier Act did not authorise the taking of a year's rent. Also, it must have been long in desuetude, for if not the Act of 1469 would have been unnecessary. Stair, Inst. iii, 2, 13, and 14, considered that prior to 1469 there never existed anything of the nature of apprisings or adjudications, and that creditors were first allowed to attach

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their debtor's lands by the Act of 1469. In 1469 that inability of the creditor was a great grievance, and that Act was passed to afford relief. At that date wardholding was the predominant tenure. All the land except church land and land in burghs was held in ward, and in dubio ward was assumed to be the nature of the tenure—Stair, Inst. ii, 3, 31. Further, prior to 1469 there was very little land held of the Crown which was not held in ward. The origin of feu-farm was not clear. Feus appeared to have been original grants to encourage agriculture of the nature of leases and not permanent—Stair, Inst. ii, 3, 34. The earliest feus were of small portions of land for cultivation. After its first introduction feu-farm disappeared, and was again revived by the Act 1457, cap. 71—Ersk. Inst., ii, 4, 5—which statute revealed a cautious reintroduction of feu-farm limited to Crown vassals and only for a competent avail. The King ratified the grant to prevent the lands falling into ward, which gave security of tenure to the sub-vassal. Hence feu-farm was not common, and that view was taken in Heriot's Trust v. Paton's Trustees, per Lord President Dunedin. Apart from that exception the only other lands held in feu-farm at that time were kirk lands—Stair, Inst. ii, 3, 37, and 39. Wardholding was essentially a military tenure. It predominated, for it was for long necessary for the safety of the realm. Hence sprang its two main features—the casualties of recognition and ward. Recognition, whereby the feu returned to the superior, occurred in wardholdings where the vassal alienated redeemably or irredeemably the greater part of the fee. Ward occurred where the vassal was incapable of military service, e.g., where he was in minority, and the feu then remained in the hands of the superior or his donatar. Recognition was incurred though the infeftment following the alienation was an a me holding, for the vassal had done all he could to alienate the land—Stair, Inst. ii, 11,10; Carnegy v. Cranburn, 1663, M. 10,375 and 13,380. Recognition was also incurred by granting security rights if these covered more than half the lands. The result was that the lands went back to the superior. Both the vassal and the creditor lost them. Recognition was fundamental in wardholding, for by the alienation the vassal rendered himself less able to give the military service. It was of great value to the superior, and was enforced by the Crown through the donatar long after 1469— Carnegy's case—and it was very burdensome to creditors. Where the land fell into ward the superior got the rents of the lands during the vassal's minority subject to an obligation to support the vassal if he was not otherwise supported. In the case of the Crown these rents were given to a donatar—Ersk., ii, 5, 5–9; Donatar of Ward v. Creditors of Bonhard ( cit.). Large revenues were obtained by the Crown from those sources long after the Act of 1469. Apprisings of land held ward may have been granted by the Courts prior to 1469 without legal authority, but the instances must have been very few, for recognition was incurred and the vassal and the creditor both lost the lands. Further, the granting of securities over land was subject to the fact that the moment the securities exceeded one-half of the land recognition was incurred. The result was securities could not be safely granted, and security of tenure was impossible. The Act 1469, cap. 36, was passed to provide a remedy. It expressly so stated. Further, the hardship was not limited to lands held of subject-superiors, but it applied also to Crown holdings. The result of the Act was to give the apprising creditor a right to the lands. That was a large inroad on the superior's right to ward and recognition, for in the case of an adjudication the ward was burdened with the sum for which the lands were adjudged—Ersk. Inst. ii, 5, 7. The year's rent was the compensation given therefor. In such circumstances that was the natural presumption, and all the more so when legislation was in the hands of the very classes from which the superiors affected were drawn. No good reason could be stated for confining that compensation to the subject-superior and not extending it to the Crown which regularly exacted its casualties in wardholdings. Further, those casualties were required to provide revenue for public purposes. Further, if the Act did not apply to Crown holdings, the remedy provided would have been very useless for the bulk of the land was held by vassals of the Crown. The word “overlord” must have included the King throughout the whole Act, for if not there was nothing to prevent the lands, when a creditor was infeft, falling into recognition at the instance of the King. That could only be avoided by having the King's consent to the alienation. The Act of 1469 must have entitled the creditor to the King's consent, otherwise the remedy would have been useless. The same idea of the King's consent was found in the Act 1457, c. 71. The defender's argument that the King was bound to receive vassals apart from the Act of 1469 was not well founded, for as wardholding existed for the safety of the realm it could not be said that the King was bound to receive a vassal of whom he knew nothing. There was nothing absurd in the King taking the lands himself; that was most natural seeing that the tenure was military, and much more easily understood than that the King should accept anyone. Nor was there any anomaly in underganging the debts. The Crown did so to this day in successions as ultimus hæres. In practice the King would simply pass on the lands to the vassal he approved of, who would undergang the debts. The remedy was perfectly complete. Letters of four forms were used against the subject-superior. They may not have been competent against the King, but in any event the King as a constitutional monarch would do what the law of the land stated was his duty. Certainly Crown lands could be apprised—extracts were given from the Register of the Great Seal which applied to Crown lands—Act 1621, c. 8. The word overlord certainly was used in the Act 1400, c. 19, to include the King. “Sovereign lord” was used in the Act 1457, c. 71, to make clear what was meant. In the Act

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of 1474, c. 57, “overlord” did not apply to the King, because he could not hold of anyone, and the King was expressly mentioned to show that he was included under the Act though not under the opening clause. The Act 1503, c. 90, was personal to the King and for his life only. The Act 1503, c. 91, made similar provisions as to subject-superiors, but those provisions might just as well have been in two clauses in one Act. The Act 1547, c. 5, used overlord to include the Crown. If any deduction could be drawn from the phraseology it was that overlord included all superiors, and the King was only mentioned when overlord had already been used in the Act in a narrower sense. The King did not in these old Acts require to be expressly mentioned to be bound— Somerville v. Lord Advocate ( cit.); Magistrates of Edinburgh v. Lord Advocate, 1912 S.C. 1085, 49 S.L.R. 873; Advocate-General v. Magistrates of Inverness, 1856, 18 D. 366. Stair, Inst. ii, 4, 32, regarded the composition under the Act of 1469 as coming in place of relief. Relief applied to all holdings, Crown and others. If Stair had thought the composition only applied to subject-superior's lands he would have noted that difference between it and relief, and relief was in its origin also based on the year's rent—Stair, Inst. ii, 4, 26. The view that the Act of 1469 applied generally and provided a comprehensive remedy was supported by Clelland v. Dempster ( cit.). Further, about that time Parliament was undoubtedly asserting complete control over all Crown property—Act 1489, c. 7 (Record ed., vol. ii, p. 219); Act 1493, c. 21 (Record ed., vol. ii, p. 235); Act 1528 (Record ed., vol. ii, p. 328a); Act 1592, c. 34 (Record ed., vol. iii, p. 560); Act 1633, c. 9 (Record ed., vol. v, p. 23); and Act 1640, c. 28 (Record ed., vol. v, p. 285); Act 1585, c. 16, and 1578, c. 14 (Record ed., vol. iii, pp. 380 and 439). The mismanagement by the King of his revenues was so great that in 1595 a commission was set up to manage the King's revenues, and in setting up the commission it was declared that the letters of instructions which the King was in the habit of giving to the Exchequer with regard to casualties should be null, and that practice was to be discontinued—Sir William Purvis, Revenue of the Scottish Crown, pp. 7 and 11. The Crown, in the sixteenth and probably also in the fifteenth century, held two different kinds of estates—one which could not be alienated without the consent of Parliament, the other which could be alienated with the advice or consent of the three estates, such as lands falling to the Crown by escheat or recognition—Discours Particulier d'Ecosse by Makgill and Ballenden (published by the Bannatyne Club, No. 5) p. 5—Stair, Inst. ii, 3, 35. The Crown and Parliament were therefore in conflict as to the revenues of the Crown derived from the Crown lands. Parliamentwas assuming controland finally achieved complete control of those revenues. The Act of 1469 was one of the series of Acts dealing with Parliamentary control of the Crown lands. Further, the King appeared to have contested in the Courts the question as to whether he was bound by those Acts, and the Courts decided that he was bound—Tytler, History of Scotland, 3rd ed., vol. vii, p. 376. The King sued, and probably was sued in his own name, but later the Officers of State sued— King's Advocate v. Lord Dunglas, 1836, 15 S. 314, per Lord Medwyn, at p. 325. Adjudications against the heir for the ancestor's debts were introduced by the Act 1540, c. 106—Stair, Inst. iii, 2, 45; Ersk. Inst. ii, 12, 11. Adjudications in implement grew up on the analogy of apprisings—Stair, Inst. iii, 2, 53; Ersk. ii, 12, 50 and 51. The Courts refused to allow the year's rent in such adjudications, founding on the Act 1621, c. 6, and 1621, c. 7, the former of which dealt with apprisings and mentioned the composition, while the latter referred back to the Act of 1540 and did not mention composition— Grier's case ( cit). The Act 1621, c.8, made extracts from the Great Seal Register evidence, which showed that Crown lands could be apprised. The Act 1661, c. 62, extended the legal and set up a pari passu ranking in adjudications within year and day. The Act 1669, c. 18, assimilated adjudications to comprisings and gave the superior the year's rent he had in apprisings; payment of the year's rent was the “constant practick” in apprisings and this was applied to adjudications. While the right to take a year's rent was given there was no constant practick to exact it—Stair, ii, 4, 32; Ersk. Inst. ii, 12, 24. That custom of leniency still survived— Duke of Argyll v. Riddell ( cit.), per Lord President Dunedin at p. 744 of 1912 S.C. It did not follow therefore that because there was no constant practick of the Crown to exact a year's rent that the Crown was not bound by the Act of 1669. The Act of 1469 applied to the Crown, and the Act of 1669 merely applied the provision of the Act of 1469 to adjudications. The Act 1672, c. 19, abolishing apprisings, also applied to the Crown and gave the right to the year's maill. The Acts of 1681, c. 17 (amended by the Act 1690, c. 20) applying to decreets of sale, provided for the passing of a signature in Exchequer upon payment of a year's maill; that certainly applied to Crown holdings. The Act 1685, c. 22, placed the King and subject-superiors in the same position with regard to tailzied lands. The defender's argument that the King could not refuse an entry was mainly based on the Act 1578, c. 66, and the ordinances of the Privy Council therein referred to. Both of those dealt with Church lands which were falling to the Crown at the Reformation and didnot apply generally. There was a series of statutes dealing with such lands-Acts of 1563, c. 77, 1564, c. 88, 1584, c. 7, 1690, c. 32, 1698, c. 11. Those lands were specially dealt with—Stair, ii, 3, 37—and the ordinances were not applicable generally—though Stair, Inst. ii, 3, 43, and Erskine, Inst. ii, 7, 6, seem to have thought otherwise. The practice referred to by Erskine could not have gone further back than the institution of the valued rent in 1670—Erksine, Inst. ii, 5, 35—which was nearly a century after the Act of 1578. Further, the ordinances of the Privy Council had no legislative effect and did not stereotype the practice of the country. Craig, Duff, and

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Menzies merely were authorities to the effect that it was not the King's habit to refuse entry. The King had the right to refuse, but ex benignitate did not exercise it. Hope, Minor Practicks (1st ed.), pp. 67–68, 86–87, 108; Spotiswood's ed., v, 16, p. 235; viii, 11, p. 290; xi, 13, p. 348; and xi, 22, p. 355, showed that the King was entitled to a composition the amount of which was fixed with his treasurer. The result was that the Crown was ex dementia prepared to accept less than the year's rent though entitled to exact that, but there was no settled practice as to what the Crown would accept. The royal warrants from Queen Anne onwards were simply information for the guidance of the barons as to what sum the Crown would accept in place of the full year's rent; they were merely personal to each sovereign issuing them, and they could not bind his successors. The reasonable expenses of the charters had nothing whatever to do with the casualties. The expense of the charters had been dealt with by Parliament from very early times—Act 1621, c. 19 (Record ed., vol. iv, p. 616 and p. 619); Act 1672, c. 40 (Record ed., vol. viii, p. 88 b); Act 1690, c. 61 (Recorded., vol. ix, 200); Act of Sederunt, 3rd July 1846; Act of Sederunt, 14th July 1847; Act of Sederunt, 27th January 1869; Crown Charters Act, 1847, sections 6, 7, 28. The practice as to passing signatures was set out in Hope, Minor Practicks (Spotiswood's ed.), v, 16, viii, pp. 235, 284 et seq.; (1st ed.), pp. 67, 84 et seq. The Act of 1747 did not apply to the Crown, for having the right to refuse an entry the Crown never exercised it and gave entry on lenient terms, but the subject-superior might well try to exact more than the year's rent when the feu was small and the circuitous process of a fictitious apprising costly. Hence that Act introduced a conveyancing expedient to shorten and cheapen the method of forcing entry—section 12—and quoad ultra it left all superior's rights quite unaltered. The Act of 1847, sections 6 and 19, made similar provisions for entry by confirmation. The Act of 1874 applied to the Crown—section 3; it did away with the necessity of recourse to the superior to get a title, but the superior's whole rights to casualties were retained with all their incidents—section 4 (1) (3) and (4)—and in place of the old declarator of non-entry an action for payment of a casualty was substituted. That action was only competent when the old declarator was competent, i.e., when the last-entered vassal had died. A temporary incumbent like an adjudger had not to pay a casualty upon recording his decree but only on the death of the last-entered vassal, and even if the provisions of section 02 seemed to lead to the opposite result they had been repealed by the Statute Law (Revision) No. 2 Act 1893 (56 Vict., cap. 51), section 1 and schedule, and were no longer the law— Morison v. Stubbs, 1897, 24 R. (J.) 64, 34 S.L.R. 672. In 1914 therefore there was no statute entitling a superior to get a casualty when an adjudger took infeftment if the last-entered vassal was still alive. No case of redemption under the Act of 1874 had come into Court. The Act of 1914 gave the superior and vassal equal rights to force redemption and made redemption compulsory within fifteen years. Section 5 ( a) applied to the present case; it was intended to apply to all cases where, as was the general rule, casualties were payable on the death of the last-entered vassal. Section 5 ( b) applied when there was something special in the titles. In the present case there was no specialty. In Cleland v. Dempster ( cit.) it was implied that the Crown was subject to the enactments with regard to apprisings. In the Advocate-General v. Swinton ( cit.) the rubric was not absolutely accurate; if it had been, the present point would have been decided, but the dicta of Lord Rutherfurd, Lord Curriehill, and Lord Deas, at p. 22, were in favour of the pursuer, and were emitted in an Exchequer cause by judges familiar with Exchequer practice. In Stirling v. Ewart ( cit.) the dicta of Lord Justice-Clerk Boyle at p. 723, and Lord Medwyn at 725 were in favour of the pursuer; so were the dicta of Lord Kinnear in the Lord Advocate v. Moray ( cit.) at pp. 559 and 561. The Duke of Argyll v. Riddell ( cit.), per Lord President Dunedin at p. 744, was referred to. Upon principle and upon the statutes and decisions the Lord Ordinary was right, and should be adhered to. Dundas' case and Hill's case were referred to.

At advising—