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 Lectures on Scots law :dellvered under t 
 
 3 1924 017 844 873 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017844873 
 
LECTURES ON SCOTS LAW. 
 
LECTURES ON SCOTS LAW 
 
 DELIVERED UNDER THE AUSPICES OF THE 
 
 STIRLINGSHIRE FACULTY OF SOLICITORS 
 AND PROCURATORS, 
 
 In FEBRUARY, MARCH, and APRIL, 1889, 
 
 T. C. YOUNG, JuN., M.A., LL.B., Solicitor, Glasgow; 
 
 ROBERT HISLOP, B.L., Solicitor, Auchtekarder. 
 
 GLASGOW : 
 WILLIAM HODGE & CO., 26 BOTHWELL STREET. 
 
 MDCCCIiXXXIX. 
 
THE FOLLOWING LECTURES ARE EESPECTFULLY DEDICATED TO 
 
 JAMES ROBERTON, LL.D., 
 
 Professor op Conveyancing in the University op Glasgow, 
 
 Dean of the Faculty of Procurators in Glasgow, 
 
 and 
 
 Ex-President of the Incorporated Society of Law Agents of Scotland, 
 
 TO whose suggestion, when in office as president of 
 
 THAT society, THEY OWE THEIR ORIGIN. 
 
CONTENTS. 
 
 Lectures by Mr. YOUNG: 
 
 LECTURE I. — The Law of Possession. Definitions : — Law of possession 
 of immoveable property — Its History — Comparison between Scotch 
 and English Law— Natural and civil possession — Bona fide perception 
 and consumption of fruits — -Law of possession of moveable property 
 — Original — Derivative — Modes of derivative possession — Comparison 
 between Scotch and English Law, 1 
 
 LECTURE n. — Principles as the Law of Contract. Rights and 
 obligations reciprocal — Enforceable and non-enforceable obligations 
 — Definitions of Contract — (1) Its formation— Offer and acceptance 
 by parole — Writing — Conduct — Comparative view of English and 
 Scotch Law — Capacity of parties — Error, force, and fraud — Subject 
 matter lawful — Mcdmrn in se — Malum prohihitum, - 17 
 
 LECTURE III. — Principles of the Law of Contract — Continued. 
 (2) Operation of Contract — Jv^ tertii — Ju^ quwdtum tertio — Delectus 
 personce — Assignattcs utitur jure aiictoris. (3) Discharge of Contract 
 — Form — Causes — • Novation — Delegation — Performance — Breach — 
 Damages for breach — Conditions precedent, concurrent, subsequent 
 — Supervening impossibility. (4) Judicial interpretation — Compara- 
 tive view of English and Scotch Law, 29 
 
 Lectures by Mr. HISLOP: 
 
 LECTURE IV. — The Relationship of Superior and Vassal. Intro- 
 ductory — ^The Feudal System — Origin of the tenure of feu-farm — Its 
 relation to {a) the Feudal System, and (6) the Roman Contract of 
 Emphyteusis — Gradual development and existing form of tenure — 
 Obligation to pay feu-duty of {a) vassal, and (J) sub- vassal — Superior's 
 remedies for recovery (1) by personal action against (a) the vassal, 
 (6) the sub-vassal ; (2) by real diligence against the lands ; and (3) 
 by irritating the feu ob non solutum canonem — Effect of irritancy on 
 sub-feus — Recent decisions, 47 
 
 LECTURE V. — The Relationship of Superior and Vassal— C7on- 
 tinued. Casualties of superiority, (a) Relief, (6) Composition — Sketch 
 of the law prior to Conveyancing Act of 1874 — Method of evading 
 composition by entry of last vassal's heir — " Implied entry " under 
 Act of 1874, and corresponding express modifications of the law of 
 casualties — Effect of implied entry on device for evading composition 
 — Exposition of judgments in Ferrier's Trustees v Bayley, and subse- 
 quent cases — Conveyancing Amendment Act of 1887 — Its effect on 
 casualties — Important pending questions, - ' - 65 
 
VIH CONTENTS. 
 
 Lectures by Mr. HISLOP — Gontinwd. 
 
 LECTURE VI. — The Relationship of Supekiok and Vassal — Con- 
 tinued. Other changes effected by Act of 1874 on casualties — 
 Redemption of casualties — Method of ascertaining amount of com- 
 position — How rental fixed — Deductions from rental — Questions 
 between seller and purchaser as to relief from casualties — Inherent 
 conditions of the tenure as distinguished from (a) real burdens, 
 and (6) personal obligations of the feuar — How they are enforced 
 — Illustrations in recent cases — Restrictions in feu-contracts — How 
 interpreted and enforced — How superior's right of enforcement 
 defeated (a) by acquiescence (5) by want of interest — Right of co- 
 feuar to enforce conditions imposed by common superior, 84 
 
LECTURE I. 
 
 THE LAW OF POSSESSION. 
 
 Contents. — Definitions : — Law of possession of immoveable property — Its 
 History — Comparison between Scotch and English Law — Natural and 
 civil possession — Bona fide perception and consumption of fruits — Law of 
 possession of moveable property — Original — Derivative — Modes of deriva- 
 tive possession — Comparison between Scotch and English Law. 
 
 The word "possession" is often confounded with ownership in 
 popular language. Thus, in the English translation of the 
 Bible, we read in Matthew — " The young man went away 
 " sorrowful, for he had great possessions ;" and again in Acts, 
 " Ananias and Sapphira sold a possession." 
 
 Yet, in a legal sense, the two words are perfectly distinct in 
 meaning. 
 
 Possession is no doubt a most important element in our 
 conception of ownership. It often leads up to and creates 
 ownership, and it often accompanies ownership and flows from 
 it; but it has a separate and independent existence, and very 
 important consequences flow from its presence or absence, both 
 in civil and criminal legal relations. Its importance is expressed 
 in the two proverbs, the one of which is a free translation of the 
 other — "Beati svmt possidentes," and "Possession is eleven points 
 " of the law." 
 
 The Scotch law of possession closely follows the Roman law, 
 and the definitions of our institutional writers adopt almost the 
 very words of the Digest. 
 
 Stair (II. 1. 17) defines possession as " the holding or detain- 
 " ing of anything by ourselves or others for our use." 
 
 Erskine (II. 1. 20): "The detention of a subject with the 
 " animus or design in the detainer of holding it as his own 
 "property." 
 
 Bell (Pr., sec. 1311): "Detention with the design or animus 
 " of holding the subject as the property of the holder." 
 
2 LECTURES ON SCOTS LAW. [Lbct. L 
 
 Observe the difference in these definitions. Stair says, "Hold- 
 " ing for our use." Erskine and Bell, " Holding as our property," 
 The definition of Stair is correct, for, as we shall see, there may 
 be possession for use on a subordinate title inferior to the title of 
 property. We therefore take Stair's definition as our text. 
 
 There are two elements involved in this definition — (1) an 
 element of fact, the fact of detention ; and (2) an element of 
 mind, the design of holding it for one's own use. 
 
 The fact alone is not enough, for one may hold a thing as a 
 mere custodier for another, as a servant holds for a master, or 
 the finder of strayed cattle for the owner. The detention in this 
 case is not presumed to be for the holder's or finder's own use, 
 for detention with such an intention would be theft, and theft is 
 not to be presumed. 
 
 What is the nature of the acts that amount to the detention , 
 or holding of a thing ? 
 
 It is plainly not necessary in the case of a moveable subject 
 that it should be constantly within my grasp, and in the case of 
 land that I should be constantly treading over every part of it, 
 or that I should be constantly able to exclude all trespass or 
 interference. 
 
 Savigny defines this state as the condition in which not only 
 is one's own dealing with the thing physically possible, but 
 every other person's dealing with it is capable of being excluded. 
 (Treatise on Possession, sec. 1). 
 
 It may here be convenient to look from the historical point 
 of view at the mode in which the act of taking possession was 
 performed (a) in the case of immoveables, and (h) in the case of 
 moveables. 
 
 (a) Immoveables. — In very early times the possession of land 
 seems to have been usually of a temporary character. The in- 
 habitants were nomadic in their habits. While they pastured 
 their flocks upon a piece of land or tilled it, they held physical 
 possession of it ; and when they departed thence they abandoned 
 its possession and left it open to the next comer. To such a state 
 of matters possession and not ownership was the proper term to 
 apply. 
 
 When in process of time men began to settle permanently in 
 cities and districts, possession by its permanency would ripen 
 into ownership. One man would resist the intrusion of another 
 
Lect. I.] THE LAW OF POSSESSION. 3 
 
 upon the piece of ground on which he had bestowed labour. He 
 would assert a right to possess it in permanency, and even to 
 transmit its possession to his posterity, or to dispose of his right 
 in it to a third party for a price. We have an early instance of 
 such a transfer in the book of Genesis (xxiii. 16) — "Abraham 
 " weighed unto Ephron the silver which he had named in the 
 " audience of the children of Heth, 400 shekels of silver, current 
 " money with the merchant. So the field of Ephron, which was 
 " in Machpelah, which was before Mamre, the field, and the cave 
 " which was therein, and all the trees that were in the field that 
 " were in all the borders thereof round about, were made sure 
 " unto Abraham for a possession in the presence of the children 
 " of Heth, before all that went in at the gate of his city. And 
 " after this Abraham buried Sarah his wife in the cave of the 
 " field of Machpelah before Mamre." We find afterwards that 
 Abraham himself, Isaac and Rebekah his wife, and Leah the wife 
 of Jacob, were buried there, and that the body of Jacob was 
 carried down from Egypt and buried there. A mosque now 
 covers the supposed site, from which Christians are jealously 
 excluded ; and it is thought not improbable that the mummy of 
 Jacob may be found there, when access is obtained. 
 
 Thus, these acts of possession were exercised at long intervals, 
 Abraham and his descendants not being residents in the locality, 
 and having no connection with it, other than the ownership of 
 this piece of land. 
 
 This narrative illustrates the fact that the important act 
 of possession is that which is exercised at first, and that less 
 prominent acts, exercised at long intervals, will sufiice to keep 
 alive the possession when once attained. This is especially true 
 when no contrary acts of possession are taking place. When 
 these take place the possession becomes disturbed, and the rival 
 claims in a rude age will be submitted to the arbitrament of 
 force, and in a civilised age to the decision of a Court of Justice. 
 
 At the time when this transaction was settled, it is not likely 
 that there was any written evidence of title in use. In the 
 modem excavations on the site of ancient Babylon there have 
 been found, as you are aware, many bricks having inscriptions 
 in the cuneiform character. Some of these, on being deciphered 
 by experts, have proved to be conveyances of lands and houses, 
 with descriptions by boundaries very much after the style of 
 
4 LECTURES OK SCOTS LAW. [Lect. I. 
 
 a modern conveyance. It appears also that the parties appeared 
 before the judge in open Court, and that the transaction was 
 there ratified, and it would no doubt be entered in the register 
 of the Court. 
 
 There is no indication that there was any written e\ddence 
 of title in Abraham's time, but when we come to the time of 
 Jeremiah (xxxii. 9) we find that a conveyance of land was in 
 writing, and executed by the parties and witnesses in duplicate, 
 one copy being sealed and the other open. 
 
 The history of the mode of giving possession of land in our 
 own country bears some resemblance to the Hebrew narrative. 
 
 When the feudal lord wished to give a grant of lands to 
 one of his vassals, both parties appeared in presence of the 
 fares cnricB, and there and then formal possession was given 
 by the one to the other in presence of the pares as witnesses. 
 At first there was no written evidence of the grant. The act 
 of giving possession simply dwelt in the memories of those 
 present, and its story descended from father to son. Acts of 
 possession by cultivation, feeding of cattle, or the like, defined 
 the boundaries and kept the memory of the transaction alive. 
 At first such grants were at the pleasure of the lord only, then 
 for the life of the vassal only; but in course of ages they 
 became transmissible to the heir of the vassal. 
 
 In course of time it became the custom to reduce to writing 
 a narrative of the act of giving possession, with the names of 
 those present. This was called the breve testatum, and it was 
 the germ of the instrument of sasine. When the feudal lord 
 could not himself be present to give possession, he granted a 
 mandate or precept to a deputy to act for him. This mandate 
 developed into the charter containing the precept of sasine, or 
 mandate to give possession. 
 
 The giving and taking of possession has always remained 
 with us the crucial point in the transference of a right in land. 
 
 It was not the date of the first grant, but the date of the 
 first sasine that determined the priority of right. The taking 
 of sasine was a thing that could be managed very quietly. It 
 was no longer done iii presence of the pares curiae. The parties 
 or their representatives appeared on the ground of the lands 
 (that was the essential point) along with a notary public and 
 two witnesses, and there possession was given by the one to 
 
Lect. I.] THE LAW OF POSSESSION. 5 
 
 the other, and in token of possession, and by way of giving 
 a part of the whole, earth and stone of the lands were given 
 by the one to the other. The presence of the notary public 
 and witnesses was merely by way of preserving evidence of 
 the act. This fact might remain latent, and the law did not 
 require a daily perambulation of the lands by way of certiorat- 
 ing the world of the change of possession. Hence arose frequent 
 frauds in olden times. It became common to grant double 
 conveyances to the same piece of land, and a bona fide purchaser 
 often found himself ousted by sasine having been taken before 
 him by another purchaser. This crime was called stellionate, 
 and the perpetrator of it was by the Act 1540, cap. 105, declared 
 infamous, and to be punished at the King's pleasure. 
 
 This crime received its deathblow when public registers 
 of land rights were instituted by the Act 1617, cap. 16, and 
 subsequent Acts during the 17th century; and it was enacted 
 that all instruments of sasine should be registered therein 
 within sixty days of their dates, and should be preferable in 
 competition according to the dates of registration. 
 
 The importance of the initial act of possession appears from 
 the fact that, when one man acquired from another several 
 plots of land, he required to go to each plot and go through 
 the ceremony of taking possession separately where (1) the 
 plots were discontiguous ; or (2) held of different superiors ; 
 or (3) held by different tenures, as blench and feu ; or (4) held 
 by different titles. 
 
 The mode of taking possession of burgage subjects was 
 equally significant of the stress laid upon the initial act. Take 
 the case of an heir entering upon possession of his ancestor's 
 property. Having satisfied the Town-Clerk of his propinquity, 
 he attended at the house with the Bailie, the Town-Olerk as 
 notary public, and two witnesses. He lifted the hasp of the 
 door of the house and let himself in. He shot the bolt into 
 the staple in token of his exclusive possession. He then came 
 out and took instruments in the hands of the Town-Clerk. 
 This was termed entry by hasp and staple, and was just a 
 survival of the mode followed in the later Roman empire. 
 
 The perfect system of land registration in Scotland was taken 
 advantage of in comparatively modern times to supplant this 
 actual taking of possession by a symbolical taking of possession. 
 
6 LECTURES ON SCOTS LAW. [Lect. L 
 
 In 1845 it was enacted that it should no longer be necessary 
 to proceed" to the lands, or to perform any act of infeftment 
 thereon, but that sasine should be given by producing to a 
 notary the warrants of sasine, and expeding and recording an 
 instrument of sasine. In the ca,se of burgage subjects it was 
 made optional to give sasine within the Council Chambers of the 
 burgh by delivery of a pen. 
 
 This was truly the introduction of symbolical possession, — a 
 mere symbol standing in the place of a fact. The giving of earth 
 and stone on the ground of the lands is improperly spoken of as 
 symbolical delivery. It was real, actual, and corporal delivery, 
 and the piece of earth or stone was really a part of the whole. 
 
 It may be instructive at this point to note the close historical 
 analogy between the English law of real property and our own 
 as bearing on the law of possession, 
 
 A deed or writing was not necessary for the transfer of land 
 at common law in England, but it seems to have been usual at 
 all times since the 12th century. 
 
 The ceremony of giving and taking possession was called 
 livery of seisin, and was performed much in the same way as with 
 ourselves. Bracton says that the accustomed methods were per 
 ostium et per haspu/m vel annulum, i.e. by the door, and by the 
 hasp or by a ring. When the land was in the possession of 
 tenants, they acknowledged or attorned to the new owner,. and 
 that was held equivalent to seisin. 
 
 Strange to say, livery of seisin fell into disuse at an early 
 date by a side wind. Mr. Joshua Williams, in his book on the 
 Principles of the Law of Real Property (p. 150, 10th edition), 
 says, "A feoffment with livery of seisin, though once the usual 
 "method of conveyance, has long since ceased to be generally 
 " employed. For many years past another method of conveyance 
 " has been resorted to which could be made use of at any distance 
 "from the property ; but as this mode derived its effect from the 
 "Statute of uses, it will be necessary to explain that statute 
 " before proceeding further." 
 
 Into this labyrinth I do not propose to follow him. Suffice 
 it to say, that from the operation of that statute, passed in the 
 year 1536, a system of conveyancing grew up which dispensed 
 with the giving of possession on the ground of the lands. This 
 was all very well with a complete system of registration, but in 
 
Leot. I.] THE LAW OF POSSESSION. 7 
 
 England there was and is no such system, except in certain 
 localities. 
 
 The publicity of transfer which the livery of seisin aiforded, 
 slight as it was, was thus swept away. An estate might 
 change hands, so to speak, with the stroke of a pen. This 
 opens a wide door to fraud. The crime of stellionate, under 
 another name, is not unknown in England, and attempts have 
 been made to establish a system of land registration, and 
 it is probable that a complete system will soon be estab- 
 lished. The late Sir Henry Maine, in his book on Early 
 Law and Custom (pp. 352-358), saw in this aspiration after a 
 system of public registration a return to the primitive system of 
 the transfer of land in the face of the community in a new form 
 appropriate to large and miscellaneous societies. 
 
 Actual and continual possession of real estate in England 
 derives great importance from the fact that possession absolutely 
 without title may be converted into full ownership by lapse of 
 time. The right of the real owner is cut off by adverse 
 possession on the part of the intruder for a period of twenty 
 years in the general case. 
 
 This diflfers from the Scotch law. Our old common law 
 contained no rules upon prescription. But the long negative 
 prescription was introduced by statute in 1469 ; and in 1617, an 
 age of great legislation and great lawyers, the age of Coke and 
 Bacon in England, and of Lord President Binning and Sir Thomas 
 Hope in Scotland, the Act was passed upon which our law of posi- 
 tive prescription of heritable rights has its foundation. Following 
 the Roman law, it required a written title upon which to found 
 prescriptive possession ; a charter and sasine followed by posses- 
 sion for the space of forty years ; and in the case of an heir, a sasine 
 proceeding upon a retour or precept of clare constat, followed by 
 possession for the like period, or sasines standing together for 
 this period, and in the case of creditors a charter of adjudication 
 and sasine, followed by possession of forty years after expiry of 
 the legal. By the Conveyancing Act, 1874, section 34, the period 
 has been reduced in certain cases to twenty years. 
 
 Without one or other of those warrants of possession, a man 
 might possess for 100 years and have no better right then than 
 when he began. Of course, he has this advantage that only the 
 Crown can put him out, according to the feudal rule that the 
 
8 LECTURES ON SCOTS LAW. [Lect. I. 
 
 title to all land in this country flows from the Crown. No other 
 one can disturb him who cannot show a title of some kind. 
 According to the maxim. In pari causa potior est conditio 
 possidentis, any attempt to eject him by force might lawfully be 
 opposed by force. 
 
 In the matter of positive servitudes our law approaches that 
 of England with regard to the eflfect of possession. The owner 
 of ground held under a bounding charter may, by forty years' 
 possession of a right of way over neighbouring ground, acquire a 
 servitude of way. If his title be a non-bounding charter he may 
 now after twenty years' possession acquire a right of property 
 in adjoining land. So in England after possession for twenty 
 years. But in the case of one of the negative servitudes there 
 is a marked distinction. In the English law the mere fact of 
 my window overlooking my neighbour's garden for twenty years 
 without interruption gives me a legal right to this view for all 
 time coming. If he wants to prevent this result he must shut 
 out my view by putting up a large boarding, and so interrupt 
 the running of prescription. 
 
 In Scotch law no negative servitude can be acquired by mere 
 possession. It must be founded upon a written grant, because, 
 properly speaking, there are no acts of possession which can be 
 resisted. 
 
 In allowing a servitude of light to be thus acquired, the 
 English law is true to its principle that mere possession is a root 
 of title. The Scotch law, on the other hand, in allowing a right 
 of property to be thus acquired under a non-bounding charter, 
 and even in allowing a positive servitude to be thus acquired, 
 is running counter to its principle that possession must be founded 
 on title to become a root of property. 
 
 The nature of the acts of possession by which a right of 
 property or a right of positive servitude may be acquired is the 
 same in English as in Scotch law. These acts are well illustrated 
 in disputes as to the rights of foreshore between the subject and 
 the Crown, in which cases on both sides of the Tweed are quoted 
 indiscriminately. Lord Fitzgerald said, in a recent Scotch case 
 {Lord Advocate v. Young, 1887, 12 App. Cases 544), "By pos- 
 " session is meant possession of that character of which the 
 "thing is capable." Lord Blackburn said, in another Scotch 
 case (Lord Advocate v. Blantyre, 1879, 4 App. Cases, 770), 
 
Lect. I.] THE LAW OF POSSESSION. 9 
 
 " All that tends to prove possession as owners of parts of the 
 " tract tends to prove ownership of the whole tract. . . . 
 " And as the weight of evidence depends on the rules of 
 " common sense, I apprehend that this is as much the law 
 " in a Scotch as in an English Court." Lord Watson said, 
 in the case first quoted, "^Possession of the foreshore in its 
 " natural state can never be, in the strict sense of the term, 
 " exclusive. The proprietor cannot exclude the public from it at 
 " any time, and it is practically impossible to prevent occasional 
 " encroachment on his right, because the cost of preventive 
 " measures would be altogether disproportionate to the value of 
 " the subject." 
 
 From these judicial utterances two leading principles may 
 be gathered: — 
 
 (1) Acts of possession must be interpreted according to the 
 subject-matter. 
 
 (2) Acts of possession in a part may be evidence of possession 
 of the whole. 
 
 The distinction between natural and civil possession may 
 be shortly adverted to, so far as it bears upon heritable property. 
 
 The broad general distinction is that natural possession 
 means the cultivation of lands and reaping the fruits,- and the 
 inhabiting of houses. Civil possession is possession by some 
 other person through whom the law holds us to possess, as 
 in the letting of lands and houses to tenants and drawing the 
 rents. 
 
 Again, natural and civil possession may concur, as in the case 
 of life-renter and fiar, mortgagor and mortgagee, rights of pro- 
 perty and servitude, truster and trustee. The rule of the civil 
 law was Plures in solidum possidere non possunt. This rule 
 is satisfied by the fiction that the one possesses through the 
 other in so far as may be necessary to support his particular 
 right in the subject. 
 
 The efiect of the truster's civil possession is exemplified in 
 the rule in conveyancing that in the case of a trust for creditors 
 or other temporary purpose, the trust is merely a burden on 
 his title, and is evacuated by a discharge and not a reconvey- 
 ance, and that the heir of the truster must make up a title to 
 the truster, — a conveyance from the trustee to him being of no 
 elFect. 
 
10 LECTURES ON SCOTS LAW. [Lect. L 
 
 The importance o£ actual possession is shewn in the case 
 of leases. A singular successor is not bound by a lease unless 
 the tenant be in actual possession. This, again, is modified in the 
 case of certain leases by the Registration of Leases Act, 1857, 
 making registration equivalent to possession, — following the 
 analogy of the Infeftment Act of 1845. 
 
 Bona fide Perception and Gonswmption of Fruits. — One 
 who honestly believes upon reasonable grounds that he is owner 
 of the subject which he possesses cannot be called upon, on being 
 dispossessed, to restore the fruits which he has reaped, or the 
 rents which he has collected during the continuance of his bona 
 fides. For it would be very hard if a man should in good faith 
 bestow pains and expense upon a subject as his own, and reap 
 and expend its fruits — perhaps living more lavishly than he 
 would otherwise have done — and then be called upon to pay 
 back every penny, it may be for many years and to his utter 
 ruin. Rather let the loss fall upon the somnolent owner who 
 neglected to assert his rights, — upon the principle vigilantibus 
 nan dormientihus leges subveniunt. How long the bona fides 
 shall be held to continue is a question of circumstances. When 
 the conscientia rei alienee — the knowledge that he is violating 
 the golden rule, suum cuique tribuito — arises in his breast, from 
 that moment he must repay the uttermost farthing, not only 
 what he has reaped, but what he might have realised with 
 proper care, sometimes from the date of bare intimation, some- 
 times from citation in an action, sometimes not until final 
 judgment is pronounced. 
 
 This is the great principle of the civil law as to fructus bona 
 fide percepti et consumpti adopted and expanded in our own 
 jurisprudence. 
 
 (&) Moveables. — We have thus traced the nature and some 
 of the effects of possession in the domain of heritable rights. 
 It remains to deal shortly with possession in its relation to 
 moveables. 
 
 We saw that a double act was necessary for possession, an 
 act of the body and an act of the mind, — detention with the 
 purpose of holding the thing detained for our own use. 
 
 Possession may be either original or derivative, — (1) original, 
 when a thing is laid hold of which has never been reduced to 
 possession by any one, or which has been abandoned ; (2) deri- 
 
Leot. I] THE LAW OF POSSESSION. 11 
 
 vative, when a thing which has been in the possession of one is 
 transferred to another. 
 
 (1) Original — Quod nullius est fit primi occupantis. — It is 
 a rare thing now-a-days to find something that belongs to 
 nobody. The principle may, however, be exemplified in the 
 capture of wild animals. At what point does possession in law 
 take place ? When the pursuit is started, or only when the 
 animal is run down ? The general rule is that pursuit short of 
 capture will not do. What if there are two pursuers ? This 
 sometimes happens in the whale fishery. The rule followed is 
 that if the whale remains attached to the boat from which the 
 first harpoon was thrown, it remains the property of the first 
 harpooner ; if loose, it belongs to the second harpooner. Pearls 
 enclosed in shells or pebbles cast on. the shore belong to the 
 finder. Wild animals which have escaped from restraint (as 
 deer from a park), and regained their natural liberty, become 
 the property of the first one who captures them ; but animals of 
 a tame nature, although they stray away from home, remain the 
 property of their owner, and any one appropriating them 
 commits theft. 
 
 In whose possession is an object of value — say a bank-note — 
 which the owner lets fall on the floor of a shop, and which is 
 picked up by a customer in the shop and handed to the shop- 
 keeper to retain for the owner ? The owner never turns up. 
 The finder then sues the shopkeeper for return of the note, and 
 he claims retention of it on the ground that it was found on his 
 premises. That question arose in the case of Hogg v. Armstrong 
 & Mowat, 1874, Guthrie's Select Cases 438, in the Sheriff Court 
 of Glasgow, and was decided by Sherifi" Guthrie in favour of the 
 finder, on the ground that he had obtained possession against all 
 the world except the true owner, and that the fact of its being 
 found on the floor of the shop did not make the shopkeeper cus- 
 todier of it. 
 
 If the note had been found in a hotel the decision might have 
 been different, for the landlord is custodier for his customers of 
 their goods therein. The goods are within the protection of his 
 house. 
 
 The owner of lost property does not lose his right to 
 reclaim until the lapse of the long negative prescription, except 
 in the case of animals, which are lost to the owner on the 
 
12 LECTURES ON SCOTS LAW. [Lect. I. 
 
 lapse of a year, and become the property of the Crown or its 
 donatary. 
 
 The Scotch law as to treasures hid under ground is that they 
 belong to the Crown as escheat. The Roman law gave half to 
 the finder and half to the proprietor of the soil. An interesting 
 question arose in England as to the property of an ancient canoe 
 found embedded in the soil. It was claimed (1) by the lease- 
 holder, and (2) by the freeholder. The decision was in favour of 
 the latter, on the ground of his radical title to everything in the 
 land of which he had not specially divested himself. (Elwes v. 
 Brigg Gas Co., 1886, 33 Ch.D. 562). This principle of the 
 English law leads to the result that wild animals, such as rabbits 
 or grouse, shot by a trespasser, become the property of the owner 
 of the soil. In Scotland, at common law, they are the property 
 of the man that shoots them, although that result is seriously 
 modified by the Game laws and Trespass laws. 
 
 (2) Derivative Possession. — That is effected when one who 
 is in possession transfers that possession to another, who ac- 
 cepts it. 
 
 The simplest case is the manual transfer of an object by one 
 to another with intent to transfer ownership, or a limited right 
 of use or control under a contract of hiring, pledge, or the like. 
 
 In each case the recipient is clothed with possession. 
 
 But in the great majority of cases there is no actual manual 
 transfer of the article. 
 
 Change of possession of goods is effected without manual 
 transfer — 
 
 (1) Through the delivery of the key of the place in which 
 they are deposited. 
 
 (2) By a change in the title on which the goods are held. 
 
 (3) By intimation to the actual custodier, being a third 
 person, to hold for behoof of a new possessor. 
 
 (4) By the transference of a mere symbol of property. 
 
 1. Delivery of the Key. — This is not, properly speaking, 
 symbolical delivery, but the giving of a real and exclusive 
 control over the goods. The Eoman law required that the 
 parties should be at the warehouse when the key was delivered. 
 (Si claves apud horrea traditce sint, D. xviii. 1. 74.) What if 
 the seller retain another key, or can get access through a hole? 
 This has been held not to affect the fact of possession, as the 
 
Lect. I.] THE LAW OF POSSESSION. 13 
 
 taking advantage of such a thing would be a mere fraud on 
 the contract. 
 
 In the converse case of the owner of a locked box delivering 
 the box but reserving the key, it has been held that the 
 contents of the box were not thereby delivered. (Reddel v. 
 Dobree, 1839, 10 Sim. 244.) 
 
 2. Change in the Title. — Possession may be delivered so as 
 to pass the property to the purchaser although the goods remain 
 in the custody of the seller, if they so remain upon some sub- 
 ordinate contract made bona fide between the parties. Thus, 
 the owner may sell the goods, and then, without parting with 
 the custody, he may hire them from the purchaser, as was done 
 in Orr's Trustee v. Tullis, 1870, 8 M. 936, and EobeHson v. 
 M'Intyre, 1882, 9 R. 772 ; but if they merely remain in the 
 order and disposition of the seller, they may be attached by his 
 creditors in bankruptcy, as decided in Sim v. Grant, 1862, 
 24 D. 1033, the horse case. Here the seller retained more than 
 the mere custody, which, in virtue of the Mercantile Law Amend- 
 ment Act, 1856, would not have mattered — he had the use and 
 possession, with a power of sale. In fact, the doctrine of reputed 
 ownership applied. Where a public fact, like bankruptcy, occurs, 
 and the trustee sells the furniture to a friend of the bankrupt, 
 who conveys it to the bankrupt's wife, and the custody is never 
 changed, it seems that the creditors cannot touch it on a second 
 bankruptcy. (See Scott v. Horsburgh, 1889, 26 S.L.E. 362, and 
 Dich V. Borrows, 1852, 2 Stuart 13.) But if the buyer simply 
 allows the bankrupt to remain in possession, the result is other- 
 wise, as decided in the bathing machine case, Edmond v. Mowat, 
 1868, 7 M. 59. The distinction is certainly narrow. 
 
 If the buyer be already in possession on a contract of hiring, 
 or pledge, or loan, there is a change in the character of the pos- 
 session, without any change in the custody. 
 
 What if a man, ia possession of goods as owner, wishes to 
 reduce his possession to that of a mere hirer of the goods, can he 
 do so by a mere contract, without any change of custody? This 
 was competent in the Roman law, and the contract was called 
 by the civilians constitutum possessorium. I am not aware of 
 any instance of it in our law. 
 
 3. Intimation to Gustodder. — Possession may be delivered 
 while the goods are in the custody of a third person by the 
 
14 LECTURES ON SCOTS LAW. [Lect. I. 
 
 agreement of the seller and buyer, with notice to that third 
 person that they shall be held in the name or on account o£ the 
 buyer. A delivery order is generally granted and intimated, and 
 an entry made in the warehouse books. 
 
 The delivery order must be absolute in its terms. A qualified 
 delivery order will not confer any jus in re good against 
 creditors. (See MacKinnon v. Max Nanson & Co., 1868, 6 M. 
 974.) A delivery order bearing on the face of it that the trans- 
 action was a pledge would not be made good by intimation 
 merely; — actual custody of a pledge must take place. (See 
 Hamilton v. Western Bank, 1856, 19 D. 152.) 
 
 Where the goods were in the seller's own bonded warehouse, 
 it was at one time competent under statute to transfer the jus 
 in re to a purchaser by a written contract of sale, accompanied 
 by an entry in the officer's book. This was changed by -16 & 17 
 Vict. cap. 107 ; and there is no doubt that a second purchaser 
 who had obtained actual possession would be preferable to a first 
 purchaser who relied on an entry in the warehouse book. 
 
 An interesting application of this principle took place recently 
 in the case of the Distillers' Go. v. Dawson, 1889, 26 S.L.R. 348. 
 Whisky in A's bonded store was sold by A to B, who paid the 
 price. B sold to 0, who intimated his delivery order to A, and it 
 was duly noted in the warehouse book. C then became bankrupt, 
 and was owing A a large sum of money. A claimed to retain 
 the whisky against this debt. The Court, by a majority of three 
 to two, held that, as the goods were not in the hands of a third 
 person, the possession had never been altered; that C had 
 acquired no jus in re, but only a jus ad rem ; and that in the 
 balancing of accounts in bankruptcy A was entitled to retain 
 the goods. The minority held that the intimated delivery order 
 operated constructive delivery to C, and gave him a jus in re, 
 and that C's trustee was entitled to delivery of the goods. I 
 humbly think that the majority was right. 
 
 4. Symbolical transference. — The possession of goods is in 
 some cases changed by the transference of a mere symbol of 
 property, without any change in the custody or intimation to the 
 custodier of the goods. 
 
 (a) The indorsation of a bill of lading for value is a familiar 
 instance of this rule. Its effect is to transfer the right to posses- 
 sion of the goods. This depends upon mercantile usage and the 
 impossibility of giving intimation to the shipmaster. 
 
Lect. I.] THB LAW OF POSSESSION. 15 
 
 (b) The Factors' Act of 1877 places the indorsement of any 
 document of title (including delivery orders, &c.) for the purpose 
 of defeating the vendor's right on the same footing as the 
 indorsement of a bill of lading. No intimation seems to be 
 required. In the case of Hugill v. Masker, 1889, W.N. p. 30, 
 this Act was applied where the purchaser of certain machines 
 fraudulently got away the delivery order on the promise of 
 paying cash next day. He then sold the machines to an innocent 
 sub-purchaser for value, to whom he handed the delivery order, 
 and who was held entitled to delivery as against the original 
 owners. This is an Act which seems to be sometimes overlooked 
 in Scotch cases. 
 
 The recent case of Mwrdoch & Co. v. Greig, decided by 
 the First Division upon 6th February, 1889 (16 R 396), has 
 revived our interest in a much-vexed question. It was there 
 unanimously decided that an* innocent purchaser, at an auction 
 sale, of a piano which had been given out on the hire-purchase 
 system was bound to restore it to the owner. The Court found 
 that the contract was not really a hire, but a sale under a sus- 
 pensive condition. Yet they applied the same principle to its 
 decision, i.e., assignatus utitur jure auctoris. 
 
 A person having possession of goods under a limited title can 
 confer no greater right upon a purchaser than he himself has. 
 It is only in a limited sense that possession implies property 
 in moveables. The burden of proof lies upon the real owner 
 to show quo modo desiit possidere, that he had parted with 
 the possession upon a limited title, such as hire, or deposit, 
 or loan, or pledge, or subject to a suspensive condition. 
 But when he has discharged this onus he is entitled to 
 vindicate the possession even against the innocent victim of a 
 fraud. When a fraud is committed some one must suifer, and it 
 is said that he should suffer who has enabled the fraudulent 
 person to commit the fraud. But surely the person who hires 
 an article is acting legally and within his rights. The fact is 
 that just as the resetter creates the thief, so the bargain-hunter 
 fosters the fraudulent class. If a man is content to buy his 
 goods in the ordinary way at a shop or warehouse where they 
 are dealt in, he runs no risk. This decision of the Court only 
 declares the law of Scotland as propounded by Stair, Bankton, 
 and Erskine ; and although doubt was thrown upon it by 
 
 b 
 
16 LECTURES ON SCOTS LAW. [Lect. I. 
 
 Professor Bell, his opinion was controverted by Mr. Brown in 
 his learned work on the law of sale, and by the learned editor 
 of the last edition of the Commentaries. I venture to think 
 that the opinion of the First Division, delivered by the most 
 eminent living exponent of Scottish jurisprudence, has placed 
 the law of possession of moveables, in this particular, upon a 
 sound and wholesome basis.^ 
 
 It is only possible within the limits of a single lecture to 
 sketch a bare outline of the law of possession. Enough has 
 perhaps been said to give some idea of its history and develop- 
 ment, to indicate the important part which it plays in our law 
 of heritable and moveable property, and to induce the student 
 to prosecute its study for the sake of the light which it sheds 
 upon many points in our modern legal system. 
 
 1 This latter topic was dealt with more fully by me in an article on 
 "Property v. Possession " in the Scottish Law Review for September, 1888. 
 
LECTURE II. 
 
 THE LAW OF CONTRACT. 
 
 Contents. — Rights and obligations reciprocal — Enforceable and non-enforce- 
 able obligations — Definitions of Contract — (1) Its formation — Offer and 
 acceptance by parole — Writing — Conduct — Comparative view of- English 
 and Scotch Law — Capacity of parties — Error, force, and fraud — Subject 
 matter lawful — Mcdum in se — Malum prohibitum. 
 
 When a person is under obligation or engagement to another 
 person to give something to him, or do something for him, or to 
 abstain from doing something, that other person has a right 
 to the performance of the obligation. This is what is meant 
 when it is said that rights and obligations are reciprocal. A 
 distinguished writer on moral philosophy has said, " All rights 
 " are morally perfect, because wherever there is a moral duty to 
 " another living being, there is a moral right in that other ; and 
 " when there is no duty, there is no right. There is as little 
 " an imperfect right in a moral sense, as there is in logic an 
 " imperfect truth or falsehood." 
 
 While this is quite true in ethics, there are numerous rights 
 which the positive law of a nation will not enforce. If my 
 brother is in want, through innocent misfortune, and I am rich, 
 there is a moral obligation on me to relieve him, but the law will 
 not compel me to do so. If one cricket club engages to play a 
 game with another, and breaks the engagement, the law will 
 give no compensation, although the first club may have gone to 
 expense in preparing for the match. If you promise to dine 
 with a friend, and break your promise, you cannot be made to 
 pay any part of the cost of the dinner; and if the Dean and 
 Council were not to fulfil their intention of giving a prize for 
 the best answers on the subjects of these lectures, I believe that 
 there would be no legal redress. 
 
 I mention these things in order to show you the proper 
 sphere of contract. It has only to do with such rights and 
 G 
 
18 LECTURES ON SCOTS LAW. [Leci. II. 
 
 obligations as the law will enforce, .and excludes from its con- 
 sideration many duties which no honourable man would leave 
 unperformed, but which the law, for wise reasons, leaves to the 
 court of a man's own conscience. 
 
 Erskine (iii. 1. 16) defines a contract as "the voluntary agree- 
 " ment of two or more persons by which something is to be 
 " given or performed on one part, for a valuable consideration, 
 " either present or future, on the other part." 
 
 Bell (Pr., section 70) defines it as " the reciprocal undertaking 
 " or engagement of two or more persons whereby something is to 
 " be given or done, or abstained from, on the one side, for a valuable 
 " consideration or counter - engagement on the other. Duorwm 
 " pluriuTTive in idem placituTn consensus et conventio; each 
 " being bound, and each acquiring a right by the convention." 
 
 Pothier, a great French lawyer, whose writings on mercantile 
 law are much valued in this country, defines it (Obligations, 
 " section 3) as "an agreement by which two parties reciprocally 
 " promise and engage, or one of them singly promises and 
 " engages to the other to give some particular thing, or to do or 
 " to abstain from doing some particular act." 
 
 And Sir William Anson, an eminent English writer on the 
 law of contract, defines it as " an agreement enforceable at law, 
 " made between two or more persons, by which rights are ac- 
 " quired by one or more to acts or forbearances on the part of 
 " the other or others " (p. 9, 4th edition). 
 
 We have then, in contract, the two elements of agreement 
 and obligation such as the law will enforce. 
 
 Having seen what a contract is, the subject may he divided 
 into the following heads, viz.: — 
 
 I. How it may be formed. 
 II. What is its operation. 
 
 III. How it may be discharged. 
 
 IV. The rules for its interpretation. 
 
 I. The Formation of a Contract. 
 
 I. — In forming a contract, it is required that the minds of 
 the parties should meet. The most common way of effecting this 
 is by offer and acceptance. The offer may be by parole, by 
 writing, or by conduct. 
 
 (a) An offer is made by parole when the parties meet face 
 
Lbct. II.] THE LAW OF CONTRACT. 19 
 
 to face. Suppose two farmers meet on a market day, and the 
 one says to the other, " I will sell you my horse at the price of 
 " £30," that is a valid offer. If farmer B says, " I accept that 
 " offer," or " Done," or any equivalent words, an effectual contract 
 is at once made, which either party can enforce. But if farmer 
 B says, " I w^ill give you £25," that is a rejection of the offer, 
 which at once falls to the ground, and can no longer be accepted 
 unless renewed. Suppose farmer B says, " I will think over it 
 " till to-morrow," the offer falls to the ground, for it is settled 
 law that a verbal offer must be accepted before the parties 
 separate. Suppose farmer A says, " I will sell you the horse at 
 " the same price as my father paid for it," and B accepts the 
 offer, and it turns out that A's father got it as a gift, there is no 
 contract, for one of the essentials of the contract of a sale (i.e., a 
 • price, or the means of fixing a price) is awanting, and A did not 
 intend to make a present of the horse to B. Suppose that the 
 parties strike a bargain at £25, and B adds, " If the horse is lucky 
 " to me I will give you £5 more," it has been held that payment 
 of this additional sum cannot be enforced, and depends entirely 
 on B's pleasure, for it is not the business of courts of law to 
 decide upon matters of luck. Suppose the parties contract for 
 the purchase of the horse at whatever price may be fixed by 
 farmer C, then the contract is perfectly binding, as the price may 
 be fixed ad arbitrium boni viri. 
 
 You will have gathered from these simple illustrations that a 
 valid contract regarding goods may, in the general case, be made 
 by verbal offer and acceptance provided the offer contain the 
 legal essentials of the contract which is being negotiated, and 
 that the acceptance meet the offer, and that it be given before the 
 parties separate, and before the offer is withdrawn. 
 
 (&) Written offer and acceptance. Suppose that the two 
 farmers are at a distance from each other, one in Stirlifigshire 
 and the other in Ayrshire, and are making their bargain by 
 exchange of letters, let us consider what is necessary in order to 
 make a contract. A very important question is, at what moment 
 does the contract become complete ? Suppose that the letter of 
 offer is put into the post office at Stirling, it is entirely beyond 
 the control of the sender, and if when the offeree receives it, he 
 at once writes accepting, the contract is completed. If the sender 
 rues his offer and posts a recal which arrives before the receiver 
 
20 LECTURES ON SCOTS LAW. [Lbct. II. 
 
 has sent his acceptance, the recal is in time. But if the accept- 
 ance has been posted, whether the offerer has received it or not, 
 the recal is too late. And even if the acceptance should miscarry- 
 in the post, and be delayed or even lost (if properly addressed), 
 it would seem that the contract is binding. As Lord Blackburn 
 said, " The acceptor, in posting the letter, has put it out of his 
 " control, and done an extraneous act which clenches the matter, 
 " and shows beyond all doubt that each side is bound." 
 (Brogden v. Metropolitan Ry. Go., 1877, 2 App. Ca., 691). This 
 point, however, cannot be regarded as settled in Scotland, for 
 Lord Shand expressed an opposite opinion, obiter, in Mason v. 
 Benhar Coal Go., 1882, 9 R. 883. 
 
 Of course the acceptance must be sent within a reasonable 
 time, or the offer is held to have fallen. What is a reasonable 
 time is a question of circumstances. In mercantile transactions 
 an answer should be sent by return of post; but four days has 
 been thought not unreasonable in accepting an offer to purchase 
 land, in Thomson v. James, 1855, 18 D. 1. A delay of five weeks 
 in accepting an offer to execute the ironwork of a building was 
 held far too long, in Wylie & Lochhead v. M'Elroy, 1873, 1 R. 41. 
 
 If the offerer say that his offer will be binding until a certain 
 date, can he recal the offer before the expiration of the time ? 
 
 In England it has been decided that he can, on the ground 
 that no consideration has been given for the promise to keep the 
 offer open {Dickenson v. Dodds, 1873, 2 Ch. D., 463). In this 
 the English law follows the Roman law, expressed in the 
 maxim ex nudo facto non oritur actio. 
 
 Our law, on the other hand, has rejected this principle, and 
 followed the Canon law, which saith, om^ne verhum de orefideli 
 cadit in debitum. Accordingly, it is most probable that in 
 Scotland the offerer would be held bound for the time specified. 
 So Bell lays down the law (Pr. section 73), and Stair and Erskine 
 seem to favour that view. The principle that both parties must 
 be bound, or neither, applies rather to a contract that has been 
 formed, and from which one party seeks to shake himself free. 
 
 An important element in the formation of a contract by 
 exchange of letters is that the acceptance must exactly meet the 
 offer. If the acceptance contain a material condition, it amounts 
 to a counter offer, which in its turn requires acceptance. But a 
 mere expression of what the law would imply will not destroy 
 
Lect. II.] THE LAW OF CONTRACT. 21 
 
 the acceptance, e.g., if the acceptance of an offer to sell land 
 should say, " the seller to furnish searches, and the expenses of 
 " conveyance to be paid mutually." 
 
 (c) Offer and acceptance may arise out of the conduct of the 
 parties, and make a valid contract. 
 
 Thus, the cars which run between Stirling and Bridge of 
 Allan tacitly invite the public to ride in them for a certain fare. 
 If I take my seat in one of them I tacitly accept that invitation, 
 and a contract is created between me and the car company, with 
 all the usual incidents of the contract of carriage of passengers. 
 So a railway company by publishing time tables enters into a 
 contract with any member of the public travelling by the line 
 that they shall use all reasonable endeavours to run their trains 
 up to the advertised time. So the police in advertising a reward 
 for the detection of a criminal, or a lady for the recovery of a 
 favourite dog, enters into a contract with the person who gives 
 the required information which can be legally enforced. So the 
 advertisement of a sale "without reserve" entitles the highest 
 bidder to insist upon the subject of sale being knocked down to 
 him. If a shopkeeper exhibit goods in his window ticketed at a 
 certain price, it seems that he makes an offer which any member 
 of the public may accept by tendering the price and claiming the 
 article. 
 
 Bell (Pr., sec. 76) lays down the doctrine that " tacit acceptance 
 " may be inferred from silence where the proposal is so put as to 
 " require rejection if the party do not mean to assent ; as when a 
 " merchant writes to another that he is, against a certain day, to 
 " send him a certain commodity, at a certain price, unless he 
 " shall previously forbid." 
 
 It is doubtful whether this doctrine be not stated too broadly. 
 An English writer (Anson, p. 15) says, "Where conduct is relied 
 " upon as constituting acceptance, it must be something more than 
 " mere silence ; it must be silence under such circumstances as to 
 "amount to acquiescence"; and again, "A person making an 
 "offer may not turn the absence of communication into an 
 " acceptance, and compel the recipient of his offer to refuse it 
 " at peril of being construed to have accepted it." 
 
 We will next proceed to consider the cases in which a par- 
 ticular form is required in order to give legal efficacy to the 
 intentions of the parties. 
 
22 LECTURES ON SCOTS LAW. [Lmyi. II. 
 
 In this respect our law is much more simple than that of 
 England. There is an English statute called the Statute of 
 Frauds (29 Car. II. cap. 3) which, inter alia, provides that no 
 contract for the sale of goods for the price of £10 or upwards 
 shall be allowed to be good, except the buyer shall accept part 
 of the goods so sold and actually receive the same; or give 
 something in earnest to bind the bargatin, or in part payment ; 
 or that some note or memorandum in writing of the said bar- 
 gain be made and signed by the parties to be charged by such 
 contract, or their agents thereunto authorised. 
 
 The decisions upon this provision form an extensive chapter 
 in the English law of contract from which we are free ; and no 
 one will say that our law of sale is any the worse for wanting it. 
 I have already adverted to the English rule that no contract of 
 sale is binding unless (1) a consideration has been given on the 
 one side for the promise or engagement on the other ; or unless 
 (2) it is reduced to the form of a deed executed by the parties 
 not only by their signatures but by their seals. Then the con- 
 sideration must be of some value in the eye of the law, must 
 be legal, may be present or future, executed or executory, but 
 must not be past. Love, favour, or affection, or motives of 
 honour, gratitude, piety, or friendship have no weight in the 
 scales of " consideration." 
 
 I think that Scotch lawyers may congratulate themselves not 
 only that they are freed from all the subtle distinctions which 
 these doctrines have evoked, but also that our system of juris- 
 prudence leaves a man free to act upon the nobler impulses 
 of his nature, without leaving him or his heirs open to the 
 temptation of repudiating a just obligation on the ground of 
 want of consideration. 
 
 There are certain contracts in our law which require to 
 be reduced to writing in order to make them valid. 
 
 (a) Contracts for the transfer of heritable property. — This 
 rule probably sprang from the importance of landed property 
 under the feudal system, although, as we saw in a former lec- 
 ture, there was a time when writing was not required for a 
 grant of land by a lord to his vassal. The writings must be 
 either holograph or tested, or at least signed before two wit- 
 nesses who subscribe their names. This last form can be made 
 good under the provisions of the Conveyancing Act, 1874. Even 
 
Lect. II.] THE LAW OF CONTRACT. 23 
 
 a verbal contract of feu which was follo\^ed by possession, the 
 erection of buildings, and the granting of receipts for feu duty 
 (which specified the extent of the subject) has been held binding 
 against an heir, in Smith v. Marshall, 1860, 22 D. 1158, and 
 even against a singular successor who knew the f euar's acts, 
 in Stoddart v. Dalziel, 1876, 4 R. 236. (See also Stewart v. 
 Bums, 1877, 4 R. 427.) This is the important equitable doctrine 
 of rei interventus, which means that something of importance 
 has taken place on the faith of the contract made, although 
 the proper formalities have not been observed. 
 
 (6) A lease for more than a year requires to be in writing, 
 and holograph or tested. But an informal writing, if followed 
 by possession, becomes good for the full period of the lease. 
 
 (c) A contract of service for more than a year follows the 
 same rule. {Stewart & M'Donald v. M'Call, 1869, 7 M. 544.) 
 
 (d) In terms of the Mercantile Law Amendment Act, 1856, 
 all guarantees, securities, or cautionary obligations must be in 
 writing and subscribed by the person undertaking them, or some 
 person duly authorised by him. This is a sweeping enactment, 
 and seems to exclude the operation of rei interventus and of 
 reference to oath. In re mercatoria an informal writing would 
 be sufficient ; and although a holograph or tested writing be 
 necessary in a guarantee not in re mercatoria, yet rei inter- 
 ventus following on an informal writing would validate the 
 guarantee. It would seem that a del credere guarantee does 
 not require writing, on the ground that it is merely an incident 
 to the contract of principal and agent, but this has not been 
 decided in Scotland. 
 
 (e) Although the contract of partnership may be proved rebus 
 i/psis et factis when once it has come into existence, yet the 
 Court will not compel the parties to enter into that relation 
 on a mere written contract to become partners, where the terms 
 of the proposed partnership have not been fixed in the writing. 
 In short, the Court will enforce a contract when made, but will 
 not make a contract for the parties ; nor will they give damages 
 against the party refusing to fix the terms of the contract, for he 
 is acting within his rights in drawing back before the contract is 
 complete, or, in other words, he has locus poenitentice. (M' Arthur 
 V. Lawson, 1877, 4 R. 1134.) 
 
 (/) Bills of exchange and promissory notes must be in writing, 
 and the acceptance of a bill of exchange must be in writing. 
 
24 LECTURES ON SCOTS LAW. [Lect. H. 
 
 (g) Assignations of copyright, of patents, and of policies of 
 life insurance must be in writing. The mere delivery of the 
 document of title has not, by the law of Scotland, any effect 
 to transfer the property, or even to give a valid security. By 
 the law of England, on the other hand, a valid security is 
 created by the deposit of a document of title accompanied by 
 a letter explaining the nature of the transaction. This is called 
 an equitable mortgage, and is extensively practised in England 
 in obtaining loans from banks. 
 
 (A) Contracts of marine insurance must be made in the form 
 of a policy. (30 Vic. cap. 23, sec. 7.) 
 
 (i) The transfer of shares in a joint-stock company is made in 
 the form prescribed in the Companies' Act, 1862, or in the articles 
 of association of the company, and in the case of companies 
 governed by the Companies' Clauses Act, 1845, in the form 
 prescribed by that Act. 
 
 (j) There are several instances in which the form of sealing 
 is required in contracts made according to the Scotch law. Thus 
 a corporation, as a general rule, executes a contract by the use of 
 its common seal. A British ship, or a share therein, can only be 
 transferred by a bill of sale in the form prescribed by the 
 Merchant Shipping Act, 1854, which is sealed as well as signed 
 by the granter. 
 
 The next requisite for the formation of a valid contract is 
 that the parties should be capable of contracting. If one of the 
 contracting parties be a pupil, or a minor without the consent of 
 his curators, or (in the general case) a married woman without 
 the consent of her husband, or a person of unsound mind, or a 
 person in a state of intoxication, then the contract will not be 
 valid. But as this branch of the subject forms rather a branch 
 of the law of persons than of the law of contract, we pass it over. 
 
 It is further essential to the formation of a valid contract 
 that the consent on both sides should have been given without 
 error, without force or fear, and without fraud. 
 
 (a) Without errc»\ — Erskiiie'(iii. 1. 16) says, " This obtains, 
 " whether the error regards the person of the other contracting 
 " party, as if one became bound to James when he had reason to 
 " believe he was contracting with John ; or the subject matter of 
 " the contract, as if one contracting to sell a piece of gold-plate 
 " should deliver to the purchaser one of brass ; but if the error 
 
Leot. II.] THE LAW OF CONTRACT. 25 
 
 " lies only in the accidental qualities of the subject, the contract 
 " is valid, e.g., if the gold has a greater mixture of alloy than it 
 '• ought to have had." 
 
 The illustration of the brass delivered for gold is rather a 
 case of non-implement of the contract than of error. Error 
 takes place where the one party is thinking of one thing, and 
 the other party of another thing ; as where there are two things 
 of the same name, and the first means to sell the one, while the 
 second means to buy the other. Here the minds of the parties 
 do not meet. 
 
 (b) Without force or fear. — Instances of this were common 
 in Scotland in the 17th century, but it is rather difficult to find 
 a modern instance. We may take the recent English case of 
 Scott V. Sebright, 1886, 12 P.D. 21, where a wealthy young 
 woman of twenty-two had become engaged to an unprincipled 
 adventurer, who had induced her to sign bills for him to a large 
 amount, on which proceedings were taken against her. When 
 in a state of bodily and mental prostration occasioned by this, 
 and by certain threats which he uttered, she was induced to 
 go through a ceremony of marriage with him at a registrar's 
 office. The marriage was never consummated. The Court 
 held that there was not such a consent on her part as the law 
 requires for the making of a contract of marriage, and declared 
 it null and void. 
 
 There is a milder kind of constraint, called undue influence, 
 e.g. by a parent over a child, a guardian over a ward, a lawyer 
 over his client, or a doctor over his patient, which will interfere 
 with the formation of a valid contract. We have an illustration 
 of that in the case of Gray v. Binnie, 1879, 7 R. 332, where a 
 mother took advantage of the pecuniary necessities of a son to 
 get him to surrender his interest in an estate for an inadequate 
 sum. The contract was set aside. 
 
 The English law has applied this principle to cases where 
 personal influence was abused, although there was no fiduciary 
 relationship, as in Smith v. Kay, .1859, 7 H.L.C. 750. It even 
 sets aside contracts where one has taken advantage of the un- 
 protected condition of the other to drive a hard bargain. The 
 Scotch law has not gone this length; and in the case of 
 M'Lachlan v. Watson (n.r.), the Court refused to set aside a 
 contract which was challenged on somewhat similar grounds. 
 
26 LECTURES ON SCOTS LAW. [Lect. II. 
 
 In the case of Andrew v. Buchanan, 1873, 11 M. (H.L.) 13, the 
 House of Lords refused to relieve the vassal against a contract 
 of feu in which he was taken bound to build and maintain a 
 villa upon the ground, while at the same time the superior had 
 reserved power to work the minerals below it, and to bring it 
 down about his ears without compensation. The principle is 
 that if parties who are sui juris enter into hard bargains, they 
 must abide by them. See also Shylock v. Antonio, decided by 
 the Court of Venice, and reported by Shakespeare in the 
 " Merchant of Venice." 
 
 (c) Consent will be subject to recall if it has been induced by 
 fraud, and in certain cases even by innocent misrepresentation 
 or non-disclosure of facts. 
 
 The contracts in which the presence of the latter elements 
 are fatal are (1) marine insurance ; (2) fire insurance ; (3) 
 contracts for the purchase of shares in a company on allotment. 
 These contracts are said to be uberrimce fidei, because the 
 position of the parties is such that the one is entirely dependent 
 upon the representations of the other for the facts, and he is 
 therefore entitled to rely upon a full and truthful statement. 
 Non-disclosure therefore of any material circumstance known to 
 the party effecting the insurance or issuing the prospectus, 
 makes the contract voidable and a fortiori any misrepresenta- 
 tion of fact, although innocent. 
 
 Fraud strikes more deeply at the formation of contracts. I 
 may give the definition of an English writer, " Fraud is a false 
 " representation of fact, made with a knowledge of its falsehood, 
 " or in reckless disregard whether it be true or false, with the 
 " intention that it should be acted upon by the complaining 
 " party, and actually inducing him to act upon it." This 
 definition is scarcely broad enough to cover the Scotch law of 
 fraud. Under the Scotch law the seller of an article who knows 
 of a latent defect and does not disclose it is guilty of fraud, and 
 the contract may be annulled on that ground. (Rough v. Moir 
 1875, 2 R. 529.) In the English law, on the other hand, the seller 
 is not bound to tell the latent defects in his wares. ( Wa/rd v. 
 Hobhs, 1879, 4 Appeal Cases, 14.) Mere non-disclosure, there- 
 fore, which falls short of industrious concealment, may amount 
 to fraud in Scotch law, at all events in the contract of sale. The 
 difference may be reconciled in this way, that as a man is 
 
Lect. II.] THE LAW OF CONTRACT. 27 
 
 supposed to know the general law of his country, a Scotchman 
 knows that a certain course of conduct is fraudulent, according to 
 his code ; an Englishman knows that it is not, according to his 
 code. A high authority has said, " To him that esteemeth any- 
 " thing to be unclean, to him it is unclean." Each may act 
 according to the law of his country with a good conscience, 
 although I think our rule is more in accord with the moral law. 
 
 To entitle a person to set aside a contract on the ground of 
 fraud it must have given rise to the contract ; it must have been 
 dolus dans causam contractui. If the fraud is merely in- 
 cidental, or arise in carrying out the contract, it may give 
 ground for an action of damages, but not for rescinding the 
 contract. The recent case of Dunnettv. Mitchell, 1887, 15 R. 
 113 (in which the pursuer failed to prove fraud), is instructive 
 as showing the nature of the case which must be made out. 
 
 The fraud of an agent in carrying through a contract is 
 equally fatal, although the principal was quite innocent of the 
 fraud. The principle is that no one can honestly retain an 
 advantage which has been got by the fraud of the person 
 representing him. (Traill v. Fernie and Others, 1876, 3 R 770.) 
 
 The subject of fraud unfortunately forms a voluminous 
 chapter in the modern law of contract. We cannot dwell further 
 upon it ; but pass on to the remaining requisite to the formation 
 of a valid contract, viz., that the subject matter of it be such as 
 the law permits. 
 
 The forbidden objects may be divided into two classes, malv/m 
 in se and malum, prohibitum, the first class being forbidden at 
 common law because of some inherent infraction of the moral 
 law, and the second being forbidden by statute, because of some 
 reason of state or revenue. 
 
 (a) Malum, in se. — ^An agreement to commit a crime would, of 
 course, be void. Thus, if Pigott had agreed to forge the Parnell 
 letters for a sum of money, he could not have enforced payment, 
 nor could the money have been got back if it had been paid to 
 him, and he had then failed to forge the letters. Any agreement 
 to commit a civil wrong is void, e.g., for the publication of a libel, 
 or for a secret preference under a composition arrangement with 
 creditors. A trade mark will not be protected for an article used 
 to deceive the public, as essence of hops used to adulterate beer. 
 {Estcowrt, 1875, 10 Ch. App., 276.) Even a contract as to an 
 
28 LECTURES ON SCOTS LAW. [Lect. II. 
 
 innocent article will be void if, in the knowledge of the parties, 
 it was to be used for an immoral object. So, in the case of a 
 brougham . hired to a prostitute for the purposes of her calling, 
 the Court refused action for the hire. (Pearce v. Brooks, 1866, 
 1 Ex. 213.) So a contract to induce a woman to live in 
 immorality with a man will not be enforceable, although a 
 contract to enable her to return to a virtuous life will be 
 supported. But if a party repent before the illegal purpose is 
 carried out, and seek back his money or property, the Court will 
 in general give its aid. (laylor v. Bowers, 1876, 1 Q.B.D. 300.) 
 A curious distinction has recently been drawn by the English 
 Court of Appeal in a betting case. Payment of a bet cannot be 
 enforced at law ; but if a betting commissioner be employed to 
 make a bet, and he pay the bet when lost, he may recover it 
 from his employer if he can show that he would have been 
 expelled from the club of which he was a member for non- 
 payment. (Read v. Anderson, 1884, 13 Q.B.D. 779.) I do not 
 think the Scotch Courts would follow this decision. Stakes 
 won at a lawful game, as a horse race, may be recovered from 
 the stakeholder. (Calder, 1871, 9 M. 1074.) 
 
 There is a class of contracts which do not infringe the moral 
 law, but which are said to be contrary to public policy, and 
 therefore not enforceable. Such are contracts in undue restraint 
 of trade, contracts tending to injure the public service, as assign- 
 ments of salaries or pensions by public servants, agreements 
 which tend to encourage litigation (as pacta de quota litis), 
 gifts by a client to an agent, while that relation subsists 
 between them, agreements in undue restraint of marriage, agree- 
 ments among masters or among workmen to restrain the liberty 
 of contract, agreements altering the rules of public law, as if a 
 man were to agree to limit the days of charge on a bill from 
 six to three. Into the details of these we have not time to go. 
 
 (b) Malum prohibitum. — If a statute says that a contract is 
 illegal or void, no question can arise ; but if it merely imposes a 
 penalty, the question does arise whether that amounts to a pro- 
 hibition. The general rule is that if the penalty for infringement 
 be imposed once for all, there is no prohibition ; but if imposed 
 for each recurring breach, that amounts to absolute prohibition 
 of the contract struck at. 
 
LECTURE III. 
 
 THE LAW OF CONTEACT. 
 
 (CONTINUED.) 
 
 Contents. — (2) Operation of Contract — Jvs tertii — Jus qumsitum tertio — 
 Delectus personce — Assignatus utitur jure auctoris. (3) Discharge of 
 Contract — Form — Causes — Novation — Delegation — Performance — 
 Breach — Damages for breach — Conditions precedent, concurrent, sub- 
 sequent — Supervening impossibility. (4) Judicial interpretation — 
 Comparative view of English and Scotch Law. 
 
 II. The Operation of Contract. 
 
 Having seen how a contract may be formed, we next consider 
 some of the rules that govern its operation. These may be 
 arranged under certain Latin phrases and maxims, which are 
 very convenient pegs upon which to hang the principles of the 
 law so that they may be retained in the memory. When a 
 student of the law looks at the vast number of volumes of 
 reported cases, and the innumerable treatises on special subjects 
 in our own and in the English law, he feels discouraged. But 
 the leading principles of the law are not very numerous, and 
 the aim of the student should be to fix these in his memory, 
 " like a nail fastened in a sure place." He is the ablest lawyer 
 who can readily apply the clue of principle to the labyrinth 
 of facts. Many of these principles of our law are crystallized 
 in Latin maxims mainly derived from the Roman law, and the 
 student would do well to commit them to memory. 
 
 Four important principles in the law governing the operation 
 of contract are expressed in the following phrases : — 
 
 1. Jus tertii. 
 
 2. Jus qucBsitum tertio. 
 
 3. Delectus personce. 
 
 4>. Assignatus utitur jwre auctoris. 
 1. Jus tertii. — This expresses the general principle that the 
 parties to the contract are alone bound by it or entitled to plead 
 
30 LECTURES ON SCOTS LAW. [Lect. III. 
 
 it. The same principle is expressed in the maxim, res inter 
 alios acta, aliis nee prodest nee noeet. Take the case o£ a con- 
 tract of sale of a house under burden of a bond where the bond 
 is to be treated as part of the price, and the purchaser binds 
 himself to pay and so to free and relieve the seller of the bond, 
 that is not an obligation which the bondholder can enforce 
 against the purchaser. He is not a party to the contract ; it 
 was not intended for his benefit; it is jus tertii to him. (Kippen 
 V. Stewart, 1852, 14 D. 533.) The Conveyancing Act, 1874, 
 provides, indeed, that the seller and purchaser may specially 
 agree in the conveyance that the personal obligation in the 
 bond is to transmit against the purchaser, and thus save the 
 expense of a personal bond of corroboration ; but apart from 
 that special statutory agreement, the bondholder has no benefit 
 from the contract between seller and purchaser. 
 
 Again, if I employ a contractor to build a bridge for me, 
 and he purchases iron and stone from various merchants on 
 credit, they have no claim against me for the price, although 
 their goods have gone into my bridge. There is no privity 
 of contract between them and me. They must look to the 
 person with whom they contracted. (Smith v. Scott & Best, 
 1881, H.L. 19 S.L.R. 538.) 
 
 2. Jus quoBsitum tertio. — This maxim, which means " a right 
 " vested in a third person," may be said to form the complement 
 of the previous maxim. It expresses the rule that if in a con- 
 tract between A and B there be a provision in favour of X, 
 which was an object of the contract, then X will be entitled 
 to enforce it. A familiar instance of this occurs (1) where the 
 superior feus his land in separate lots for building purposes 
 upon a uniform plan, and inserts in each feu-right conditions 
 as to size and design of buildings, along with an obligation 
 that he will put similar conditions in the other feu-rights, the 
 principle being that these clauses must have been inserted to 
 be enforceable by the feuars inter se; (2) where the superior 
 feus out a considerable area without a building plan, but with 
 distinct restrictions which the feuar is taken bound to insert 
 in all dispositions and sub-feus, the principle in the latter case 
 being that a sub-feuar or disponee acquiring a portion of the 
 original feu must be held as agreeing that the restrictions are 
 for mutual behoof of the proprietors of parts of the original 
 
Lbct. III.] ' THE LAW OF CONTRACT. 31 
 
 feus, and mutually enforceable by them. {Hislop v. M'Ritohie, 
 1881, 8 K. H.L. 95.) 
 
 The leading cases dealing with this principle to be found in 
 our books are cases in which the right was denied. Such are the 
 cases of Peddie v. Brown, 1857, 20 D. (H.L.) 1, and Finnie v. 
 Glasgow & South-Western Railway, 1857, 20 D. (H.L.) 2 
 both decided by the House of Lords, and Blvmier v. Scott, 
 1874, 1 K. 679. One case, however, may be figured which 
 occasionally arises in the Sheriff Courts in mining districts. 
 If a proprietor let the surface to a farmer, and the minerals 
 to a coalmaster, and if he insert in the farmer's lease a provision 
 that he is to claim his surface damages from the mineral tenant, 
 and in the mineral lease a provision that the coalmaster is to 
 settle direct with the farmer, then there can be no doubt that 
 the farmer has a jus qucBsitum, tertio in the provision in his 
 favour in the mineral lease. It requires, however, to be very 
 clear in all cases that the third person was intended to benefit 
 directly by the contract. 
 
 In England the rule is even more severe. There must be 
 something of the nature of a trust created in favour of the third 
 person before he will be allowed to sue upon the contract. 
 
 In Ely V. Positive Government Security Life Assurance 
 Company, 1876, 1 Ex. D. 88, one of the articles of the as- 
 sociation of the defendant company provided that the plaintiff 
 should be employed as its permanent solicitor. The action was 
 brought for a breach of contract in not employing the plaintiff". 
 Lord Cairns, in delivering the judgment of the Court of 
 Appeal, said, " Articles of association, as it is well known, 
 " follow' the memorandum, which states the objects of the com- 
 " pany, while the articles state the arrangement between the 
 " members. They are an agreement inter socios, and in that 
 " view, if the introductory words are applied to article 118, 
 " it becomes a covenant between the parties to it that they will 
 " employ the plaintiff. Now, so far as that is concerned, it 
 " is res inter alios ou;ta; the plaintiff is no party in it. No doubt 
 " he thought that by inserting it he was making his employment 
 " safe as against the company ; but his relying on that view of 
 " the law does not alter the legal effect of the articles. This 
 " article is either a stipulation which would bind the members, 
 " or else a mandate to the directors. In either case it is a matter 
 
32 LECTURES ON SCOTS LAW. [Lect. III. 
 
 " between the directors and the shareholders, and not between 
 " them and the plaintiff." 
 
 Of course, it is quite unprofessional for an agent to insert his 
 name in any articles of association or trust-deed with the view 
 of securing permanent employment. A similar clause was some- 
 times inserted by the agents of superiors in feu-charters to the 
 effect that the infeftment in favour of the vassal should be 
 expede by the superior's agent, but it was very roughly handled 
 by the House of Lords, and has been declared null and void by 
 the Conveyancing Act, 1874. It is satisfactory to know that on 
 principle such clauses are not enforceable by the agent who 
 inserts them. 
 
 It has been said that a contract imposes a duty upon third 
 persons not to interfere with its due performance. An action of 
 damages will lie at the instance of an employer against any one 
 who maliciously induces his apprentice or his workman to break 
 the contract of service. (Gov/per & Sons v. Macfarlane, 1879, 
 6 R 683.) 
 
 This principle has been extended in England to every 
 contract. The Court, by a majority, laid down the broad prin- 
 ciple that a man who induces one of two parties to a contract to 
 break it, intending thereby to injure the other, does that other 
 an actionable wrong. (Bowen v. Hall, 1881, 6 Q.B.D. 329.) 
 This is a far-reaching principle, and as it does not depend upon 
 any technicality of the English law, the decision will have great 
 weight when a similar question comes before our Court. 
 
 3. Delectus personoe. — This phrase expresses the general prin- 
 ciple that when A contracts with B, he has a right to expect 
 that B shall perform his part of the contract and not devolve the 
 performance upon X. This holds strictly where B has been 
 selected because of his special skill — e.g., an artist to paint a 
 picture, an author to write a book, an actor to play a part. 
 
 There is, however, a wide exception to this principle. When 
 the work can be performed as well by a stranger to the contract, 
 there is no legal objection to his being employed, unless there be 
 a special stipulation to the contrary. Thus, a contractor for 
 a great undertaking, such as a railway or a canal, employs sub- 
 contractors to do sections of the work, for whom, however, 
 he remains responsible to the employer. A trustee in a bank- 
 ruptcy, by virtue of the assignation of which his act and warrant 
 
Lbct. in.] THE LAW OF CONTRACT. 33 
 
 is the symbol, can adopt the bankrupt's contracts if he is of 
 opinion that they will be beneficial to the creditors. {Anderson 
 V. Hamilton & Co., 1875, 2 R. 355.) In that case Lord Neaves 
 said, " The result of my opinion is that, where there is no 
 " delectus personce in a contract, the creditors and trustee of 
 " a bankrupt contracting party are, in general, entitled to take 
 " i^' up, provided they do so timeously, and do not interfere with 
 " the equitable rights of the other contracting party, who must 
 " not be subjected to indefinite delay or disappointment." 
 
 There is a third class of contracts which seems to stand upon 
 the border line between the two classes which I have been con- 
 sidering. I refer to the contract in which a manufacturer 
 undertakes to supply goods (such as iron plates for shipbuilding) 
 of the kind manufactured by him without saying that they will 
 be of his make. Is it proper implement of the contract for him 
 to supply goods manufactured by some one else ? This question 
 has been decided in the affirmative in Scotland, and in the nega- 
 tive in England, in each case by two to one, and in each case 
 overturning the judgment of the Court below. ( West Stockton 
 Iron Company v. Nielson & Maxwell, 1880, 7 R. 1055; Johnston 
 V. Raylton, 1881, 7 Q.B.D. 438.) The main argument for the 
 affirmative is that the contract does not say that the goods are 
 to be of the manufacturer's own make, and that the Court will 
 not add a new term to the contract ; and that for the negative 
 is that the goods being ordered of a manufacturer and not of a 
 dealer, there is a reasonable implication that the goods are to be 
 of his make. This difference of opinion will require to be settled 
 by the House of Lords. 
 
 We saw that contracts are made up of rights and obligations, 
 and we have considered how far the obligations are transmis- 
 sible. Let us now look at the matter from the other side. The 
 rights under a contract are generally transmissible when they 
 resolve into the receipt of money or goods. Thus, by simply 
 endorsing at the foot of an account due to me the words " Pay 
 " this account to X," and signing my name across a penny stamp, 
 I transfer my right to exact payment ; and upon intimation of 
 the order to the debtor, my indorsee steps into my shoes. The 
 transfer is not complete without the intimation, and if in the 
 meantime some other creditor of mine arrests the money in the 
 hands of my debtor, my indorsee is cut out. 
 D 
 
34 LECTURES ON SCOTS LAW. [Lect. III. 
 
 There is a class of contracts in which the rights held by one 
 party are represented by a symbol called a negotiable document. 
 This means a document which passes from hand to hand by 
 simple indorsation, which requires no intimation to the debtor, 
 and which gives to the holder the right to exact performance. 
 Such is a bill of lading, the simple indorsation of which for value 
 confers upon the indorsee an absolute title to the goods which it 
 represents, and that without any intimation to the captain of the 
 ship in which the goods are being carried. Such also is a delivery 
 order or other document of title, by virtue of the provisions of 
 the Factors' Act, 1877. As we saw in a former lecture, that Act 
 places these documents of title very much on the same footing as 
 a bill of lading, dispensing with intimation to the holder of the 
 goods. 
 
 Bills of exchange and promissory notes are also negotiable 
 documents requiring no intimation for their valid transfer, but 
 they scarcely fall within the scope of our subject. 
 
 We never were hampered in Scotland with the technical 
 difficulties that beset the path of the assignee in England in 
 enforcing a contract. At common law he could not sue in his 
 own name, but required to sue in the name of his cedent. He 
 could sue in the Court of Chancery in his own name, subject to 
 certain conditions ; and a series of statutes has now removed his 
 disabilities. The Bills of Lading Act, 1855, allowed the assignee 
 of a bill of lading to sue in his own name ; the Policies of Life 
 Insurance Act, 1867, gave the like privilege to-the assignee of a 
 life policy ; and, finally, the Judicature Act of 1873, section 25 
 swept away the distinction between common law and equity, and 
 gave to the assignee of any debt or legal chose in action all legal 
 rights and remedies, subject to certain conditions. 
 
 Let us now glance at certain contracts in which the rights 
 of the parties are not assignable on the principle of delectus 
 personcB. One of these is the contract of partnership. As in 
 marriage, so in mercantile partnership — the partners are 
 generally chosen for their personal qualities, although in both 
 contracts the possession of capital has always a great weight. 
 No partner, therefore, can introduce a substitute into his place 
 unless he has reserved power to do so. Even the heirs of a 
 deceased partner cannot claim the right of stepping into his 
 shoes and carrying on the business ; the rule at common law is 
 
Lect. III.] THE LAW OF CONTRACT. 35 
 
 that it must be wound up. In the contract of lease of land of 
 ordinary duration there is, at common law, an exclusion of assignees 
 and sub-tenants, on the principle that the landlord has selected 
 his tenant for his fitness as a farmer. This principle, however, 
 is not pushed so far as to exclude the heir of the tenant upon 
 death ; and it has been farther relaxed by the Agricultural 
 Holdings Act, 1883, which allows the tenant to bequeath his 
 lease. The landlord has the power to state any reasonable 
 ground of objection ; and if the Sheriff sustains the objection, the 
 lease goes to the heir. In urban subjects the power of assigning 
 and sub-letting is implied, on account, I suppose, of the common 
 practice of " flitting " in burghs, and of one tenant being in 
 general as good, or as bad, as another. 
 
 Death operates as a transfer from the deceased to his represen- 
 tatives of his rights and liabilities under all contracts to which 
 he was a party, except such as are of a purely personal nature, 
 e.g., contracts of service. An interesting example of this 
 exception occurred in Hoey v. M'Ewan & Auld, 1867, 5 M. 814. 
 A firm of accountants in Glasgow was dissolved by the death of 
 one of the partners. There was a current contract of service 
 between the pursuer and the firm, which the defenders treated as 
 brought to an end by the dissolution. The pursuer brought an 
 action of damages as for breach of contract. The Court held 
 that the contract fell with the dissolution, and that there was no 
 breach. 
 
 The general rule may be illustrated by the case of a con- 
 tinuing guarantee, or cautionary obligation, e.g., for a bank agent 
 or for the tenant in a lease. The obligation continues good 
 against the representatives of the cautioner, even for such intro- 
 missions as have taken place after the death of the cautioner, 
 and that without any notice to the representatives. (British 
 Linen Company v. Monteith, 1858, 20 D. 557.) 
 
 Eights of action for something purely personal to the 
 deceased do not, in England, transmit to his representatives, on 
 the principle of the civil law, actio personalis moritur cum 
 persona, e.g., an action of damages for breach of promise of 
 marriage. (Chamberlain v. Wilson, 1814, 2 M. and S. 408.) 
 
 But in Scotland we have not followed the rule of the civil 
 law; and, after some difierence of opinion on the bench, it 
 seems established that an action of damages for slander, or for 
 
36 LECTURES ON SCOTS LAW. [Lect, HI. 
 
 personal injuries, or for breach of a purely personal contract, 
 may be raised by the representatives of a deceased person. 
 (Auld V. Shairp, 1874, 2 K 191 ; Wights v. Bv/rns, 1883, 11 
 E. 217.) It is also decided that a claim of damages as solatium 
 for wounded feelings may be constituted and enforced against 
 the representatives of the wrong-doer. {Evans v. Stool, 1885, 12 
 R 1295.) 
 
 4. Assignatus utitv/r jv/re auctoris. — ^When one of the 
 parties to a contract assigns his interest in it to a third person ; 
 or when upon death, or bankruptcy, the operation of the law 
 vests it in his representatives or creditors, the third person on 
 the one hand, and the representatives or creditors on the other 
 hand, take the right subject to the same drawbacks as attached 
 to it when in the hands of the original holder. There is a 
 special reason for that in the case of the representatives or 
 creditors, for their right is only a continuation of the right of 
 the deceased person or of the bankrupt. The law says that the 
 heir is eadem persona cum defuncto, and that the trustee takes 
 tantwm et tale. But the assignee may have paid a full price for 
 the right. It is only fair, however, that the other party to the 
 contract should not be prejudiced by the assignation, and it is 
 the business of the person purchasing the right to make full 
 enquiries, and to make a careful search, before he completes the 
 transaction. In the case of land rights, our system of registra- 
 tion enables a purchaser to act with a great degree of security. 
 He purchases on the faith of the records, and is not affected by 
 anything not disclosed there. But the purchaser of moveable 
 property has not the same protection. The article may have 
 been stolen, it may be held on hire, or in pledge, or subject to a 
 suspensive condition, and the seller may be committing a fraud 
 upon him. Yet the true principle is that a man can transfer no 
 better right than he has himself; and when reasonable pre- 
 cautions are taken, there is not in practice a great deal of risk. 
 
 Negotiable instruments form an exception to this rule. The 
 indorsee for value, and without notice, of a bill of exchange or 
 bill of lading, or of any of the documents falling under the 
 Factors' Act, 1877, is not affected by any equities that may exist 
 between the original parties to the contract. This is for the 
 benefit of commerce, which requires that mercantile transactions 
 should be capable of being carried through with security and 
 
Leot. III.] THE LAW OF CONTRACT. 37 
 
 with despatch. A bill payable to the bearer or blank endorsed, 
 even if stolen, cannot be vindicated as against a bond fide 
 holder for value and without notice or negligence. But this is 
 not extended to documents, such as debentures of a company, 
 expressed to be payable to bearer, but which are not negotiable 
 according to the law merchant. (Grouch v. Credit Fonder of 
 England, 1873, L.E. 8 Q.B. 374.) 
 
 III. Discharge of Contract. 
 
 We will first consider shortly the form in which a contract 
 may be discharged, and secondly the causes of discharge. 
 
 1. Form. — Nihil tarn naturale est, quam unumquodque 
 eodem modo dissolvi quo colligatwr. — The general rule is that 
 a contract should be dissolved in the same form in which it is 
 constituted. If it be brought into existence by a formal deed, it 
 should be released in the same way ; if by writing in re mer- 
 catoria, then a discharge in the same form will sufiice. A 
 payment of money exceeding £8 6s. 8d. can only be proved by 
 writ or oath. 
 
 2. Causes of Discharge. — (a) By consent of parties, without 
 any consideration having passed. This is called acceptilation, 
 and may be not only expressed but implied, as in the case 
 quoted by Erskine (iii. 4. 8) : '■ Acceptance by a negotiorum gestor 
 " of a discharge of intromissions from him whose affairs he had 
 " undertaken the management of, upon a clearance in which no 
 " article was stated for salary, was adjudged to imply a passing 
 " from his claim of salarj'', supposing salary had been truly due." 
 (Graham, 1683, M. 6534.) 
 
 (b) A contract may be discharged by a substituted contract, 
 either by way of new terms which are intended to supersede the 
 old, or by way of a new party who is intended to take the place 
 of the old. The first is called novation, the second delegation. 
 There is a presumption against novation and in favour of corro- 
 boration. Thus, if a landlord takes a bill from his tenant for 
 rent, he is not thereby changing the contract of lease, with its 
 legal incidents, into a mere personal contract. If the bill be 
 dishonoured he may fall back upon his remedies as a landlord. 
 
 Delegation may be either expressed or implied. Questions 
 of implied delegation arise when an insurance company sells 
 its business to another which takes over its policies. The policy 
 
38 LECTURES ON SCOTS LAW. [Lbct. IH. 
 
 holder receives notice of the change, and pays his premiums for 
 a number of years to the new company, but gives no written 
 consent. The new company fails, and he then attempts to fall 
 back upon the old company. Numerous qiiestions of this kind 
 arose out of the bankruptcy of the Albert Insurance Company 
 and the European Assurance Association in 1870 and 1876. 
 The decisions are conflicting, and depend upon the special cir- 
 cumstances of each case. There is always a presumption against 
 delegation. The question has frequently arisen in the contract 
 of stockbroking. Between one settlement day and another, 
 numerous sales of the same lot of stock may take place. The 
 name of the ultimate purchaser is given to the first seller, and 
 all the intermediate parties are dropped out. If no objection be 
 taken to the name and he be accepted as purchaser, the first 
 purchaser is freed. These decisions depend upon the rules of the 
 Stock Exchange, which are acted upon by the Court if they are 
 reasonable. 
 
 (c) A contract may contain within itself provisions for its 
 discharge on the non-fulfilment of a condition, or on the occur- 
 rence of a certain event. Thus the contract of carriage lays 
 upon a common carrier, under the edict nautce, caupones, 
 stabularii, an absolute liability for the safe carriage and delivery 
 of the goods, subject always to the exception of natural and 
 inevitable accident, the act of God, and the Queen's enemies. 
 The occurrence of one of these exceptions discharges the liability 
 .under the contract. 
 
 (d) A contract may be discharged by performance on the 
 one hand, and by payment on the other. Payment must be 
 made to the proper person. If the debtor has receiA'ed notice of 
 an assignation, or if an arrestment has been put into his hands, 
 or if he is aware of the sequestration of the creditor, he is no 
 longer in safety to pay to him. In the case of periodical pay- 
 ments, such as rents and feu-duties, payments ante diem will 
 not protect the debtor in a question with an arrester, or a 
 purchaser, or a bondholder entering into possession (Erskine iii. 
 4. 4) ; but in a question with the trustee in the creditor's bank- 
 ruptcy, who takes only tantum et tale, the result is otherwise. 
 {Davidson v. Boyd, 1868, 7 M. 77.) 
 
 A tender of performance or of payment is sometimes of great 
 importance. Thus, if the seller of goods duly tender delivery 
 
Lect. III.] THE LAW OF CONTRACT. 39 
 
 and it is refused, he is discharged from the contract, and may 
 sue for damages. If the debtor in a money obligation duly 
 tender the money, and continue ready to pay it, he cannot be 
 made liable in the expenses of an action for its recovery. In 
 England the tender in an action must be accompanied by pay- 
 ment of the money into Court. (Dixon v. Clarke, 1848, 5 O.B. 
 365.) This is a wholesome rule, and might with advantage be 
 followed in Scotland. 
 
 (e) A breach of contract by one party will sometimes dis- 
 charge the other of performance of his part, and in all cases will 
 give him a new right — i.e., to sue for damages. 
 
 Suppose that before the time for performance has arrived the 
 one intimate to the other that he resiles from the contract, the 
 other has two courses open to him — according, at all events, to 
 the English law. He may either treat the contract as broken, 
 and sue at once for damages ; or he may hold by the contract, 
 and insist for performance at the proper time. If he take the 
 latter course, the contract remains in existence for both parties. 
 In the case of Warin & Graven v. Forrester, 1876, ^ R. 190, an 
 action of damages for refusal to take delivery of goods sold, the 
 Lord President said, " Re-sale is the only proper remedy for 
 " parties in the position of the pursuer to adopt." In the sub- 
 sequent case of Thomson Brothers v. Thomson, 1885, 13 R. 88, 
 the facts were that the pursuers had stored the goods, and 
 brought their action for the price. The Sheriff-Substitute dis- 
 missed the action, on the ground that the pursuers had not taken 
 the proper remedy ; but that judgment was recalled by the 
 Second Division, who allowed a proof, and thereafter decided 
 the case on the merits. We may, therefore, take it to be the law 
 in Scotland that in an executory contract of sale, if the buyer 
 refuse to take delivery, the preferable course is for the seller at 
 once to re-sell and claim the difference of price as damages, but 
 that he may, in his option, store the goods and sue for the price 
 of them. Suppose that in a contract for the periodical supply of 
 goods the purchaser, after receiving and paying for part, gives 
 notice that he requires no more, the seller may, without tendering 
 any farther supplies, at once bring an action for breach of con- 
 tract. {Cart v. Ambergate Railway Company, 1851, 17 Q.B. 127.") 
 
 So far there is no difficulty. But when we get into the 
 region of partial breach of contract, there are some nice meta- 
 
40 LECTURES ON SCOTS LAW. [Lbct. IIL 
 
 physical distinctions drawn in the English decisions. The 
 general rule is that where the promise of the first party is 
 conditional upon the performance of the promise of the second 
 party, then a breach of the latter promise discharges the first 
 party. The promises are said to be dependent on each other. 
 Where the one promise is not conditional upon the performance 
 of the other, the breach by the one does not set the other free 
 from the contract, but only gives him a right to claim damages. 
 The rules are very well summarized by Lord Mansfield in the 
 case of Kingston v. Preston 1773, cited in Jones v. Barkley, 
 2 Douglas 689. He says, " There are three kinds of covenants, 
 " 1st, Such as are called mutual and independent, where either 
 " party may recover damages from the other for the injury he 
 " may have received by a breach of the covenant in his favour, 
 " and where it is no excuse for the defendant to allege a breach 
 " of the covenants on the part of the plaintift" ; (2) There are 
 " covenants which are conditions and dependent, in which the 
 " performance of one depends on the prior performance of 
 " another ; and therefore, till this prior condition is performed, 
 " the other party is not liable to an action on his covenant. 
 " (3) There is also a third sort of covenants, which are mutual 
 '■ conditions to be performed at the same time ; and in these, if 
 " one party was ready and offered to perform his part, and the 
 " other neglected or refused to perform his, he who was ready 
 " and oifered has fulfilled his engagement, and may maintain 
 " an action for the default of the other, though it is not certain 
 " that either is obliged to do the first act. The dependence or 
 "independence of covenants is to be culled from the evident 
 " sense and meaning of the parties, and that however transposed 
 " they may be in the deeds, their precedency must depend on the 
 " order of time in which the intent of the transaction requires 
 " their performance." 
 
 The general rule in modern times is that promises, each 
 of which forms the whole consideration for the other, will not 
 be held to be independent of one another. 
 
 In contracts for the sale of goods in which delivery and 
 payment are to be made by instalments, the question often 
 arises whether the refusal of the purchaser to accept of one 
 instalment, or his failure to make one due payment for one 
 instalment, entitles the seller to rescind the entire contract, or 
 
Lect. m.] THE LAW OF CONTRACT. 41 
 
 only gives him a right to claim damages. In Scotland the 
 general rule is that failure as to one instalment will give a right 
 to rescind the contract. {Turnbull v. M'Lean & Co., 1874, 1 
 R. 730.) In England the decisions have heen very conflicting, 
 and can scarcely be reconciled ; but the last case on the subject 
 is in accordance with the rule in Scotland. {Honck v. Miiller, 
 1881, 7 Q.B.D. 92.) 
 
 If the promise that has been broken is of a subsidiary 
 character, not going to the root of the contract, but whose breach 
 may be compensated by damages, then the contract will not be 
 rescinded. Thus, in a charter party, a promise that the ship 
 shall sail with all convenient speed is subsidiary only (M' Andrew 
 V. Chappie, 1866, 1 C.P. 643) ; but if the shipowner states 
 that the ship is then in a certain port, when she is not, the 
 breach goes to the root of the contract, and the charterer may 
 refuse to load. {Behn v. Burness, 1863, 3 B. & S. 751.) 
 
 The conditions that may occur in contracts have been 
 divided into precedent, concurrent, and subsequent. A pre- 
 cedent or suspensive condition is one which must exist before 
 the right to enforce the contract arises. A contract to satis- 
 faction is of this class, — where the one party stipulates that 
 the work to be done or the goods to be supplied are to be 
 to the satisfaction of a third person, or of the party to the 
 contract. Until this condition is purified, the right to pay- 
 ment does not arise {Clarke v. Watson, 1865, 18 C.B.N.S. 278), 
 unless there is collusion between the third person and the party 
 liable, in which case the condition is held as purified. (Erskine 
 iii. 3. 85., D.L., 17, 161.) In an insurance contract, a stipulation 
 for proof satisfactory to the directors is complied with by the 
 production of reasonable proof. (Braunstein v. Accidental Death 
 Insurance Co., 1861, 1 B. & S. 702. — See the American cases 
 collected in 24 J. of J. 414.) 
 
 A concurrent condition in a contract exists where both parts 
 must be performed at the same time, as in a sale of goods for 
 cash. Each must be ready to perform his part at the same time. 
 A contract for payment of " cash on completion of order " means 
 payment of cash on deUvery of the goods at the place stipulated 
 in the contract, and not payment when the goods are made and 
 ready for transmission. {Siemens v. Mitchell, 1885, 2 Sh.C. 
 Rep. 9.) 
 
42 LECTURES ON SCOTS LAW. [Lect. IIL 
 
 A condition subsequent, or a resolutive condition, is one upon 
 the occurrence of which the contract is discharged. Thus, in the 
 contract of marine insurance there is an implied condition that 
 the ship shall not deviate from her course, unless through stress 
 of weather or to save life. If this condition is broken, the con- 
 tract at once flies off. 
 
 ReTnedies for Breach of Contract. — A person who is injured by 
 a breach of contract may in certain cases ask for specific perform- 
 ance, and in all cases he may ask for the remedy of damages. In 
 contracts for the purchase of land, and in certain contracts for the 
 delivery of a specific object, or for performance of a specific act, 
 the Court will give decree ad factum prcestandum and enforce the 
 decree by warrant of imprisonment. Where the contract to be 
 performed involves a series of acts and the need of supervision, 
 the Court will not, as a general rule, order performance by the 
 defaulter, but will leave the injured party to his remedy in 
 damages. (Glasgow Steamboat Co. v. Henderson, 1877, 21 Jour. 
 Jur. 464.) Nor will a contract for personal services (e.g., to sing 
 at a theatre) be so enforced, although a negative term in the 
 contract (e.g., to sing nowhere else during a certain period) will 
 be enforced by interdict. (Lumley v. Wagner, 1851, 1 D., M., 
 and G. 604.) 
 
 Damages are the universal solvent. Mr. Justice Holmes says, 
 speaking of specific performance, "The only universal conse- 
 " quence of a legally binding promise is that the law makes the 
 " promiser pay damages if the promised event does not come to 
 " pass. In every case it leaves him free from interference until 
 " the time for fulfilment has gone by, and therefore free to break 
 " his contract if he chooses." (The Common Law, p. 301.) 
 
 In assessing damages the Court, acting as a jury, fixes such a 
 sum as the parties may fairly be supposed to have had in view 
 as the result of a breach of contract. Notice at making the 
 contract, of any particular consequence that would result from 
 the breach will be sufficient to make the party in default liable 
 in special damage if he can fairly be supposed to have accepted 
 the contract with the special condition attached to it. (Horne v. 
 Midland Railway Co., 1873, 8 C.P. 131 ; M'Kenzie v. Liddell, 
 1883, 10 R. 705.) 
 
 Special damages were allowed" where a farmer purchased a 
 cow with a warranty of soundness, and it proved to be afilicted 
 
Lect. III.] THE LAW OF CONTRACT. 43 
 
 with foot-and-mouth disease, and infected all his other cows. 
 The ground of liability was that the seller knew the purchaser 
 to be a farmer, and that he would probably place the infected 
 cow with others. (Smith v. Green, 1879, 1 C.P.D. 92.) Damages 
 for delay in performance may be set off against a claim for the 
 contract price, where a time for performance is stipulated. 
 Where no time is stipulated a separate action of damages for 
 undue delay must be raised. (M'Bride v. Hamilton, 1875, 2 R. 
 775 ; Webster v. Gramond Iron Go, 1875, 2 R. 752.) 
 
 A claim of damages for a single breach of contract cannot be 
 split up, but must be brought once for all, including both past 
 and future damages. (Stevenson v. Pontifex & Wood, 1887, 
 15 R. 625.) 
 
 The parties sometimes fix for themselves in the contract the 
 amount of damages to be paid in the event of a breach ; but 
 even when they declare them to be " liquidated damages " and not 
 " penalty," the Court exercises its equitable jurisdiction in modify- 
 ing the amount. (Forrest & Barr v. Henderson, 1869, 8 M. 187.) 
 (/) A contract may be discharged by supervening impossi- 
 bility of performance. 
 
 Thus, where performance becomes impossible in consequence 
 of a change in the law of our own country. (Baily v. De Gres- 
 pigny, 1869, L.R. 4 Q.B. 180.) But a change in the law of a 
 foreign country will not have this effect, for the parties might 
 have protected themselves against this contingency. (Barker v. 
 Hodgson, 1814, 3 M. and S. 267.) 
 
 Where the parties have in contemplation the continued exis- 
 tence or fitness of a specific person or thing, then the failure of the 
 subject matter of the contract will excuse performance. So, 
 where potatoes were sold to be grown on a certain field, and there 
 was a failure of the crop through disease, performance was ex- 
 cused. (Howell V. Gov/pland, 1876, 1 Q.B.D. 258.) So, if a house 
 be burned during a contract of lease, both parties are excused, 
 herein differing from the English law, which holds the tenant 
 still liable for the rent, on the ground that he ought to have 
 provided against this event by his contract. (Paradine v. Jane, 
 Aleyn 26.) So, where a famous pianoforte player was prevented 
 by dangerous illness from playing at a concert, it was held that 
 no damages were due " as for breach of contract." (Robinson 
 V. Davison, 1871, L.R., 6 Ex. 269.) 
 
44 LECTURES ON SCOTS LAW. [Leco*. III. 
 
 IV. Judicial Interpretation of Contract. 
 
 If unfortunately a contract becomes the subject of litigation, 
 there are certain rules of evidence and of construction by which 
 the Court is guided. We can do no more than mention some of 
 these. 
 
 A leading rule is that where the contract is in writing, it 
 cannot be varied by evidence of prior communings. (IngUs v. 
 Buttery & Co., 1877, 5 R. H.L. 87.) 
 
 Where, however, you have agreements entered into at the 
 same time as, or subsequent to, the written contract, evidence of 
 these will sometimes be allowed, not to vary but to complete the 
 written contract. In mercantile contracts terms and phrases are 
 sometimes used which require evidence to explain their meaning 
 and application to the subject matter of the contract. So, evi- 
 dence was allowed in a case against underwriters to prove that 
 the word " sea worthy " was used in a restricted sense as applied 
 to a vessel sent out for river navigation upon the Indus. 
 (Bv/rges v. WicJcman, 1863, 3 B. and S. 669.) As Blackburn J. 
 said, " Seaworthiness is a term relative to the nature of the 
 " adventure. It is to be - understood not simpliciter, but 
 " secundum quid." 
 
 Evidence of the usage of a particular trade or of a particular 
 locality is generally admissible, so long as the usage does not 
 contradict the general law of the land. Thus, in construing a 
 charter party or policy of marine insurance, evidence as to the 
 limits of a port, and as to the custom of a port, is frequently 
 allowed. (Owners of " Afton " v. Northern Marine Insurance 
 Go., 1887, 14 R. 544 ; Hillstrom v. Gilson & Glark, 1870, 8 M. 
 463.) In one case evidence was allowed that, by the usage of the 
 locality, 1000 rabbits meant 1200. (Smith v. Wilson, 1832, 
 3 B. and Ad. 728.) 
 
 Our Courts have never gone the length of attempting the 
 rectification or re-forming of a written contract or deed, as the 
 Chancery Division of the High Court of Justice in England does. 
 
 In construing a written contract words are generally to be 
 understood in their plain and literal meaning, subject to the 
 qualification that the Court will try to ascertain the intention 
 of the parties from the whole of the agreement. Words of 
 general meaning are limited by words of special meaning with 
 
Lect. III.] THE LAW OF CONTRACT. 45 
 
 which they are found in collocation. This is called the rule 
 ejusdem, generis. A word susceptible of two meanings will 
 receive that most in consonance with the apparent meaning 
 of the contract. In cases of doubt the Court will construe 
 ambiguous expressions against the interest of the person who 
 used them. This is called the rule of construction contra 'pro- 
 ferentem. 
 
 As conveyancers, you will by-and-bye be called upon to 
 prepare contracts of various kinds for your clients, and it is 
 very important that you should cultivate ■ a plain, direct, and 
 unambiguous style in your legal compositions. Some very 
 valuable rules on this subject are to be found in Sheriff Mackay's 
 essays on Legal Composition, 3 Law Quarterly Review 326, and 
 32 J. of J. 169. 
 

 LECTURE IV. 
 
 SUPEEIOR AND VASSAL. 
 
 Contents. — Introductory — The Feudal System — Origin of the tenure of 
 feu-farm — Its relation to (a) the Feudal System, and (6) the Roman 
 Contract of Emphyteusis — Gradual development and existing form of 
 tenure — Obligation to pay feu-duty of (a) vassal, and (6) sub-vassal — 
 Superior's remedies for recovery (1) by personal action against (a) the 
 vassal, (6) the sub-vassal ; (2) by real diligenoe'against the lands ; and 
 (3) by irritating the feu ob non solutum canonem —Effect of irritancy on 
 sub-feus — Recent decisions. 
 
 The study of history has always been deemed a valuable element 
 in the education o£ lawyers. As such it possesses a twofold 
 utility. It has, in the first place, what might be called its 
 subjective uses — that is to say, it is an instrument of intel- 
 lectual culture probably as efficient as any of the liberal arts. 
 It accustoms the mind to apprehend, analyse, and arrange series 
 and bundles of facts more or less detailed, besides demand- 
 ing from the student the faculty of applying the laws of 
 evidence to circumstantial issues. Nowhere so readily as in 
 the prosecution of historical studies can the lawyer acquire the 
 peculiar culture of the mind he stands in need of — a sort of 
 broad, intellectual sympathy in harmony with a somewhat 
 narrow contemplation of small details and technicalities. His- 
 tory also furnishes an endless series of unsettled controversies 
 round which conflicts have raged as fierce and loud as any 
 between embattled hosts. What better field can there exist than 
 the literature of historic controversy for the sharpening of those 
 intellectual faculties which are so essentially necessary in what 
 is perhaps the most difficult part of a lawyer's work ? 
 
 But besides this subjective and personal utility, history 
 occupies an all-important place in the lawyer's education for 
 another and still more essential reason. Everyone knows, no 
 matter how new he is to legal study, how closely the law of this 
 
48 LECTURES ON SCOTS LAW. [Lect. IV. 
 
 country is bound up with its history. It is impossible to 
 acquire anything like a comprehensive and accurate knowledge 
 of our law as it is in force at the present day without tracing, 
 in 'greater or less detail, its external history; and this, again, 
 can only be done effectually in the light of the political and 
 social history of the periods in which the law was originated or 
 developed. Law and history have a reflex action on one another; 
 and just as the historian cannot fully understand an epoch 
 without some acquaintance with its laws, neither can the lawyer 
 thoroughly grasp a legal doctrine or enactment without knowing 
 something of the historical conditions which gave it birth or 
 which have shaped its development. Much of the obscurity 
 which may becloud any particular doctrine of our law is 
 readily dissipated when its external history is traced through, 
 it may be, successive centuries, and when it is shown how it 
 has been moulded by the social or political circumstances of 
 different times. This may be called the objective utility of 
 historical studies, which, viewed from the standpoint of legal 
 education, thus possess a twofold value; and students of law 
 cannot be too strongly recommended to acquire some degree of 
 familiarity with the facts of history both in its social and political 
 aspects, and more especially with the history of our own country. 
 In the study of Scottish history there is no better guide than the 
 late Professor Cosmo Innes, whose books possess a charm which 
 will of itself create a taste for historical study, and form an 
 excellent introduction to that aspect of history most closely 
 allied to legal pursuits. 
 
 The Relationship of Superior and \assal is a subject which, 
 more than any other branch of our law, is woven into the texture 
 of our social, political, and national history; and it therefore 
 lends itself the more readily to historical treatment and the more 
 clearly illustrates the value, in its double aspect, of historical 
 studies. 
 
 No student can look into the existing system of land 
 tenure in this country without being confronted at the thres- 
 hold with its historical element. He will find that, in order 
 to understand its salient features, and still more to trace its 
 development, he must study the feudal system, and that not 
 merely in the somewhat narrow sense in which that expression 
 
Lect. IV.] SUPERIOR AND VASSAL. 49 
 
 is used by Scottish conveyancers, but in its broader aspects 
 as a department of the social and political history of many of 
 the European nations, and particularly of our own country. 
 Whatever view may be taken of the precise relationship of 
 our existing tenure to the feudal system in the historic sense, — 
 whether the one is a direct development of the other, or whether 
 an independent tenure, engrafted on feudal usages, has gradually 
 superseded them (a problem as to which something will be said 
 presently), — it is clear that the survival in the system of land 
 rights of feudal terminology, if for no other reason, renders an 
 acquaintance with historic feudalism an absolute necessity. 
 
 It may be taken for granted that students of law know gene- 
 rally what the feudal system was, and what part it played in the 
 history of modern Europe. Though intimately connected with 
 the holding of land, it was not primarily or essentially a system 
 of land tenure, hut a social system. The king or leader, in theory 
 and also by virtue of those physical and moral qualities which 
 gave him rule, possessed all the land ; he parcelled it out in 
 return for homage and military service to his immediate fol- 
 lowers, and these again distributed portions of it on the same 
 conditions amongst others who occupied lower ranks in the 
 tribe or commimity. This system, which embraced every aspect 
 of primitive social life, and which bound all within the com- 
 munity by a chain of adamant, had its birth just as the Dark 
 Ages began to obscure the ancient civilisation of Rome. The 
 tribes which swept down from the north of Europe on the 
 downfall of the Roman Empire were held together by the 
 feudal economy, and it is supposed the system had its origin 
 amongst them. Feudalism has no parallel in the history of 
 Rome. Whatever similarity there may be between some of 
 the Roman tenures of land and certain of the later develop- 
 ments of feudalism, it was no part of the policy of the Roman 
 people at any period of their history to make the holding of 
 land the basis of natipnal security. The mere tenure of land 
 was never elevated into a social system. 
 
 Feudalism was introduced into England and Scotland during 
 the eleventh century. In the former country the Normans 
 used it to supplant the Anglo-Saxon tenures, and in our own 
 country it superseded the ancient Celtic tenures through the 
 Normanising influences which set in about Malcolm Canmore's 
 
50 LECTURES ON SCOTS LAW. [Lect. IV. 
 
 time. From this period down to the middle of the eighteenth 
 century it continued in Scotland to be a powerful social system 
 based on the possession of land, and all know how pro- 
 minently it figures in every page of our national history. 
 When it was introduced towards the close of the eleventh 
 century, the king became by feudal theory lord paramount of 
 the whole soil of the country. He gave out grants to nobles 
 for homage and service in war, and these in turn made sub- 
 ordinate grants to men of lesser rank for similar considerations, 
 and so on indefinitely. This process of granting subaltern 
 rights, or " sub-infeudation " as it was called, was an essential 
 feature of the system all through its Scottish development, 
 though in England it was discarded by statute at an early 
 period. The nomenclature of feudalism very distinctly proclaims 
 its social significance — superior, the overlord who makes the 
 grant; vassal (vassalus = social inferior), the person who humbly 
 receives it, and who owes not merely military service there- 
 for but fealty, obedience, and reverence. That these terms have 
 come down to the present day to designate the parties concerned 
 in the ownership of land imder what, is, strictly speaking, a 
 difierent tenure, shows the powerful hold feudalism had upon 
 our country, and the extent to which it has imparted a com- 
 plexion to the existing tenures of land. 
 
 Besides serving his superior in war and rendering him all 
 homage and reverence, the vassal had to face certain incidents 
 in the feudal relationship which still further marked the system 
 as bound up with the very structure of society. These were 
 called casualties, a word still surviving in our modem tenure 
 to denote certain obligations incident to the contract of feu. 
 If the vassal alienated more than one-half of the lands without 
 the superior's consent his right was forfeited. This was called 
 the casualty of recognition. When the vassal died his heir had 
 to pay a fine to the superior in order to secure admission, and 
 if there should be no heir the lands returned to the superior. 
 This was the casualty of relief. Bj' virtue of the casualty of 
 ward the superior had, during the minority of the vassal, the 
 guardianship of his person, as well as possession of the lands, 
 which he held for his own profit. The casualty of marriage 
 led to serious consequences. Sir George Mackenzie thus quaintly 
 describes it : — 
 
Lbct. IV.] SUPERIOR AND VASSAL. 51 
 
 "If the vassal who holds ward lands dies leaving an heir 
 "unmarried, whether minor or major, the superior gets the 
 " value of his tocher though he offer him not a woman to be 
 " his wife ; but if the superior offer him his equal for a wife 
 " and he refuses to accept her and marries any other person, the 
 " superior gets the double of his tocher, and one of these casualties 
 " is called the single avail of the marriage, and the other the 
 "double avail of the marriage;" and he adds, "It is thought 
 " that the reason why this casualty is due was because it was 
 " not just that the vassal should bring in a stranger to be 
 " mistress of the feu without the superior's consent, for else 
 " he might choose a wife out of a family that were an enemy 
 " of the superior ; but I rather think that both wa/rd- and mar- 
 " riage proceeded from an express paction betwixt King Malcolm 
 " Oanmore and his subjects when he first feued out the whole 
 " lands of Scotland amongst them, as is to be seen in the first 
 " of his statutes."^ 
 
 Those incidents or casualties which belonged to what was 
 called ward holding — the only proper tenure of feudalism — 
 remained to the last an essential feature of the feudal system, and 
 only disappeared when every distinctive element of that system 
 was destroyed, not a century and a half ago. Feudalism and 
 civilization could not flourish side by side. The peaceful and 
 civilizing arts were neglected so long as it held undisputed sway. 
 Mr. Ramsay, of Ochtertyre, in his interesting work on the social 
 condition of our country a century ago,^ describes the condition 
 of vassals under the clan system immediately before the last 
 Jacobite rebellion, and tells how the male clansmen left the tillage 
 of the ground to the women, thinking all labour degrading but 
 that of warfare. This picture of feudal civilisation in the middle 
 of last century is a contemporary one ; but it might almost serve 
 to describe the social life of feudalism when it first appears in 
 authentic history. An elegant writer on the history of the 
 Feudal System thus speaks of the barbarian hordes which over- 
 ran Europe on the downfall of the Roman empire — " They knew 
 '■ neither the name nor the use of autumn, for they disregarded 
 " agriculture, leaving it to the females and infirm, and holding 
 
 1 Inst. ii. 5, 10. 
 
 2 " Scotland and Scotsmen in the Eighteenth Century," vol. ii., p. 408. 
 
52 LECTURES ON SCOTS LAW. [Lect. IV. 
 
 " it inglorious to secure by sweat the livelihood they could gain 
 " by blood."' These companion pictures — ten centuries apart in 
 the gallery of history — exhibit the unity of feudalism in its 
 resistance to civilisation. 
 
 It is interesting to observe that, while feudalism spread 
 throughout the countries of Europe coeval with the decline of 
 the learning and civilization of Eome, it in turn began to lose its 
 power and be supplanted by other systems of tenure as the 
 ancient learning revived. It may be taken for granted that the 
 introduction of the feudal system into Scotland was a gradual 
 process, and that we are indebted to the inventive genius of the 
 mediaeval historians for the picturesque description of King Mal- 
 colm feuing out by one solemn act his whole kingdom, reserving 
 only as a place of royal coronation the Moot Hill of the town of 
 Scone. The King Malcolm of this mythical story was not Malcolm 
 Canmore, as stated by Sir George Mackenzie, but Malcolm II., 
 to whom the fabulous collection of laws known as the Leges 
 Malcolmi is attributed. Professor Cosmo Innes thus describes 
 the gradual feudalizing of early Scottish tenures : — " Some of 
 " the old MSS. which used to be cited in Court by the 
 " Scotch lawyers, before the great work of Stair had banished 
 " such myths, have a capitular styled ' The Laws of Malcolm 
 " ' M'Kenneth,' which commences thus — ' Here follow the laws 
 " ' of Malcolm M'Kenneth, the whilk was maist victorious 
 "'king over all the nations of England, Wales, Ireland, and 
 " ' Norway. And he gaif all the land of the kinrik of Scotland 
 " ' till his men, and nocht held till himself but the kingis dignitie 
 " ' and the Mute Hill in the town of Scone.' Sir John Skene, the 
 " first editor of our old laws, sets himself to prove that chapter 
 " to be the authentic enactment of Malcolm II., who began to 
 " reign in 1004, drawing his proofs out of recent Acts of Parlia- 
 " ment, corroborated by the historical authority of Hector Boece! 
 " It is not necessary to controvert his assertion, and to prove 
 " that there never can have been a time when all the land 
 " belonged to the sovereign. The story was introduced evidently 
 " to support a law fiction, — convenient in itself, and the basis of 
 " our system of conveyancing, — that all property flows from the 
 " Crown. Such was the form of conveyancing undoubtedly 
 
 1 Professor Menzies' " Lectures on Conveyancing," p. 505. 
 
Lect. IV.] SUPERIOR AND VASSAL. 53 
 
 " from the earliest of our charter history ; and it could not have 
 " been more systematically feudal if the country had really been 
 " conquered, the natives driven out or enslaved, and the invader, 
 " now sovereign, had proceeded to partition the territory among 
 " his victorious army. That many of those early charters which 
 " we still have of Malcolm IV. and William the Lion were really 
 " new grants of land fallen to the Grown by reason of forfeiture 
 "or otherwise, we have every reason to believe; but many 
 " others of them were, beyond all doubt, a mere formalizing of 
 " the tenure — grants, according to the fashionable feudal manner, 
 " of property already held by the grantee."' It is abundantly 
 clear that by the 12th century feudalism had gained undisputed 
 dominion both as a social polity and as a system whereby 
 practically the whole land of the country was held. This 
 continued till the 15th century, when the feudal spirit began to 
 show symptoms of waning. The long dark night of mediaevalism 
 was beginning to give place to the first streaks of dawn. The 
 ancient learning was reviving, and the jurisprudefice of Rome 
 was already doing something to humanize our legal system. 
 The civilizing art of husbandry was gaining ground, and 
 demanded another tenure for its further development. With 
 the middle of the century a new era set in. James II., who 
 met an untimely fate in his thirtieth year while conducting 
 the siege of Roxburgh Castle, had then reached early man- 
 hood, and was inaugurating a wise and beneficent rule. In 
 1449 the famous statute was passed protecting tenants (" the 
 " puir people that labouris the ground "), holding under a lease 
 for a definite period, from eviction at the instance of singular 
 successors where the lands were alienated during the currency 
 of the lease. ^ It is by virtue of this statute and of the decisions 
 which have followed on it that the principle just stated is the 
 law of Scotland to this day.^ But eight years later, in the same 
 beneficent reign, began a new epoch which ultimately changed the 
 whole land tenure of Scotland. The year 1457, during which 
 the 14th Parliament of James II. assembled, was a remarkable 
 one in the history of Scottish legislation. Measures were devised 
 against " masterful persons " who seized other men's lands by 
 
 1 "Scotland in the Middle Ages," p; 203. 2 1449, c. 17. 
 
 3 Rankine's Law of Leases, p. 119, and the authorities there cited. 
 
54 LECTURES ON SCOTS LAW. [Lbct. IV. 
 
 force ; barons and simple freeholders were enjoined to attend the 
 king's circuit courts with sobriety, laying aside their warlike 
 weapons ; " masterful beggars," " itinerant bards," and " feigned 
 " fools " were to be got rid of ; agriculture was encouraged by 
 commanding every man possessed of a plough and eight oxen to 
 sow each year a firlot of wheat, half a firlot of pease, and forty 
 beans, under pecuniary penalties; provision was made for the 
 planting of trees and hedges, and the sowing of broom, and new 
 regulations were passed for the more effective destruction of the 
 wolf, then a great enemy of the husbandman. But all these 
 beneficent measures are insignificant in comparison with the Act 
 of the same Parliament^ whereby, on the old feudal tenure of 
 landed property, was engrafted a new system expressly devised 
 for the encouragement of husbandry. This new system was 
 called the tenure of " feu-farm," and the Act was designated as 
 being " anent f ew-ferme." What we would call now-a-days the 
 preamble set forth that it was granted "for the better cultivating 
 " and labouring of the kingdom," and it enacted that the king 
 would allow all his vassals to set their lands in feu-farm for a 
 just duty or " avail," and it was declared that the statute was 
 to be equivalent to a confirmation by the king of the sub- 
 altern right. The object of this statutory confirmation was 
 to protect the sub-vassal or sub-feuar, as he was more cor- 
 rectly designated, from forfeiture on the default or rebellion of 
 his superior. Although this Act was confined in its operation 
 to sub -feus granted by the immediate vassals of the Crown, 
 VEissals of subject superiors assumed the same privilege; and 
 nearly fifty years afterwards, in the reign of James IV., when 
 the legality of such sub-feus was questioned, another statute^ 
 was passed declaring it to be lawful for the king, his prelates, 
 nobles, and landholders to set their lands in feu. The legis- 
 lative sanction of the system of feu-farm holdings underwent 
 many vicissitudes during the 16th and I7th centuries so far as 
 regards the protection afibrded to the sub-feuar from the conse- 
 quences of the superior's forfeiture ; but at the Revolution such 
 protection was made a permanent feature of our landed system.' 
 This tenure of feu-farm should be regarded less as a develop- 
 ment or modification of the feudal system than as essentially a 
 
 1 1457, 0. 71. 2 1503, 0. 91. 3 1690, e. 33. 
 
Lbct. IV.] SUPERIOR AND VASSAL. 55 
 
 separate and independent tenure. It has come down to us with 
 a sort of hall-mark of feudalism, because the Scottish lawyers 
 of the 15th and 16th centuries chose to clothe their new system 
 in a feudal dress by applying to it feudal names and principles. 
 It would not be difficult to show that the tenure was borrowed 
 from the Roman contract of emphyteusis, whereby " a proprietor 
 " gives over to another a real right to land, generally in per- 
 " petuity, in consideration of a certain annual return in money or 
 " produce." * The granter of the right, or superior as the 
 feudalists called him, was in the Roman law known as the 
 dominus and the feuar as the emphyteuta. The emphyteuta — 
 where the grant was perpetual — had in theory as absolute a 
 right of property as a feuar ; and if he alienated the lands to a 
 stranger he had to pay to the dominus a fine called laud- 
 emium,, which under Justinian's Code, was fixed at the fiftieth 
 part of the price or value of the lands, being thus tolerably near 
 the amount of the modern composition. Indeed there was 
 nothing in any of the casualties of the feudal system so nearly 
 analogous to our composition as the Roman laudeinium,, and 
 it is more truly the prototype of that payment than the inci- 
 dental obligations of the feudal vassal. 
 
 The composition of a year's rent as one of the incidental pay- 
 ments under the feu-farm tenure was introduced by statute twelve 
 years after the tenure itself received legislative sanction. The 
 superior was not obliged to recognise purchasers who had acquired 
 feus from vassals, and the privilege of compelling recognition was, 
 by a statute passed in 1469, conferred on creditors apprising the 
 feu for debt, but only on payment of a year's rent as a fine.^ 
 It may well be assumed that the idea of the composition was 
 borrowed from the Roman laudem,iwm, though it was at first 
 confined in its operation to a limited class. It was, however, 
 gradually extended by statute, in the first place to other classes 
 of persons who had acquired the vassal's land in the capacity of 
 
 1 Lord Mackenzie's "Studies in Roman Law,'' 4th edition, p. 191. Sir 
 George Mackenzie, in his " Observations" on the Act of 1457, (p. 53), says that a 
 sub-feu — that is, a holding in fen-farm — is nothing but emphyteusis; but in his 
 " Institutes," (ii. 4, 6), he indicates that they are analogous though not identical, 
 an inconsistency by no means uncommon in that eminent lawyer's two great 
 works. 
 
 2 1469, 0. 36. This statute is still referred to as defining the measure of the 
 composition. 
 
56 LECTURES ON SCOTS LAW. [Lect. IV. 
 
 creditors/ and ultimately to all purchasers and disponees. The 
 admission of disponees generally was not effected till the final 
 extinction of feudalism after the last Jacobite rebellion.^ 
 
 But still more light is thrown on the Roman origin of the 
 feu-farm holding by tracing its progress during the first century 
 and a half after its institution. It is a curious thing that it did 
 not develop on feudal lines except in its outward form, but con- 
 tinued to borrow from the civil law. It is perfectly clear that 
 the Scottish lawyers who directed the course of legislation 
 during the 15th and 16th centuries were well acquainted 
 with the law of Eome, which by this time was firmly 
 established as a branch of learning in the great seminaries 
 of Europe. After the establishment of the tenure of feu-farm, 
 a practice seems to have been introduced of inserting in charters 
 clauses declaring that the right would be annulled if the feu- 
 duty remained unpaid for two years, and this irritancy received 
 statutory sanction in 1597.^ There was of course no parallel to 
 this in the feudal system, because there was no fixed annual duty 
 payable either in money or produce ; but there was such a pro- 
 vision in the contract of emphyteusis under Justinian's legis- 
 lation. The Roman origin of the Scottish irritancy was expressly 
 acknowledged in the statute ; and the phrase describing it — 
 ob non solutum canonem^—was borrowed from the canon law.* 
 
 The tenure of feu-farm was thus in its substance more 
 Roman than feudal ; and had the Scottish lawyers who imported 
 it from the civil law also brought with it its terminology the 
 probability is that the tenure would have come down to us shorn 
 of a good deal of those feudal trappings which impeded its 
 progress as a serviceable system. Had the granter of the feu 
 right been called the dominus instead of the superior, and the 
 
 1 1672, 0. 19 ; 1681, c. 17. 
 
 2 20 Geo. n. o. 50. This statute only compelled superiors to enter singular 
 successors by resignation. The latter could not demand an entry by confirmation 
 till the passing of the Lands Transference Act of 1847 (10 & 11 Vict. c. 48). 
 
 3 1597, c. 250. By this statute it was ordained that if any vassal or feuar 
 holding lands in feu-farm of the Sovereign or of a subject superior "failzie in 
 " making of payment of his few dewtie ... be the space of two yieres haill 
 " and togedder they sail amitte and tine their said few of their saids lands con- 
 " forme, to the civil and cannon law sicklike and in the same manner as gif any 
 " clause irritant were specially ingrossed and insert in their said infeftmentis of 
 "few-ferme." 
 
 4 Decretals (3, 18, 4). 
 
Lect. IV.] SUPERIOR AND VASSAL. 57 
 
 grantee the emphyteuta instead of the vassal, the tenure might 
 in its after development have possibly kept clear of those feudal 
 complications which modern legislation has only partially 
 remedied. But such terms were foreign to Scottish ears, and 
 feudalism was still powerful. While the now tenure was yet in 
 its infancy superiors who adopted it endeavoured in some cases 
 to bring it within the sweep of the feudal economy, and 
 make it subserve the ends of feudal ambition. They tried 
 to engraft on it the feudal casualty of ma/rriage, by making 
 the grants cwm maritagio,^ and to stipulate in addition to the 
 feu-duty for a variety of personal services. All this was foreign 
 to the genius of the feu-farm system, as it was of the Roman 
 contract of emphyteusis ; but while grants cwm maritagio soon 
 disappeared, the stipulation for personal services and reverential 
 acknowledgment of the superior's' dignity continued a somewhat 
 familiar feature down even to modern times. Exaction of 
 personal services, except those relating to the tillage of land, 
 was abolished after the Jacobite rebellion of 1715;^ but the 
 practice has continued down almost to our own day of inserting 
 in charters antiquated provisions about attending head courts 
 and performing other meaningless acts. 
 
 Those personal services which were not so abolished form the 
 subject of a provision in the Conveyancing Act of 1874. Where 
 carriages and services exigible by the superior have been com- 
 muted to an annual money payment by agreement, either written 
 or verbal, and either express or implied from the conduct of 
 parties, and where such commutation has been acted on for 
 five years, the superior is bound to accept the money payment 
 in lieu of the services in all time coming. Where there has 
 been no such commutation, the Sheriff has power, on the applica- 
 tion of either party, to fix the annual value of the services which 
 the superior is bound to accept instead of exacting performance.' 
 
 It need only further be mentioned that the distinctive tenure 
 of feudalism — ward-holding — was, at the close of the last Jacobite 
 rebellion, abolished along with heritable jurisdictions.* In the 
 latter days of the system a practice had prevailed of substituting 
 for the military services which had to be rendered to the 
 
 1 Sir George Mackenzie's Institutes, ii. 5, 11. 2 i Geo. I. o. 54. 
 8 37 & 38 Vict. 0. 94, see. 20. < 20 Geo. II. o. 43, 50. 
 
58 LECTURES ON SCOTS LAW. [Lect. TV. 
 
 superior, fixed money payments called taxed ward, and this in 
 1748 was converted into proper feu-duty. Those who held of 
 the Crown had their tenure converted into a blench-holding with a 
 merely nominal duty ; and in the case of those who were under 
 subject superiors, the feu-duty was fixed by the Court of Session. 
 
 The essential feature of the feu-farm tenure is the payment of 
 a stipulated duty. The liability for this payment is of a two-fold 
 character. There is first the personal obligation of the vassal, 
 and, secondly, the liability of the lands. The personal obligation 
 of the vassal, whether he is the original feuar or a successor 
 who has acquired the lands, really rests upon contract. The 
 original feuar binds himself and his successors to pay the stipu- 
 lated duty. So long as he remains in the contract, or, to 
 adopt feudal language, so long as he remains vassal, this 
 personal liability continues ; and when he ousts himself from the 
 contract by bringing another into it, — or, again, to give the 
 principle a feudal dress, when he alienates the lands to one 
 who completes his vassalage according to the rules of feudal con- 
 veyancing, — the personal obligation of the original feuar ceases, 
 and that of his successor begins. Under the law as it stood 
 prior to 1874, the vassal remained personally liable after he had 
 sold the lands until the purchaser was duly entered with the 
 superior, because until this entry took place the relationship 
 between superior and vassal was not complete, or, in other 
 words, there was no contractual tie between the superior and 
 the new owner of the lands. Since 1874 infeftment implies 
 entry, and consequently the statute of that year provided that 
 the vassal, in order to relieve himself of personal responsibility 
 for the feu-duty, must notify the change of ownership to the 
 superior.' An original feuar may, however, continue to be 
 personally bound for the feu-duty along with his heirs, executors, 
 and representatives, even after the lands have been conveyed 
 and the successor's personal obligation has commenced where in 
 the charter or contract of feu, or in a separate collateral deed, there 
 is a provision binding the feuar and his heirs, executors, and suc- 
 cessors to pay the feu-duty jointly and severally.^ The obligation 
 
 1 Conveyancing Act, 1874, sec. 4, sub-sec. (2). 
 
 2 King's College of Aberdeen v. Lady James Say, August 11, 1854, 1 Macq. 
 526 ; Police Commissioners of Dundee v. Straton, Feb. 22, 1884, 11 R. 586. 
 
Lect. IV.] SUPERIOR AND VASSAL. 59 
 
 must be expressly made "joint and several" in order to have this 
 effect. The method available to the superior in enforcing the 
 vassal's personal obligation is, of course, a direct action against 
 him. 
 
 The superior can proceed by direct perspnal action for 
 recovery of the feu-duty against a sub-vassal who owns the 
 whole of the original feu, but he cannot sue the sub-vassal 
 in a part of the feu for the whole of the feu-duty. Where 
 an original feu has been parcelled out among a number of 
 sub-feuars, the personal liability of each sub-feuar to the over- 
 superior extends to the proportion which his sub-feu bears to 
 the whole, and not merely to what the sub-feuar has stipulated 
 in his charter to pay to his immediate superior. It may be that 
 the part of the original feu held by the sub- vassal has been f eued 
 for a merely nominal duty; but no such arrangement between 
 the vassal and sub-vassal will interfere with the over-superior's 
 remedy against the sub- vassal by means of a personal action for 
 a rateable proportion of the original feu-duty. Suppose, however, 
 the sub-vassal is taken bound in the sub-feu right to pay to his 
 immediate superior more than a rateable proportion of the 
 original feu-duty, the over-superior is entitled to recover this sub- 
 feu-duty by a personal action directed against the sub-vassal — 
 that is, of course, if his original feu-duty remains unpaid. The 
 principle of law which gives this remedy to the over-superior is 
 that there is between the over-superior and the sub-vassal a 
 privity of contract, whereby he can sue for fulfilment of an 
 inherent condition of the sub-vassal's right.' 
 
 But not only is the vassal personally bound to pay the 
 stipulated feu-duty, but the lands themselves are liable. The 
 feu-duty is a dehitum, fundi. Every part of the ground feued 
 is available to the superior to enable him to operate payment of 
 the debt, and that whether the lands are in the possession of 
 the original feuar or a successor, or in the possession of a sub- 
 feuar who may hold of the original feuar for payment of a 
 sub-feu-duty. Though the superior is to some extent limited in 
 his remedy of a personal action against sub- vassals, he is under 
 no such restriction in proceeding against the lands themselves 
 
 1 See Lord President Inglis' judgment in Marquis of Tweeddale's Trustees v 
 Sari of Haddington, Feb. 25, 1880, 7 R. 627 ; also, Sandeman v Scottish Property 
 Investment Co., June 8, 1881, 8 R. 790. 
 
60 LECTURES ON SCOTS LAW. [Lect. IV. 
 
 when these are in the possession of sub-vassals. He can, by 
 means of real diligence, take payment of the whole feu-duty 
 out of a part of the original feu held by a sub-vassal. In 
 operating his remedy the superior is entitled to disregard the 
 sub-feuar's rights, even though the latter has duly paid the sub- 
 feu-duty to the person who feued to him.^ Several processes are 
 open to the superior in enforcing his remedy against the lands. 
 He may execute a poinding of the ground, for the purpose of 
 attaching the moveables. Poinding of the ground, however, 
 is only available to the superior so long as his superiority 
 remains in his person undivested. If he should alienate the 
 superiority, leaving feu-duties in arrear, he cannot, after he is 
 so divested of his real right, pursue a poinding of the ground, 
 though, of course, his remedy of a personal action is still 
 open to him after his divestiture.^ If the lands are sold by 
 the creditors of the vassal or sub-vassal, the superior has the 
 right to demand payment of the arrears of feu-duty out of 
 the price preferably to the claims of any of the creditors, real 
 or personal. He may lead an adjudication of the lands, and 
 thus obtain a title capable of becoming one of ownership ; 
 and it must be remembered that all these remedies are equally 
 available though the whole of the original feu be sub-divided 
 into separate feus, each being liable in its own sub-feu-duty.' 
 
 But the most effective compulsitor available to the superior 
 is the irritancy ob non solutwrn canonem whereby, when the 
 feu-duty runs two years in arrear, he can take steps to annul 
 the feu-right altogether, and remove the vassal from the lands. 
 The Act, 1597, cap. 250, already noticed,* provided that feus 
 should be annulled if the feu-duty ran into arrear for two years, 
 in the same way as if clauses irritant were inserted in the 
 charter. This powerful remedy is thus open to the superior 
 whether the charter expressly provides for it or not : the 
 irritancy may be either legal or conventional. When the con- 
 
 1 See Lord Watson's judgment in Sandeman v Scottish Property Investment 
 Co., June 29, 1885, 12 R. H.L. 70; also, dictum of Lord President Inglis in 
 Sandeman v Scottish Property Investment Co. (supra). 
 
 2 Scottish Heritages Co. v North British Property Investment Co., Jan. 23, 
 1885, 12 R. 550. Lord Shand dissented. 
 
 3 See Lord Watson's judgment in Sandeman v Scottish Property Investment 
 Co. (supra), 
 
 * Supra, p. 56. 
 
Lect. IV.] SUPERIOR AND VASSAL. 61 
 
 ventional is in substantially the same terms as the legal irritancy 
 they are indistinguishable in their effects on the right of the 
 defaulting vassal. The legal irritancy may, however, be ousted 
 from the feu-right by a conventional irritancy either more or 
 less favourable to the superior than that provided by the statute ; 
 or the statutory irritancy may be renounced by the superior 
 without any provision for a conventional one ; and if these 
 special stipulations enter the record they will bind singular 
 successors in the superiority.^ The superior enforces the irri- 
 tancy by an action of declarater in the Court of Session (or 
 in the Sheriff Court if the subjects do not exceed £50 of annual, 
 or £1,000 of capital, value),^ which concludes for declarator 
 that the irritancy has been incurred, and for warrant to remove 
 the vassal.^ The decree is made final by being recorded in the 
 Register of Sasines.* On the decree becoming final the lands 
 revert to the superior, and the vassal loses all right to them, 
 and is not entitled to demand compensation, however much 
 the subjects may exceed in value the arrears of the feu-duty.^ 
 The vassal, however, has an opportunity before the decree is 
 final of preventing this result by paying the arrears, or "purging 
 " the irritancy " as it is called, and this privilege is available 
 whether the irritancy is legal or conventional. When the 
 superior has thus annulled the feu-right he cannot claim the 
 arrears from the vassal." A vassal cannot avoid the irritancy 
 by pleading a right to retain the feu-duties on account of a 
 dispute between him and the superior as to the erection of 
 buildings in terms of the charter.'' 
 
 Supposing the vassal who has granted sub-feus allows his 
 own feu-duty to fall into arrear, the superior is entitled to irritate 
 so as to extinguish not merely the interest of the defaulting 
 
 1 Maevicar v Gochrane, Feb. 10, 1749, M. 4180 ; Barholm ^ Valrymple, Nov. 
 27, 1750, M. 7187 ; Lord Watson's dictum in Sandeman v Scottish Property 
 Investment Go. (supra). 
 
 2 40 & 41 Vict. .;. 50, sec. 8. 
 
 3 3 Jurid. Styles (3rd ed.), pp. 62-3 ; Lees' Sh. Ct. Styles, p. 163. 
 
 4 Conveyancing Amendment Act, 1887 (50 & 51 Vict. c. 69), sec. 4. Prior to 
 the passing of this statute the decree became final on being extracted. 
 
 6 Cassels v Lamb, March 6, 1885, 12 R. 722. 
 
 6 Maevicar v Cochrane (supra); Magistrates of Edinhuvgh v Horsbwgh, May 
 16, 1834, 12 S. 593 ; Caledonian Railway Co. v Watt, July 9, 1875, 2 R. 917. 
 
 7 Thorn V Chalmers, June 25, 1886, 13 R. 1026. 
 
62 LECTUEES ON SCOTS LAW. [Lect. IV. 
 
 vassal, but also the rights o£ the sub-vassals who may have regu- 
 larly paid the sub-feu-duty and performed all the prestations in 
 their own charters. Any sub-feuar, however, has the right to pay 
 the arrears of the principal feu-duty, and he can thus not only 
 protect his right, but operate relief against all the other parties 
 concerned in the feu. He is entitled to sue any of the other sub- 
 vassals for rateable proportions, and also "the mid-superior for the 
 whole, of the arrears so paid by him. He is also entitled to obtain 
 from the over-superior an assignation of the debt — that is, of the 
 personal debt ; but it is doubtful if he can demand an assignation 
 of the superior's remedies, or can use these remedies without 
 assignation. It has been decided' that a heritable creditor 
 purging the irritancy is entitled to an assignation of the personal 
 debt from the superior, but not of the. superior's right of pro- 
 ceeding against the lands; and the same principle was applied 
 where the original vassal had disponed a part of the lands, and 
 put forward a third party to tender the feu-duty and claim an 
 assignation from the superior of his remedies against the dis- 
 ponees.'' There has been no decision exactly determining 
 whether a sub-vassal is entitled to an assignation of anything 
 more than the personal debt on purging the irritancy by paying 
 up the arrears.^ 
 
 A great judicial controversy occurred a few years ago in con- 
 nection with this subject, and the effect of the irritancy on 
 subaltern rights was conclusively settled as above stated. The 
 point raised was whether, in the event of a vassal, to whom sub- 
 
 1 Hinshdwood's Trustees v, Watson, reported at 8 R. 108. Lord Rutherfurd 
 Clark's judgment In the Outer House was acquiesced in. 
 
 2 Guthrie & M'Connachy v. Smith, Nov. 19, 1880, 8 R. 107. Lord Shand 
 dissented. 
 
 3 Three of the judges in Gassels v. Lamb (supra) gave expression to dicta 
 apparently affirming such a right. Lord Rutherfurd Clark said — "The defenders 
 " may purge the irritancy by paying the feu-duty which is in arrear, and they 
 " will have all the rights competent to the superior for recovering it from those by 
 " whom it is legally due." Lord Kinuear — " The true conclusion, in my opinion, 
 " is that the sub- vassal's remedy is to purge the irritancy and to sue the mid- 
 " superior for relief upon an assignation, if necessary, of the superior's claims." 
 " It appears to me," said Lord Shand, " for the reasons stated by me in the case 
 " of Guthrie <Ss M'Connachy v. Smith, that the defender on paying the whole feu- 
 " duty should be entitled to an assignation of the superior's rights of recovery 
 " against the owners of the remainder of the property not belonging to them, 
 " qualified as was proposed in that case." 
 
Lect. IV.] SUPERIOR AND VASSAL. 63 
 
 infeudation was permissible, granting sub-feus for a just avail, 
 the irritancy extinguishes not only the interest of the defaulting 
 vassal but also the rights of the sub- vassals who have regularly 
 paid the sub-feu-duty and performed all the prestations in their 
 own charters ; or whether, in these circumstances, the feu of the 
 prime vassal reverts to the superior burdened with such subaltern 
 rights. This question arose in two cases within the last six 
 years, and was decided against the interest of the sub-feuar by 
 a majority of the whole Court, and by a unanimous judgment of 
 the House of Lords. ^ It occasioned much interesting and learned 
 speculation regarding early feudal usages and the origin of the 
 feu-farm holding ; and the leading judgments on both sides of 
 what was a pretty sharp conflict of juridical opinion, are most 
 instructive on the whole question of the relationship of superior 
 and vassal. The view which affirmed the subsistence of the 
 subaltern right followed the analogy of forfeiture for treason, 
 and proceeded mainly on the ground that the course of legis- 
 lation, commencing in 1457 and ending at the Eevolution, had 
 conclusively determined that such forfeiture did not prejudice 
 the rights of sub-vassals holding in feu-farm for a just and 
 competent avail. It is exhibited in a marvellously lucid and 
 graceful form in the judgments of the Lord Justice-Clerk (Mon- 
 creift") in Sandeman v. Scottish Property Investment Co., and of 
 Lord Fraser in Gassels v. Lamb. The opposite view, and the 
 one which ultimately prevailed, proceeded on the broad grounds 
 that forfeiture for treason aftbrded no proper analogy, inasmuch 
 as, by the common law of the Scottish feudal system, holders of 
 subaltern rights followed the fortunes of the mid-superior ; that 
 
 1 Sandeman v. Scottish Property Investment Go. (supra) ; Gassels v. Lamb 
 (supra). In both cases the irritancy was conventional ; but the judgments were 
 made expressly applicable to the statutory irritancy as well. In the earlier case, 
 which was decided in the Second Division, the Lord Justioe-Clerk (Moncreiflf), 
 and Lords Young, Craighill, and Lee held that the irritancy only extinguished 
 the prime feu to the effect of restoring it to the superior burdened with the sub- 
 feu granted for a competent avail. Lord Rutherfurd Clark dissented from the 
 judgment of the majority, and his view was upheld by an unanimous decision of 
 the House of Lords. Between the judgment in the Second Division and its 
 reversal in the House of Lords the later case was decided by the whole Court in 
 favour of the view which was ultimately upheld. The majority consisted of 
 the Lord President (Inglis) and Lords Mure, Shand, Rutherfurd Clark, Adam, 
 M'Laren, and Kinnear; and the minority, of the Lord Justioe-Clerk (Moucreiff), 
 and Lords Deas, Young, Craighill, Lee, and Fraser. 
 
64 LECTURES ON SCOTS LAW. [Lbct. IV. 
 
 this principle o£ the common law had been modified by the 
 special legislation of the fifteenth and seventeenth centuries by 
 giving to sub-vassals holding in feu-farm for a competent avail 
 the shield of a statutory confirmation, they not being able to 
 purge the forfeiture incurred by the treason of their immediate 
 superiors ; that no such legislation had protected sub- vassals 
 from the irritancy ob non solutum canonem and that none was 
 needed, seeing they could protect themselves by purging the 
 irritancy and operating their relief against the defaulting vassal ; 
 that the irritancy was primarily one of the remedies reserved to 
 the superior for enforcing payment of his feu-duty ; and that the 
 other remedies, such as poinding of the ground, adjudication, and 
 the like, could be operated by the superior without in any way 
 recognising the sub -vassal's interest. This view is elaborated in 
 the judgments of Lord Kutherfurd Clark in the earlier case, of 
 the same learned judge and of Lord Kinnear in the later case, 
 and of Lord Watson in the House of Lords. ^ 
 
 In the ordinary case interest does not run on feu-duties 
 unless there be an express stipulation to that effect. It begins 
 to run when there has been a judicial demand, but it is not yet 
 definitely settled whether an extra-judicial demand founds a 
 claim for interest.^ 
 
 1 The general subject of the irritancy is discussed at greater length by the 
 writer in the Scottish Law Review for January, 1889 (vol. v., p. 1). 
 
 2 See Marquis of Tioeeddale's Trustees v. Earl of Haddington (supra J. 
 
\->.-'.-' 
 
 LECTURE V. 
 
 SUPEEIOR AND VASSAL. 
 
 (CONTINUED.) 
 
 Contents. — Casualties of superiority, (a) Relief, (h) Composition — Sketch of 
 the law prior to Conveyancing Act of 1874 — Method of evading com- 
 position by entry of last vassal's heir — "Implied entry" under Act of 
 1874, and corresponding express modifications of the law of casualties — 
 Effect of implied entry on device for evading composition — Exposition of 
 judgments in Ferrier's Trustees v. Bayley, and subsequent cases — Con- 
 veyancing Amendment Act of 1887 — Its effect on casualties — Important 
 pending questions. 
 
 The modern law respecting the incidents or casualties payable 
 by the vassal to his superior is so extensive, and has within 
 " recent years undergone so many important modifications, that 
 only an outline of the subject can here be given. We have 
 nothing to do with the old casualties of feudal superiority, except 
 in so far as they tend to throw light on the nature of those 
 modern payments which are part of the contract of feu-farm. 
 These payments are of two kinds (1) relief duty, payable by an 
 heir on his entering to his ancestor's feu, and (2) composition, 
 the fine or consideration payable by a singular successor on 
 his being admitted by the superior. The casualty of relief has 
 come down from the feudal system, and composition was bor- 
 rowed from the Koman contract of emphyteusis. The Roman 
 tenure had no payment similar to our relief duty, nor had the 
 feudal system any casualty equivalent to our composition. 
 Indeed, it has only been in comparatively modern times that 
 this latter payment was classed as a casualty at all, though now 
 there is statutory warrant for the name, as it is so called in the 
 Conveyancing Act of 1874.* 
 
 1 37 and 38 Vict. c. 94. Section 3 enacts that the expression "casualties" 
 includes relief-duty and composition. 
 
 J- CO!''M'^' \ : ■;- 
 
 -'' '»' 
 
66 LECTURES ON SCOTS LAW. [Lbct. V. 
 
 This statute has effected nothing short of a revolution of the 
 whole law of casualties. The changes it has wrought on old 
 doctrines, though they have already been the subject of several 
 juridical conflicts, are not yet precisely ascertained, and at the 
 present moment two cases involving important points await the 
 judgment of the whole Court. It is necessary, for a proper 
 understanding of the subject, to glance at some features of the 
 law as it stood prior to the passing of the Act just mentioned. 
 
 Relief duty was payable by an heir on his admission into the 
 family of vassals, whether there was any stipulation to that 
 effect in the charter or not. It consisted of a duplicand or 
 double of the feu-duty, unless where by special stipulation a 
 different sum was fixed. Composition was a year's rent of the 
 lands under certain deductions, unless a fixed or ascertainable 
 sum was specially stipulated for in the charter. Like relief, it 
 was due ex lege, and did not require an express provision. 
 
 When a definite or ascertainable amount is stipulated for 
 in the original charter in full of the superior's claim, it is called 
 a taxed casualty^ and of course it is permissible to the superior 
 to renounce in the charter his right to demand casualties in all 
 time coming. Questions sometimes arise as to whether the 
 casualties exigible by law have been effectually excluded by the 
 contract, but the tendency now-a-days is for the Courts to 
 construe such stipulations in favour of the vassal. A few years 
 ago it was decided that a stipulation in a feu-contract entered 
 into before the passing of the Conveyancing Act of 1874 for 
 payment of a duplication of the feu-duty every twenty -five years 
 in addition to the yearly feu-duty was to be regarded as an 
 abandonment and discharge of all casualties, although there 
 were no express words to that effect in the contract.^ The 
 ground of judgment was that, from- the terms of the contract, it 
 was clear that such had been the intention of the parties, so that 
 apparently it would come to be a question of intention in each 
 case. It may here be mentioned that such a question could not arise 
 in the case of a charter granted after the passing of the Convey- 
 
 1 The following cases may be consulted on the subject of the taxation of 
 casualties — Magistrates of Inverkeithing v. Ross, Got. 30, 1874, 2 R. 48 ; Duke of 
 Montrose v. Provan's Trv^tees, Jan. 25, 1887, 14 R. 378. 
 
 2 Magistrates of Dundee v. Duncan, Nov. 20, 1883, 11 R. 145. Lord Ruther- 
 furd Clark dissented. 
 
Lect. v.] superior and vassal. 67 
 
 ancing Act of 1874, as it was thereby provided that new charters 
 cannot competently stipulate for casualties other than those 
 of definite amount payable at fixed intervals, and that no 
 casualties are to be exigible except where expressly covenanted 
 for.^ In addition to casualties payable on the death of the 
 vassal, it was competent prior to 1874 to bargain for casualties 
 payable on each sale or transfer of the estate as well as on the 
 death of the vassal. 
 
 Prior to the Conveyancing Act of 1874 an heir succeeding 
 his ancestor in the feu, or a singular successor, did not become 
 fully vested in the feu, and did not come into full legal relation- 
 ship with the superior, until he went through the process of law 
 known as entry — a formality which involved a renewal of the 
 investiture by means of a fresh charter granted by the superior 
 to the new vassal. The casualty — whether relief or composition 
 — was payable when this " entry" took place. The superior had 
 no right of direct action against the proprietor of the feu for 
 either casualty. If the latter had not "entered," the superior's 
 remedy was to raise against him a declarator of non-entry by 
 which he could seize the lands and hold them until the "entry" 
 took place, and then the casualty became payable as part and 
 parcel of the formality. A vassal who had duly entered might 
 divest himself of the feu by convejdng it away to another, and 
 so long as the disponer lived the superior could not demand any 
 casualty from the new-comer, because he could not force an entry 
 so long as he had a vassal in life, 5uch vassal, be it remembered, 
 remaining personally liable for the feu-duty. At the same time, 
 the purchaser of the feu was entitled to demand an entry from 
 the superior on tendering the appropriate casualty ; but he had 
 no great inducement thus to anticipate his responsibilities, since, 
 by the system of conveyancing which had sprung up, he 
 acquired by infeftment a real right to the lands without entry. 
 The moment the vassal who had disponed the lands died, the 
 superior might come forward with his demand, armed as he was 
 by such a powerful compulsitor. A device was then resorted to 
 in the interests of the vassal which has had a very important 
 influence on our law. In answer to the superior's demand to 
 enter and pay the composition, consisting, it might be, of a year's 
 
 1 Sec. 23. 
 
68 LECTURES ON SCOTS LAW. [Lect. V. 
 
 rent of valuable lands, the vassal, or rather the proprietor — 
 because, strictly speaking, he was not vassal until he had actually 
 entered — was entitled to obtain the benefit of an entry in- the 
 person of the heir of the last vassal, supposing, of course, the 
 heir consented to this arrangement. The advantage to the pro- 
 prietor of this device of tendering the heir as the new vassal was 
 that only relief duty was exigible, which in general was a com- 
 paratively small sum; the higher payment of composition was 
 thus avoided, and there would be no practical difference in the 
 proprietor's title. 
 
 The object of the Conveyancing Act of 1874 was to amend 
 the law relating to land rights and conveyancing, and to 
 facilitate the transfer of land. As has been said, it effected 
 a total revolution in the law of casualties. It abolished 
 the previous formality of "entry." The writs and charters 
 which, under the old law, were granted and delivered as 
 part of this formality were to be no longer necessary ; and it 
 was declared to be incompetent for the superior to grant them.' 
 The legal effect which, under the old law, was given to the 
 entry of the vassal was declared to be implied in the infeftment 
 of the proprietor, and this was called "implied entry;" so that 
 every proprietor, the moment he became infeft, became also by 
 virtue of this implication an entered vassal.^ At this point a 
 difficulty at once arose and had to be met. If infeftment 
 implied instant entry, then what about the casualty due to the 
 superior on the occasion of the entry ? Seeing that the vassal 
 could take infeftment, and consequently enter independently 
 of any act of the superior, was the casualty to be swept away 
 altogether ? This, of course, would have been confiscating the 
 superior's property. Was it then to be made instantly payable, 
 seeing that under the old law it was exigible on entry ? This, 
 on the other hand, would have been unjust to the vassal as it 
 might have rendered him liable in a casualty while his prede- 
 cessor lived, instead of postponing the payment till his death as 
 under the previous law. Moreover, how was the superior to 
 recover his casualty, seeing, under the old law, he had no right of 
 
 1 Section 4 sub-section (1). Charters of novodamus, precepts or writs from 
 Chancery, or of clwre, constat, or writs of acknowledgment were excepted. 
 
 2 Section 4 sub-section (2). 
 
Lkct. v.] SUPEBIOR and VASSAL. 69 
 
 direct action for payment, and under the new, entry was 
 obtained by the vassal independent of him, and in such a way 
 that he could not withhold it till his casualty was settled ? 
 These difficulties were all met by special provisions in the 
 statute. It was declared^ that a superior was, notwithstanding 
 the implied entry, to have no right to a casualty sooner than he 
 would under the previous law, and there was conferred on him 
 the right of direct action, which took the form of an action of 
 declarator and for payment.^ This action he could raise against 
 the proprietor as soon as the last vassal died and the casualty 
 became exigible. 
 
 One difficulty, however, was not foreseen, and no provision 
 was made for it. There has consequently ensued a chapter of 
 litigation, which, though opened in 1877, has not yet closed. 
 The framers of the Act evidently overlooked the rule which was 
 noticed a little ago, whereby a proprietor, in answer to a demand 
 for composition on the death of the last entered vassal, was 
 entitled to put forward the latter's heir and pay the smaller 
 casualty of relief duty ; or, at least, if this rule was not over- 
 looked, it was not apparently foreseen how it would be affected 
 by the new provisions as to the implied entry of proprietors by 
 the act of infeftment. The statute had barely been three years 
 in operation when there arose a very important point, which has 
 turned out to be the forerunner of a somewhat extraordinary 
 series of difficult and complicated questions, disclosing great 
 divergence of opinion on the bench. Like all the great judicial 
 controversies on the law respecting superior and vassal, the 
 rival camps might be divided into feudalists and non-feudalists, 
 the former class adhering more strictly than the latter to feudal 
 principle. As will be seen afterwards, this chapter of litigation 
 does not appear to be approaching its close ; and unless the 
 Legislature intervenes by some definite settlement of the law, 
 the subject of the casualties of superiority is destined to furnish 
 materials for law-suits for many a year. The question which 
 arose in 1877 was whether a proprietor who had taken infeft- 
 ment, and was thus impliedly entered with the superior, could, 
 in answer to the demand by the latter for the casualty of 
 composition, put forward the heir of the last vassal and be 
 
 1 Section 4 sub-section (3). 2 Section 4 sub-section (4). 
 
70 LECTURES ON SCOTS LAW. [Lbct. V. 
 
 discharged of the claim on payment of relief duty.' In examining 
 this question, we must bear in mind the reason why it was that a 
 proprietor could, under the old law, evade a composition by tender- 
 ing the last vassal's heir. The proprietor who could so evade the 
 composition when the demand was made against him was not the 
 vassal at all. Probably, in nine instances out of ten, when lands 
 were sold, the purchaser got a disposition with two different 
 manners of holding, or, more strictly, with an alternative 
 manner of holding which might either be expressed in the 
 disposition or implied by statute.^ This alternative holding 
 enabled the disponee either to hold of the disponer as his 
 superior or of the disponer's superior. This double holding was 
 expressed by the phrase a tne de superiore imeo vel de one, or 
 more shortly, a me vel de Tne. If the purchaser having such a 
 holding wished to complete his relationship with the over- 
 superior he had to pay his casualty, and this had the effect of 
 sweeping the disponer out of the feudal circle altogether, and 
 then at the death of the latter no claimed emerged. On the 
 other hand, if he wished to hold under the disponer, then his 
 infeftment gave him a real right to the lands without coming 
 in contact with the over-superior at all. The latter's vassal 
 continued to be the disponer, and then on his death the superior 
 became entitled to demand another casualty. The disponer's 
 heir succeeded him in the feudal relationship, and was entitled, 
 if he chose, to complete his vassalage by paying relief duty. He 
 thus occupied an intermediate position between the superior and 
 the proprietor of the lands, and the estate which passed from his 
 ancestor to him was what was called a mid-superiority. The 
 interjection of this middleman had been originally devised for 
 the very purpose of getting rid of the superior's claims. If the 
 proprietor of the lands wanted to oust the mid-superior from the 
 feudal family altogether, he could do so by entering with the 
 over-superior, and, as will be remembered, it was always open for 
 him to do so by paying the composition. If, however, he wished 
 to avoid this payment — and, as has been said, there was, in the 
 vast majority of cases, no practical advantage to be gained by 
 making the payment — all he had to do was to arrange with the 
 
 1 Ferrier's Triisiees v. BayUy, May 26, 1877, 4 R. 738. 
 
 2 Titles to Land Consolidation Act, 1868, section 6. 
 
Lbct. v.] superior and VASSAL. 71 
 
 heir of the last vassal to allow himself to be tendered to the 
 superior as the new vassal, and to pay the relief duty. The 
 importance of the question raised after the passing of the Act 
 of 1874 is thus seen. Was this arrangement possible in the case 
 of a proprietor with a double manner of holding, whose infeft- 
 ment had under the statute operated as an entry, seeing that 
 the effect of this entry was to complete the purchaser's vassalage 
 and extinguish altogether the mid-superiority remaining in the 
 disponer? The point was very elaborately argued, and it was 
 decided by a majority of the Second Division ^ that the statute 
 by its fiction of implied entry had absolutely prevented the 
 possibility of any such arrangement being effected, and the 
 superior was accordingly held entitled to composition. It so 
 happened that in this case the proprietor infeft on an alternative 
 holding was himself the heir of the last vassal holding the 
 mid-superiority. 
 
 A few months afterwards precisely the same question arose, 
 though the accidental element of the proprietor being the last 
 vassal's heir was awanting.^ The same view was taken by the 
 First Division' as had been taken by the Second in the previous 
 case ; and ic was further held that the implied entry being 
 declared by the statute to have a retrospective effect, the 
 purchaser was in no better a position by having taken infeft- 
 ment prior to the commencement of the Act. The right which 
 he previously had of putting forward the heir ceased absolutely 
 the moment the Act came into operation. In this respect 
 undoubtedly the rule was peculiarly harsh in its application. 
 The moment the Act came in force every proprietor who was 
 then infeft was impliedly entered as on the date of the registra- 
 tion of his infeftment, and if there was no vassal then in life 
 who had paid a casualty, or on the death of such vassal, such 
 proprietor, if he was a singular successor, at once became liable 
 in. a composition. It will be observed that he had no option in 
 the matter. At the time he took infeftment no such result 
 flowed from so ordinary and necessary an act; and he could 
 not be expected to contemplate that subsequent legislation would 
 interfere with his rights and liabilities to such an extent and 
 
 1 Lord Gifford dissented. 
 
 2 Eossmore's Trustees v. Brownlie, Nov. 2.3, 1877, 5 R. 201. 
 Lord Deas dissented. 
 
72 LECTURES ON SCOTS LAW. [Lect. V. 
 
 without any overt act on his part. There was, of course, a 
 period between the passing of the Act and the date of its coming 
 into operation — a period of a few months — during which every 
 infeft proprietor could have taken steps to get the heir of the 
 last vassal entered and the casualty of relief paid, and thus the 
 liability for a composition would have been postponed till the 
 heir's death. It may thus be said there was a short space given 
 to proprietors to set their houses in order ; but the eifect of the 
 new enactment being so entirely unforeseen, it may well be pre- 
 sumed that no advantage was taken of this period of grace. 
 
 The next development of this unlooked-for doctrine had re- 
 lation to the liability of testamentary trustees for composition,' 
 and it was held by the Second Division^ and by the House of Lords, 
 that where trustees are infeft and thus entered by the statutory 
 implication, they are liable in composition and have no option 
 of tendering the heir, — at all events, where they represent other 
 interests besides those of the heir, and are invested with a dis- 
 cretionary power of sale. The three cases referred to represented 
 three phases of this important and far-reaching principle, and 
 as has been seen, the judgment was not arrived at without power- 
 ful and influential dissent. Lords Gifford, Deas, and Young 
 successively dissented from the opinions of the majority; and an 
 idea of the subtleties with which the question was surrounded 
 may be gathered from the views expressed by those eminent 
 judges, and supported by them with the aid of many luminous 
 arguments and illustrations. These may be summarised as 
 follows : — The Legislature, in devising a fictitious entry of vassals 
 to be implied by the fact of infeftment, meant to do no more 
 than render unnecessary a legal instrument which served no good 
 purpose whatever. The principle on which previous reforms in 
 feudal conveyancing had proceeded was that, by force of statute, 
 the act, ceremony, or instrument judged to be no longer of 
 necessity was held as performed or executed by something else 
 which was still considered to be necessary ; and so the ceremony 
 of entering the vassal, and the superior's writ certiorating the fact, 
 were to be regarded, by virtue of the statute, as accompanying 
 infeftment. But the statute, it was held, did no more than this. 
 
 1 Lamont v. BanMm's Trustees, Feb. 28, 1879, 6 E,. 739, a£F. Feb 27 1880 
 7 K H.L. 10. 
 
 2 Lord Young dissented. 
 
Lect. v.] superior and VASSAL. 73 
 
 It gave the superior no right which he did not possess previously, 
 and took away from the vassal no privilege which he had before 
 enjoyed. Accordingly, the superior was not to be entitled to 
 plead the implied entry as giving him right to a composition in 
 circumstances which, before the Act passed, would only have 
 brought him relief duty ; and conversely, the vassal was not, in 
 consequence of this constructive entry, to lose his immunity from 
 composition if the heir of the last vassal was ready to step into 
 his ancestor's position in the feudal economy. The argument 
 that, by the very nature of the case, there was no such position 
 for the heir to fill, because the implied entry of the disponee had 
 utterly extinguished it, was met in this way, that while the 
 implied entry served the only purpose for which it had been 
 devised by obviating the necessity for the actual instrument and 
 fact of entering, the moment the substantial and pecuniary rights 
 of the parties came to be considered, the statutory entry was to 
 be regarded as fictitious, and as in no way altering these rights, — 
 that quoad the determination of casualties, their exigibility, their 
 nature, or the time of their payment, the implied or fictitious 
 entry was to be deemed no entry at all. The weak point in this 
 argument is that nowhere does the statute say expressly that the 
 implied entry is to remain in abeyance in determining the rights 
 of superior and vassal in the matter of casualties, except in regard 
 to the time of payment. The superior, it is declared,^ is not to 
 be entitled to a casualty in consequence of the implied entry 
 sooner than he would have been by the previous law, or by the 
 conditions of the feu-right — that is to say, notwithstanding the 
 statutory entry of the new vassal, the superior is to wait till the 
 death of the vassal who has last paid a casualty before he can 
 demand another from his successor. This was in effect the 
 ground upon which the House of Lords adopted the view of the 
 majority on the general question^; and it was pointed out by 
 Lord Blackburn that this ratio decidendi was not inconsistent 
 with the enactment in the statute that the implied entry was not 
 to " prejudice or affect " the superior's rights to his casualties,^ — 
 a provision which Lord Giffbrd* held adverse to the enlargement 
 in any way, or under any circumstances, of the superior's rghts. 
 
 1 Section 4 sub-section (3). ^ Jjamont v. Ranhine's Trustees (supra.) 
 3 Section 4 sub-section (3). * Ferrier's Trustees v. Bc{,yley (supra.) 
 
74 LECTURES ON SCOTS LAW. [Lect. V. 
 
 It must be kept in view that it is only where the singular 
 successor takes infeftment that the results arrived at in these 
 three cases are possible, because it is only after infeftment has 
 passed that there is any imphed entry, and until entry has been 
 impUed by virtue of the statute, the mid-superiority in the 
 person of the heir subsists, and can be made available with the 
 view of evading the composition. S(y long as the singular 
 successor remains uninfeft the heir of the last vassal can be 
 tendered to the superior along with relief duty in answer to his 
 demand, just as if the changes operated by the statute had not 
 taken place.^ Extreme care, however, requires to be exercised in 
 resorting to this device, as it introduces in not a few cases 
 awkward complications in titles.^ 
 
 It will be noticed that, as far as our examination has proceeded, 
 the result arrived at by the Court had been to enlarge the 
 superior's rights in giving him a composition in circumstances 
 which, prior to the Act of 1874, would have only brought him a 
 casualty of relief. In 1886 a contrary tendency set in, and has 
 been operating ever since, so that it cannot fail to be observed 
 that the principle affirmed in the earlier cases is being to some 
 extent modified, though none of these cases have been overruled. 
 In 1886 the First Division held that, where the heir took infeft- 
 ment on a singular title derived from his ancestor, he was not 
 thereby liable in composition, but only in relief.^ It was laid 
 down that the form of the title is immaterial in determining the 
 casualty due on the entry of an heir ; that regard must be had 
 to the character of the successor rather than to that of the title ; 
 and that his actual character as heir determines his casualty as 
 that of relief. The implied entry introduced by the Act of 1874 
 is declared* to have the same effect as if the superior "had 
 " granted a writ of confirmation according to the existing law 
 " and practice"; and under the old law it was well settled^ that 
 
 1 Duke, of Hamilton v. Guild, July 6, 1883, 10 R. 1117 ; Sope v. Buhe of 
 Hamilton, July 6, 1883, 10 R. 1122. 
 
 2 See Sivewright v. Straiten Ustate Co., June 12, 1878, 5 R. 922. 
 
 3 Mackintosh v. Mackintosh, March 5, 1886, 13 R. 692. 
 
 4 Section 4 sub-section (2). 
 
 6 See M'Kenzie, v. M'Kenzie, 1777, M. App., Sup. and Vas., No. 2 ; Brown v. 
 Magistrates of Musselburgh, 1804, M. 15038 ; Marquis of Hastings v. Os^oald, 
 May 27, 1859, 21 D. 871 ; and Lord President Inglis' comments on these authori- 
 ties in Mackintosh v. Mackintosh (supra.) 
 
Lect. v.] superior and VASSAL. 75 
 
 an heir who held by singular title could demand from the 
 superior in return for relief duty a charter of resignation on 
 which he could take infeftment, or he could take infeftment on 
 the precept in his title and demand from the superior a charter 
 or writ of confirmation. The heir who was infeft on a singular 
 title was under no necessity of creating in his own person a 
 duality of title by presenting himself to the superior in his 
 character as heir and obtaining a precept of dare constat. In 
 Mackintosh v. Mackintosh these principles were recognised to be as 
 applicable to an heir entered by virtue of the statutory implica- 
 tion as if he had been entered or had been claiming an entry by 
 confirmation under the old law. In either case his character as 
 heir was the determining element in fixing the nature of his 
 casualty.^ 
 
 It has been held by Lord Kinnear in the Outer House ^ that 
 trustees infeft on an inter vivos trust disposition for behoof of 
 creditors, and containing a power of sale and an obligation to 
 reconvey to the trustee after the debts were satisfied, are not 
 liable in a casualty to the superior. The truster was himself the 
 heir of the last vassal, and was liable in relief duty, but the 
 superior made no demand until after the trustees had taken 
 infeftment on their conveyance, and then he claimed a composi- 
 tion. The ground upon which they were relieved was that 
 infeftment under a conveyance which bears on its face to be a 
 conveyance in trust for payment of creditors, even though it 
 gives power of sale to the trustees, does not divest the granter of 
 his feudal title, but merely operates as an encumbrance upon his 
 right.^ It must be kept in view, however, that it is only when 
 the conveyance expressly bears to be for payment of debt that 
 this principle applies. If the disposition were ex facie absolute, 
 qualified by a back bond, the superior would be entitled to dis- 
 regard the arrangement, and claim composition from the trustees, 
 
 1 The subject of the Conveyancing Act of 1874 in its relation to casualties, so 
 far as the law had been developed at the time of the decision in Mackintosh v. 
 Mackintosh, was discussed by the writer in two articles which appeared in the 
 Scottish Law Review for March and April, 1887, vol. iii., pp. 69, 89. 
 
 2 Marquis of Rtintly v. Earl of Fife, 14 R. 1091. The decision was given on 
 5th December, 1885, though it is reported under date July 20, 1887. 
 
 3 Campbell v. Edderline's Creditors, Jan. 14, 1801, M. App. Adjudn. No. 11; 
 Oilmour v. Gilmpur, July 3, 1873, 11 Macph. 856; and other cases cited by Lord 
 Kinnear in Lord Home v. Lyell (infra). 
 
76 LECTURES ON SCOTS LAW. [Lect. V. 
 
 because " the investiture of a disponee upon an absolute title 
 '' would have left no room for the supposition of a continuing fee 
 " in the disponer." ' The same Lord Ordinary, in a subsequent 
 case,^ relieved from liability in a composition a trustee holding 
 for creditors under a mortis causa disposition which directed 
 him, after payment of debts, to convey to certain testamentary 
 trustees under another deed, and the judgment was affirmed by 
 the First Division. In such conveyances for payment of debts 
 the infeftment of the trustees is a mere encumbrance on the title 
 until the power of sale has been exercised and a disponee's infeft- 
 ment has operated a divestiture of the truster. Then, but not 
 till then, is there any change of the investiture so as to give rise 
 to the superior's right to a composition. In the last cited case^ 
 a like doctrine was affirmed where the trust was for a special 
 and temporary purpose of such a nature as not to divest the 
 granter of his radical right, which, after his death, passed into 
 his hereditas jacens, and could be taken up by his heir, not- 
 withstanding the infeftment of the trustees. 
 
 In another case decided in the same year* there occurred a 
 development of the doctrine laid down in Mackintosh v Mackin- 
 tosh, which, as was seen, relieved from composition the heir infeft 
 on a singular title derived from his ancestor, the last vassal. 
 Instead of holding by direct disposition from the last vassal, the 
 heir in The Duke of Athole v. Stewart, acquired the estate by con- 
 veyance from the last vassal's testamentary trustees in implement 
 of a direction to that effect, and was infeft thereon at the passing 
 of the Act of 1874. The principle of Mackintosh v Mackintosh 
 was applied, and the superior held entitled to relief duty only, 
 on the ground that, as the trustees had conveyed to the heir in 
 execution of the trust, the latter was in the same position, so far 
 as the superior's claims were concerned, as if the ancestor had 
 conveyed to him directly; and it was indicated that the same 
 result would have been reached supposing the trustees had 
 themselves been infeft when the Act of 1874 came into opera- 
 
 ' Lord Kinnear in Marquis of Hwnily v. Eoa-I of Fife, {mpra.) 
 
 2 Lord Home. v. LyeU, Deo. 20, 1887, 15 R. 193. 
 
 3 Lord, Home, v. Lyell (mpra. ) 
 
 4 Duke, of Athole, v. Stewart, Dec. 20, 1887. This case was decided by the 
 Lord Ordinary (Kinnear), and a reclaiming note was presented to the First Division 
 on Jan. 10, 1888, but there does not seem to have been any judgment. 
 
Lect. v.] superior and VASSAL. 77 
 
 tion, and had in consequence become impliedly entered with the 
 superior.* 
 
 During 1887 the attention of the Legislature was very 
 specially directed to the state o£ the law of casualties as disclosed 
 by these decisions, and to the diflBculties which had arisen from 
 a statute passed for the very purpose of simplifying the titles to 
 land, and smoothing the relationship between superior and 
 vassal. The result of the agitation was that an Act was passed 
 in that session making an effort towards the amendment of the 
 law.^ By this statute^ it is provided that where, by a mortis 
 causa settlement, lands are conveyed to trustees for behoof of 
 the heir of the testator, or with directions to convey the same 
 to the heir whether forthwith or after the expiration of any 
 period of time not exceeding twenty-five years, or by virtue 
 of which the heir has the ultimate beneficial interest in the 
 lands, the trustees shall not, upon their entering, or by reason 
 of their having entered prior to the Act, be liable for any other 
 or different casualty than would have been payable by the heir 
 himself if he had taken the lands by succession without a con- 
 veyance to trustees. No other clause in this statute deals with 
 the subject of casualties, and it will be observed that it touches 
 only one — and by no means the most important — phase of the 
 doctrines established by the decisions.* It relieves from com- 
 
 1 Reference may be made to the case of The Oovemors of fferiot's Hospital v. 
 Camegys, Oct. 31, 1884, 12 R. 30, where a nice question was raised as to whether 
 composition or relief was exigible, but where, owing to the form in which it was 
 stated, the decision is not of much value as elucidating the law. 
 
 2 The Conveyancing (Scotland) Acts (1874 and 1879) Amendment Act, 1887 
 (50 and 51 Vic. c. 69). 
 
 3 Section 1. 
 
 4 When the Bill passed the House of Commons it contained a clause giving an 
 infeft disponee right to put forward the heir of the last vassal in answer to the 
 demand for a casualty ; but at the instigation of the Duke of Argyll, this clause 
 was thrown out by the House of Lords, and the Bill became law without it. In 
 eliminating this part of the measure, his Grace propounded a theory tha,t the right 
 of the proprietor to discharge' his obligations by paying the smaller casualty in 
 name of the heir was taken from him when the Act of 1874 passed in consideration 
 of the right which he got by that Act to redeem his casualty on moderate terms. 
 In disposing of this theory it need only be said that no such compromise was 
 within the contemplation of the Legislature ; and it was only when the case of 
 Ferrier's Trustees y Bayley raised the question that the effect of the implied entry 
 introduced by the statute was recognised. 
 
78 LECTURES ON SCOTS LAW. [Lbct. V. 
 
 position trustees who are infeft for behoof of the heir of 
 the investiture alone; but it is by no means clear that such 
 trustees would prior to the Act have been held liable in com- 
 position. In deciding Lamont v RanJdne's Trustees, Lord Currie- 
 hill reserved his opinion "as to the liability of trustees for 
 "more than relief duty where they hold the estate without 
 "power of sale, and solely for behoof of the heir of the 
 " investiture^ " ; and down to the passing of the'recent Act no 
 decision had been given making trustees in such circumstances 
 liable for a composition. The judgment in Mackintosh v. 
 Mackintosh, in which an heir infeft on a singular title was held 
 liable only in relief duty,^ was rather adverse to the hability of 
 trustees holding only for the heir, especially when considered 
 along with Lord Kinnear's decision ia The Duke of Athole v. 
 Stewart, which relieved the heir who had . acquired the lands, 
 not by direct disposition from his ancestor as in Mackintosh v. 
 Mackintosh, but through the medium of trustees who had taken 
 infeftment and became impliedly entered. The case of Tlie Duke 
 
 1 6 R. 742. 
 
 2 The principle laid down in Mackintosh v Macldntosh was that the character of 
 the successor, and not the form of his title, is the true test of the casualty, and in 
 this view, the fact of the heir holding through the medium of trustees, ought to 
 be disregarded in determining whether composition or relief duty is to be paid for 
 the entry. There is little difference in principle between the case of trustees- 
 holding exclusively for the heir, and that of the heir holding for himselJE by 
 singular title. The substantial and beneficial ownership is the same iu both 
 cases. When the heir takes infeftment as a disponee, and obtains an entry in the 
 guise of a singular successor, the superior, in accepting relief duty, as he is bound 
 to do, recognises the title as being only in form a singular one, and the heir him- 
 self as assuming only the attitude of a singular successor. The vassal's true 
 character as heir, with his substantial title of heirship, remains in abeyance, 
 though in reality determining what casualty is exigible. In like manner, why 
 should not the title of trustees, who hold for the heir alone, be discarded as a 
 casualty test ? The ancestor, instead of conveying the estate to the heir in his 
 own person, conveys it to trustees for his behoof. But this diflference in the form 
 of the singular title does not alter the heir's character. His relationship to his 
 ancestor is not affected either by the latter having chosen to transmit the lands 
 by deed instead of allowing them to pass by succession on the one hand, or on the 
 other by the precise method of transmission adopted, always assuming that no 
 interest adverse to that of the heir is introduced. K it is permissible to look be- 
 hind the singular title, and take cognisance of the real relationship subsisting 
 between the heir and his ancestor (though that relationship does not enter as an 
 element into the actual title), why should it not be equally competent to go 
 through a like process where the heir does not hold the singular title in his own 
 person, but through others who represent no interest but his ? 
 
Lect. v.] superior and VASSAL. 79 
 
 of Aihole v. Stewa/rt was raised before the passing of the Act of 
 1887, and was not decided till after it became law. During its 
 progress the heir who was sought to be made liable in a com- 
 position added a plea based on the statute, but Lord Kinnear 
 decided in his favour in respect of the pre-existing law; and 
 while he found it unnecessary to determine whether the superior 
 could have demanded composition from the trustees before they 
 denuded (which would have been the very point dealt with by 
 the statute), he indicated an opinion in favour of their non- 
 liability in a higher casualty than relief. A trust created for 
 the purpose of holding the estate for temporary uses, and then 
 conveying it to the heir of the investiture, does not differ 
 essentially from those special and temporary trusts which, in the 
 cases of Marquis of Huntly y' Earl of Fife, and Lord Home v. 
 Lyell, were held to be mere encumbrances on the fee, and to 
 operate no change in the investiture such as to validate the 
 superior's claim. It is thus doubtful if the statute has effected 
 any change on the old law — a result which was foreseen and 
 predicted before it passed. Still, abortive though it be, it has 
 apparently put an end to the agitation for an amendment of the 
 law of casualties ; so easily is the amateur law-reformer tickled 
 with a legislative straw ! 
 
 Two cases involving highly important points as to the effect of 
 the Act of 1874 on casualties, and constituting a further develop- 
 ment of certain of the doctrines established by the previous 
 decisions are at present pending in the Court. They are both 
 Second Division cases, and in respect of the importance of the 
 questions raised, minutes of debate have been ordered for the 
 opinion of the judges of the whole Court. More than usually 
 instructive judgments may therefore be expected. 
 
 Both cases are at the instance of the same superior, and in 
 the first one to be here noticed^ he sues the vassal for payment 
 of composition in respect of several parcels of land which the 
 latter acquired by disposition from his father's testamentary 
 trustees. The last entered vassal died in 1865, and by a mortis 
 causa deed he disponed the lands to trustees, with directions to 
 convey them to his children on the youngest attaining majority. 
 
 2 Hwrington Stuart v. Jackson, decided by Lord Kinnear, Dec. 20, 1887. 
 
80 LECTURES ON SCOTS LAW. [Lect. V. 
 
 The trustees were infeft in the lands prior to 1874, and on the 
 passing of the statute became impliedly entered. No demand 
 was made by the superior for any casualty, and in 1883 they 
 conveyed the lands to the present vassal, who was the truster's 
 only child ; and after he had taken infeftment on the disposition, 
 the superior claimed a composition. One of the questions raised 
 is the same as that decided by Lord Kinnear, in The Duke of 
 Athole V. Stewart, namely, as to the liability in a composition 
 of an heir infeft on a disposition granted by the ancestor's 
 trustees, who themselves were infeft on a irnortis causa settlement 
 containing directions to convey to the heir. In Ha/rington 
 Stuart V. Jackson, Lord Kinnear, in relieving the vassal from 
 liability in a composition, has held that this was really the same 
 question which was decided in Mackintosh v. Mackintosh, and 
 that the intervention of a trust, practically for the heir's behoof, 
 made no difference. "I do not think it necessary," he says in 
 " the note to the Interlocutor, to determine whether the trustees 
 " were entered by the Act of 1874, or whether they could have 
 " been required to pay composition in consequence of their entry. 
 " In the event which has happened, the trust was for the benefit 
 " of the defender alone, and it was finally executed by a convey- 
 " ance of the estate to him. There is ground, therefore, for 
 " holding that the trust was nothing more than a burden on his 
 " radical right ; and, therefore, that the infeftment of the trustees 
 " would not have excluded the entry of the heir in that character. 
 " But whatever might have been their liability, if a claim for a 
 " casualty had been enforced against them, they have now been 
 " divested without any such claim having been made ; and the 
 " claim against the defender must therefore be determined on the 
 " assumption that there has been no intermediate entry between 
 " his father's death and his own infeftment. ... It follows 
 " that the amount exigible from the defender must be determined 
 " by the character in which he succeeds, or is entitled to succeed, 
 " to the late vassal. The suggestion that it should be determined 
 "by his relation to an intermediate proprietor who paid no 
 ■' casualty for his entry, and whose entry accordingly cannot be 
 "pleaded against the superior, appears to me to be altogether 
 " inconsistent with the statute. ... If the defender's liability 
 " depends upon his relation to the last vassal, I do not think it 
 " doubtful that he is liable only for relief. By the form of the 
 
Lect. v.] superior and VASSAL. 81 
 
 " title he is a singular successor, but he is in fact the heir of the 
 " last investiture. He is in no worse position, by reason of his 
 " having entered upon a conveyance from his father's trustees, 
 " than if he had entered upon a mortis causa disposition by his 
 " father, directly in his own favour." 
 
 Another question involved in the case relates to the effect of 
 a life-rent infeftment in the whole lands. It is settled law, as 
 old nearly as the tenure of feu-farm itself, that where the 
 superior confirms an infeftment in life-rent it postpones his claim 
 for a casualty against the fiar during the subsistence of the life- 
 rent, and that such postponement takes place without his consent 
 or confirmation where the life-rent is one by operation of law.' 
 Thus if lands are subject to the widow's teres, the superior's 
 claim for a casualty against the fiar is postponed as regards one 
 third of the lands till the death of the widow, and the same rule 
 applies to the courtesy of the husband with regard to the whole 
 lands. In Barington Stuart v. Jackson there is a legal life- 
 rent to the extent of one third of the lands, and a conventional 
 life-rent to the extent of the whole in the same person, whose 
 infeftment implies entry under the Act of 1874, and an attempt 
 is being made on behalf of the fiar to postpone the superior's 
 claim till the expiry of this life-rent, in respect that the implied 
 entry is the same thing as the superior's confirmation under the 
 old law ; and it is argued that the provision of the statute against 
 the pleading of the implied entry in defence to an action for a 
 casualty does not apply where the implied entry of a liferenter is 
 pled for the purpose not of excluding but of postponing the 
 superior's claim. 
 
 In the other case^ the superior sues for a composition in 
 somewhat peculiar circumstances. The title to the lands had got 
 into a state of compHcation owing to successive devices for evad- 
 ing composition by entering the heir on payment of relief. The 
 beneficial ownership of the lands passed down through a series 
 of persons without infeftment, while the feudal ownership was 
 transmitted from heir to heir, each of whom made up a title for 
 the sole purpose of satisfying the superior's demand with relief 
 duty. At length one of these heirs — the last vassal who paid a 
 
 1 Stair, ii. 4, 23 ; Ersk., ii. 5, 44; Bryce, M. 9333; DufiPa Feudal Conveyancing, 
 p. 477 ; Scott V. Elliot, March 11, 1636, M. 15055 ; Baird, July 18, 1663, M. 15054. 
 
 2 Harington Stuart v. Hamilton, decided by Lord Kinnear, Deo. 20, 1887. 
 
 G 
 
82 LECTURES ON SCOTS LAW. [Lect. V. 
 
 casualty — conveyed the lands to the beneficial owner, who took 
 infeftment m 1860, and when the Act of 1874 passed, he became 
 entered by the statutory implication. It happened that this 
 beneficial owner who so acquired the feudal title was the 
 heir-at-law of the last vassal, so at this stage we have the 
 instance of an heir holding by singular title from his ances- 
 tor, as in Mackintosh v. Mackintosh, but the ancestor, the 
 last entered vassal, remained in life after the heir's infeft- 
 ment and implied entry, and did not die till 1877. Though a 
 casualty thus became exigible in that year none was demanded, 
 and the proprietor, who was impliedly entered by the Act of 
 1874, died in 1886, leaving a mortis causa settlement in favour 
 of his heir, who took infeftment thereon, and then a casualty of 
 composition was demanded from him by the superior. The 
 question to be determined by the action is whether this pro- 
 prietor, who happens to be the heir-at-law not only of his 
 immediate predecessor in the ownership of the lands, but also of ' 
 the last vassal who paid a casualty, is liable in a composition or 
 only in relief duty. Lord Kinnear has held that only relief duty 
 is exigible. The superior attempts to elude the authority of 
 Mackintosh v. Mackintosh, by an argument that an heir infeft 
 on a singular title from his ancestor can only escape payment of 
 the composition if at the time he took infeftment on the singular 
 title it was possible for him to have made up a title in the 
 alternative form of a service as heir, and that unless the heir in 
 Mackintosh v. Mackintosh had been in such a position the judg- 
 ment would have been difierent. If the ancestor who has paid 
 the last casualty survives the date of the infeftment of the heir 
 it is ex hypothesi impossible at the time of the infeftment for 
 the heir to serve to that ancestor : the character of heir has not 
 attached to him so long as the ancestor is in life, and by the time 
 the service is possible there is nothing to serve to, because the , 
 estate has, during the lifetime of the ancestor, been taken out of 
 his person by the infeftment and imphed entry of the heir. 
 This argument is met by shewing that in the two cases^ relied on 
 by the Court in deciding Mackintosh v. Mackintosh as conclusive 
 authorities, the heir was necessarily precluded from making up 
 any other title except that of a singular successor. 
 
 1 M'Kenzie v. M'Kenzie and Marquia of Hastings v. Oswald (supra.) 
 
Lect. v.] superior and VASSAL. 83 
 
 It will be observed that in one cardinal feature Harington 
 Stuart V. Hamilton, is identical with Ferrier's Trustees v. 
 Bayley,. the earliest case in this notable chapter of litigation. 
 In both cases the person against whom the demand for a com- 
 position was made was in fact the heir-at-law of the last vassal 
 who paid a casualty, though acquiring the lands by a series of 
 singular titles. In the pending case the singular title was a 
 personal one until the predecessor of the defender took infeft- 
 ment on a disposition from the last vassal who paid a casualty, 
 this infeftment merging the beneficial and feudal fees in one 
 individual. In the earlier case there was no separation of the 
 beneficial and feudal fees, and no conveyance from the last vassal 
 who paid a casualty (the ancestor), to the vassal from whom 
 one was demanded (the heir), though in fact the relationship of 
 ancestor and heir subsisted between them. It is a well settled 
 principle that the superior, in making good his claim for 
 casualties, has no concern with any personal titles his vassal 
 may hold ;^ and if Lord Kinnear's judgment in Harington 
 Stuart V. Hojmilton is aflSrmed, there will be ground for the 
 opinion that Ferrier's Trustees v. Bayley has to some extent 
 been over-ruled, and that a distinct tendency has set in adverse 
 to the leading principle there decided. 
 
 1 Duke of Hamilton v. Guild ; Hope, v. Duke of Hamilton (supra). 
 
LECTURE VI. 
 
 SUPEKIOR AND VASSAL. 
 
 (CONTINUED.) 
 
 Contents.— Other changes effected by Act of 1874 on casualties— Redemption 
 of casualties— Method of ascertaining amount of composition— How rental 
 fixed— Deductions from rental- Questions between seller and purchaser 
 as to relief from casualties— Inherent conditions of the tenure as dis- 
 tinguished from (a) real burdens, and (6) personal obligations of the 
 f euar — How they are enforced — Illustrations in recent cases — Restrictions 
 in feu-contracts— How interpreted and enforced— How superior's right 
 of enforcement defeated (a) by acquiescence (6) by want of interest- 
 Right of co-feuar to enforce conditions imposed by common superior. 
 
 In connection with the eflPect which the Conveyancing Act of 
 1874 had on casualties, another point may be briefly noticed. 
 Where different proprietors in succession have been infeft in the 
 same lands without any casualty being demanded by the 
 superior, the casualty paid by the proprietor in possession is 
 held to be in respect of his own entry, and the superior is not 
 entitled to exact any further casualty until the death of such 
 proprietor.^ Trustees were entered with the superior in 1855. 
 Three successive transmissions of the estate (but without any 
 renewal of the investiture) took place between this entry and 
 the passing of the Conveyancing Act, the third disponee being 
 impliedly entered by force of the statute. The last survivor of 
 the trustees died in 1871, thus placing the superior in a position 
 to demand a casualty. He did not do so, however, and the 
 proprietor who held the estate when the Conveyancing Act 
 passed sold it, the purchaser's disposition being recorded in 1875. 
 The estate of superiority changed hands in 1879, and the new 
 superior received a casualty of composition in 1883 from the 
 then owner, who was infeft and entered under the statute. The 
 receipt given by the superior bore that the money paid was in 
 
 1 Mounsey v. PcUmer, Deo. 6, 1884, 12 R. 236. 
 
Lect. IV.] SUPERIOR AND VASSAL. 85 
 
 respect of the casualty exigible on the death of the last entered 
 vassal in 1871, and it appears it was repaid to the proprietor by 
 his predecessor in implement of the usual obligation of relief in 
 the conveyance. Thereafter such predecessor, the first proprietor 
 of the estate who had become impliedly entered by virtue of the 
 statute, died, and the superior thereupon demanded another 
 composition from the proprietor as being the casualty payable 
 on the death of his predecessor, who was an entered vassal. It 
 was held, however, that the payment previously made to the 
 superior was the casualty due in respect of the entry of the 
 proprietor, and that as long as he lived no further casualty 
 could be exacted. The Court dealt with the point as being 
 practically one of fact, holding that the casualty already paid 
 by the vassal was in reality that which the superior was 
 demanding a second time. The result of the judgment, however, 
 is that, during the lifetime of the vassal who has paid a casualty, 
 no further casualty is exigible, however many intermediate 
 proprietors may have taken infeftment and been impliedly 
 entered under the statute. The fallacy which underlay the 
 superior's contention was in regarding the casualty as payable 
 in respect of the death of an entered vassal, instead of in respect 
 of the entry of a new vassal. As soon as infeftment of a 
 proprietor implies entry, the superior's right to a casualty 
 emerges, provided no vassal is living who has paid a casualty. 
 If there is such a vassal in life, then no right emerges till his 
 death, when the casualty becomes exigible from the proprietor 
 in the present possession of the estate. The right given to the 
 superior by the Act to sue an uninfeft successor of the vassal 
 for a casualty is not inconsistent with this principle, for such is 
 really an equivalent of the old right to force an entry and 
 the accompanying payment of the casualty by means of a 
 declarator of non-entry directed against the possessor of the 
 lands. 
 
 An important change is operated by the statute on the 
 old rules respecting the payment of composition by corpora- 
 tions, trustees, or persons having separate interests. Prior to 
 1874, when trustees took an entry in their own name, this 
 protected the lands from a further liability in a casualty till 
 the death of the last survivor of the trustees, at least, where 
 
86 LECTURES ON SCOTS LAW. [Lect. VL 
 
 their title was one which passed to survivors, and where 
 there was no express stipulation that another casualty was 
 to become due at a different period, ex. gr., on the death of 
 a particular trustee or of the beneficiary. The superior was 
 not bound to enter a corporation unless there was a special 
 stipulation to this effect.* Since a corporation never dies, the 
 superior by entering it would have absolutely excluded his 
 right to demand casualties for the future. The Conveyancing 
 Act of 1874 makes provision for trustees and corporations 
 paying composition at stated intervals.^ In the absence of 
 express stipulation, corporations and trustees, after paying the 
 usual composition at the date at which they would have paid 
 under the old law, repeat the payment every twenty-fifth year 
 thereafter ; and should they cease to hold the lands after so 
 paying composition, the successor (not being a corporation or 
 a body of trustees) infeft at the end of the twenty-five years 
 will be liable in a further casualty, and then the liability for 
 casualties will be the same as if the lands had never been held 
 by a corporation or by trustees. Where the feu right stipulates 
 for a casualty on each transmission of the lands, as well as on 
 the death of the vassal, the period for payment of the casualty 
 recurs every fifteen years, instead of every twenty -five years ; 
 and it is also provided that " where, by the terms of the feu 
 " rights of the lands, a taxed composition is payable on the ■ 
 " occasion of each sale or transfer of the property, as well as on 
 " the occasion of the death of each vassal ; and where an entry 
 " is implied in terms of this Act in favour of two or more parties 
 " having separate interests, as liferenter and fiar respectively, or 
 " as successive liferenters, a composition, or, in the case of parties 
 " interested pro indiviso, a rateable share of a composition, shall 
 " be due by and eligible from each of the parties who shall take 
 " or derive benefit under the implied entry in the order in 
 "which they shall severally take or derive benefit under such 
 " impKed entry, with such interest, if any, as may be stipulated 
 " for in the feu right during the not payment of casualties."' 
 
 The other provisions of the Act relating to the subject of 
 casualties may here be noticed. Five sections* are devoted to 
 
 1 Hill V. Merchant Co. of Mdinhurgh, Jan. 17, 1815, Fac. Coll. 
 
 2 Section 5. 3 Section 5. * Sections 15, 16, 17, 18, and 19. 
 
Lect. VI.] SUPERIOR AND VASSAL. 87 
 
 the redemption of casualties incident to feus created before 
 the commencement of the Act. The superior and vassal are 
 at liberty to agree themselves as to the terms of the 
 redemption, but if they fail to do so, the vassal can compel 
 the superior to redeem on the terms prescribed in the statute, 
 in the case of casualties other than those consisting of a 
 fixed amount stipulated and agreed to be paid in money or 
 fungibles at fixed periods or intervals. Casualties consisting of 
 definite amount payable at fixed intervals are not redeemable 
 except by agreement between the parties. In the case of 
 casualties exigible only on the death of the vassal, the redemp- 
 tion money is the amount of the highest casualty estimated as at 
 the date of redemption, with 50 per cent, added; and in the 
 case of casualties exigible on each sale or transfer of the lands, 
 as well as on the death of the vassal, the redemption money is 
 two and a half times the amount of the highest casualty 
 estimated as at the date of the redemption.^ Where the 
 casualty is calculated at the aggregate of sums payable every 
 year from the date of the last entry, the redemption money is 
 fixed at eighteen times such annual sum. The redemption 
 under the statute only applies to future casualties. Any 
 casualty which has become exigible prior to the time of re- 
 demption must be paid in addition to the redemption money.^ 
 When the amount of the redemption money has been fixed, the 
 superior has an option either to pay the sum in cash or to have 
 it converted into a feu-duty at 4 per cent, on the capital sum.^ 
 The statute also contains provisions for a formal discharge 
 of the casualties when they have been redeemed, and for a 
 memorandum converting the redemption money into a feu-duty 
 when the superior elects so to do. Both documents, in order to 
 be effectual, require to be recorded in the Eegister of Sasines.* 
 It has been decided that a proprietor infeft and, therefore, 
 impliedly entered in part of an original feu, is entitled to redeem 
 the casualties applicable to that part, and is under no obligation 
 
 1 In the cases of Allan's Trustees v. Duke of Hamilton, Jan. 12, 1878, 
 5 R. 510 ; M'Laren and Others v. Bums, Feb. 18, 1886, 13 R. 580 ; and School 
 Boa/rd of NeiUton v. Graham, Nov. 16, 1887, 15 R. 44, the question was raised 
 as to the mode of estimating casualties for redemption purposes ; but the eflCect 
 of these cases will be shown below when the method of ascertaining the amount 
 of the composition is considered. 
 
 2 Section 15. ^ Section 17. * Sections 16 and 17. 
 
88 LECTURES ON SCOTS LAW. [Lect. VI. 
 
 to redeem the casualties incident to the whole feu.' It will be 
 observed that by virtue of this principle, which has been most 
 authoritatively affirmed, an original feu can, without the 
 superior's consent, be split up into parts so far as regards 
 casualties ; though, as has been seen, there can be no such 
 partitioning of an original feu, vnvito superiore, in relation to 
 the pajnnent of the feu-duty. It would seem to be a corollary 
 from the decision just cited, that the superior is not entitled 
 to demand from the owner of part of an original feu, entered 
 by implication of the statute, the casualty applicable to the 
 whole feu, but only that applicable to the part; though, as 
 will be seen below, it has been held that as regards relief -dirty 
 and taxed composition the superior can proceed against the 
 lands as for a debitum .fundi, which involves the right to 
 execute real diligence against every part of the original feu. 
 It must be kept in view that it is only a person who is in 
 the position of the entered vassal, either by the statutory 
 implication or by entry under the old law, who can claim the 
 privilege of redemption. If a person holding on a title on which 
 no infeftment has passed apply to the superior to have the 
 casualties redeemed, the latter would be entitled to refuse to 
 recognise him in any way.^ 
 
 A matter of very considerable practical importance is the 
 method of ascertaining the amount of the composition. Where 
 untaxed, it consists of one year's rent^ of the lands under certain 
 deductions. The rental taken as the basis is not merely the 
 annual value of the feu, as originally given out by the superior, 
 but the actual rental at the time when the casualty falls to be 
 estimated, as the same may be enhanced by the buildings and 
 meliorations of the vassal.* Prior to 1874, there was no difficulty 
 in fixing what year was to be taken as furnishing a particular 
 
 1 Edinburgh Boperie and Sailcloth Co. v. The Magistrates of Edinburgh, 
 July 10, 1877, 4 R. 10.32 ; ajf. Nov. 12, 1878, 6 R.H.L. ). 
 
 2 See dictum of Lord-President Liglis in Edinburgh Soperie and Saildoth Co. 
 (supraj ; see also Morris v. Brisbane, Feb. 21, 1877, 4 R. 515. 
 
 3 The measure of the composition was fixed by statute in the fifteenth century, 
 when superiors were first compelled to enter a limited class of successors. The 
 Act 1469 c. 36, ordained superiors to enter persons apprising the vassal's lands for 
 debt, on their paying " a year's maill, as the land is set for the time." 
 
 * Anderson v. Marshall, November 30, 1824, 3 S. 334. 
 
Lect. VI.] SUPERIOR AND VASSAL. 89 
 
 rental as a basis of the composition ; as it was the year when the 
 actual entry of the vassal took place, and when the casualty be- 
 came payable. Since, however, the Act of 1874 has essentially 
 altered the character of the casualty, and converted it into 
 something like a proper debt, payable on the occurrence of 
 a definite event, it has come to be a question of difficulty as 
 to what year is to be taken as aifording the required rental. 
 The Court has affirmed the principle, that a casualty became 
 payable on the date when the Act of 1874 came into operation 
 by an infeft proprietor of lands, then in non-entry, though no 
 casualty was claimed till several years afterwards ;^ a principle 
 which excludes the year of the judicial demand as being 
 necessarily the determining one. Otherwise, there are three 
 possible years which may be taken — (1) the year of the death of 
 the last vassal who paid a casualty ; (2) the year in which the 
 vassal, against whom the demand is made, has obtained implied 
 entry by infeftment; and, (3) where there has been a succes- 
 sion of intermediate infeft proprietors between the date of the 
 death of the last vassal who paid a casualty, and the date of the 
 judicial demand, — the year of the infeftment and implied entry 
 of the first of these intermediate proprietors. Where a casualty 
 is demanded from a proprietor who was infeft, and impliedly 
 entered during the lifetime of the last vassal who paid a casualty, 
 the first of the above years is taken, viz. — the year of the last 
 vassal's death.^ Where the claim is made against a proprietor 
 who took infeftment and became impliedly entered after the last 
 vassal's death, the year to be selected is the second of the above 
 years, i.e., the year of such proprietor's infeftment and implied 
 entry, provided such infeftment and implied entry is the first 
 which has accrued since the last vassal's death. Where, however, 
 there has been interposed between the death of the last vassal 
 who paid a casualty, and the implied entry of the person from 
 whom another is demanded, the implied entry of one or more 
 proprietors, the determining year is that of the first implied 
 entry after the last vassal's death since it is this implied entry 
 which fills the fee.' These rules seem deducible from the 
 
 1 Straiton JSstate Company v. Stephens, December 16, 1880, 8 R. 299. 
 
 2 Steuart v. Murdoch & Rodger, June 6, 1882, 19 S. L. R. 649. Lord Currie- 
 hill's decision in the Outer House was acquiesced in. 
 
 3 Sivewright v. Straiton Estate Company, July 8, 1879, 6 R. 1208. 
 
90 LECTURES ON SCOTS LAW. [Lect. VL 
 
 authorities cited; though, in a more recent case,^ Lord Eraser 
 selected the year of the defender's implied entry, while the fee 
 was filled up by the implied entry of a previous proprietor, 
 against whom, though liable, no claim had been made. The 
 selection of that year, however, as against the other, made no 
 diiference in the result, the rentals being the same. If the 
 defender's implied entry be taken in all cases as the determin- 
 ing period, when it is posterior to the death- of the last vassal 
 who settled with the superior, the casualty of composition may 
 still be of " a fluctuating and expansive character," and may, as 
 under the old law, be liable to be increased or diminished by 
 delaying to settle the claim — a result which Lord Curriehill held 
 the Legislature intended to avoid.'' Prior to 1874 it was often a 
 matter of practical wisdom for a proprieter, who might happen 
 to be in non-entry, and who contemplated increasing the value 
 of the feu by buildings, to enter with the superior and pay his 
 composition before commencing his operations, so as to avoid a 
 casualty calculated on a much higher rental. If the above rules 
 can be relied on, there will be no further necessity for this 
 precaution. 
 
 Apart from the question as to what particular year is to 
 be taken, difficulties not unfrequently arise in estimating 
 the rent or annual value of the lands to be used as a basis 
 for fixing the composition. The true criterion is the fair 
 value of the lands regarded as "a substitute "or equivalent 
 for a year's actual possession of the feu " ; because, under the 
 old law, the superior's remedy in case of non-payment of his 
 casualty, was to seize and hold the lands for his own 
 profit.' Several points have of recent years arisen and been 
 settled in applying this criterion. The statute,* compelling 
 superiors to receive apprisers of the feu, fixed the composition at 
 
 1 Campbell v. Stuarts, December 1!, 1884, 22 S.L.R. 292. Lord Eraser's judg- 
 ment was acc[uieaced in. 
 
 2 Steuart v. Murdoch & Rodger (supra) "It appears to me," said his Lord- 
 ship, "that the Legislature meant to provide fixed and certain data for calculating 
 "the amount of this casualty, and made it actually due and payable to the 
 " superior at the date when his right of action emerged, the debt continuing to be 
 " due by the vassal, though without interest until paid, either voluntary or under 
 " judicial demand." 
 
 3 See dicta of Lords Ormidale and Gifford in Allan's Trustees v. Duke of 
 Hamilton (supra). 
 
 4 1469, c. 36. 
 
I.ECT. VI.] SUPEEIOR AND VASSAL. 91 
 
 a " year's maill, as the land is set for the time," and where there 
 is an actual rental, payable under a bona fide contract of lease, 
 there can be no better test of the annual value. The principal 
 rent, and not that payable under a sub-lease is taken,^ and the 
 superior cannot insist on any prospective or hypothetical value. 
 A vassal having disponed the feu by contract of ground annual 
 for a yearly payment of £20 per acre for building purposes, the 
 disponee, before commencing his operations, was held entitled to 
 settle w^ith the superior for the casualties on the basis of the 
 agricultural rent, which was between £1 and £2 per acre.^ The 
 actual and fixed rents derived from minerals in the course of 
 being worked to a moderate extent are included in the annual 
 value ;' but where minerals are not let at a fixed rent, and are 
 approaching exhaustion, the mode of calculating the casualty is 
 to capitalize, at ten years' purchase, the average rents for three 
 years, and take the interest at 4 per cent, on the capital 
 sum as the yearly rent.* Although the Statute 1469 c. 36, 
 defines the measure of the superior's right as "a year's 
 " maill, as the land is set for the time," it is not necessary 
 that the lands be actually in the occupation of a tenant 
 with a fixed rent. Where they are in the personal occu- 
 pancy of the vassal, an estimate is made of what they 
 might be expected to yield one year with another,' and it 
 was recently held to be "a legitimate consideration that the 
 " subjects had a value to a particular person or body of persons 
 " which it had not in the open market, together with the degree 
 " of permanency of that value."" In accordance with these 
 principles, it has been held that unlet shootings, where they are of 
 such appreciable value as to be capable of being let, are included.'' 
 In the case of land held by a railway company as part of 
 
 1 Campbell v. Stuarts (supra). 
 
 2 School Board of Neilston v. Graham (supra). 
 
 3 Allan's Trustees v. Dulce of Hamilton (supra); Sturrock v. Carruthers 
 Trustees, May 21, 1880, 7 R. 799. 
 
 4 Sivevrright v. Straiton Estate Company, July 8, 1879, 6 R. 1208. 
 
 6 Aitchison v. Hophirh and others, February 14, 1775, M. 15060; Lord 
 Blantyre v. Dunn, July 1, 1858, 20 D. 1188. 
 
 M'Laren and others v. Bums (supra). 
 
 7 Stewart v. BiUloch, January 14, 1881, 8 R. 381. Under the Sporting Lands 
 Rating (Scotland) Act, 1886 (49 Vict. c. 15), the annual value of unlet shootings 
 and deer forests is now entered in the Valuation Roll. 
 
92 LECTURES ON SCOTS LAW. [Lect. VI. 
 
 their permanent way, it has been laid down as an equitable 
 method of computing the annual value as a basis for the ascer- 
 tainment of the composition, that the capital value be taken as 
 the price paid for it, not including severance damages, or the 
 extra price reckoned for compulsory salC; plus the expense of 
 constructing the part line of the line in question, and that 4 per 
 cent, on that capital value be regarded as the rental.^ Where 
 part of the feu consists of salmon fishings or lands let yearly in 
 grass, the average rent for seven years represents the annual 
 value.^ 
 
 Questions as to fixtures sometimes arise between superior and 
 vassal in computing the amount of the composition, and it has 
 been decided that the rule for determining what are fiixtures for 
 the purpose of ascertaining the annual value of the subjects, is 
 that applicable to cases between landlord and tenant :' this rule 
 being that which is most adverse to the idea of moveable objects 
 being fictione juris part of the heritable subject. 
 
 Where the vassal sub-feus for an adequate duty, it is well 
 settled that the measure of the composition payable by him to the 
 superior is the amount of the sub-feu-duty, and not the annual 
 value of the lands ; and where the consideration of the sub-feu is 
 not only a sub-feu-duty — whether partly adequate or wholly 
 elusory — but also a price or grassum, the composition consists of 
 the sub-feu-duty, plus the legal interest of the grassum for one 
 year.^ 
 
 Certain deductions fall to be made from the gross rental in 
 the ascertainment of the composition, aud the nature of these has 
 thus been indicated ; — " Feu-duties and all public burdens, and 
 " likewise all annual burdens imposed on the lands by consent of 
 " the superior, with all reasonable annual repairs to houses and 
 " other perishable subjects." * Where the superior is not pro- 
 
 1 Sill V. Caledonian Railway Company, Deo. 21, 1877, 5 R. 386. 
 
 2 Bell's Conveyancing, p. 1137. 
 
 3 Marshall's Trustees v. Tannock Chemical Company, July 2, 1886, 13 R. 1042. 
 This was a case where the vassal had a chemical work erected on the feu, and it 
 was held that the machinery was moveable in a question with the superior. 
 
 4 Cowan, March 29, 1636, M. 15055; Cockbum Soss y. Governors of Heriot's 
 Hospital, June 6, 1815, Fac. Coll. 6. Baton's App. 640 ; Campbell, June 28, 1832, 
 10 S. 734. The question remains undecided as to whether the composition pay- 
 able by the prime vassal to the overlord, falls to be augmented by any casualties 
 received from the sub- vassal during the year in which such composition is exigible. 
 
 s Aitchison v. Hopkirk and others (supra.) 
 
Lect. VI.] SUPERIOR AND VASSAL. 93 
 
 prietor of the teinds, a fifth of the teindable rental (i.e. the 
 agricultural value of the lands unenhanced by buildings), is 
 deducted, whether the teinds have been valued or not, and 
 this includes all deduction on account of minister's stipend.^ 
 
 Two points of considerable practical importance, though bear- 
 ing more on the legal relations subsisting between the seller and 
 purchaser of lands, than on those between superior and vassal, 
 may here be noticed, since they have arisen in consequence of 
 the great change operated on the law of casualties by the Act of 
 1874. Previous to the passing of that Statute, it was well settled 
 that when a seller of land was not entered with the superior at 
 the date of sale, the purchaser could compel him to enter and pay 
 the appropriate casualty before the contract of sale was imple- 
 mented, unless he had bargained otherwise.^ Shortly after the 
 Act came into operation, it was held that, where at the date of the 
 sale the seller was impliedly entered by force of the statute, but a 
 casualty was due to the superior, the former could not compel 
 performance of the contract until he paid the casualty.' It was 
 not open for the seller to say to the purchaser that, because of 
 the implied entry, the title which he tendered was complete 
 notwithstanding the non-payment of the casualty. The unpaid 
 casualty was an encumbrance which the seller was bound to 
 clear off unless it was expressly stipulated to the contrary. A 
 somewhat similar question arose in another case after the contract 
 of sale was implemented.* At the time of the sale the seller 
 was impliedly entered by his infeftment, but a casualty of com- 
 position was exigible by the superior, who had, however, made no 
 demand for it. The purchaser did not insist upon the seller 
 paying the casualty, but accepted his disposition and took infeft- 
 
 1 Thomson v. Simson, Nov. 24, 1825, 4 S. 224. 
 
 2 Ga/rdiner v. Henderson, March 7, 1799, M. 15037. Menzies' Conveyancing, p. 
 883. Bell's Conveyancing, p. 684; see also opinions of judges in Straiton Estate 
 Company v. Stephens (supra). 
 
 3 Lawrie & Scott v. Scott, decided by Lord Rutherfurd Clark, Nov. 15, 1876, 
 and reported 8 R. 305. 
 
 * Straiton Estate Company v. Stephens (supra), decided by Second Division 
 and four consulted judges. This case overrules a decision by Lord Curriehill in The 
 Leith Heritage Company v. The Edinburgh and Leith Glass Company, June 8, 
 1876, 13 S.L.R. 731 ; see his Lordship's observations thereon iaStewx/rtv. Murdoch 
 (Se Rodger (supra.) 
 
94 LECTURES ON SCOTS LAW. [Lect. VI. 
 
 inent on it. The disposition contained a clause binding the 
 seller to free and relieve the purchaser of all feu-duties, casualties, 
 and public burdens payable or prestable to the superior prior to 
 the date of entry. After the purchaser was so inf eft, the superior 
 raised an action against him for the composition^ and obtained 
 decree. The purchaser intimated the action to the seller, and 
 then sued him for the composition and the expenses of process. 
 The Court held that the composition being exigible by the superior 
 prior to the date of the sale, fell within the clause of relief in the 
 disposition, and that accordingly, the seller was bound to relieve 
 the purchaser, both of the amount of the composition, and of the 
 expenses which he had incurred in defending the action.' 
 
 In order to complete our survey of the relationship of 
 superior and vassal, that aspect of it dependent more or less 
 on the principles of pure contract has still to be considered. 
 Under the feudal system the superior's interest, the dominium 
 directum., was paramount. It was not only of greater dignity 
 than the vassal's, involving higher rank in the feudal society, 
 but it was really the substantial estate upon which the vassal's 
 interest, the domAnium utile, rested, as a mere burden liable to 
 the risk of being swept off altogether on many different contin- 
 gencies. When the tenure of feu-farm came to be engrafted on 
 the feudal system it reflected a good many of the features of the 
 parent system, and there accordingly sprang up a tendency to 
 regard the vassal's interest in the lands as subordinate to that of 
 the superior, not merely in point of dignity, but in respect of the 
 substantial estate. This tendency has been undergoing a modifi- 
 cation since the 1 6th century, and more rapidly and visibly since 
 the extinction of the feudal system 150 years ago. The modern 
 spirit which has gradually changed the complexion of the law 
 
 1 In that case there was an express obligation on the part of the seller to 
 relieve the purchaser ; but it is still an open question whether, in the absence of 
 such express contract, the seller is bound, after the purchaser has accepted his 
 disposition and taken infeftment, to relieve him of casualties which were exigible 
 prior to his entry. The Lord Justice-Clerk expressed an opinion that, in such 
 circumstances, the seller would not be bound to relieve the purchaser ; but, on the 
 other hand. Lord Young expressed very strongly a contrary opinion ; holding that 
 if there is no express bargain either way, the common law obligation of the seller 
 is to pay all casualties which were exigible prior to the purchaser's entry, and that 
 this obligation, which is merely pecuniary, subsists until it is fulfilled by payment, 
 and is not discharged by the purchaser accepting and recording the disposition. 
 
Lbct. VI.] SUPERIOR AND VASSAL. 95 
 
 respecting landed property has, together with recent legislation, 
 done much to make the vassal's estate the real and substantial 
 element in the tenure. Still, the superior retains a substantial 
 interest in the estate, and it is incorrect to say that he has been 
 reduced to the position of a mere holder of a burden or security 
 over the vassal's estate.^ 
 
 One of the most important effects of the Act of 1874, on the 
 relationship of superior and vassal, is that whereby it is reduced 
 to one dependent practically on contract. In the case of 
 feus created after the commencement of the Act the annual 
 feu-duty must be of fixed amount or quantity, and no casualties 
 or duties are, by law and irrespective of express stipulation, 
 exigible by the superior ; and parties are prohibited from enter- 
 ing into contracts for the payment of casualties on the succession 
 of an heir or the acquisition of a singular successor, or in any 
 way, except at fixed intervals. It is lawful, however, to stipulate 
 for a permanent increase or reduction of the feu-duty, or for 
 payment of a casualty in the form of a periodical fixed sum or 
 quantity, provided the amount is certain and the time at which 
 it emerges is not dependent on any event, except the recurrence 
 of the period.^ There is, therefore, an essential distinction 
 between the relationship of superior and vassal as it was created 
 prior to 1874, and as it has been created since. Before 1874 
 certain obligations existed irrespective of express contract. 
 They arose out of the relationship of superior and vassal, and 
 were part and parcel of the tenure of feu-farm, and required to 
 be expressly renounced in order to relieve the vassal of their 
 performance. The Act of 1874 did not put an end to these 
 implied obligations in the case of old feus; but where the 
 relationship of superior and vassal has been established since 
 the commencement of the statute, an express contract is required 
 in order to the existence of such obligations. In a new feu no 
 duty is incumbent on the vassal in respect of the tenure or 
 arising out of his relationship with the superior apart from 
 special stipulation.' The relationship is now essentially a con- 
 
 1 See dictum of Lord -President Inglis in Sandeman v. Scottish Property 
 Investment Company, 8 R. 794. 
 
 2 Section 23. 
 
 3 Probably the only latent liability of the vassal in new feus is that involved 
 in the irritancy oh mora solutum canonem, which is implied Ln every contract of 
 feu, new as well as old, by virtue of the statute 1597, c. 250. 
 
96 LECTUEES ON SCOTS LAW. [Lect. VI. 
 
 tractual one, and the questions which arise are more or less 
 determined on the principles affecting contracts in general. 
 
 In connection with this aspect of the feudal relationship, the 
 view which at once presents itself is that the contract is designed 
 to be perpetual. Certain elements in it may have only a 
 temporary operation; but the cardinal features of the relation- 
 ship, with its dependent rights and obligations, remain after the 
 original contracting parties have either ceased to exist or become 
 disconnected with the tenure. It will thus be seen that it 
 may come to be of essential importance to inquire what pro- 
 visions in a given contract of feu are temporary and intended 
 only to bind the original contracting parties, and what provi- 
 sions are to be permanently operative and to bind all who may 
 come to occupy the position of superior and vassal. Here we 
 touch the important principle whereby those provisions in 
 charters or feu contracts, called inherent conditions of the feu- 
 right, or otherwise conditions of the tenure, and, as such, opera- 
 tive between the persons concerned in the tenure, though not 
 parties to the original contract, are logically separable from 
 other provisions and obligations which, not being inherent 
 elements of the tenure, are not so enforceable. So long as the 
 original parties to the feu contract or their personal representa- 
 tives remain the owners of the separate estates of superiority 
 and property the provisions of the contract can be enforced, as 
 personal obligations, in the same manner as if the transaction 
 did not relate to the tenure of land. But when the vassal 
 alienates the feu the questions arise, how far can provisions in 
 the contract or charter be enforced against a singular successor, 
 and, if such provisions do bind the singular successor, are they 
 of the nature of personal obligations to be enforced by personal 
 actions, or are they only real burdens enforceable by poinding 
 of the ground and the other modes of real diligence ? In order 
 to answer these questions it must be determined whether the 
 provisions — assuming the singular successor has not expressly 
 interposed his personal obligation for their fuMment — are of 
 the nature of inherent conditions of the tenure, or whether they 
 are burdens merely aiFecting the lands without entering into the 
 tenure as an inherent condition, or, otherwise, whether they 
 import any obligation on the singular successor. If the par- 
 ticular provision is not an inherent condition of the tenure nor 
 
Lect. VI.] SUPERIOR AND VASSAL. 97 
 
 a real burden, it imports no obligation on the singular successor, 
 and cannot be enforced either against him personally or against 
 the lands by real diligence, though the original vassal and his 
 personal representatives may remain liable. Should the singular 
 successor by express stipulation adopt the obligation as his own 
 at the time he acquires the lands or subsequently, it can, of 
 course, be enforced against him, like an ordinary personal obliga- 
 tion. An inherent condition of the feu-right thus combines the 
 elements of a personal obligation and a real burden. By means 
 of it the superior can proceed by personal action against singular 
 successors and sub-vassals. The legal theory whereby such con- 
 ditions can be enforced against persons, not expressly made 
 parties to the original covenant, is, that by becoming the owners 
 of the land they enter into feudal relationship with the superior, 
 and there is, ipso facto, established between him and them a 
 privity of contract. The fact of feudal ownership has brought 
 them into the contract and made them liable to fulfil its con- 
 ditions. It is by virtue of the same inherent quality of the 
 condition that it can be enforced by real diligence directed 
 against the lands without fulfilling the requisites of a real 
 burden. A real burden is an obligation which does not affect the 
 person owning the land, but attaches to the land itself, and only 
 affects the owner indirectly, inasmuch as the land is liable for its 
 fulfilment. As a consequence it can only be enforced by real 
 diligence. It cannot be made the subject of a personal action 
 directed against the individual. The requisites of a real burden 
 have been well established,' and are as follows : — (1) Words 
 must be used which clearly express or plainly imply that the 
 subject itself is to be affected, and not the grantee or his heirs 
 alone. (2) These words must be inserted in the infeftment and 
 appear on the record. (3) The burden must not be contrary to 
 law or inconsistent with the nature of the particular species of 
 property conveyed. (4) The burden or condition must not be 
 useless or vexatious or contrary to public policy. (5) The person 
 enforcing it must have an interest to do so. If these qualities 
 are present it is not necessary that the obligation should be 
 declared in so many words to be real or a dehitum fundi, or 
 that it shall be inserted in all future infeftments or fenced with 
 
 1 TaUm-s of Aberdeen v. Coutts, Dec, 20, 1834, 13 S. 226 ; 1 Rob. App. 296. 
 H 
 
98 LECTURES ON SCOTS LAW. [Lbct. VI. 
 
 irritant clauses. If the condition is one usually attaching to 
 land or is of a continuous nature, which cannot be performed by 
 an act of the disponee or his heir, words less clear and specific 
 will suffice to create it than when it appears to be of a personal 
 nature. A real burden may be created as between a superior 
 and vassal or as between a disponer and disponee. 
 
 On the other hand, an inherent condition of the tenure can 
 only exist where the relationship of superior and vassal has been 
 established ; because it is a burden or obligation that has been 
 made a condition upon which the feu-right has been granted or 
 is held. But every burden which is imposed on the vassal by 
 the feu-contract and called a " condition " is not necessarily an 
 inherent condition of the tenure. " In order that the obligation 
 " may be binding as a condition of the feudal grant or contract, 
 " it is not enough that it is called a condition. It must fulfil the 
 " logical requisites of a condition of such a contract — ^that is, 
 " it must have some relation to the necessary or natural incidents 
 •' of a grant of land." It must be " such a condition as will run 
 " with the lands."^ Otherwise stated, an inherent condition of 
 the tenure must "constitute an integral part of the feudal grant," 
 and not merely be " a collateral personal contract."^ 
 
 The best example of an inherent condition of the feu-right is 
 the obligation to pay the stipulated feu-duty. As has been seen, 
 not only is the singular successor in the feu personally liable to 
 fulfil this obligation, but it can be enforced against the lands 
 by real diligence. It is not necessary that he adject his personal 
 obligation ex post facto, or that the stipulated payment be con- 
 stituted a real burden in order that the superior have his two- 
 fold remedy. In like manner it is by virtue of the inherent 
 quality of the condition that the sub-vassal is personally liable 
 to pay the whole of the original feu-duty where he possesses the 
 entire feu, the feu-duty stipulated in his own charter where such 
 is a fair equivalent of the part of the original feu held by him, 
 or a proportional share of the feu-duty where he holds a part of 
 the original feu for a nominal duty or for less than a fair 
 equivalent. In all these cases the feu-duty for which the sub- 
 vassal is liable is regarded as an inherent condition of his tenure 
 
 1 Per Lord M'Laren in Mags, of Edinburgh v. Begg, Deo. 20, 1883, 11 R. 352. 
 
 2 Per Lord Justioe-Clerk Monoriefif in Morrison's Trustees v. Webster, May 
 16, 1878, 5 R. 813. 
 
Lect. VI.] SUPERIOR AND VASSAL. 99 
 
 which he is personally bound to fulfil to the over-superior, who 
 has also the real security of the lands themselves." 
 
 A proper casualty of superiority, such as the relief duty 
 of an heir, is another example of an inherent condition of the 
 feu-right, so as to be enforceable either personally against the 
 vassal or by means of real diligence against the lands. The 
 question whether composition — which, until the Act of 1874, was 
 not universally recognised by feudalists as a proper casualty^ — 
 is also to be reckoned as an inherent condition arose in two 
 recent cases.' In both the composition was taxed and expressly 
 stipulated in the reddendo of the charter. It was held, though 
 not without some dissent,* that the composition was a debitvm, 
 fundi in respect of being one of the reserved rights of the 
 superior, and might be recovered by a poinding of the ground; 
 and also that it must be paid preferably to the claim of a 
 creditor in an ordinary real burden carrying through real dili- 
 gence. A doubt, however, was expressed as to how far an 
 untaxed composition, or one only due ex lege, could be made the 
 subject of real diligence.^ 
 
 It is not necessary that the obligation undertaken by the 
 vassal should be a pecuniary one in order to its being an inherent 
 condition of the feu-right. An obligation to erect buildings on 
 the feu within a specified time — a very common kind of burden 
 imposed on the vassal — is one which inheres in the tenure so as 
 to bind singular successors. Such obligations may not fulfil the 
 requisites of real burdens, nor indeed be capable of being made 
 such; but in virtue of their character as inherent conditions of 
 the tenure, they can be enforced by direct action, as if for imple- 
 ment of a personal obligation, or by real diligence as in the case 
 of a real burden. Such an obligation must be taken up by the 
 singular successor "when it passes from the original feuar 
 " because it is not merely personal but runs with the lands, and 
 
 1 Marquis of Tweeddale's Trustees v. Earl of Haddington {supra). 
 
 2 The controversy on this point may be examined in the following oases : — 
 Lochhart v. Denham, M. 15027 ; Cochburn Boss v. Heriot's Hospital (supra) ; 
 Stirling v. MwaH, i D. 684, 3 Bell's App. 128, commented on in Morrison's Trustees 
 V. Webster {supra). 
 
 3 Morrison v. Webster {supra) ; Stewart v. Gibson's Trustee, Dec. 10, 1880, 
 8 R. 270. 
 
 4 Lord Ormidale dissented in Morrison's Trustees v. Webster. 
 6 Per Lord-President Inglis in Stewart v. Oibsoii's Trustee. 
 
100 LECTURES ON SCOTS LAW. [Lbct. IV. 
 
 "it is of such a nature that singular successors are bound to 
 " fulfil it, although it is not possible to make it a real burden." ' 
 
 Inherent conditions of the tenure may not only be positive 
 obligations undertaken by the vassal, but may consist of restric- 
 tions on his liberty of dealing with the property. They may take 
 the form of provisions designed to affect the structural character 
 of the buildings on the feu, such as prohibitions against erecting 
 buildings other than those of a certain elevation, or according to 
 a certain plan; or they may consist of conditions as to the 
 particular use to which the buildings may be put, such as pro- 
 hibitions against specified trades, or definite operations supposed 
 to be of an objectionable character.^ 
 
 A good example of a provision which was of such a nature as 
 not to be an inherent condition, and which was also incapable of 
 being made a real burden, occurred in a recent case.^ The feu 
 charter contained a stipulation that the feuar should be bound, 
 on the superior completing a roadway, to pay a proportion 
 of the expense. The roadway was completed and the expense 
 ascertained before the feu passed into the hands of the sin- 
 gular successor ; but no demand was made by the superior f qr 
 payment of the amount until it was claimed from the singular 
 successor. A personal action was raised against him ; but it was 
 held that the provision imported no obligation against a singular 
 successor, inasmuch as it was not an obligation which ran with 
 the lands, but one which was intended to affect the original 
 feuar and him alone. A clear distinction was drawn between 
 
 iPer Lord President Inglis in Magiiirates of Gltxsgow v. Hay, Feb. 2.3, 1883, 
 10 R. 635. 
 
 ^Tailors of Aberdeen v. Coutts (supra); Gampbell v. OlydesdaXe Banking 
 Company, June 19, 1868, 6 Maoph. 943 ; Ewing v. Campbells, Nov. 23, 1877, 5 R. 
 230 ; Emng v. Hastie, Jan. 12, 1878, 5 R. 439 ; Anderson v. Aberdeen Agricultural 
 Hall Company, May 16, 1879, 6 R. 901 ; M'Eioan v. Stewart, March 10, 1880, 7 
 R. 682; Moir's Trustees v. M'Ewan, July 15, 1880, 7 R. 1141 ; Earl of Zetland v. 
 Hislop, March 18, 1881, 8 R. 675, H.L. June 12, 1882, 9 R. H.L. 40 ; Coivan v. 
 Magistrates of Edinburgh, March 19, 1887, 14 R. 682. In The Earl of Zetland v. 
 Hislop, the prohibition was against the buildings on the feu being used for the sale 
 of excisable liquors without the written consent of the superior, and it was held by 
 the House of Lords, reversing the judgment of the Second Division, that such a 
 prohibition was an inherent condition of the feu, and passed on to singular suc- 
 cessors. The opinions of Lord Chancellor Selborne and Lord Watson in that 
 case throw much light on the legal principles affecting the restrictive conditions 
 of feu-rights. 
 
 s Magistrates of Edinburgh v. Begg, Dec. 20, 1883, 11 R. 352. 
 
Lect. VI.] SUPERIOR AND VASSAL. 101 
 
 such a provision and others contained in the charter, to the effect 
 that the vassal and his successors were to uphold and maintain 
 the roadway and drains in all time coming, which were manifestly 
 obligations of such a nature as to run with the lands, and there- 
 fore to become inherent conditions of the grant. 
 
 Questions have not infrequently arisen as to the meaning 
 and effect of particular burdens inherent in the tenure. The 
 presumption is in favour of the free and unrestricted use of 
 property. " Restrictions are not to be imposed unless they 
 " are distinctly expressed, or are matter of necessary and direct 
 " inference from the terms used."' At the same time, " though 
 " restrictions on property are not to receive a loose or wide 
 " interpretation as against the proprietor, still they are to receive 
 " a fair and not a malignant interpretation as against the 
 " superior."^ In accordance with these principles, a vassal 
 restricted in his erection of buildings on the feu to houses of 
 " three square storeys in height " was permitted to have attics in 
 the roof with storm windows.^ A provision in a feu-charter 
 bound the vassal to erect within a specified time, and main- 
 tain on the feu, buildings of a certain value and architectural 
 character with a foot pavement of certain dimensions ; but he 
 was not expressly restrained from erecting additional buildings 
 of a different character, and he was held entitled to do so.* A 
 prohibition against the erection of any buildings except dwelling- 
 houses, and against any " public-house or tavern," was held 
 to exclude effectually the vassal's right to build a hotel or a 
 hydropathic establishment.* The expression "private dwelling- 
 house" was held as excluding a "girls' school." ° Where the 
 feu-charter prohibited the vassal from carrying on "anything 
 " which may be a nuisance or may occasion disturbance to any 
 " of the neighbouring feuars or proprietors," it was held that 
 in erecting on the feu a hall for the exhibition and sale of 
 cattle he did not contravene the prohibition, as the amount of 
 inconvenience proved was inconsiderable, and the neighbour- 
 
 1 Lord Shand in Ewing v. Campbelln {supra). 
 
 2 Lord President Inglis, ibid. , 
 
 3 M'Ewan v. Stewart (supra). See also Moir's Trustees v. M'Ewan {supra). 
 1 Cowan V. Magistrates of Edinburgh {supra). 
 
 5 Ewing v. Campbell {supra). 
 f Eioing v. Hastie {supra). 
 
102 LECTURES ON SCOTS LAW. [Lect. VI. 
 
 hood was already a great centre of the cattle trade.^ Where the 
 condition specifies the character of the houses to be built on 
 the feu as " single," " self-contained," " detached," &c., the tendency 
 of the decisions is in favour of the vassal's liberty in his use of 
 the building, so long as it is structurally consistent with the 
 prescribed character.^ An obligation imposed on the vassal to 
 pay half the cost of maintaining a .sewer cannot be extended 
 so as to cover the expense of constructing it.' 
 
 We have seen that provisions expressed in contracts of feu 
 which are of the nature of inherent, conditions of the tenure 
 effectually run with the lands, and are enforceable against singu- 
 lar successors by personal action, and — so far as they are capable 
 of such enforcement— by real diligence, without the interposition 
 of the successor's personal undertaking, and without requiring 
 to constitute the provisions real burdens. Still less do such 
 inherent conditions need to be fenced by irritancies. Sometimes, 
 however, this remedy is added by express stipulation, and in 
 that case the superior is entitled, after contravention, to annul 
 the vassal's right as if it had never been granted. The irritancy 
 is, of course, only conventional — that is to say, there is not, as 
 in the case of feu-duties, a legal or statutory irritancy which 
 attaches to the feu-right independently of express stipulation in 
 the charter. When there is such a stipulation, the efiect of it is 
 that, when the obligation is unfulfilled, the superior, by means of 
 a declarator, cuts down the feu-right and all that has followed 
 on it, and it is thereafter of no force or effect, just as absolutely as 
 when cut down by virtue of the irritancy oh non solutwm 
 
 1 Anderson v. Aberdeen Agricultural Hall Company {supra). See also Manson 
 V. Forrest, June 14, 1887, 14 R. 802. 
 
 2 Fraser v. Dovmie, June 22, 1877, 4 R. 942 ; Moir's Trustees v. M'Ewan 
 (supra) ; Buchanan v. Marr, June 7, 1 883, 10 R. 936 ; Miller v. Carmichael, July 
 19, 1888, 15 R. 591. 
 
 3 Stewart v. Meihle, Jan. 27, 1874, 1 R. 408. The principles regulating 
 the inherent condition of feu-rights do not apply to obligations contained in a 
 contract of ground annual. The relationship created by the contract is not that 
 of superior and vassal, but of seller and purchaser ; and accordingly, a, personal 
 obligation to pay the ground annual does n^ transmit against singular successors, 
 and, in order to be effectual after the lands are alienated, must be constituted a 
 real burden. Oardyne v. Moyal Bank of Scotland, March 8, 1851, 13 D. 912, rev. 
 H.L. May 13, 1853, 1 Macq. 358 ; Marshall's Trustee v. MacNeill & Co., June 
 19, 1888, 15 R. 762. 
 
Lbct. VI.] SUPEKIOR AND VASSAL. 103 
 
 canonem. In a case already cited/ a feu right was cut down 
 from failure to erect buildings on the feu timeously where there 
 was a conventional irritancy. 
 
 The inherent condition may be of such a nature as to be 
 capable of running with the lands, and of validly affecting the 
 feu, and at the same time the superior may not be in titulo to 
 enforce it. His right of enforcement may be lost by acquiescence 
 in contraventions, or it may have been defeated by his never 
 having had sufficient interest to enforce it, or by such interest 
 having ceased to exist. The degree and character of the 
 acquiescence necessary to preclude the superior from enforcing 
 an otherwise effectual condition depend upon ordinary principles 
 of law, and upon the circumstances attending the supposed 
 relinquishment of the right.^ A special development of the 
 principle as it affects conditions in feu rights is seen in the rule 
 whereby a superior who imposes similar restrictions on a number 
 of vassals loses his right to enforce them against one vassal by 
 acquiescing in continuous and systematic contraventions on the 
 part of one or more of the co- vassals.^ But a single relaxation 
 to a limited extent of a provision in a feu contract will not cancel 
 the restrictions applicable to the remaining feus given off by the 
 same superior.* 
 
 The interest which the superior requires to have in order to 
 entitle him to enforce the conditions must be a sufficient patri- 
 monial one. He must not merely be attempting to put in force 
 
 1 Magistrates of Glasgow v. Hay (supra). In Welsh v. Jack, Nov. 7, 1882, 10 
 R. 113, separate pieces of ground were feued in one contract, and separate obliga- 
 tions fenced by an irritancy were imposed on the vassal to erect certain buildings on 
 both. It was held that the irritancy did not aflfect the right of a singular 
 successor in one of the pieces of ground, though incurred with regard to the other, 
 which remained the property of the original vassal. 
 
 2 Marl of Zetland v. Hislop (supra). For the general principles of the law 
 regarding acquies.cence see Rankine's " Law of Land Ownership," p. 329, and their 
 bearing on building restrictions in feu rights, ib. p. 396. 
 
 3 Brown v. Bums, May 14, 1823, 2 S. 298 ; Campbell v. Clydesdale Banking 
 Coy. (su2>ra); Lord Watson in Earl of Zetland v. Hislop (supra). See also 
 Dalrymple v. Herdman, June 5, 1878, 5 R. 847. 
 
 * See dictum of Lord President Inglis in Ewing v. Campbells (supra). Here 
 the vassal had conveyed a part of the feu to a singular successor, who obtained 
 from the superior a relaxation of a particular restriction, but this was not held as 
 precluding the superior from enforcing the restriction against the vassal in regard 
 to the portion of the feu retained by him. 
 
104 LECTURES ON SCOTS LAW. [Lbct. VL 
 
 an obligation from the fulfilment of which he is to derive no 
 benefit.' 
 
 It is not, however, incumbent on the superior to aver or 
 establish such an interest as the law wiU recognise : it is for 
 the vassal who seeks on that ground to escape from complying 
 with an explicit provision in the contract to show that the 
 superior has lost any interest which he may have had originally. 
 An action by the superior is not irrelevant because it does not 
 allege an interest to enforce the restricted condition. "Prima 
 "facie, the vassal, in consenting to be bound by the restriction, 
 " concedes the interest of the superior, and therefore the onus is 
 " upon the vassal who is pleading a release from his contract to 
 " allege and prove that, owing to some change of circumstances, 
 " any legitimate interest which the superior may originally have 
 " had in maintaining the restriction has ceased to exist." ^ 
 
 An important development of the principles we have been 
 considering occurs when each of a number of co-feuars holding 
 imder the same superior acquires the right of enforcing for his 
 own benefit restrictions aficcting the feus belonging to the 
 others. Such a right may be acquired expressly or by impli- 
 cation. Thus, a superior, in granting a series of feu rights, may 
 expressly stipulate in each contract that the restriction affiecting 
 every feuar will be enforceable by the others, or the co-feuars 
 may mutually agree to a like effect. When these stipulations 
 distinctly and in express terms confer the right of enforcement, 
 a co-f euar has as little difficulty in compelling fulfilment as the 
 superior himself, though he is subject to the same condition as to 
 possessing a legitimate interest. When no express right of 
 enforcement is created, it often comes to be a matter of some 
 difficulty whether the feu contracts are in such terms as to give 
 
 1 Tailors of Aberdeen v. Coutts (supra); Xaismith v. Caimduff, June 21, 1876, 
 3 R. 863 ; Earl of Zetland v. Hislop (supra). 
 
 2 Per Lord Watson in Earl of Zetland v. Hislop (supra). In this case the 
 Court of Session (Second Division), whose judgment was reversed, had held that 
 the only interest the superior could have in enforcing a restriction against the 
 sale of spirituous liquors on the land feued, upon which a town had been bmlt, was 
 to secure the wellbeing of the community, and that this weis not such an interest 
 as the law would recognise. The House of Lords, however, held that the superior 
 " disclosed a very plain case of patrimonial interest" in his "specific allegations 
 " of detriment to the value of his house property and of his leind, both feued and 
 "unfeued, as well as to the comfort aai amenity of his mansion-house amd 
 " policies." (See opinion of Lord Watson.) 
 
Lect. VI.] SUPERIOB AND VASSAL. 105 
 
 a co-£euar the right by implication, though the general principles 
 of the law have recently received authoritative exposition.' In 
 order that this right of enforcement or jus quceaitv/m may be 
 implied from the several contracts, the following elements must 
 exist: — (1) The conditions to be enforced must appear in all 
 the feu rights; (2) these conditions must be similar, if not 
 identical ; (3) the feuar seeking to exercise the right must have a 
 legitimate interest to do so ; and (4) there must be such a 
 mutuality of interest among the feuars in the enforcement of 
 the conditions as to justify the inference that each had in 
 view the creation of a jus qucesitum in favour of his neigh- 
 bours, and had consented to it. This mutuality of interest is 
 inferred when the superior expressly stipulates in each contract 
 that he will insert the conditions in the others, or when the various 
 feus are given off in accordance with a uniform plan or scheme. 
 The rights of the superior and of the co-feuar to enforce the 
 conditions are independent and separate. "The title of the 
 " superior rests upon contract ; . . . the right of the feuar, 
 " though arising ex contractu, is of the nature of a proper ser- 
 "vitude, his feu being the dominant tenement. . . . The 
 " superior's consent to discharge the condition cannot affect the 
 " right of the feuar, and as little can the feuar's renunciation of 
 "his servitude impair the superior's right to enforce the con- 
 " dition." ^ The jus quoBsitvmi of the co-feuar does not rest 
 on any implied assignation by the superior (which would have the 
 effect of divesting the latter of his right of enforcement), but upon 
 an inferred consent of the co-feuar " to be bound by the law laid 
 " down by the common author for the benefit of all future feuars."' 
 In a case more recent than the one just cited,* and containing 
 specialties, a decision was given adverse to the existence of a 
 right of enforcement in a co-feuar where a part of a feu originally 
 given off to one person had been resigned into the hands of the 
 superior and re-feued by him under conditions essentially diffe- 
 rent from those appearing in the original contract. 
 
 1 Hidop V. MacBitchie'a Trustees, Dec. 17, 1879, 7 R. 384 ; rev. June 23, 1881, 
 8 R. H.L. 95. The judgment of Lord Wataon is particularly instructive on the 
 whole question. The earlier cases are all cited and commented on. 
 
 2 Per Lord Watson in Hislop v. MacBitchie's Trustees (supra). 
 
 3 Ibid. 
 
 4 Colder v. Merchant Company of Edinburgh, Feb. 26, 1886, 13 R. 623. See 
 also Weaker & Dick v. Park, Feb. 29, 1888, 15 R. 477. 
 
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