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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macrae (Buchanan's Judicial Factor) v. Mackenzie [1891] ScotLR 29_127 (20 November 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/29SLR0127.html Cite as: [1891] ScotLR 29_127, [1891] SLR 29_127 |
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A superior feued ground to three parties, and the survivors or survivor, and the heir of the last survivor, on condition, inter alia, that the vassals should build within two years and maintain dwelling-houses of a certain value, failing which the feu-contract and all following thereon should, in the option of the superior, become null and void. After the lapse of the two years the last surviving vassal died in possession of the subjects without having implemented the obligation to build. His widow, his sole trustee, announced that she did not claim the subjects. The superior sought to have her ordained, as personal representative of her late husband, to erect the stipulated buildings or to pay damages.
The Court assoilzied the defender, holding (1) that although there was a personal obligation on the last vassal to fulfil the conditions of the feu, this obligation existed as a condition of holding the subjects, and did not attach to his personal representative, who was not vassal therein; and (2) that as there was no obligation affecting the defender which could been forced, she was not liable in damages.
Observed ( per Lord Kinnear and Lord Adam) that the claim of irritancy merely conferred an additional remedy by the use of which the superior might enforce the conditions of the contract.
Horatio Ross Macrae, W.S., judicial factor on the trust-estate of the late Neil Griffiths Buchanan of Knockshinnock, Ayrshire, sued Mrs Mackenzie, the widow and sole surviving trustee of the late Kenneth Mackenzie, coalmaster, New Cumnock, for implement of certain obligations undertaken by the defender's husband under a feu-contract granted by Buchanan's trustees in May 1875.
By this contract the superior feued to the late Kenneth Mackenzie and three other persons carrying on business under the firm of the “Bank Coal Company,” and thesurvivors and survivor of them, and the heir of the last survivor, as trustees for behoof of the company, two pieces of ground in the parish of New Cumnock and county of Ayr—“To
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be holden the said subjects and others of and under the said first parties and their successors for payment of the feu-duty and other prestations after mentioned, but always with and under the burden of the whole conditions, reservations, burdens, qualifications, and irritancies underwritten, which are declared to be real liens and burdens affecting the said two pieces of ground hereby disponed, videlicet—That dwelling-houses, offices, and other buildings of the yearly value of at least £50 sterling per annum, or of the capital value of twenty years' purchase thereof, shall be erected by the said second parties within two years upon both or either of the said two pieces of ground hereby feued, at the distance of not less than 25 feet from the centre of the said turnpike road, and that the plans for the said buildings shall be submitted to the first parties for approval, and that the said second parties shall maintain, uphold, and keep the said houses so to be erected in such good order and repair as will be sufficient to make them yield such rent or continue of such value in all time coming: And failing such houses being erected, or in the event of the same after having been erected falling into decay or being destroyed by fire, and the said second parties failing to rebuild the same within one year and six months after they and their fore-saids shall have been required by the said first parties or their successors so to do, then and in that event these presents and all following thereon shall, in the option of the said first parties, become null and void.” The company entered into possession of the lands, continued to possess them until 1889, and paid the feu-duty, but failed to build as stipulated. The company was dissolved at Whitsunday 1879, and in the settlement of its affairs Kenneth Mackenzie, the sole surviving partner, in 1889, with the consent of the two deceased partners' trustees, disponed the subjects feued by the said feu-contract to himself and his heirs and successors whomsoever. Mr Mackenzie died on 20th May 1890 without having implemented the obligation to build on the subjects.
Besides founding on these facts the pursuer further alleged that Mr Mackenzie had offered £600 for leave to renounce the feu. He specified the terms of the agreement, and produced the following letter and docquet as evidence of the agreement—“J. B. Cunningham, Esq., Bank of Scotland, New Cumnock. Edinburgh, 7 th May 1890.—Dear Sir,—Knockshinnock. I have now received the consent of the greater number of the beneficiaries on the trust-estate of the late Neil Griffiths Buchanan of Knockshinnock, to the proposal made by you on behalf of Mr Mackenzie for renouncing the feu, and propose now to take steps for obtaining the authority of the Court to the transaction. I understand the terms are that Mr Mackenzie will pay to the trust a sum of £600 and renounce the feu, all the obligants in the contract being relieved of further liability in connection with it. Mr Mackenzie also agrees to pay the expenses of the necessary application to the Court. When I hear from you confirming this letter I will proceed to take the necessary steps for carrying out the arrangement.—I remain, yours faithfully, Horatio R. Macrae. New Cumnock, 10 th May 1890.—I approve of this.— Kenneth Mackenzie.” The body of the letter was not holograph of the pursuer, and the docquet was not holograph of Mr Mackenzie.
The defender having been required by the pursuer to implement the obligation to build, intimated to him that she did not claim the property feued, and repudiated all liability in connection therewith, and the present action was accordingly raised.
The summons concluded, first, for declarator of the alleged agreement for renunciation of the feu, and for an order on the defender to carry out the same; and second and alternatively, that the defender should be ordained to erect buildings of the stipulated value on the lands. The pursuer was allowed by the Lord Ordinary to amend his summons by adding an averment of, and an alternative conclusion for damages.
The pursuer pleaded, inter alia—“(1) that he was entitled to decree for implement of the alleged agreement. (4) That he was entitled to decree against the defender to erect dwelling-houses, or alternatively to pay damages.”
The defender pleaded, inter alia—“(4) The letter of agreement being neither holograph nor tested, no valid agreement has been made. (5) The defender being under no obligation to implement the terms of the feu-contract, she should be assoilzied.”
On 8th July 1891 the Lord Ordinary ( Wellwood) pronounced the following interlocutor: Sustains the fourth plea-in-law for the defender, and assoilzies the defender from the first alternative declaratory and petitory conclusions of the summons: Quoad ultra finds that at the date of his death the late Kenneth Mackenzie was personally bound, under the feu-contract condescended on, to erect buildings of the character and value specified therein, and that he failed to erect the said buildings within the time fixed: Finds that the said personal obligation is now binding on the defender as his general representative: Finds that it is inexpedient to order specific implement of the said obligation by the defender; and before further answer, and of consent, allows the pursuer to amend the summons in terms of the minute No. 26 of process; and the said amendment having been made, of new closes the record; appoints the case to be put to the roll for further procedure; meantime reserves all questions of expenses.
“ Opinion.—In regard to the first alternative declaratory and petitory conclusion of the summons, the defender, who is the widow and general representative qua trustee of the late Kenneth Mackenzie, pleads that the pursuer's averments are irrelevant, in respect that he has not set forth or founded on any holograph or tested deed under the hand of Mr Kenneth
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I am of opinion that this objection is well founded. I understand it to be admitted that the body of the letter No. 16 of process is not holograph of the pursuer, and that the docquet is not holograph of Kenneth Mackenzie. Now the law requires that in order to the constitution of a contract regarding heritage there must be writing; and even if there is writing, unless the writing is tested or holograph, there is locus pœnitentiœ to either party so long as matters remain entire— Goldston v. Young, 7 Macph. 188; Scottish Lands and Building Company, Limited v. Shaw, 7 R. 756.
In the present case the contract alleged is a contract for the renunciation of a feu. It makes no difference as to the application of the rule which I have mentioned, that part of the alleged agreement was that a sum of money was to be paid as a condition of the renunciation being accepted, payment of the money being an inseparable part of the alleged agreement— Allan v Gilchrist, 2 R. 587.
I am of opinion, however, that the pursuer has stated a relevant case for inquiry in connection with the second alternative conclusion of the summons. The defence to this conclusion is that under the feu-contract the condition of the erection of buildings by the second parties is merely a real burden which perhaps might be enforced against the vassal actually in possession, and failure to implement which might be followed, in the option of the superior, by irritancy of the feu, but that it is not a personal obligation or debt which transmits against the representatives of the deceased vassal who do not take up the feu. I am of opinion that this defence is not well founded. The condition that buildings of the character and value of those specified ‘shall be erected by the second parties’ was a condition of the grant which was personally binding on the dis-ponees, and became prestable, and should have been implemented within two years after the date of the feu-contract, a period which expired during Kenneth Mackenzie's lifetime. It is true that it is provided that in the event of the second parties failing to build, the feu-contract shall, in the option of the first party, become null and void. But this provision, I take it, is in addition to the first party's right to demand and enforce implement of the obligation; and it scarcely can be disputed that the pursuer could have enforced it against the original vassal, or claimed damages instead of irritating the feu.
The obligation to build is just as much a matter of contract and condition of the right as the obligation to pay feu-duty. Now the established rule in regard to the latter condition is that the representatives of a deceased vassal are liable for arrears of feu-duty which became due during the vassal's lifetime, although they are not liable to implement such conditions of the feu as do not become due or prestable until after his death. As the Lord President says in Aiton v. Russell's Executors, 16 R. 625—‘Under a feu-charter the vassal by acceptance of the feu puts himself under a personal obligation to pay the reddendo, and subjects his representatives to pay whatever feu-duties may become due during the possession of the feu. That obligation becomes on his death a personal debt. On the other hand, his heir, if he takes up the succession in like manner, becomes liable for feu-duties.’ The decision in the case of Aiton, which was founded on by the defenders, does not I think apply, because it related to payment of feu-duties which became due after the vassal's death.
The logical result of this would be that the defender should be ordained to implement her husband's obligation by building in terms of the feu-contract. But it appears to me that this is not a case in which specific implement should be enforced. No doubt specific implement is not impossible, but I think it would be inexpedient and unreasonable to ordain the defender to erect upon the pursuer's land buildings from which she can derive no benefit, especially as such a decree can only be enforced by imprisonment, if indeed that is competent.
It seems to me that the pursuer's true claim is one of damages, if he can qualify damages. It will be for consideration what is the true measure of the claim. That is not a very simple question. The purpose for which the feuar was taken bound to build, so far as the superior was concerned, was not to make the buildings the superior's property, but to secure the superior's feu-duty by increasing the value of the subjects. If Mr Mackenzie had built, and the defender after his death declined to enter, no doubt the pursuer would have got back the land with the buildings on it. But if the feuar had built on the ground, it is not probable that the defender would have declined to take up the feu. Again, if the pursuer had irritated the feu during Mackenzie's lifetime, in respect of his failure to build, he would have simply got back the lands without buildings on it. The present is a third case. The feuar dies, having failed to build, and his heir, as she is entitled to do, declines to take up the feu. The superior has not lost any feu-duties to which he was entitled, but he is thus left with the land on his hands, without the buildings which should have been erected. The land will therefore bring a smaller return if sold or feued again than if buildings had been erected—but is the superior entitled to the whole of the difference?
I was referred by the pursuer to the case of Napier v. Spiers' Trustees, 9 Sh. 655, as a case in which the Court ordered specific implement by ordaining the representatives of the deceased vassal to build. That case is full of specialties, and is not very well reported. But it appears that in the course of the inquiry ordered by the Court it was ascertained that not merely the original feuar but also his trustees had been in possession
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The case of Moore v. Paterson, 9 R. 337, may be referred to for opinions to the effect that the Court will in some circumstances not order specific implement even although the factum prcestandum may not be impossible of performance.
The conclusion for damages in the summons is awkwardly expressed, because although it appears from the condescendence that it was intended to be alternative to the conclusion for building, it is worded as as if it were cumulative. I therefore propose to allow the pursuer to amend the summons by making the conclusion for damages alternative, and I shall then hear parties, and if necessary order proof or inquiry in regard to the amount of damages.”
The defender reclaimed, and argued—The position of the defender was that she refused to take up the feu, and in such circumstances she was neither under an obligation to build or to pay damages. There was here no personal obligation on the vassal to build, nor any obligation which could be transmitted against a representative who refused to take up the feu. The obligation to build was simply a condition of the grant; if not implemented, the superior could sue a declarator of irritancy— Police Commissioners of Dundee v. Stratton, February 22, 1884, 11 R. 590; Magistrates of Glasgow v. Hay, February 23, 1883, 10 R. 635; Marshall's Trustees v. Macneill & Company, June 19, 1888, 15 R. 762. This was not a case in which specific implement could be demanded from the defender, because she was not vassal in the feu. Even admitting that the obligation was on the vassal during his occupancy of the feu, it did not transmit to his personal representative. No damages were due— Tweeddale's Trustees v. Earl of Haddington, February 25, 1880, 7 R. 620; Magistrates of Edinburgh v. Begg, December 20, 1883, 11 R. 352.
Argued for the respondent—In granting the feu the superior had in view not only the feu-duty, but also the other prestations, and the erection of buildings not only fortified the feu-duty but also gave security for it. This was a bilateral contract, and the prestations were personally binding on the original vassal ex contractu, and transmitted to his representatives— Napier v. Spiers' Trustees, May 31, 1831, 9 Sh. 655; Hunter v. Boog, December 16, 1834, 13 Sh. 205. Arrears of feu-duties had been recognised as a debt against the estate by the deceased vassal, and due by his personal representative— Aiton v. Russell's Executors, March 19, 1889, 16 R. 625. The present obligation, which was prestable before the vassal's death, was in a similar position. The obligation on the defender's author was fully recognised by his copartners' trustees, and in the arrangement which they entered into with him he received from them a sum of money in implement of it. If this was not a case for specific implement, then damages were due, and the sum claimed was twenty-three years' purchase of the feu-duty, less the value of the buildings presently on the lands.
At advising—
This is a conclusion by which the pursuer seeks to have the defender, as the personal representative of the deceased Kenneth Mackenzie, ordained to implement an obligation to build on certain lands in which Kenneth Mackenzie died infeft, and, failing implement, to pay damages for the loss sustained by the pursuer from such failure.
I think it is material to see, in the first place, what was exactly the position of Kenneth Mackenzie, the deceased, whom the defender represents, under his title. By feu-contract between the superior and Kenneth Mackenzie and others the superior conveys to him and two other persons named—John Mackenzie and John Hyslop—and the survivors and survivor of them, and the heir of the last survivor, certain lands, as trustees in trust for behoof of a company. Now, the effect of that conveyance was that Kenneth Mackenzie and his two partners were made conjunct fiars in the subject during their joint lives, but that on the death of the first deceaser of the three fiars the feu was not divided—the share of the first deceaser passing, in terms of the conveyance, on his death, to the other two, instead of descending to his own heirs, and the share of the second deceaser, in like manner, passing, upon his death to the sole survivor and his heirs. Therefore during the joint lives of John Mackenzie and John Hyslop, Kenneth Mackenzie was joint fiar with them in the lands. After their death he became the sole fiar and the sole vassal liable to the superior in the prestations of the feu. It appears that for reasons which were probably perfectly valid, but with which we have nothing to do, he was advised to execute a new conveyance in his own favour. But that made no difference in his feudal relation to the superior.
Again, it is of no consequence to the feudal relation, and therefore it is of no consequence to this case, what were his liabilities to the representatives of his deceased co-feuars or copartners during their lives,
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Now, the particular condition which she is required to perform in this action is to erect certain dwelling-houses, and after having erected them, to maintain and uphold them in good order. I am unable to agree with the Lord Ordinary in thinking that any obligation to that effect has been imposed upon the representatives of the late vassal, so as to subject them to an action for specific implement of the obligation.
The general rule in the construction of feu-contracts upon which the Lord Ordinary considers that this case depends is perfectly well settled. It had been settled long before the cases of Russell v. Aiton and The Police Commissioners of Dundee v. Stratton, to which his Lordship refers; but it is stated nowhere more clearly than in the judgment of the Lord President in the latter case. The only difficulty in these cases arose from the imposition of an obligation on the vassal, and his heirs, executors, and successors whomsoever. If that means that all the heirs, executors, and successors are bound conjunctly and severally, then there can be no doubt they are all liable in solidum, and no question would arise; but if they are not bound jointly but severally, then a question which is sometimes of difficulty arises—since the vassal has bound himself and his executors to a certain extent, and his successors in the feu to a certain extent—on what conditions the obligation arises against each of the different sets of successors.
Now, the rule which has been laid down in the cases to which I have referred is perfectly clear, at all events in its application to the main prestation in a feu-contract—the obligation to pay feu-duty—because the Lord President says—“According to invariable practice, an obligation imposed in the terms in which I have quoted is an obligation upon the vassal himself so long as he remains vassal and lives, and after his death upon his heirs and executors, for payment of arrears, but upon his successors in the feu only, to the exclusion of his personal representatives, for payment of the feu-duty in future.” Now, if the obligation which we have to consider had been expressed in the same terms as those which are contained in an ordinary feu-contract, and if the vassal had thus bound himself and his heirs, executors, and successors to build and uphold the buildings after they had been erected, I confess I should not have thought there was much difficulty in applying the general rule explained by the Lord President to such a case, because it really rests upon this principle—that every continuous obligation in a feu-contract or feu-charter, in the absence of special stipulation to the contrary, must be transmissible and enforceable against the vassal in the feu, and not transmissible or enforceable against the personal representatives of the deceased vassal, who are not themselves vassals in the feu.
In applying that rule I should certainly think it very difficult to suppose that a superior imposing an obligation to build houses upon his land should look to anyone for the performance of that obligation, excepting to the owner of the land for the time being, and it is not conceivable that he should look to anybody else for implement of an obligation to uphold and maintain houses after they had been erected. Therefore if the condition in question were imposed upon the vassal and his heirs and successors by the words of the obligation in ordinary feu-contracts, I should, as I have said, have very little difficulty in holding that that transmitted to the successive feuars but did not transmit against personal representatives.
But in this case it appears to me that the question does not even arise, because it is absolutely excluded by the terms of the feu-contract itself.
For the obligation to build, whatever may be its effect, is not in terms imposed upon heirs, executors, or successors whatsoever, but solely upon the vassal holding the lands under the grant for the time being. The feuars do not, either in words or substance, undertake an obligation that they are to build houses, and to perform any one of the prestations which are to be found in that part of the deed. The subject is conveyed under certain conditions and obligations, which are declared to be real burdens affecting the pieces of ground thereby disponed,
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I think it is of no consequence whether such representatives are also mortis causa disponees of the original grantee, who have declined to take benefit from his conveyance, or whether they are in the position of being personal representatives merely, who have no right under the grant.
As personal representatives they are in my opinion in no way liable to perform any conditions attaching solely to the vassals holding the land under the grant. I am therefore unable to agree with the Lord Ordinary.
His Lordship thinks that the defender ought not to be compelled to implement the obligation, because it would not be expedient to enforce specific implement. I think the true reason that she cannot be compelled to do so is that there is no obligation affecting her which could be enforced.
If that be so—if the defender is under no obligation to build, and cannot for that reason be compelled to do so—it follows as a matter of course that she is under no liability in damages. She cannot be subjected to damages for failing to perform an obligation which does not attach to her.
But the Lord Ordinary suggests a different ground—and it has been urged on us in argument—upon which he thinks the defender may be made liable, because he says that there was no doubt a personal obligation upon the late Kenneth Mackenzie, whom she represents, that he failed in breach of his contract to perform that obligation, that in consequence he became liable in damages to the superior, and that that liability transmits as a personal debt against the defender as his representative; and he likens the case to that of a claim for arrears of feu-duty which could undoubtedly be enforced against the personal representatives of a deceased vassal, although a claim for future feu-duties could attach only to the deceased vassal's successors in the feu. But arrears of feu-duty become debts of the debtor's representatives, not because they are under any continuous obligation to pay feu-duty, but because the debt had arisen against the deceased during his life, and for which they as his representatives are liable.
As I have already indicated, I agree with the Lord Ordinary in thinking that there was a personal obligation binding upon Kenneth Mackenzie, and I do not see any reason to doubt—although I do not think it is absolutely necessary to decide the point—that that was an obligation which might be enforced by the ordinary legal remedies, either by an action for implement, or by an action to recover damages for breach of contract. It does not occur to me that the stipulation by which the superior declares that in the event of the obligation to build not being performed, the grant shall in his own option become null and void, could be construed as excluding the ordinary legal remedies which would be available to him in the event of failure to perform the obligation. I think that is a provision by which the superior secures to himself, in his option, an additional right beyond what the common law would have given him if it had not been expressed. A provision that he shall have a further and exceptional remedy does not appear to me to import that he is
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But assuming that there was a good personal obligation affecting Kenneth Mackenzie, and that the superior might have recovered damages from him for his breach of contract during his life, then the question might arise whether a debt has been created against him which may now be enforced against his personal representative. I do not think it necessary to decide that question, because that is not the demand which the pursuer makes in this case. If there is any such liability, it is the liability of a representative for her ancestor's breach of contract; and that is not what the pursuer seeks to enforce in this case. The conclusion of the summons is for implement of an obligation attaching to the defender herself; and the conclusion for damages is a conclusion “that in the event of the defender failing or refusing to erect said dwelling-houses,” and so on, the defender “should be decerned and ordained to make payment to the pursuer of £600” in name of damages. That is to say, there is an obligation now attaching to the defender; she is to be compelled to perform that; and if she does not perform it, then she is to be liable in damages in consequence of her breach of her own obligation. Now, it is quite impossible to make any use of that conclusion for the purpose of recovering from her damages, not for her own breach of the obligation at all, but for a previous breach of contract by the person whom she represents. Upon that ground I am of opinion that it is neither necessary nor proper to consider the question whether if there was a personal obligation affecting the deceased vassal, the defender, as his representative, is liable in damages for his failure. The conclusions of the action exclude any other demand except a demand that she should perform an obligation attaching to herself, or pay damages for her own breach. I am therefore of opinion that the Lord Ordinary's interlocutor must be recalled, and that the defender should be assoilzied from the conclusions of the action.
There was first a provision that the vassal should build dwelling-houses of a certain annual value, and that he should maintain them, and if burned down should rebuild them; and then there follows this condition—not very happily expressed—that in the event of the feuars failing to implement their obligations, “these presents and all following thereon shall, in the option of the said first parties, become null and void.” These are the three clauses of this feu-contract with which we have to deal. The husband of the defender, Mr Kenneth Mackenzie, came to be the last survivor of those mentioned in the contract, and he died in possession of the subjects. Now, I do not see any reason to doubt that Kenneth Mackenzie, the defender's husband, by accepting the feu and becoming vassal under this feu-contract, came under the conditions on which alone he was entitled to hold the subjects, viz., that he would erect dwelling-houses of a certain value. I should not doubt that in a feu-contract so expressed—where lands are given under the express condition of something being done, and these lands are accepted by the vassal under that condition—that out of that state of circumstances a personal obligation arises against the vassal to fulfil the condition during his tenancy of the feu. I think that the vassal's duty would have been stronger if the feu-contract had in this particular case used words of direct obligation. But anybody accepting it under these conditions necessarily came under an obligation to fulfil them. That is my construction of this part of the deed.
The superior stipulated that in a certain event there should be an irritancy imposed, in his option. I concur with Lord Kinnear's observations on that matter. Of course we are familiar with an irritancy in respect of arrears of feu-duty for two years, but I am not quite sure that there would have been any legal irritancy implied here for infringing this condition. I rather think there would not, but I quite agree with Lord Kinnear in his observations in this matter, that unless there be something in the deed to show the contrary, where a superior stipulates for an irritancy of that sort, he is merely stipulating for an additional remedy, by the use of which he may enforce performance of the conditions of the contract, and that because he so stipulates for an additional remedy he does not, and the parties do not, mean that that should in any way interfere with the use and employment of the ordinary and only remedies which he has in such cases. I have no doubt that it might be stipulated that such irritancy should be the only remedy, but I find nothing to indicate such intention here. Therefore I think although that clause of irritancy be there, the vassal who holds the feu is not relieved from the personal obligation to fulfil it, and I think he undertakes it by entering into and taking possession of the subjects.
Now the facts being so, I should have thought that the defender's late husband Kenneth Mackenzie was, as the Lord Ordinary says, under a personal obligation to fulfil the conditions of this feu, and therefore that he was bound to build, and that he having failed in that obligation, the defender, as his trustee, is bound to fulfil that debt of his. But that is not the nature of this
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Upon these grounds I entirely concur in all that Lord Kinnear has said.
We recal the interlocutor and assoilzie the defender.
The Court recalled the interlocutor of the Lord Ordinary and assoilzied the defender.
Counsel for the Pursuer— Jameson— N. J. Kennedy. Agents— R. D. C. Marshall, W.S.
Counsel for the Defender— C. S. Dickson— Wilson. Agents— Gray & Handyside, S.S.C.