der's author would, I assume, have carried the mansion-house and policies. With it, and by reason of it, the mansion and policies are a separatum tenementum, to the plenum dominium of which (under the Crown) the granter of the charter has right.

Suppose, then, that the vassal by the charter possesses the lands of Hillfoot (of course exclusive of the mansion and policies to which he has no title) for, say fifty years, and then (in 1837) purchases from his superior "the superiority and feu-duty of the lands of Hillfoot," and in implement and execution of the contract of sale obtains from his superior a disposition of "the lands of Hillfoot," "all as at present possessed" by himself, and that he thereupon asserts right to the mansion-house and policies as being, on a just construction of the disposition, included in the conveyance. Would it, or not, be a good answer that he did not purchase the mansion-house and policies, that he had no previous title thereto or seisin therein, and that these therefore were not included in the disposition of the lands of Hillfoot "as at present possessed by him and his tenants?" But the case thus put is, I think, indistinguishable from the present as regards the law applicable to it. It is legitimate and familiar to define and limit a general disposition of lands by reference to existing possession on an existing title, and there can, I should think, be no more natural and legitimate occasion for such limitation than in a disposition by a superior to his vassal in implement of a sale of the superiority, the plain purpose of which is not to enlarge the subject of the original grant to the vassal, but only to give him the dominium directum of the very subject of which he was already in possession on a title to the dominium utile.

But the validity of such limitation is not doubtful, and it certainly occurs in the disposition of 1837 to the defender's predecessor. It dispones the lands of Hillfoot quite generally to John M'Arthur Moir,

all as at present possessed by the said John M'Arthur Moir and his tenants." Now, was he, by himself or his tenants, then in possession of that part of those lands of Hillfoot which consisted of coal? That this question must be answered in the negative is clear and indisputable, for as the coal had never been worked (and has not yet been) there could be no possession of it other than seisin on a title that comprehended coal, and John M'Arthur Moir had no such title or seisin. The estate in the coal of the lands had fifty years before been erected into a separatum tenementum or distinct and separate estate or property, to which John M'Arthur Moir had no title, and of which he had and could have no possession.

This is, in my opinion, conclusive of the case in the most strict technical view of the title to which the defender appeals.

The cases which might be put in illustration of the extravagant results to which the defender's argument would or might lead are perhaps too obvious to warrant a

consumption of time in stating them. But let me put one. Suppose the superior was himself working, or had let to tenants the coal in the lands, and was drawing therefrom, say £1000 a-year. He sells the superiority of the surface estate to his vassal therein for £400, being the fair market price of his superiority rights, viz., the feu-duty of £11, and possible casualties. The disposition in implement is, I assume, expressed exactly as that before us. According to the defender's a cœlo ad centrum argument, the vassal would take the estate in the coal, with of course the position of landlord in the coal lease. Nor would the result be different if the surface superiority and coal estate had been exposed to sale by auction in separate lots on the same day, the superiority lot being bought by the vassal for £400, and the coal lot by the coal tenants (a company) for £10,000. The vassal would take the coal as well as the superiority, at least if his disposition (in the same terms as here) was a day earlier in date or the soonest recorded. No reference to the sale contracts, although truly narrated in the dispositions, or to the limitation of the conveyances by reference in the dispositive clauses to existing possession, would be legitimate if the defender's argument is sound-Sensus moresque repugnant.

The reservation expressed in the original feu right might have been repeated in the disposition of 1837, and such repetition might have been prudently cautious. But it would have been, strictly speaking, inaccurate and, I think, superfluous, having regard to the reference to the disponee's possession, which was necessarily under the title containing the reservation. Whether, having regard to the original relation of superior and vassal between the disponer and disponee, and the contract narrated in the disposition, such reference to the vassal's existing right and possession would have been implied without expression I have no occasion to consider. Such a question seems to have occurred and occasioned a difference of opinion in the case of Erskine v. Schaw, referred to in the case for the defenders. I am not disposed to take any account of that case, which is unreported, and so was never before the profession. But I may notice that the dispositive clause there was not limited by a reference to the existing possession of the disponee. A minority of the Judges appear to have thought (and I am disposed to agree with them) that it might reasonably be implied. Had it been expressed, as here, the case would have been different, unless it could be held that such reference is immaterial.

LORD RUTHERFURD_CLARK-The ques tion in this case is, Whether under the disposition of 1837 Mr M'Arthur Moir, whose trustees are the defenders, acquired right to the coal under the lands thereby conveyed. It was conceded-and I think rightly conceded-by both parties that this question must be determined by reference to the titles alone.

At the date of the disposition Mr Moir held these lands in feu. The coal did not form a part of the feu. It was expressly reserved by the superior. Mr Moir purchased the superiority, and the disposition was granted in implement of the purchase.

A good deal has been said about the manner in which Mr Moir feudalised this disposition, and in reference to the fact that he used for this purpose a Crown charter into which he had been assigned. I confess that I cannot see the importance of it. The mode in which his title was completed cannot, in my opinion, enlarge the conveyance or aid in its interpretation. It is true that the disponer was not himself infeft in the superiority. But his disposition is not the less the only measure of the right conveyed.

The disposition recites the two contracts of sale under which Mr Moir purchased the superiority. There cannot, I think, be a doubt of the subject of the sale. It was the "superiority and feu-duty" of the lands which were then held by Mr Moir in feu. In other words, the sale comprised a dominium directum, and nothing else. It did not comprise-and could not comprisethe coal which had not been feued. For the dominium directum can never comprehend a subject which is not contained in the dominium utile.

The disposition was granted in order to convey the subjects which were sold. It recites the contracts and the payment of the price. It then proceeds "Therefore I, as trustee foresaid, have sold, alienated, and disponed," &c. To my mind nothing could be clearer. The disponer dispones because he has sold the superiority and received the price. He has to perform his part of the contract, and he can only do so by conveying what he has sold. If we read the disposition as including the coal, we are holding that it conveys more than the disponer was bound to convey, and, as I think, more than by his disposition he undertakes to convey.

This is precisely what the defenders maintain. They claim the coal by virtue of the disposition, though they admit that the superiority did not contain it. It may be noticed that the disposition was granted by a trustee in bankruptcy, and it would be strange if he conveyed more than he was bound to convey.

The case of the defenders depends on this one consideration-that the lands are conveyed without any reservation of the coal. They contend that the disposition had the double effect of conveying, first, the estate of superiority, and second, the plenum dominium of the coal.

It must be kept in view that the disposition is the ordinary and appropriate form for conveying a superiority. It contains all the usual clauses applicable to such a conveyance, and it does not contain all the clauses usual in the conveyance of a dominium utile or dominium plenum.

In legal theory lands which have been feued remain within the title of the superior. The nature of his right in them is

changed, inasmuch as from the date of the vassal's infeftment it is a dominium directum or superiority only. The vassal is infeft in the same lands, his estate being the dominium utile. When the superior desires to convey the superiority he conveys the lands which are comprised in the feu. In order to serve an important purpose in the feudal law, on which I need not dwell, there is no limitation in the conveyance. Feu rights are excepted from the clause of warrandice. But this exception does not limit the conveyance. It merely excludes any action which might be brought on the warrandice on the theory that the disposition was absolute.

I see from the disposition in question that the disponer was bound to convey the superiority, and that he granted the disposition for the sole purpose of implementing his obligation. The disposition is, in my judgment, nothing more than a disposition of the superiority, though it takes the form of a conveyance of lands by reason of the legal theory to which I have adverted. It seems to me to follow that the description of the subjects conveyed was meant and must be construed to be a description of the subjects comprised in the feu right. For I think that the disposition contains a declaration plain" to that effect. We are bound to read the deed so that it shall be, if possible, consistent in all its clauses, and to my mind it would be a violation of all just construction to read it as conveying what I think it clear the disponer did not intend and did not undertake to convey.

Further, the lands are with one exception disponed as possessed by the vassal or those in his right. Inasmuch as they had been feued there could be no possession except by the vassal, and inasmuch as the coal was not within the feu, there could be no possession of the coal, for there was no title to possess it. But when the possession of the vassal is appealed to as defining the subject conveyed, I think that I am justified in holding that a subject so defined should not be construed as including what the vassal had no title to possess.

It is said that if the disponer did not intend to convey the coal he should have reserved it. It might have been more prudent to do so, but in my opinion it was not necessary. I think that it was more incumbent on the disponer, if he claimed right to the coal, to see that it was inserted in the dispositive clause in order that it might be made clear that it was conveyed. In my opinion it could not be shown in any other way that the coal was conveyed by the disposition before us.

The argument of the defenders is, that as the coal is not reserved it is comprised in the disposition of the lands. Let me show what would be the necessary consequence of sustaining it. In this case the coal was at the date of the disposition vested in the disponer. But the meaning of the disposition cannot be determined by reference to the rights of the disponer. It must have the same meaning whether he was vested in the coal or not. If therefore the

defenders are right in construing it as a conveyance of the coal, observe the necessary consequence. They would have an action of damages under the warrandice clause were it the fact that the disponer had not and never had a right to the coal. Or should he acquire the coal by a separate title after the date of his disposition, his right would at once perish, and the coal would be vested in the defenders by accretion. Nay more, if a person held a superiority and a feu without consolidating, and on a sale of the superiority executed such a disposition as we have here, he would find himself divested of the feu as well as the superiority. For the word lands is sufficient to carry every right, and as I have shown feus are not excepted from the dispositive but from the warrandice clause. The disponee would have no action on the latter clause, but he would be entitled to the entire subject by virtue of the disposition inasmuch as there is no limitation in the conveyance. Of course such a thing could not happen when the superiority and feu were held by different persons, for the disposition of the superior could carry nothing which was vested in the vassal. But on the theory of the defenders it must happen when the two estates are held by the same person. I think that I am bound to put such a construction on the disposition as would avoid results so inequitable, and it seems to me that I can easily reach it by looking at the whole deed and not confining my attention to a single clause.

I have observed that the defenders are the representatives of the disponee. No question arises therefore with regard to a singular successor, though I do not think that would make any difference on the result. But it is not easy to see how the defenders founding on a sale of a superiority in a disposition professing to convey what their author had bought should be entitled to claim more than the subject of the sale.

It is said that in holding that the word "lands" does not include the coals I am violating the canons of construction laid down by the House of Lords in the case of Lee. I do not think that I am. I fully recognised that the words of the dispositive clause must receive their necessary meaning, and that that meaning cannot be controlled or limited by any inference to be drawn from the rest of the deed. I also recognise that they must receive the fullest meaning of which they are capable, unless it appears from the disposition itself that they were not used in that sense. I do not think the House laid down any other rules for our guidance. The principle on which they depend is very obvious. It is that construction is admissible to explain words of conveyance but never to contradict them.

If minerals are expressly conveyed by the dispositive clause it would be in vain to argue that the disponer did not intend to convey them. The clause must receive its necessary meaning. If lands are conveyed, the word "lands" will be construed in its most comprehensive sense, unless it be shown that is was used with a more re

strictive meaning. In limiting it to a conveyance of the surface or of the dominium directum there is no violence done to its necessary meaning. It does not necessary include minerals. For lands may be disponed with or without minerals as the case may be. It is ambiguous, for it is the appropriate word for the conveyance of a dominium directum, a dominium utile, or a dominium plenum. If a disponer on the narrative that he had sold certain lands, but under reservation of the minerals, executed a disposition in implement of that contract by which the lands were conveyed without the reservation being repeated in the dispositive clause, I cannot doubt that the minerals would not be included. I am stating what I take to be a clear case. In such a disposition there is a "declaration plain" that the word "lands" as it occurs in the dispositive clause is not used in its largest sense and does not convey the minerals. But if in any case the word "lands" as it occurs in the dispositive clause is susceptible of construction, it is susceptible of construction in all, so that if it appears with sufficient certainty from the rest of the deed that it is used as not including minerals it will be read in the limited sense in which it is shown to be used.

Holding that I may construe the language of the dispositive clause before me, I am of opinion that it does not include the coal under the lands.

It has been suggested by some of the Cousulted Judges that even if the coal was not conveyed to Mr Moir it is not within the title of the pursuer. No question of this kind was raised or argued by the parties. On the contrary, it was assumed that the pursuer had right to the coal unless it had been previously conveyed to Mr Moir. So far as I can judge from the disposition of Mr Scott to Sir A. Orr in 1860 the assumption is right. But it is not necessary for me to enter on that question, which must be argued if anything is to turn upon it.

THORSEN v. M'DOWALL & NEILSON. Charter-Party-Delivery of Cargo of Timber and Deals-Wharf where no Facilities to Unload Cargo on Quay-Discharge of Cargo into River.

By charter-party a sailing vessel was taken bound to deliver a cargo of timber and deals at the port of discharge, at such wharf or dock as the charterers should direct. On the arrival of the vessel at Glasgow, the port of discharge, the charterers directed the master to discharge in the Queen's Dock. On account of the state of the traffic in that dock the harbourmaster refused to allow the vessel to be berthed there, and assigned the vessel a discharging-berth at Yorkhill, a wharf used for the landing of foreign cattle, and where there were no appliances for unloading timber and deals on the quay. To this arrangement the charterers submitted. The master berthed the vessel at Yorkhill and discharged the cargo into the river Clyde.

Held that he acted rightly in doing so, and that having thus delivered the cargo over the ship's side he was not bound to tow it on rafts to the nearest quay and land it thereon. Charter-Party-Construction of Clauses of Charter-Party regarding the Mode of Paying Freight -Delivery of CargoShip's Lien over Delivered Cargo till Freight Paid.

A charter-party contained the following clauses concerning the payment of freight (1) The ship was to deliver the cargo of timber and deals at the port of discharge on being paid freight at a certain rate per 165 cubic feet; (3) "Freight to be paid as follows-Onethird in cash on arrival, and the remainder after unloading and on right delivery of the cargo"; (12) "The master or owners to have a lien on cargo for all freight, dead freight, and demurrage."

Held that under the charter-party, after payment of the one-third of the freight payable on arrival, no further freight required to be paid until the whole cargo had been unloaded and found to be in as good condition as when shipped, while on the other hand the ship had a lien over the cargo so unloaded until the whole freight had been paid.

66

By charter-party dated 30th December 1890 the barque Theodor Korner" was taken bound to load "a full cargo, to consist of square pitch pine sawn timber, merchants to supply timber and/or deals and/or boards at their option for beam fillings and broken stowage," and "being so loaded shall therewith proceed to any safe port in the United

Kingdom... and deliver the same (always afloat) on being paid freight as followsFor Timber for Cargo,

For Sawn Timber for Cargo,

For Deals and/or Boards for Cargo,

For Timber and/or Deals and/or Boards used for Beam Fillings and Stowage,

£ s. d.

4 7 6

4 7 6

Two-thirds

above rates.

p. St. Petersburg Standard Hundred of 165 cubic feet. 3. Freight to be paid as follows-Onethird in cash on arrival, and the remainder after unloading and on right delivery of the cargo by a good and approved bill payable in London at four months' date following, or in cash, less two per cent. at owner's option. Freight upon deals and/or boards to be paid upon intake measure of quantity delivered.... 6. Twenty-two working days are to be allowed the merchants in which to deliver the cargo at port of loading... and the cargo to be unloaded as customary at port of discharge, at such wharf or dock as the charterers or their agents may direct, and ten days of demurrage over and above the said lying days, at Eighteen pounds per day. . . . 11. The custom of the wood trade of each port to be observed in all cases when not specially expressed. 12. . . . The master or owners to have a lien on cargo for all freight, dead freight, and demurrage."

In the bill of lading dated at Pensacola 21st January 1891 it was stated that the cargo of timber and deals had been shipped in good order and condition, and were to be delivered in the like good order and condition at the Port of Glasgow. The bill of lading, which incorporated the conditions of the charter-party, was indorsed to Messrs M'Dowall & Neilson, timber merchants, Glasgow, as purchasers or assignees of the cargo.

On 15th May 1891 the vessel arrived at Glasgow. Messrs M'Dowall & Neilson directed the shipmaster, Abraham Thorsen, to discharge at the Queen's Dock. As the state of traffic at the Queen's Dock at that time was such as to forbid the unloading of timber, the harbourmaster refused to allow the vessel to discharge there, and assigned the vessel a berth for the discharge of her cargo at Yorkhill, near the foreign animals wharf, where there was only a narrow passage between the slaughterhouse and the wharf, and no appliances for unloading timber and deals upon the quay. To this arrangement Messrs M'Dowall & Neilson submitted and the shipmaster berthed the vessel at, Yorkhill and commenced discharging the cargo into the water. Over a third of the whole freight had been paid before the ship arrived in the Clyde, but on 29th May, after a portion of the cargo had been discharged in excess of that for which freight had been paid, the shipmaster demanded payment from the consignees of the sum of £190, being the freight still unpaid for delivered cargo. He further demanded either security for payment of the balance of freight to become due or payment of the freight applicable to each standard as it was delivered. The consignees refused to accede to these demands and the ship

master stopped discharging the cargo. After negotiations between the parties the consignees paid the sum of £190 and gave security for the balance of the freight.

On 2nd June the shipmaster recommenced discharging. The timber was discharged into the river and floated down to Port Glasgow. The deals also were discharged into the river, and after they had lain about a fortnight in the river, the shipmaster, at the request of the consignees, caused them to be towed up to the Queen's Dock and placed on the quay there, where the consignees took delivery.

On account of the immersion of the deals for a fortnight in the river Clyde, they were injured by water and by the sewage and filth of the river. The consignees estimated the damage thus done at £56, 4s. 7d., and as they held that the deals should have been delivered by the shipmaster at once on to the wharf, and not allowed to remain in the river for some days, they deducted the above sum before paying the freight which they still owed to the shipmaster.

In these circumstances Abraham Thorsen, the shipmaster, as representing the owners of the "Theodor Korner," and Lietke & Company, shipbrokers, Glasgow, their mandatories, raised two actions in the Sheriff Court at Glasgow against M'Dowall & Neilson, the consignees.

In the one action the pursuers sued for £56, 4s. 7d. as balance of freight. In the other action the pursuers sued for £36 as two days' demurrage alleged by them to have been incurred by the fault of the defenders in delaying to pay the freight due on 29th May, whereby the ship was obliged for her own protection to stop delivery.

One proof was taken in both actions before the Sheriff-Substitute (GUTHRIE) which disclosed the facts above narrated. The evidence showed that it was unusual for a cargo of timber and deals to be brought to Glasgow, such cargoes being generally discharged at Greenock or Port Glasgow. There was also evidence that cargoes of timber and deals had been discharged directly on to the quay from vessels berthed at Queen's Dock, but there was no evidence of such a thing having been done at Yorkhill.

On 23rd. December 1891 the Sheriff-Substitute pronounced the following interlocutor in the action for the balance of the freight-"Finds that the pursuers, as owners of the barque Theodor Korner,' failed to deliver the deals loaded under the charter-party and bill of lading, in like good order and condition, at the Port of Glasgow, as contracted for: Finds that the deals were damaged to the amount of £40 sterling, and to that extent sustains the defences; decerns against the defenders in favour of the pursuers for the admitted balance of freight due, viz.-£16, 4s. 7d., with interest, as craved: Finds the defenders entitled to expenses;" And the following interlocutor in the action for demurrage-"Finds that the detention of the ship Theodor Korner,' for which the pursuer

asks demurrage or damages, was caused by their own act and not by the defenders: Therefore assoilzies the defenders, and decerns: Finds the defenders entitled to expenses."

The pursuers appealed to the Second Division of the Court of Session, and argued -(1) In action for Freight-The ship was ordered by the harbourmaster to a berth where it was impossible to land the cargo on the quay. This order was acquiesced in by the defenders. The defenders therefore acquiesced in the cargo being discharged in the only way in which it could be discharged at that particular place, viz., into the water. They had therefore no right to refuse payment of the balance of freight due. (2) In action for Demurrage-There were three clauses in the charter-party dealing with the mode in which freight was to be paid. Two of these clauses, viz., the first and twelfth, agreed with one another, and being in a majority they should prevail. That being so, the pursuers were entitled to get a proportion of the freight for the cargo on delivery of each standard. The shipmaster asked for this on 29th May, or alternatively for security that the freight would be paid, and on the defenders refusing this just demand he stopped delivery for his own protection. The ship was therefore detained by the fault of the consignees, who were liable for demurrage -Lamb v. Kaselack, Alsen & Company, January 31, 1882, 9 R. 482.

Argued for the defenders-(1) In action for Freight-The bill of lading required the shipowners to deliver the cargo in as good condition as when they got it on board. This they had not done when they put the deals upon the quay and the defenders took delivery; the deals were much deteriorated by the filth of the Clyde. When the ship got to Glasgow the defenders had directed the master to discharge her at the Queen's Dock. This he had not done. The ship went instead to Yorkhill and discharged her cargo into the water by reason of which the deals were damaged. Even if the shipmaster was bound to obey the harbourmaster, he should either have discharged the deals directly on to the quay at Yorkhill or made a raft of timber and placed the deals on that, and then towed them to the nearest quay and lifted them thereon. But instead of doing so he discharged the deals into the dirty river and allowed them to lie therein a fortnight. The shipowners were therefore bound to make good the damage caused to the deals by their protracted immersion. (2) In action for Demurrage-No demurrage was due. The mode of payment of freight was expressly laid down in the third clause of the charter-party. This mode of payment had been carried out by the defenders. When on 29th May the demands of the master were not complied with, even if he believed that his demands were justified, he ought to have gone on unloading, at the same time holding possession of the cargo till freight was fully paid. But he had no right in any event to turn his ship into a