perty which will affect successors or successive owners of land beyond such as are already recognised by the law of the country. But then it is decided in terms in the first place that this is a valid right, and in the second place that it has certain legal consequences and incidents, and that being finally determined by a judgment of the House of Lords, it appears to me that the question whether it is more or less analogous to servitude on the one hand, or some other legal right on the other, becomes a mere question of classification which it is not necessary for us to determine in order to dispose of this action. We have the very high authority of Lord Corehouse for saying that it is a predial servitude inasmuch as the law does not recognise a right of shooting as a separate estate which can be created by tack or infeftment, apart from property in land, and on the other hand, as his Lordship points out, the law has recognised the possibility of annexing to a dominant estate a right of this kind to be exercised over a servient estate. However that may be, it appears to me, as Lord M'Laren has said, that all we have to do now is to apply the conclusions of this summons to the terms of the interlocutors affirmed by the House of Lords in order to see whether we can sustain any of the conclusions of the summons or not. Now, I think that the determining consideration is that it has been decided that this right is not a mere personal privilege but a heritable right, and I should have been disposed to think that, if that were all that had been decided, it would follow as a consequence from that determination that it might be exercised not only by the person in whom it was originally vested, but also by any person to whom he communicates it; because the moment it has been established that it is a heritable right, constituted by the infeftment of the owner of the dominant tenement, all the considerations that can be suggested for its limitation on the ground of its being a personal privilege necessarily fly off. It must be one or the other. It is either personal privilege or real right, and the House of Lords have determined that it is the latter. But then the interlocutor goes on to describe the method by which it may be exercised. That appears to me to place all the questions raised in the summons beyond dispute, because it comes to this, that being a heritable right it may be exercised either by the proprietor of Ballogie personally, or by his servants whom he authorises to exercise his own right, or by anybody to whom he chooses to transfer it, subject to only one qualification, that he is to transfer to his friends, whether they are his tenants or not, provided only they be qualified, and he may also so transfer it to them that they may exercise it whether he is personally present on the ground or not. Now, that appears to me to express an unqualified power to transfer the right subject to this condition only, that the transferee shall be qualified according to law to exercise the right of fowling upon the land, and that refers, I think there can be no doubt, to the property qualification by which the privilege of hunting and hawking was confined to persons holding a plough of land in heritage. We are not to consider how far that qualification or limitation of the right is now operative, if it be operative at all, for no question is raised by the summons upon that special point, but subject to that qualification, which appears to me to explain the peculiarity by which the extent of the rights of the parties is previously defined in the interlocutor, the judgment finds that the proprietor vested in the right may transfer it as he pleases. Then it goes on to express another limitation which Lord M'Laren has put into the appropriate language which we should use now in such a case-that the right is to be exercised in a sportsmanlike manner-by saying that it is not to be unreasonable, or absorbing the general right of fowling belonging to the granter of the right. I have therefore come to the same conclusion as Lord M'Laren, that there are no grounds for introducing into this right any of the specific limitations for which the summons concludes. In the first place, it would be directly contrary to the terms of the interlocutor if we were to find that the defender is entitled only to exercise his right as proprietor either personally, or by his friends when he is personally present. Then I can find no grounds in the interlocutor for holding that it is to be exercised only for the supply of the house of Ballogie, which is the second conclusion of the summons. The final terms of the third conclusion of the summons may be perfectly correct, that the right can only be exercised by the defender and his foresaids in such way or manner as not to encroach unreasonably on the pursuer's rights, but that is a conclusion leading up to specific regulations for the exercise of the right, and, as Lord M'Laren has pointed out, this is not an action for regulation or one in which we could proceed to make regulations. Therefore that, as a mere general declarator, is unnecessary, and does not give the pursuer any sufficient title or interest to have that qualification declared in his favour if the more specific conclusions are unsound. Then when the summons goes on to have it found and declared that the privilege is not to be exercised except in a certain specific manner, I agree with Lord M'Laren, for the reason given, that all these limitations are unsupported by the terms of the judgment and finding. If the proprietor of Ballogie, as having a right in connection with that estate to shoot over the pursuer's lands, is entitled to transfer that right, and to exercise it by his servants as well as by himself, I am unable to find any ground for the limitation suggested, viz., that he is not to make such conditions as he pleases with his assignee as to the terms on which, between them, the right is to be exercised. And, again, if he has the right to kill game unlimited by any condition except a concurrent right in the pursuer to shoot over the lands, I am unable to see any ground for limiting the uses that he may make of the game that has been killed so a Hardy & to exclude its being used for any other purpose than the consumption of his own house of Ballogie. I entirely concur with the opinion of Lord M'Laren, and with the Lord Ordinary's interlocutor. LORD ADAM concurred. FIRST DIVISION. [Lord Moncreiff, Ordinary. MOUNSEY (DUNN'S TRUSTEE) v. HARDY AND OTHERS. Proof-Loan-Writ of Debtor-Parole Evidence Writ of Executor - Delivery Cheque. Documents insufficient to prove a contract of loan are insufficient to let in parole evidence of the loan; for parole evidence is not admissible except for the purpose of establishing facts extrinsic to the writing, so as to enable a creditor to prove the loan, not by the parole evidence itself, but by his debtor's writ. Laidlaw v. Shaw, March 5, 1886, 13 R. 724, distinguished; Williamson v. Allan, May 29, 1882, 9 R. 859, explained and approved. In a multiplepoinding raised for the purpose of distributing the estate of à deceased testator, a claimant averred that she had "from time to time made loans of money to him, several of which were of small amount," and that in 1865 she advanced him on loan a sum of £200, the total amount of the alleged loans being £390. In support of her averments the claimant produced (1) a cheque for £200 drawn by her in 1865 in favour of deceased, marked paid by the bank, but not endorsed by any payee; (2) an affidavit and schedule by the executrix of the deceased for return of inventory duty, which bore that at his death there had been outstanding, inter alia, a debt of £200 due to the claimant, which the executrix had paid; (3) a probative minute of agreement between the executrix and a son of the deceased, whereby the latter agreed to take over the stock and plenishing of a farm for a certain sum, less the amount of certain debts due by the trust estate which he undertook to pay. To this minute was appended a state of the trust funds, showing, in addition to the foresaid debts, a debt due to the claimant of 5, 1896 £390. The state was signed by the parties to the agreement, and tested, and a docquet was added to the minute and state, signed by the testator's children, beneficiaries under the settlement, approving of the transaction recorded in the minute, and approving and holding as correct the state of the trust funds. Held (rev. judgment of Lord Moncreiff, Ordinary, who had allowed a proof) that the claim must be repelled on the grounds (1) that the cheque afforded no evidence that the claimant's money had been drawn by the deceased, (2) that the affidavit was not evidence of the existence any more than it would have been evidence of the payment of the debt, (3) that the minute with accompanying state and docquet not being obligatory in itself, and not having been delivered to the claimant, was ineffectual to prove the debt; and therefore (4) that the principle above stated applied. Duncan's Trustees v. Shand, January 7, 1873, 11 Macph. 254, approved. Observed (per Lord Kinnear) that even if the third document produced had purported to be an admission of debt by the executrix addressed to the claimant, and put into her hands to be held as her document, it would not be binding on the trust estate unless and in so far as the executrix was beneficially interested therein. Briggs v. Swan's Executors, January 24, 1854, 16 D. 385, and M'Calman v. M'Arthur, February 24, 1864, 2 Macph. 678, explained and approved. By trust-disposition and settlement Thomas Dunn, who died in 1865, gave and disponed to and in favour of certain trustees his whole means and estate for certain trust purposes. These purposes were the payment to his widow of the free income of his whole estate, and upon her death the division of his estate among his children in equal shares. The testator was survived by his wife and eight children. On the death of the widow, who was the sole surviving trustee of her husband, in 1893, the pursuer and real raiser of the present action was appointed trustee by the Court. The trust estate when realised amounted to £1193, 4s., and constituted the fund in medio. Certain questions having arisen with regard to the distribution of the trust estate, the trustee raised an action of multiplepoinding to determine the rights of the several claimants. A claim was lodged among others for Mrs Marion Brodie or Tait, formerly Mrs Smith, who averred-"(Cond. 2) The claimant Mrs Tait was the sister of the late Mrs Agnes Brodie or Dunn, wife and afterwards widow of the truster, and was on friendly terms with the truster Thomas Dunn during his life. She from time to time made loans of money from her separate estate to the truster, several of which were of small amount; but in particular, on or v. Hardy & Ors 5, 1996 Ors. about 1st February 1865, she advanced him on loan a sum of £200, as is instructed by her cheque of that date in his favour, which is herewith produced. The total amount of the advances made by the claimant to the truster due at the date of his death, including said sum of £200, but exclusive of interest, was £390. (Cond. 3) No part of said debt of £390, and no interest thereon, has been paid to the claimant. During the lifetime of the said Mrs Agnes Brodie or Dunn, and her enjoyment of the liferent of the deceased's estate, the claimant, out of regard for her sister Mrs Dunn, abstained from enforcing her claims to principal and interest. These claims were, however, all along well known to and acknowledged by Mrs Dunn and the family of the deceased. In particular, these claims were acknowledged by Mrs Dunn as the only acting trustee under the settlement of Thomas Dunn, the truster, and by the truster's son Robert Dunn, by the minute of agreement dated 31st March 1869, between Mrs Dunn as trustee foresaid and the said Robert Dunn, to which reference is made in article 4 of the condescendence annexed to the summons. There was annexed to the said minute of agreement, and signed as relative thereto by Mrs Dunn, as trustee foresaid, and by Robert Dunn, a state of the trust funds falling under the trust of the said Thomas Dunn, and among the outstanding debts due by the trust there is entered in said state the said capital sum of £390 as a debt due to the present claimant. Further, the said state of trust funds has appended thereto a docquet signed by five of the truster's children, namely, the defenders John Dunn, Thomas Dunn, Marion Dunn, now Mrs Hardy, Rachel Dunn, now Mrs Shaw, and Agnes Dunn, now Mrs Renton, whereby the said five children approved of the said minute of agreement, and also approved of and held as correct, and duly vouched the said state of trust funds, including the debt due to the claimant. The said debt was also known to and acknowledged by the other two children of the truster, viz., William Dunn and Jean Dunn, now Mrs Glover, who did not subscribe the docquet in consequence of their being under age at the date thereof. The claimant's claim is thus instructed and proved by the writ of the deceased's trustee and legal representative, and also by the writ of six out of the eight parties beneficially interested in the estate of the deceased Thomas Dunn. sum, either of principal or interest, has been paid to the claimant to account of the said debt by any of the said parties, and the claimant has never had any intromissions with any part of the trust-estate." No The claimant accordingly claimed to be ranked and preferred primo loco on the fund in medio to the extent of £390 and interest thereon, and pleaded-"(1) The principal sum claimed by the claimant having been advanced on loan by her to the truster, and the said sum being still due and resting-owing, and no interest having been paid thereon since the truster's death, the claimant is entitled to be ranked and preferred in terms of her claim. (2) The claimant is entitled to be ranked and preferred as aforesaid, in terms of her claim, in respect that the same is proved by the writ of the trustee and legal representative of the truster, and also by the writ of the parties beneficially interested in the trust-estate (3) Alternatively, in respect of the written adminicles founded on, the claimant is entitled to a parole proof of the validity of her claim." The minute of agreement above referred to was one between Mrs Dunn, the widow of the testator, and Robert Dunn, his son, who had succeeded his father in the tenancy of a certain farm, whereby the said Robert Dunn took over the crop, stocking, &c., of the farm at a valuation of £1491, under deduction of £718, which he undertook to pay in discharge of debts due from the trust-estate. In addition to the aforesaid minute, the state of funds of the testator's trust-estate, both duly tested, and the docquet signed by six out of eight of the testator's children, which was not tested, all referred to in the condescendence above quoted, Mrs Tait produced the cheque drawn by her in 1865 on the Union Bank in favour of the testator or bearer for £200, marked paid by the bank but without any indorsation, and an excerpt from an affidavit and schedule for return of inventory-duty, showing among debts due by the deceased at his death and actually paid by the executor-“Voucher No. 25.-Mrs Margaret Smith, £200." The other claimants, being the children of the testator, the marriage-contract trustees of his son John Dunn, the trustee on the sequestrated estate of John Dunn, and the assignee of another son, Robert Dunn, concurred in maintaining that Mrs Tait's claim was wholly unfounded. They averred, inter alia-"The alleged debt to Mrs Tait being for loans which she is said to have made to the deceased, can only be proved by writ, and no sufficient writ is produced by her to establish constitution and restingowing of the alleged debt." They pleaded"The constitution and resting-owing of the alleged debt in respect of which Mrs Tait claims can only be proved scripto." On 19th December 1895 the Lord Ordinary (MONCREIFF) allowed Mrs Tait a proof of her averments, and to two other claimants a conjunct probation. Opinion."The claimant Mrs Tait (formerly Mrs Smith) was the sister-in-law of the truster Thomas Dunn, being the sister of his wife Mrs Agnes Brodie or Dunn. Thomas Dunn died on 2nd March 1865, and Mrs Tait avers that at the date of his death he was due her £390, being the amount of various advances in loan made by her to him. The truster's widow died on 28th October 1893. During the interval which elapsed between the death of Mrs Dunn's husband and that of Mrs Dunn herself, Mrs Tait did not claim payment of the debt, principal or interest, which she now alleges to be due. She now, however, claims payment out of the fund in medio of the principal sum of £390, with interest from the date of the truster's death. v. Hardy & "As a general rule loan must be proved by the writ or oath of the debtor. Writ there must be, but if writ under the hand of the debtor is produced which prima facie bears to be an acknowledgment of the debt, but which is not in itself conclusive, or which depends for its effect upon circumstances which require to be ascertained, the rule requiring writ is held to be satisfied and parole evidence is let in to set up the writing and complete the proof. "Mrs Tait produces a cheque for £200, dated 1st February 1865, granted by herself to the truster, which she alleges instructs a loan of £200 made by her to him on that date. The cheque, taken by itself, simply instructs the fact that money passed. Haldane v. Speirs, 10 Macph. 537, has decided that it cannot be regarded as the writ of the payee to the effect of proving loan; and that parole evidence is incompetent to prove quo animo it was granted. I do not say that if a general proof is allowed the granting of the cheque is of absolutely no importance, but certainly by itself, apart from other writing, it does not instruct loan. "The writing, however, which is relied on is No. 24 of process, which contains, it is maintained, an acknowledgment of an outstanding debt of £390 due to the claimant. It is dated in 1869, and is under the hand of Mrs Dunn, who was then the sole trustee and executrix of the alleged debtor. The entry is not a casual jotting; it was made in connection with a formal family transaction, and bears to have been signed before witnesses by Mrs Dunn. It appears from the minute of agreement that in 1869 Robert Dunn, one of the truster's sons, having obtained for himself a lease of a farm, of which his father was tenant at the date of his death, purchased from Mrs Dunn, as sole acting trustee, the stock, cropping, and implements upon the farm at a valuation of £1491, 18s. Of this sum it was arranged that he should pay the trustee £773, 9s. 11 d., and become responsible for and pay accounts payable from the trust - estate amounting to £718, 8s. 04d. Appended to the agreement is a state of the trust-funds as at Martinmas 1868 signed by the widow, in which, among the outstanding debts' is entered-'2. Sum of debt due to Mrs Margaret Smith £390.' (I understand that there is no dispute that by Mrs Smith' the claimant is meant.) Then follows a schedule of the accounts paid or to be paid by Mr Robert Dunn, and the whole concludes with a docquet signed by five of the truster's children, in the following terms:'We, the undersigned children of Mr Thomas Dunn, approve of the arrangement for conveyance of crop, stocking, and implements mentioned in the foregoing minute of agreement, being satisfied that the same is more to advantage than a sale of those by public roup, and we also approve of and hold as correct, and duly vouched, state of the trust-funds of our father as at Martinmas 1868 hereto prefixed.' "Now, this is not an acknowledgment made direct to the alleged creditor-but that is not essential. An entry in the debtor's 66 5, 1896 books, if sufficiently specific, is enough even if the creditor was ignorant of the existence of the entry until he recovered it under a diligence. In the case of Briggs v. Swan's Executors, in 16 D. 385, an illustration will be found of the effect attributed to a document of this kind. The question there was not one of loan, but whether a debt had been cut off by the long negative prescription. It was held that certain states prepared for and docquetted by the executors, and an inventory given up to the Stamp Office, in which the debts in question was entered as due, were sufficient to preserve them from the negative prescription. In that case a proof was allowed of the circumstances connected with the preparation and signing of the states. On consideration of the proof it was held, as I have stated, that the debts were saved from prescription. 'Again, in the case of Williamson v. Allan, 9 R. 859 (for the purpose of establishing loan) a proof was allowed to set up an IOU, which was open to the objection that, although it bore the date of 22nd May 1876, it was really granted in April 1880, by which time the granter was insolvent, although the document was signed more than sixty days before his bankruptcy. The sum also in the IOU was incorrect. Therefore taken by itself, the IOU, although ex facie a document of debt in the creditor's possession, was utterly insufficient to instruct loan. But parole proof was allowed of the circumstances in which the IOU was granted, and the alleged lender and the granter of the IOU were both examined on oath. On a consideration of the evidence the creditor was held to have established loan to the extent of £1554, 17s. 2d. Lord Kinnear remitted to the trustee to rank him accordingly; and the First Division of the Court adhered to that interlocutor with a slight variation. "In the present case I think that the writing founded on is prima facie a sufficient acknowledgment of debt to let in parole proof. The other claimants have given no explanation as to how the entry which I have quoted came to be made. I therefore allow the claimant Mrs Tait a proof of her averments. The main object of that proof is to ascertain the circumstances in which the entry founded on was made; and the effect to be given to the writing may depend on the evidence adduced on the one side or the other; but I may add, to prevent misunderstanding, that I do not intend to exclude the evidence of the claimant herself." The claimants Mrs Hardy and others, children of the testator (four of those who signed, and the two who did not sign the docquet), reclaimed, and argued-There was no writ produced by the claimant Mrs Tait sufficient to prove the constitution of the debt. (1) With regard to the cheque, that in itself was clearly not sufficient to entitle her to a proof-Haldane v. Speirs, March 7, 1872, 10 Macph. 537. (2) As regards the other documents, the minute of agreement had never been delivered, and the claimant did not even profess to be a party to it. Delivery was necessary-Duncan's Trustees No v. Shand, January 7, 1873, 11 Macph. 254. Briggs v. Swan's Executors, January 24, 1854, 16 D. 385, was quite special, and totally distinct from the present case. The party to whose oath the constitution and restingowing of the debt might be referred was not the trustee, but the beneficiary-Ker, M. 12,478; Eccles, M. 16,270; Stewart v. Syme, December 12, 1815, F.C.; Farquhar v. Farquhar, February 23, 1886, 13 R. 596. doubt the beneficiaries had signed the docquet, but that was only binding between them and the executrix, and could not be founded on by a creditor. Besides, the docquet founded on was not probative, and therefore could not be looked at for any purpose-Alexander v. Alexander, February 26, 1830, 8 S. 602; Miller v. Farquharson, May 29, 1835, 13 S. 838; Hamilton's Executors v. Struthers, December 2, 1858, 21 D. 51, per Lord Curriehill, p. 60; Bowe & Christie v. Hutchison, March 19, 1868, 6 Macph. 612, per Lord Deas, p. 646; M'Adie, &c. v. M'Adie's Executrix, March 9, 1883, 10 R. 741. The only case decided to the contrary was Bryan v. Butters Brothers & Company, February 23, 1892, 19 R. 490, which was not well decided, and where the opinion of Lord Young, who dissented, followed precisely the same line of reason. ing as Lord Corehouse in Miller. As for the state of funds, the books of the debtor himself would not have been sufficient to instruct the loan; how then could the state do so?-Waddel v. Waddel, 1790, 3 Pat. App. 188; Wink v. Spiers, March 23, 1868, 6 Macph. 657. The document founded on must be in the hands of the creditor. Argued for the claimant Mrs Tait-It was quite true that there must be written adminicle of proof. But if there was such adminicle, parole proof would be allowed, and the two combined might instruct the debt-Williamson v. Allan, May 29, 1882, 9 R. 859. No doubt if a party rested his case solely on a document, it must be holograph or tested; but here the question was with reference to the docquet, whether a document neither holograph nor tested might not be enough to justify the admission of parole evidence. That question had been decided in the affirmative in Bryan, ut supra. As regards the nature of the other documents, there was a complete state of Mr Dunn's funds signed by the trustee. [Per LORD KINNEAR-But can a trustee's or executor's writing in such circumstances be better than the parole evidence which he will give?-See Farquhar, ut supra, per Lord Shand, p. 598.] The case of Briggs, ut supra, showed that executors were the proper parties to acknowledge debts of a deceased testator. Entries in the account books of the debtor had been held sufficient, though they were written by different hands Lawrie v. Drummond, M. 12,622; Purveyance v. Cunningham, M. 12,623; Ersk. Inst. iv. 2, 4. It was not necessary that the document should pass from debtor to creditorGordon v. Glendonwyn, February 23, 1838, 16 S. 645. A writ of the creditor found in the debtor's possession had been held to be writ of the debtor- Wood v. Howden, February 7, 1843, 5 D. 507. Among the writings which had been held sufficient to establish loan and the like obligations were the signature of the debtor in his creditor's bank passbook-Fraser v. Bruce, November 25, 1857, 20 D. 115; a schedule of debts given up by an executor to the Inland Revenue M'Calman v. M'Arthur, February 24, 1864, 2 Macph. 678; letters from the creditor to the debtor, and entries in the debtor's private account book--Thomson v. Lindsay, October 28, 1873, 1 R. 65; a letter from the debtor's agent to the creditor-Laidlaw v. Shaw, March 5, 1886, 13 R. 724. A "fitted account" was expressly said by Erskine to be an exception to the general rule as to probative writings (Inst. iii. 2, 24). The case of Ross v. Fidler, November 1809, F.C., referred to with approval by the Lord President in Haldane, ut supra, was a direct authority in the present case, to the effect that parole proof was admissible. The case of Wink, ut supra, merely illustrated the limitations of the doctrine. At advising LORD KINNEAR-The question we have to consider is whether a proof at large should be allowed for the purpose of establishing the case alleged by the claimant Mrs Tait. The claim is for repayment of money lent to the testator, who died in March 1863, and the averment in support of it is that the claimant "from time to time made loans of money to him, several of which were of small amount," and "on or about the 1st of February 1865 she advanced him on loan a sum of £200, as is instructed by her cheque of that date in his favour," and finally that the total amount of her loans at the date of his death was £390. Except as regards the sum contained in the cheque of 1st February, there is no statement of the specific amount of any particular loan, or of the dates when any of the loans were made. The claimant gives no detail in support or in explanation of her case except what I have quoted; and it is this bare averment that she lent moneys to the deceased that the Lord Ordinary has remitted to proof. The claimant's counsel did not dispute the general rule of law, which, indeed, is too well established to admit of discussion, that a loan of money can only be proved by the writ or by the oath on reference of the alleged borrower. But he maintains that he has produced certain writings which are sufficient to satisfy the rule, either as being in themselves evidence of the loan, or as raising a prima facie case which may be completed by parole testimony. The first of these documents is the cheque of 1st February 1863, and I agree with the Lord Ordinary that this is not a writ of the testator which is sufficient either to prove a debt or to displace the general rule of law so as to let in parole proof. If the cheque had been endorsed by the alleged borrower, and so had afforded evidence under his hand that he had drawn the lender's money from the bank by her authority, the case of Haldane v. Speirs would have been directly |