HON. CAROLINE GEORGIANA HOPE AND OTHERS V. STAMFORD ROBERT LUMSDAINE. Superior and Vassal-Public Burdens-Relief

Retention. Circumstances in which it was held that a vassal, whose superior was bound to relieve him of all public burdens, was entitled to retain from arrears of feu-duties due the poor-rates of byegone years, not only of those for which the arrears of feuduties were claimed but also of previous years, the feu-duties of which had been paid and settled long before.

The pursuers in this action were the trustees under the trust-disposition and settlement of the late George William Hope of Luffness, Waughton, Craighall, and Rankeillor, who had been in possession, as heir of entail, of these estates from the year 1838 to the date of his death, on 18th October 1863. The defender Stamford Robert Lumsdaine of Lathallan was the youngest son and heir of provision of the deceased James Lumsdaine, and heir of line of the deceased William Lindesay Lumsdaine of Lathallan, his eldest son. He also represented generally the said William Lindesay Lumsdaine. The defender and his predecessors were vassals of the said George William Hope in the lands of Bonnybank, part of the lands of Southern Callange, and also in the lands of Norther Callange, all included in the Barony of Craighall. reddendo for these lands of Bonnybank and Norther Callange, payable to the superior, was a certain sum of money, a quantity of victual, together with certain kain hens and carriages, which had all been in use to be commuted for a money payment, though the superior and vassal were not exactly agreed about the rate of commutation.

The

For the years 1856 to 1858, while the lands were in possession of William Lindesay Lumsdaine, and for the years 1859 and 1860, while they were in possession of his trustees, and also for the years 1861 to 1863, while they were in possession of the defender, the pursuers, as trustees of the said George William Hope, the superior, claimed arrears of feu-duties, amounting in all to about £260. The defender met this demand by a claim of retention of the sums paid by himself and his predecessors for poor-rates out the said lands from the year 1844 to the year 1863, amounting in all to about £220. He founded upon the following clause contained in the reddendo of his titlesAnd it is hereby provided that the said Archibald Christie and his spouse (the original vassals in the lands) and their foresaids shall be bound and obliged to paie the whole cess and public burdens, they always having allowance thereof in the first end of the foresaid feu-duty yearly at clearing.' This clause was continued throughout the whole progress.

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The point practically at issue between the parties was in regard to the defender's claim of retention. The pursuers, while admitting that poor-rates were to be considered among the public burdens

covered by the clause of retention in the charter, contended that the defender's right only extended to the retention of each year's poor-rates out of that year's feu-duty, and that there could be no claim for the poor-rates of back years, the feuduties of which had been paid; and consequently, that though the defender had a right of retention of the poor-rates for the years 1856 to 1863 out of the feu-duties for those years, arrears of which were sued for, he had no claim of retention for the poor-rates of the years 1844 to 1855, the feu-duties of which had been paid.

The defender maintained that he was not only entitled to retain for the years 1856 to 1863, but also for the years 1844 to 1855.

The Lord Ordinary (JERVISWOODE) pronounced an interlocutor, of which the following part applied to this point-"Finds first, as respects the claim made by the defender for allowance and repetition from pursuers, as trustees and executors of the superior, the deceased Mr George William Hope, of poor-rates stated to have been paid by the defender's predecessors, as owners of the lands of Norther Callange, for the years 1844 to 1855 inclusive, but not demanded by or allowed to them by Mr Hope at the dates of settlement of the feuduties for these years, and still remaining unpaid -that the said claim is not barred by prescription or otherwise, and that the defender is entitled, on instructing the amount thereof by production of sufficient vouchers of payment, to retain the same from such balance as may be found to be due by him in the present action; but finds, in respect of the failure on the part of the defender's predecessors to claim allowance for said poor-rates annually on settling the feu-duties as provided by the titles, that he is not entitled to interest upon the amount of said poor-rates prior to the date of citation in the present action, from which date finds him entitled to interest thereupon."

Against this finding of the Lord Ordinary the pursuers reclaimed.

ADAM for them.

MARSHALL for the respondents.
At advising-

LORD PRESIDENT-This action is raised for the recovery of arrears of feu-duty against the vassa in the lands of Norther and Souther Callange, and these arrears extend from 1856 to 1863. The action is met by several defences, with none of which however have we anything to do at present, except one. That defence is a claim of retention or compensation, for I am somewhat doubtful as to the proper technical term to be applied. The defender alleges that he and his predecessor in the feu, whom he represents not merely in the feu but also universally, were entitled to retain from the feu-duties all cess and public burdens, and among others poor-rates. It is not disputed by the superior that this is a good claim in general, and he is willing to allow retention from the feuduty of each year of the poor-rates applicable to that year; but he denies the right of the defender to retain from the feu-duty of any year the poorrates or other public burdens applicable to other years, for which he is claiming no arrears of feuduty, they having been paid and settled long ago. The question in fact is, whether the defender is entitled to retain from the arrears of feu-duties for the years 1856 to 1863 the poor-rates, not for those years only, but also for the years 1844 to 1855.

Now, in one reading of the original feu-right it would be very difficult to admit this claim on the

part of the defender, because he undertakes in the first place to pay the whole public burdens, and all he has by way of relief is contained in the following words:" he always having allowance thereof in the first end of the foresaid feu-duty yearly at clearing." Now these words occur in that part of the charter which provides for the reddendo. There are several items of reddendo in this charter, consisting of money payments, victual, kain, carriages, &c.; and all these are said to be due in name of feu-duty. Then occurs the obligation on the vassals to pay the public burdens, and the clause winds up, "they always having allowance thereof in the first end of the foresaid feu-duty yearly at clearing." Reading that clause strictly, the only right competent to the vassal is to deduct from each year's feu-duty the amount of public burdens paid for that year.

But it is to be borne in mind that the burdens here undertaken by the defender were truly burdens on himself, as proprietor of the dominium utile of the lands, and not upon the superiors. The undertaking was only to pay what was properly his own debt; and the right he had secured to him, on the other hand, was a right of relief against the superior, who undertook to relieve him in the end of these payments. That is a very different sort of right. It is very difficult to understand how the vassal could have this right unless there was a corresponding debt incumbent on the superior. It is said that the vassal is only entitled to deduct from the first end of each feu-duty-that that is the measure of his right. I think, on the contrary, that these words are only added as a farther privilege, to enable him to operate his own relief, in terms of the obligation which the superior has undertaken. I think therefore that this clause is to be construed by implication, as an ordinary general obligation on the superior to relieve his vassal of all public burdens.

This practically puts an end to the whole case. It resolves into a question of debt between the superior and vassal. There is no prescription to cut off this debt, and the debt accordingly subsists. There being no technical objection raised to the form which the action has taken, and to the absence of certain parties, there is no reason why we should not give effect to it, when pleaded in compensation. I therefore think that the Lord Ordinary has done quite right in finding that this claim of retention is not cut off; but I also think he has done quite right in refusing interest upon these sums claimed to be retained, because it was the fault of the vassal that his right was not made effectual sooner.

There might have been something in the last argument submitted to us by the pursuers, viz., that the accepting of a charter of confirmation by the defender in 1855, cut off all claims previous to that year. If this charter of confirmation were in the ordinary form, it might have been inferred that all claims on the part of the superior had been settled, and in consequence it might have been contended that all counter claims on the part of the vassal for bygone poor-rates had been departed from. But unfortunately the terms of the charter itself negatives this, for it contains an express reservation of all claims of the superior to arrears of feu-duties. This therefore does not alter the question.

LORDS DEAS, ARDMILLAN, and KINLOCH concurred.

The Court adhered.

BEVERIDGE'S TRUSTEES V. BEVERIDGE. Partnership-Process-Relevancy. Averments held not relevant or sufficient to support an action invoking the interference of the Court in the affairs of a copartnery.

This was an action by the trustees of the late Erskine Beveridge against James Adamson Beveridge, manufacturer, Dunfermline. On the 24th October 1864 the truster, shortly before his death, entered into a contract of copartnery with his son, the present defender, to endure from 1st July 1865 to 19th March 1874. It was provided that in the event of Mr Erskine Beveridge's death during the subsistence of the contract the copartnery should continue, notwithstanding, as between his representatives or trustees on the one hand, and James A. Beveridge on the other. The contract contained the following clause:-"The books of the company, which shall contain all and every part of the affairs and transactions of the joint trade, shall be brought to a just and true balance at least once in every twelve months, and that at the 23d day of December in each year, and the profits or loss arising in the previous year's trade shall be shared by the parties in the proportions after mentioned."

The averments of the pursuers, and the conclusions of their summons, will sufficiently appear from the Lord President's opinion.

The Lord Ordinary (ORMIDALE) found that no relevant or sufficient grounds had been laid by the pursuers entitling them to insist in the present action, and accordingly dismissed the action. The pursuers reclaimed.

The SOLICITOR-GENERAL and WATSON for them.
SCOTT for the defender.
At advising-

LORD PRESIDENT-The Lord Ordinary has dismissed the action in respect that no relevant or sufficient grounds have been laid by the pursuers entitling them to insist in the present action. The ground alleged by the pursuers is that they have been in partnership with the defender under a contract of copartnery dated 24th October 1864. In obedience to a clause in the deed, balance-sheets were made up for 1865 and the following years. The rest of the condescendence, in so far as it alleges any grounds of fact, is to be found in Article 9-"The said balance-sheets exhibit just and true balances of the affairs of the said copartnery of Erskine Beveridge & Company. The concern has been exceedingly prosperous, and large annual profits have been realised since 1st July 1865. The defender has from time to time drawn out of the business large sums to account of his fourth share of profits. But although he has been regularly furnished with the balance-sheets, the defender has hitherto declined to aid the trustees, or concur with them, in adjusting the same, according to the terms of the contract of copartnery, in order to fix and ascertain the amount of profits due respectively to him and to his father's trust, in consequence whereof it has become necessary to raise the present action." It is not alleged that the defender has drawn any sums to account not justified by the balance-sheets. It is not alleged

that he has stated objections to the balance-sheets, or that he has done anything except to decline to aid the trustees in adjusting the balance-sheets. What do the trustees ask the Court to do? They ask for declarator that the defender is bound to concur with the trustees in bringing to a just and true balance the books of the firm once in every twelve months, and for decerniture against him to concur with the trustees in adjusting the balancesheets, and to subscribe or otherwise authenticate the same in token of his acquiescence therein. Then there is an alternative conclusion that in the event of the defender appearing and objecting to the said balance-sheets, correct balance-sheets should be adjusted at the sight of the Court. The alternative is, that either the defender is to be ordained to concur in adjusting the existing balancesheets, or otherwise, throwing these aside, correct balance-sheets are to be made up at the sight of the Court. Apart from the impossibility of finding any sufficient grounds for the interference of the Court at all, I am struck by the novel form of remedy proposed. I am not prepared to pronounce an opinion that circumstances might not occur where a partner is entitled to throw the affairs of the copartnery into Court; but this is not a course which a partner can take in the ordinary course of the partnership with no stronger allegation against his copartner than that he will not help him in adjusting the balance-sheets. By the contract of copartnery there is no obligation on the defender to express his acquiescence in the balance-sheets, and it would be rather a strong thing for the Court to create this obligation against him. I quite agree with the Lord Ordinary. I may say, at the same time, that I am the more easily reconciled to throw the action out of Court from the information we now have that there are other disputes between the parties which have not yet been finally determined. I quite understand the unwillingness of the defender to subscribe balance-sheets while he is objecting to some of the principles on which they are struck. This action would have no practical value if we could have sustained it. But I put my judgment on the same grounds as the Lord Ordinary.

The other Judges concurred.

The Court adhered.

Agent for Pursuers-T. J. Gordon, W.S. Agents for Defender-Wotherspoon & Mack, S.S.C.

Friday, June 23.

CUNNINGHAM AND OTHERS V. EDMISTON

AND OTHERS.

Process-Tille to Sue-Sepulchre-Property-Contract-Implied Obligation. Where eleven out of thirteen thousand lair holders in a cemetery brought an action of declarator and interdict, &c., against the proprietors of the cemetery, seeking to have certain points determined which affected the rights of the whole body of lair holders, as well as those themselves individually-held that they had a right to pursue such action, but that the right to insist was a different thing from the title to sue, and must be judged of on the merits of the case. And, on the merits, it being found that they as individuals had no right to insist in conclusions of such a general nature,

as would have put the rights of the whole body upon a perfectly new footing,-held that the proper course was to give decree of absolvitor, and not to dismiss the action.

Circumstances in which it was found that lair holders had no absolute right of property in their lairs (the cemetery not being a public parochial one), but only a permanent right of use, which right was a right ex contractu though implied merely between them and the proprietors, and its extent to be determined by a consideration of that contract; and farther, that they were not, in terms of that implied contract, entitled to demand, upon all the lairs being disposed of, that the proprietors should denude and transfer the property to trustees for behoof of the lair holders, or give up the management to a committee appointed by them :

In which, on the other hand, it was held that the proprietors, by the implied contract between them and the lair holders, were bound to dedicate the whole ground to the purposes of cemetery; and though not debarred from profit from interment fees, as well as from the sale of lairs, they were only entitled to fair and reasonable fees, which the Court might interfere to fix, if properly applied to for that purpose.

This was an action of declarator, &c., brought by James Methven Cunningham and others, being thirteen lair holders in the Western Division of the Southern Necropolis, Glasgow, against William Edmiston, the trustees of James Watson, and the trustees of James Galloway.

The conclusions of the action will be more fully disclosed in the note to the Lord Ordinary's interlocutor given below. The general object of it may be shortly stated to have been-to compel the defenders to denude and divest themselves of the property of this Western Division of the Southern Cemetery in favour of trustees, who should thereafter hold for the sole beloof of the lair holders; and to hand over the management to a committee of lair holders, as in the other divisions of the cemetery. Failing this, there were several conclusions intended to regulate the management of the cemetery, the fees for interment, &c., and to prevent the practice of "pit-burial."

In order to understand the rights of parties in this Western-Southern Cemetery, it is necessary shortly to refer to the history of the original Southern Cemetery, and its first or eastern division.

The original Southern Cemetery, extending to seven acres, was projected in 1839 by the late Colin Sharp M Laws. Two public meetings were held in Gorbals, and thereafter a prospectus was issued embodying the views of the projector, and the resolutions come to at these two meetings. The ground was purchased from William Gilmour, merchant in Glasgow, M'Laws' father-in-law, and a disposition was executed by him in favour of a committee of management appointed by a general meeting of subscribers to the projected cemetery, the said committee to remain in office and not be removable by the subscribers until the price was paid to Mr Gilmour. The prospectus above referred to especially set forth that it was one of the objects of the promoters to prevent and put a stop to the practice of pit burial. It was farther specially held out and provided in the prospectus that the management of the said Southern Necropolis should be in the hands of the purchasers of the lairs; that the property should be vested in the Magistrates of

Gorbals for the security of all concerned; and that the lair holders should appoint a committee of management, of which the said Magistrates should be ex officiis members. Accordingly, after the price had been fully paid to Mr Gilmour, the property of the cemetery was duly vested in the Magistrates of Glasgow, as coming in the place of the Magistrates of the old burgh of Gorbals, and a committee of management was appointed by the lairholders, consisting of the Magistrates and sixteen other members. The cemetery has since remained under the management of the said committee. The lairs were gradually disposed of, payment being taken, in terms of the prospectus, in weekly instalments, any purchaser allowing six weekly instalments to lie over unpaid forfeiting his right to the money paid, and the lair allocated. The sole title of a purchaser or lairholder was a pass-book, shewing the number and price of lair, and the amount of payments made.

In the years 1846 and 1847, Mr M Laws, who had had a large share in the management of the Southern Cemetery, entered into an agreement with Mr Gilmour for the purchase of a piece of ground of 32 acres, lying to the east of the original cemetery, to be formed into an eastern addition to it. The arrangement with regard to this eastern division was, that on the payment of the price and the disposal of the whole lairs, the ground should be handed over by the parties, Gilmour and M'Laws, to the Magistrates and committee of management of the original Southern Cemetery, to be held and managed by them in the same way as the latter. This was communicated to purchasers of lairs, and the original prospectus adopted and referred to. There was this difference, however, with regard to this eastern division, namely, that one-third of the money received for lairs was to be paid to Mr M'Laws "to be appropriated by him for his own private use." The said eastern division is now under the management of the committee of the Southern Cemetery, as set forth and provided for in the said agreement and prospectus.

The demand for lairs increasing, Mr M'Laws determined to arrange for the addition of a western division to the cemetery. He accordingly purchased from the trustees of Mr Jardine of Hallside a piece of ground adjacent to the Southern Cemetry on the west side, consisting of 9 acres. This was in 1851 feudally vested in Mr M'Laws, and became the Western-Southern Cemetery, about which the present action was raised. In the year 1856 M Laws borrowed from the City of Glasgow Life Assurance Company the sum of £6000 upon bond, in which the above-mentioned James Galloway, James Watson, and William Edmiston were cautioners; and in security for this debt he executed a disposition of the property of this WesternSouthern Cemetery to the Assurance Company, receiving from them a back-bond.

M'Laws being sequestrated in 1857, the Assurance Company, with consent of his trustee, proceeded to sell the said Western Cemetery for payment of their debt; and it was purchased by Galloway, Watson, and Edmiston, the cautioners above mentioned. It was ultimately vested in them under an absolute conveyance, but containing the following clause:-" and particularly the lands and others before disponed are so disponed under the burden of all servitudes and other burdens acquired over said subjects and others by prescriptive use or otherwise, and specially under all the servitudes and other burdens created in favour

VOL. VIII.

of parties to whom lairs or places of interment may have been sold or disposed of prior to the said 2d day of February last, with all the rights and privileges to which these parties or their successors may be entitled in virtue of the sales or servitudes so created, all of which are by acceptance hereof undertaken by our said disponees and their foresaids." The property of this Western-Southern Cemetery still remains in the persons of Galloway, Watson, and Edmiston, or their trustees, subject to the above-mentioned conditions. It was averred by the pursuers that M'Laws, when he bought this western division, was still in possession of the eastern, and that he purchased it with a similar object, namely, to form an addition to the original cemetery, to come under the same management, and the property to be vested in the same way; and it was contended that by the representations to the public of M'Laws and his successors in the feu-right, the defenders were bound by the original prospectus and scheme of management of the original Southern Cemetery. The pursuers having many complaints against the defenders as vested with the property, and exercising the management of this WesternSouthern Cemetery; in particular, with regard to their neglect to lay out the ground, their permitting the practice of pit-burials, their illegal forfeiture of lairs, and refusal to allocate them, and their exacting exorbitant interment fees for the purpose of making a profit to themselves, found themselves obliged to raise this action of declarator, &c.

The pursuers pleaded-"(1) Under the contracts with lairholders to which the defenders were or have become parties, the defenders are bound expressly or by reasonable implication to transfer the feudal title to trustees, and to leave the management of the cemetery to the lairholders; and the pursuers are entitled to decrees to these effects. (2) The defenders are bound by the sales of lairs, whether effected by themselves, or any of them, or their predecessors; and the pursuers are entitled to decree declaring the obligations of the defenders, as concluded for. (3) The defenders are further bound, at their own expense, to lay out the cemetery according to the original design, in so far as not already done. (4) The burials in the spaces intended for flowers and ornamental shrubbery and trees, and the pit-burials practised by the defenders, being contrary to the original design of the cemetery, and the defenders' obligations expressed or reasonably implied, the pursuers are entitled to establish their rights in these respects by declarator, and to have interdict, as concluded for. (5) Any right which the defenders may have of charging rates for interment, is limited to what is necessary for the proper maintenance and working expenses of the cemetery, and is subject to the equitable control of the Court. (6) The pursuers are entitled to have their rights cleared and defined, and to have the defenders' obligations in regard to the said cemetery equitably fixed and regulated by the Court, in terms of the conclusions of the summons; and the defenders, in opposing, should be found liable in the expenses of process."

The defenders pleaded-"(1) The pursuers have no title to sue this action. (2) The action is incompetent, and ought to be dismissed. (3) The averments of the pursuers are irrelevant, and insufficient in law to support any of the conclusions of the action. (4) There being no contract, nor a breach of any contract, between the pursuers and

NO. XXXVII.

the defenders on any of the matters embraced in the conclusions, the defenders ought to be assoilzied. (5) The averments of the pursuers being unfounded in fact, the defenders ought to be assoilzied."

The Lord Ordinary (GIFFORD) pronounced the following interlocutor:

Edinburgh, 10th January 1871. — The Lord Ordinary having heard parties' procurators, and having considered the closed record, proof, productions, and whole process, finds and declares, in reference to the fourth conclusion of the summons, that the defenders are bound to allocate to the pursuer, Henry Dunn, in the Western Southern Cemetery of Glasgow, belonging to the defenders, one lair or place of interment, of the value of at least one guinea, and that in respect of the price paid by the said Henry Dunn in and previous to 1852: Finds and declares that the defenders or their authors were not entitled to forfeit the lair in said cemetery sold to the pursuer, James Anderson, and partially paid for by him, and that without due and reasonable notice to the said James Anderson, and without affording him an opportunity of paying up the balance of price of the said lair. Quoad ultra assoilzies the defenders from the whole other conclusions of the action, and decerns, reserving to the pursuers, and to the other lairholders in the said Western Southern Cemetery of Glasgow, all competent action for the purpose of fixing and adjusting the scale and amount of burial or interment fees which the defenders are entitled to demand and levy from lairholders on the occasion of interments being made by lairholders in the lairs respectively held by them, and to the defenders their answers, as accords: Finds the defenders entitled to expenses, but subject to modification, and before answer as to the amount of said modification, remits the account of said expenses to the Auditor of Court to tax and to report."

There was appended to this interlocutor the following note, which will more fully explain the circumstances of the case:

"Note.-The Western Southern Necropolis of Glasgow, which is the subject matter of the present action, consists of about 94 acres of ground, and is now entirely, or almost entirely, occupied by interments which have taken place therein. It contains many thousand lairs; and it appears from the books that there are upwards of 13,000 separate lairholders, each of whom has right to one or more lairs. The feudal title to the ground is vested in the present defenders, but the titles expressly bear that the subjects are conveyed, subject to the rights created in favour of the parties to whom lairs or places of interment may have been sold.

"The pursuers in the present action are eleven persons out of the 13,000 lairholders interested in the ground.

....

"Before considering in detail the conclusions of the action, there are one or two preliminary points which may be shortly noticed.

"(1) First, It was objected by the defenders that the pursuers, being only eleven out of a body of 13,000 lairholders, had no title to sue or insist in an action like the present; and the defenders pleaded that the action itself was incompetent, and should be dismissed.

"The Lord Ordinary found himself unable to give effect to these pleas; and accordingly, by interlocutor of 3 November last, he repelled the first

and second pleas in law for the defenders, in so far as insisted in as excluding the action altogether; and before farther answer allowed both parties a proof. It appeared, and still appears to the Lord Ordinary, that if the lairholders in such a cemetery had any rights at all-and that they have rights of some kind can scarcely be denied-then any one or any number of lairholders must be entitled to make these rights effectual by a proper action. The idea that all the lairholders, or even a majority of them, must combine in order to render such an action competent, is out of the question. The only connection between the lairholders is, that they have each of them, individually and separately, purchased similar rights in the same cemetery; but this certainly does not constitute such a joint right as to make it indispensable that all must jointly concur in proceedings for making their rights effectual. They are not in any sense joint or pro indiviso proprietors, but, although interested in the same subject, they have each of them a separate and independent right.

"(2) Second, But although in the Lord Ordinary's view the right to sue the action cannot be disputed, although the pursuers are only eleven out of 13,000 lairholders, it does not follow that these eleven pursuers may insist in any conclusion affecting the rights of other lairholders who are not parties to the present action. It was no doubt maintained that the present pursuers really represent the great body of lairholders in the Western Southern Cemetery; and evidence was adduced to show that the lairholders convened in public meeting had not only loudly complained of the conduct of the defenders, but had substantially approved of the action which the present pursuers had raised.

"The Lord Ordinary, however, can hardly hold that the present pursuers represent or are entitled to act for and bind the whole body of lairholders. The pursuers do not sue in a representative character, but merely as individual lairholders. They are not even a committee appointed at a general meeting of the lairholders, and there is no minute of any meeting authorising the present action to be raised. The action must, therefore,

be regarded as an action to make good the rights of the eleven individual pursuers, and accordingly none of the other lairholders are cited or called as defenders, or in any way made parties to the action, and none of them will be in any way bound by any decision pronounced therein.

"It is true that a declaratory or other decision regarding the rights of the individual pursuers may indirectly rule the cases of other lairholders who occupy similar positions. But this is a mere accident, and in strictness nothing can be looked at but the rights of the pursuers themselves. This consideration is very material in reference to those large conclusions of the action which affect the right of property in, and the general management of, the whole cemetery. Such conclusions can only be given effect to if it is the right of any single lairholder to insist therein. No weight can be given to the opinions of other lairholders not pursuers, whether these opinions have been expressed at public meetings or otherwise.

"(3) While, however, thus taking a strict and somewhat technical view of the present action, the Lord Ordinary is free to acknowledge that he sympathizes, deeply and entirely, with the object which the pursuers have in view in the present action-that is, to secure the fair, equitable, proper and becoming management of the cemetery.