Drummond Act. That section provides that "No justice of the peace or magistrate in any county or royal burgh, who is a brewer, maltster, distiller, or dealer in or retailer of ale, beer, spirits, wine, or other exciseable liquors. shall act as such justice of the peace or magistrate respectively in the execution of this Act, and everything done by a justice of the peace or magistrate respectively in any case in which he is so disqualified to act shall be null and void."

The appellant argued that this provision was incorporated by section 36 of the Act of 1862, and was to be deemed part of that Act; that the warrant being irregular, the whole proceedings following upon it were illegal, and the conviction ought to be quashed.

The section in question (36) provides that "the provisions and enactments contained in the recited Acts" (including the HomeDrummond Act so far as not repealed) "shall extend and be construed, deemed, and taken to extend to, and form part of, this Act."

At advising

LORD JUSTICE-CLERK - The first point raised in this appeal is that the search warrant, which formed the preliminary step in these proceedings, was signed by a person who held a licence for the sale of exciseable liquor. It is argued that such a warrant is bad, and the proceedings following on it must fall, because by the HomeDrummond Act no licensed person is allowed to act as magistrate under that Act. Now the Home-Drummond Act deals with the granting of licences, and the punishment of persons holding licences for any breach of certificate. Neither of these has any application to the present case, which is a complaint to have a person punished for keeping for sale a certain quantity of exciseable liquor without having a licence, which is an offence created by the Act of 1862, and if the provisions of the Home-Drummond Act as to the magistrates who were to administer that Act were meant to apply, that would require to have been stated. I cannot hold that it was illegal for the magistrate who signed the warrant to do so.

LORDS YOUNG and TRAYNER concurred. The Court accordingly dismissed the appeal.

COURT OF SESSION.

Thursday, April 5.

OUTER HOUSE.

[Lord Wellwood.

SPENCE v. THE UNION BANK OF
SCOTLAND.

Property-Udal Holding-Casualty.

The proprietors of certain lands in Shetland held the lands by a long progress of titles in feudal form, and subject to an annual payment to the granter and his successors under the name of feu-duty. The present successor of the granter raised an action for payment of a casualty of composition against the present holders of the lands. The pursuer founded on a decree of judicial sale of date 1774, by which the superiority of the lands was awarded to his ancestor, and upon a Crown charter of resignation and confirmation of the superiority in 1857, both subsequent to the grant of the lands to the defenders' authors.

Held that the casualty was not due, in respect that the pursuer's authors had no feudal title at the date when the lands were conveyed to the defenders' authors, and that the original grant being of udal lands, the position and obligations of the defenders and their authors could not be affected or the feudal burdens imposed by subsequent charter from the Crown.

Certain lands in Shetland had been transmitted by deeds couched in feudal form since at least the close of the seventeenth century. It appeared that throughout that period an annual payment had been made by the proprietor of the lands under the name of feu-duty. There was, however, no trace of an entry with a superior ever having been demanded or taken, and nothing was known of the original grant by which the feu-duty was created. The representative of the parties to whom this payment had been made raised this action against the proprietor for payment of a casualty of composition in respect of the death of the last entered vassal. The pursuer produced two sasines in favour of the ancestors of his authors, of date about the close of the seventeenth century in which the superiority of the lands in question bore to be conveyed. The next writ produced was a decree of judicial sale of date 1774, by which the superiority of said lands was awarded to pursuer's ancestor. No title was completed upon the decree until 1857, when a charter of resignation and confirmation was obtained from the Crown, whereby the representative of the purchaser at the judicial sale was confirmed in inter alia the superiority or dominium directum of the lands in question. The charter bore that the said lands had hitherto been held by udal tenure, and had never before been feudalised. There was no trace of any

prior Crown charter in favour of pursuer's author.

The defenders pleaded-"(3) Esto that the defenders' lands are identical with these in the pursuer's titles, and are held under writs bearing to create a feudal relationship between pursuer and defenders, the defenders are not feudal vassals of the pursuer, and are not liable in any casualty in respect pursuer's authors had no charter or other feudal grant of the said lands from the Crown at the date of the alleged grant to defenders' authors, and that the said lands were held on udal tenure."

In support of this plea they argued-On the assumption that the liability for the alleged feu-duty was created by a deed purporting to be a feu-charter, the contract was nevertheless truly one of groundannual, the lands being held at the time by the disponer by udal tenure, the Crown charter could not create feudal tenure between the disponer and the disponee, because the disponer could not innovate upon the original contract, and subject the disponee to the incidents of feudal tenure by obtaining a charter from the Crown. The Lord Ordinary (WELLWOOD) tained the third plea-in-law for the defenders and dismissed the action.

sus

"Note. The pursuer seeks to have it declared that she is entitled to a casualty, being one year's rent of the lands described in the summons, in consequence of the death of the vassal who was last vest and seised in the said lands, of which the defenders are now the proprietors. The lands are thus described in the summons'All and whole a property near the middle of the town of Lerwick called Braewick's House, with the kailyard, waste ground, and shops thereon on the south-west side of Main Street, now called Commercial Street, in the town of Lerwick.'

"The pursuer alleges that she is lawful superior, and that the defenders are her vassals in the subjects thus described, and in describing the mode in which her predecessor acquired right to the superiority, she states that in 1774 her predecessor acquired right by decreet of judicial sale to the dominium directum of certain subjects in Lerwick, including the subjects described in the summons, the subjects being_described in the decreet as 'a house in Lerwick liferented by Anna Margaretta Nicolson, relict of Lawrence Bruce of Braewick, and possessed by William Erasmuson, boatter in Lerwick.'

"It will be seen that it lies upon the pursuer to identify the subjects described in the decreet with those described in the summons, and this no doubt, when the action was first raised, seemed to be the main if not the only difficulty in the pursuer's way. But in the defences the defenders, in addition to calling in question the identity of the subjects, plead that the relations of superior and vassal do not exist between the pursuer and themselves, in respect that, assuming the identity of the subjects, the lands, at least at the date of the grant of the defenders' authors, were udal lands, and not subject to the ordinary

incidents of feudal tenure. The defenders' third plea-in-law is-[His Lordship read the plea-in-law]. After carefully considering the whole case, I have come to the conclusion that this plea is well-founded, and must be sustained.

"There can be no feudal tenure where lands are not held ultimately of the Crown. Now, originally the land rights of Orkney and Shetland were all udal. They were not held of the Crown, and the proprietors never applied to the Crown for charters, and the lands might be transmitted and enjoyed without any infeftment, investiture, or other right or writ-Erskine, iii. 3, 18; Stair, ii. 3, 11.

"In the present case there are two grave objections to the pursuer's claim. The first is, that until the Crown charter of resignation and confirmation in favour of Gideon Scott, obtained in 1851, there is no trace as regards these lands of any title or writ flowing from the Crown, and in particular there is no trace of any Crown writ prior to the date of the original grant to the defenders' authors. The second objection, which is even more significant, is that there is no trace of any entry ever having been taken.

"The action is brought-and necessarily brought on the footing that the last entered vassal is dead. But when it is asked, Who was the last entered vassal? and when did he die? the reply is, that so far as appears no entry has ever been taken. On these grounds I am forced to the conclusion that notwithstanding the form of the writs the tenure of the subjects was was not feudal but udal, and that while by contract certain annual payments which were called feu-duties were payable and were paid by the disponees, the lands were not held subject to the incidents of feudal tenure.

of

"The pursuer's answer to the defenders' plea is twofold. The pursuer relies, first, upon the feudal form of the writs, and secondly, upon the Crown charter of 1851. While both points demand careful consideration, neither of them, in my opinion, sufficiently meets the defence. Although no writing was originally required for the constitution and transmission udal land rights, it is clear that at an early period the existing feudal forms of conveyance were adopted as affording convenient evidence of the constitution and conditions of the rights. These forms often contained clauses which were inappropriate and inapplicable to udal property, and while they were simply held pro non scripto, their presence in the writs gave them the appearance of proper feudal deeds. But no length of time could by itself convert the tenure of lands so held from udal to feudal-Beatton v. Gandie, 10 S. 286, and Rendal v. Robertson, 15 S. 265. The only means by which this could be effected was to connect with the Crown by obtaining a fresh grant from it. This could be, and I believe was often done by the proprietor—that is, the full proprietor— of udal lands resigning them in the hands of the Crown and obtaining a Crown

charter in proper feudal form, in virtue of which he became entitled to all the rights of a proper subject-superior in the event of his thereafter parting with the dominium utile of the lands. But while the proprietor of udal lands might by this process make them subject to the incidents of feudal tenure with regard to future dispositions of his property, one who had previously parted with what for convenience I may call the dominium utile of the lands, could not, I apprehend, thereby affect the position and obligations of those with whom he or his authors had already contracted in regard to the property and possession of the lands. Having no proper estate of superiority, and being possessed at most of right to an annual rent, he could not subject the disponee, the true proprietor of the lands, against his will, to feudal casualties or incidents which he had never contracted to pay or comply with; yet this is what is said to have been effected by the Crown charter of 1851. The grantee of that charter had at its date right only to the feuduties acquired under the judicial decreet of sale of 1774, although his right is described as the dominium directum or superiority of the subjects.

"I may observe in passing that so far as I can see no title was made up on the decreet of sale of 1774."

Counsel for the Pursuer-Sym. AgentF. J. Grant, W.S.

Counsel for the Defenders-C. N. Johnstone. Agents-J. & F. Anderson, W.S.

Thursday, July 19.

SECOND DIVISION.

[Lord Kyllachy, Ordinary. DALRYMPLE AND OTHERS v. THE COUNTY COUNCIL OF ROXBURGH. Road-County Council -- Determination that Road should Cease to be a Highway —Appeal—Competency-Sheriff — Reduction-Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51)-Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50).

The 42nd section of the Roads and Bridges (Scotland) Act 1878 provides that the road authority may determine that a road shall cease to be a highway within the meaning and for the purpose of the Act. The 43rd section provides that where three ratepayers are dissatisfied with such decision, they may appeal to the "sheriff" (which includes the sheriff-substitute), whose decision shall be final.

The County Council of Roxburgh, as the road authority in virtue of the Local Government (Scotland) Act 1889, having determined that a road should cease to be a highway, three ratepayers who were dissatisfied with the decision brought a petition in the

Sheriff Court to have the County Council ordained to retain this road in their list of highways. They averred that under the 42nd section of the Roads and Bridges Act the decision of the County Council by themselves was incompetent, as the road in question was part of a road which extended outside the county; and further, that the decision was unwise and would cause inconvenience. A record was made up, and the Sheriff-Substitute appointed parties to debate on "the preliminary pleas," and having heard parties thereon, he dismissed the action by an interlocutor which disposed of the whole merits. The pursuers appealed to the Sheriff, who recalled the SheriffSubstitute's judgment and appointed parties to be heard.

In an action by the County Council to reduce the note of appeal and interlocutors following thereon, the Court held that the appeal was competent, and dismissed the action as incompetent.

The Roads and Bridges (Scotland) Act 1878 provides, by section 3, that for the purposes of that Act "sheriff" shall include "sheriffsubstitute," and by section 42 that the road trustees may, after certain procedure provided in the Act, declare that any highway shall cease to be a highway within the meaning and for the purposes of the Act. "43. The determination of the trustees under the preceding section shall be final, and not subject to review in any court, or in any process or proceedings whatsoever, unless any three ratepayers who shall be dissatisfied with such determination shall, within fourteen days after the date thereof, appeal to the sheriff, who shall hear and determine the appeal in a summary way, and the decision of the sheriff shall be final, and not subject to review," &c.

By the 11th section, sub-section 2, of the Local Government (Scotland) Act 1889 32 and 53 Vict. cap. 50) the whole powers and duties of the county road trustees were transferred to the County Council instituted by that statute.

At a general meeting of the County Council of Roxburgh, held upon 25th October 1892, the Council, after consideration of a written report from the County Road Board, declared, in virtue of the powers conferred by section 42 of the Roads and Bridges (Scotland) Act 1878, that a certain highway within the Melrose district should cease to be a highway within the meaning and for the purposes of the Act.

Certain ratepayers within the county being dissatisfied with this decision, in November presented a petition in the Sheriff Court at Jedburgh against the County Council of Roxburgh to have the defenders ordained to retain on their list of roads, highways, &c., the piece of road in question.

The pursuers averred that the decision would cause inconvenience, as the road extended beyond the county, and pleaded -"(1) Under the 42nd section of the Reads and Bridges (Scotland) Act 1878, when construed along with the other sections

thereof, it being incompetent for the defenders, acting by themselves alone, to declare that the road in question shall cease to be a highway, the prayer of this petition should be granted. (2) They not having fulfilled the requirements of the said 42nd section, the prayer of this petition should be granted. (3) The pursuers, for the reasons stated in their condescendence, having good cause for being dissatisfied with the defenders' determination, the prayer of this petition should be granted."

The defenders pleaded-"(1) No title to sue. (2) The action is incompetent. (3) The defenders having complied with all the requirements of the Roads and Bridges (Scotland) Act 1878 before declaring that the portion of the road referred to by them shall cease to be a highway, it is competent for them so to declare that it shall cease to be a highway, and the prayer of the petition should be refused. (4) The defenders being vested with the sole management and control of the said road, and having acted in the proper exercise of their statutory powers as condescended on, are entitled to absolvitor. (5) The averments of the pursuers are irrelevant, and insufficient to support the conclusions of the action. (6) The averments of the pursuers, so far as material, being unfounded in fact, the defenders are entitled to be assoilzied, and the pursuers should be found liable in expenses."

Upon 15th December 1892 the SheriffSubstitute (SPEIRS) pronounced this interlocutor:-"Holds the record closed, and appoints parties' procurators to debate the case on the preliminary pleas," &c.

Parties were heard on 16th January 1893, and after avizandum the Sheriff-Substitute pronounced this judgment:-"Finds in point of fact that the part of the road in question which the County Council of Roxburghshire desired to close as a highway is entirely situated in the county of Roxburgh: Finds in point of law that the said County Council have no powers or jurisdiction without the county of Roxburgh: Therefore repels the pleas-in-law for the pursuers and dismisses the action, &c.

"Note.-This is an action in which the Court is asked to prevent the County Council from closing that part of the byroad leading from the Railway Bridge to Gala Ford.' As has been already stated, this portion of the road is in the county of Roxburgh (the Gala being the boundary between that county and the county of Selkirk). The Roxburgh County Road Trust (and hence the County Council) have nothing to do with the continuation of this byroad on the right bank of the Gala; it is outside the confines of their jurisdiction; they cannot even order notices to be placed on the doors of the parish church at Galashiels as suggested (condescendence 5), and in my opinion, therefore, are perfectly entitled, under sections 42 and 43 of the Roads and Bridges (Scotland) Act 1878, 'acting by themselves alone,' to declare that the road in question shall cease to be a highway (subject of course to the veto of the Sheriff). I have therefore repelled pleas-in-laws Nos. 1 and 2 for the pursuers. With regard to the

third plea-in-law, I think the pursuers have utterly failed to show, by the reasons stated in the condescendence,' that there is any good cause for recalling the determination of the County Council. The truth is that the real objectors live in Selkirkshire and Galashiels, and it is for their benefit that the County Council of Roxburghshire are asked to spend their ratepayers' money. The defenders do not appear to have acted in a high-handed or capricious manner; the question has been thoroughly investigated by a local committee, afterwards under consideration of the County Council, and that Council have come to the conclusion that the exigencies of the case do not justify them in spending more money on a road which was so damaged by a flood in September 1891 that an almost new roadway would be required. The County Council have not actually closed this road, and judging from their offer of £60 towards the proposed bridge, I have no doubt they would meet the Selkirkshire authorities in a friendly spirit."

The pursuers appealed to the Sheriff, and upon 10th March he issued this interlocutor-"Recals the interlocutor of 2nd January last: Repels the first, second, and fourth pleas-in-law for the defenders, and quoad ultra appoints the case to be heard by him on a day to be afterwards fixed, reserving the question of expenses.

"Note.-It was maintained for the respondents that the interlocutor of the SheriffSubstitute is not appealable, but I am of opinion that this contention is not sound. It has been held in similar cases that where the decision of a sheriff-substitute does not dispose of the merits, there is a right of appeal to the sheriff. The case of Leitch v. The Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40, was very similar to the present. By the rules of the society it was provided that Every dispute. shall be referred to and decided by the sheriff of the county, in manner provided for by sections, 5, 6, and 7 of 21 and 22 Vict. c. 101.' Section 6 of that Act enacted that sections 40 and 44 of the Act 18 and 19 Vict. c. 63, should be applicable to such disputes, and by said section 40 it was enacted that 'Every dispute... shall be decided in manner directed by the rules of the society, and the decision so made shall be binding and conclusive on all parties without appeal. The Sheriff-Substitute dismissed the action as incompetent, but the Sheriff on appeal repelled the preliminary pleas, and remitted the case back to the Sheriff-Substitute to be proceeded with. The Sheriff-Substitute allowed a proof, but this interlocutor was also appealed against, and the Sheriff recalled the order for proof, and decided the case on its merits in favour of the pursuer. An appeal was taken to the Court of Session, which was found to be incompetent, but opinions were given as to the procedure in the Court below. Lord Cowan said-'It is apparent that the only decision on the merits of the dispute was pronounced by the Sheriff. The other interlocutors affected the procedure only, and these the Sheriff recalled and put right. The ques

tion is, can any appeal at all be taken under the Act?... Now, in the first place, is a judgment dismissing an action or "ordering a proof protected by this finality clause? I am of opinion that it is not. I think that the interlocutors pronounced by the Substitute on matters of that kind were clearly appealable, and that the finality clause applies only to a decision on the merits.' Lord Benholme said—‘Finality in the Act of Parliament is attached to decision of the dispute. I ask, has there been any decision of the matter in dispute by the SheriffSubstitute? I think clearly not. One of his interlocutors was an avoidance of judg ment, the other was merely a preparation for it. The judgment of the Sheriff-Principal is the first and only decision, and it is not liable to be appealed against.' In the Roads and Bridges Act of 1878 (41 and 42 Vict. c. 51), sec. 43, it is provided that 'The decision of the sheriff shall be final and not subject to review.' Following the case of Leitch, I must hold that the decision referred to in the provision just quoted means a decision on the merits, and that the interlocutors of the Sheriff-Substitute did not dispose of the merits and are appealable. The case of Bone v. The School Board of Lorne, March 16, 1886, 13 R. 768, is also in point, although there was no dismissal of the action by the Sheriff-Substitute. The Court held that the Sheriff did not exceed his jurisdiction in recalling interlocutors of the Sheriff-Substitute which did not dispose of the merits, although one of the judges thought that the appeal was irregular as well as the previous procedure. Lord Shand said-It is true that the Sheriff here took up the case on appeal, but at that time the Sheriff-Substitute had decided nothing. If he had, his decision of course would have been final. But the Sheriff has taken up the case at a stage when nothing has been done, and I am therefore of opinion that in the circumstances the Sheriff has not exceeded his jurisdiction, and that his judgment is final.' Adam said 'Either the Sheriff-Substitute or the Sheriff is in my view empowered to give a final determination, but both of them might take some part in bringing the question to a final determination.' These opinions are at variance with those of Lord Justice-Clerk Moncreiff and Lord Cowan in the case of Leitch, who held that in such cases as the present even decisions on the merits by a sheriff-substitute were appealable to the sheriff. It is unnecessary, however, in this case to determine what is the state of the law in regard to this point, because there has not yet been any decision on the merits. It would seem from his note as if the Sheriff-Substitute intended to decide the merits of the case, but the interlocutor has not that effect. The action is only dismissed. There is no absolvitor. Moreover it was premature to decide the merits. The debate was only ordered on the preliminary pleas, and the parties did not renounce probation. Further, the preliminary pleas are not disposed of in the interlocutor under appeal. But these are not the only irregularities in the procedure.

Lord

There should not have been a record made up, as the Act prescribes that the appeal shall be heard summarily. Lord Cowan seems to have had a different opinion. See the case of Leitch. But in the later case of Bone the Lord President Inglis observed'The statute provides that the proceedings shall be summary, and that means that the sheriff, without making up a record and having a proof in ordinary form, should hear parties' statements, and at once pronounce a decision. The statute does not contemplate a record and proof in the ordinary form. What is contemplated is something quite different-a summary proceeding.' And the other Judges concurred. An appeal then being competent, and a record having been irregularly made up, the question arises, What is now to be the procedure? Is the case to be concluded in the usual way followed in an ordinary action, or is it now to be dealt with in a summary manner? It seems to me that the latter is the most competent and expedient course to follow, but first I think it best to dispose of the preliminary pleas. The first and second were not insisted in, and I think that the remaining one-the fourth plea-is not well founded. I think that the averments as to the inconvenience caused by the road in dispute not being repaired and maintained are relevant, and quite sufficient to entitle the pursuers to have an opportunity of leading proof. This will not be a written proof, but it may be understood that at the hearing-which I think is the proper thing to order in a summary case-the parties will be at liberty to examine witnesses. I have reserved the question of expenses simply for convenience, but the appellants will be allowed expenses quoad the appeal whatever be the result of the case."

Upon 6th April 1893 the County Council of Roxburgh raised an action in the Court of Session against the pursuers in the Sheriff Court action and against the Sheriff of the county for reduction of the note of appeal from the Sheriff-Substitute's interlocutor of 23rd January, and the Sheriff's interlocutors following thereon.

The pursuers pleaded-“(1) În virtue of the provisions of the Roads and Bridges (Scotland) Act 1878, the interlocutor of the Sheriff-Substitute, quoted in condescendence 2, was final, and not subject to review by the Sheriff-Principal. (2) In respect that the Sheriff-Principal had no jurisdiction, the said note of appeal, ard his interlocutors thereon, are incompetent and inept, and decree of reduction thereof falls to be pronounced, as concluded for."

The defenders pleaded-"(1) The action is incompetent. (2) The action is excluded by the terms of section 43 of the Roads and Bridges (Scotland) Act 1878. (3) The pursuers' statements are irrelevant and insufficient to support the conclusions of the summons. (4) The interlocutor of the Sheriff-Substitute not being a decision on the merits of the question raised by the appeal from the determination of the County Council, was not final, and was competently appealed to the Sheriff; or, separatim, the Sheriff on having the cause