Earl of Cawdor

, 1884

the Crown in this way, purchased by the money of the public on behalf of the public, would be inalienably attached to the Crown, and the Crown would not have any power to sell it or to dispose of it, it being Crown property, unless there was some Act of Parliament or something else enabling that to be done.

That being the intention of the contract, and, in my opinion, also the legal effect and consequence of it, let us look, besides that, at the effect of the words “ad perpetuam remanentiam” at the bottom of page 23. It is stated that the object of surrendering the property ad perpetuam remanentiam is, that it may be consolidated with the superiority of the same in the person of His Majesty and his royal successors, and abide and remain with them for ever unalienably annexed to the Imperial Crown of these realms." That, again, shows the intention as strongly as words can show it.

Now, that being so, what is the construction of this contract: "Providing also that as in the sums so now paid me full consideration was had and made to me for all feu and teind-duties, stipends, schoolmasters' salaries, land tax," and so forth, therefore it is hereby declared that His Majesty, his royal heirs and successors, are to be freed and relieved by me, my heirs and successors, of and from all payment," of the things above enumerated? What I want to consider upon that is, what is the construction of the contract therein contained? What is meant by it? Something was said to the effect that the reason why he did it was that "full consideration was had and made to me." I rather think that what was there meant was, that in settling the price there was full consideration as between him and the people who were bargaining with him as to that matter; but however that may be, I do not think that it alters it. It goes on, and it says immediately afterwards-"Therefore, His Majesty, his royal heirs and successors, are to be freed and relieved by me." Now, construing it according to the ordinary rules of construction, and trying to find out the intention of the parties, what reason can there be for saying that "royal heirs and successors" there do not mean the same thing as the "royal heirs and successors" meant before? I can see none. There was an endeavour to argue that "His royal heirs" was a polite and courteous expression used for "his heirs," and that the word " 'successors" was not to be governed by the word "royal." But that that was not the intention of the parties is clear. What was meant and intended was what Lord Young says in the passage I before readit was meant and intended that there should be a contract for relieving and protecting against these things King George the Third and the King's royal heirs and successors-being the persons who should get the Crown of this country afterwards. It has been said that there was nothing to protect them against. Supposing that to be so now, I do not think that the question is quite to be disposed of in that manner. I do not think that in 1750 that was at all clearly understood, and that it seems to me that the wide words used here clearly show that the bargain then made between the parties who were contracting on the part of the Crown and Mr Campbell of Calder was this-We will pay you this sum of money down, and we agree with you that if there be anything

which the Crown may be responsible for and is obliged to pay, you shall indemnify the Crown against it. I do not inquire whether there was, but if there was they were to repay it. There are very wide words; whether the word "feu" has any meaning I do not inquire, but there are very wide words to that effect.

Now comes the other question which remains. The Act 5 and 6 Vict. [c. 94] says that all lands belonging to the Crown, and used in any way (I am giving the effect of it from memory) for the purposes of the defence of the nation, shall be vested in the principal officers of the Ordnance. What does that mean? I do not know that it is necessary to decide very precisely what the vesting means. It vests in them an estate of some sort, and I do not at the present moment inquire what. By the 12th section power is given upon proper occasions to these principal officers of the Ordnance to sell these lands, and what was endeavoured to be contended was this, that if the Legislature did that it made the principal officer of the Ordnance a successor to George the Third; that by virtue of this enactment there was a successor to George the Third, created by this Parliamentary power which was given, who was not a royal successorthat is to say, not a person having the Crownand the argument, if I understood it rightly, was this, that such a person was to be considered to have a right to sue upon this contract as successor, although that never was intended when the contract was made. I quite agree that the Legislature in enabling the Crown to sell out, and to create by means of the principal officer of the Ordnance a person who would be a successor, might have said, "and that successor shall have all the rights which the Crown itself had when it made the grant to him, and amongst others the right to maintain an action upon this contract made by Mr Campbell of Calder against Mr Campbell of Calder's successors," though the contract itself would not have applied to such a successor. was in the power of the Legislature to say that. Is there any pretext for saying that it has said it? I think not. The consequence is, that I think that this was a contract which was not applied to such a person as a successor thus created.

It

The rest of the case, really, when we come to look at it, is very simple. I do not think it necessary or material to ask whether this was a personal contract which required an actual assignment. If it was one that required an actual assignment, I think it is impossible to read the conveyance by the Ordnance to Mr Archibald without seeing that it was intended by them to convey it; and again, it is impossible to read the conveyance from Mr Archibald's trustee to Mr Orr Ewing without seeing that he intended to convey it. Mr Archibald Orr Ewing, the appellant, I daresay was advised, and I daresay thought that he had acquired this right, but that was a mistake-a very natural mistake on his part. Whoever prepared the conveyances and deeds would have seen that the Ordnance professed to sell to Mr Archibald what the Ordnance had no power to sell. It comes to this, therefore, that this being a personal and strictly limited contract with the Crown and with the Crown's successors, being Sovereigns of this realm having the Crown of this realm, it could not be transferred to anyone else, and was not transferred to anyone else, and consequently there is no occasion to consider

any of the other suggestions which have been made.

LORD WATSON-My Lords, this appears to me to be a very plain case. It depends upon the meaning to be attached to the expression "royal heirs and successors" occurring in the clause of relief which has been inserted in the deed of 1767. Now, I agree with your Lordships that the expression in question must be read just as if it had run "royal heirs and royal successors. "That appears to me to be the natural signification of the language used, and if there were any doubt upon the subject it appears to me that the context of the deed of 1767 furnishes ample indications that such was the sense in which the parties themselves intended to use the words. That is quite enough to dispose of the case. I cannot say that I differ from the views expressed in the note of the Lord Ordinary suggesting certain technical difficulties in the way of reading the word 66 successors." Those do not seem to me to be necessary for the disposal of the case. The obligation of relief is a personal obligation, which no doubt is capable of being assigned, but it cannot be assigned or transmitted to persons to whom the Crown has no power to communicate its benefits.

Interlocutors appealed from affirmed, and appeal dismissed, with costs.

Counsel for Pursuer (Appellant)—Lord Adv. Balfour, Q.C.-Davey, Q.C. Agents-Farrer & Co. for Tods, Murray, & Jamieson, W.S.

Counsel for Defender (Respondent)-Sol.-Gen. Asher, Q.C.-H. Wright. Agents Graham, Currey, & Spens, for C. & A. S. Douglas, W.S.

REGISTRATION APPEAL COURT.

(Before Lord Mure, Lord Craighill, and Lord Fraser.)

Friday, November 21.

[County of Bute.

MILLAR V. ADAMSON.

MILLAR V. MACFARLANE.
MILLAR V. M'KIRDY.

Election Law-County Franchise-Register, ALteration of, by Sheriff-County Voters Act 1861 (24 and 25 Vict. c. 83), sec. 44.

Held (diss. Lord Mure) in a case where the voter had been on the roll for twentyfive years as "proprietor," and there had been no change of circumstances, that the Sheriff was not entitled, under the 44th section of the County Voters Act 1861, to alter the entry in the register of voters by substituting "joint-proprietor" for " proprietor." Veitch v. Young, October 24, 1870, 9 Macph. 28, followed. County Franchise-Amendment of Claim-Proprietor-Joint-Proprietor-County Voters Act

1861, sec. 44.

Held (diss. Lord Fraser) that a Sheriff is entitled to allow a claim to be amended by

substituting "joint-proprietor" for proprietor." Murray v. Donnan, December 6, 1882, 10 R. 13, followed.

At a Registration Court for the county of Bute, held at Rothesay on 15th September 1884, John Millar, a voter on the roll, objected to (1) Daniel Duncan Adamson being continued on the roll as a voter for the county; (2) Walter Macfarlane being continued on the roll as a voter for the county; and (3) opposed the claim of John M'Kirdy to be enrolled on the register of voters for the county.

In Adamson's case the facts were theseAdamson stood enrolled on the register as "proprietor of a coal yard, &c., High Street," Rothesay, and had stood for about twenty-five years. Millar objected that Adamson was not proprietor, but merely one of two joint-proprietors of the subjects, and that it was incompetent to correct the register by inserting the word "joint" without a claim to that effect being lodged.

It was admitted (1) that Adamson was merely one of two joint-proprietors of the said subjects; (2) that for several years he had returned himself to the assessor for the county as proprietor; (3) that there had been no change in the extent or character of the claimant's qualification since he acquired the subjects; and (4) that the qualification was sufficient.

The Sheriff (MONCREIFF) altered the register by substituting "joint-proprietor" for "proprietor," and this having been done, repelled the objection, and continued the name on the roll.

The objector took a Case, in which the following question of law was submitted-" Whether it was competent in the circumstances to make the alteration or correction of the register above described?"

It was admitted that the decision in Adamson's case would rule the case of Macfarlane.

In M'Kirdy's case the facts were theseM'Kirdy claimed to be enrolled on the register as proprietor of houses 22 and 24 Mill Street, Rothesay. Millar opposed the claim on the ground that M'Kirdy was not "proprietor," but one of two "joint-proprietors" of the subjects in question.

A writ of clare constat in favour of M'Kirdy was produced by the claimant, instructing a title to one-half pro indiviso of the subjects, and it was admitted that the value of the said half was sufficient to afford a qualification. The claimant moved the Sheriff to amend the claim by substituting the words "joint-proprietor" for "proprietor. The objector maintained that the proposed amendment was incompetent.

The Sheriff (MONCREIFF) repelled the objection, and, having made the alteration, admitted the claim.

The objector took a Case, the question of law being "Whether it was competent to amend the claim by substituting the words "jointproprietor' for the word 'proprietor?'"

The objector argued-The case of Adamson was ruled by the case of Veitch v. Young, October 24, 1870, 9 Macph. 28; Anderson v. Ireland, November 6, 1876, 4 R. 1; Nelson v. M'Gowan, November 6, 1876, 4 R. 3; and Anderson v. Fairgrieve, November 12, 1879, 7 R. 31. The same rule would apply to the case of a claim, and would therefore rule M'Kirdy's case.

The respondent argued-In Veitch v. Young

c.

Millar v. Adamson, &c., Nov. 21, 1884.

there was a change of circumstances which there was not here-Grierson v. Dunlop, December 19, 1868; Anderson v. Mercer, November 12, 1879, 7 R. 28; Anderson v. Lees, November 12, 1879, 7 R. 30. The case of M'Kirdy was ruled by Murray v. Donnan, December 6, 1882, 10 R. 13. At advising

LORD CRAIGHILL-The present case appears to me to be governed by the decision in Veitch v. Young, the leading authority on the question submitted for our judgment by the Sheriff.

What was there determined was that "a Sheriff is not entitled under the 44th section of the County Voters Act 1861 to alter an entry in the register of voters by substituting the word 'jointproprietor' for 'proprietor,'" it being observed when judgment was given, as the rubric of the report bears, that "the proper way to effect such an alteration is by the voter lodging a new claim." The reasons for this decision were explained by Lord Benholme, who, after shortly narrating the circumstances of the case, and mentioning particularly at the close of his narrative that "sub. stantially therefore there cannot be an allegation that Mr Veitch's qualification was not a good one," proceeded thus--"But the question here is, whether, admitting that the party's qualification has been good from the beginning to the end, it was in the power of the Sheriff to rectify the entry in the register? The correction, so far at any rate as it relates to the change from 'proprietor' to 'jointproprietor,' is not covered by the County Voters Act of 1861. Such a correction would be a most dangerous proceeding, especially if effected by the Sheriff in the manner proposed. It would overturn the whole machinery of the statutes. It would give the appellant an advantage which he is not entitled to. It would enable him to get the case taken up before the Sheriff, while he himself had not proceeded in the statutory manner by preferring a claim so as to bring forward objectors. But as a matter of precedent the proceeding could not be allowed. The Sheriff did quite right in refusing to alter the register." In this exposition Lords Ardmillan and Ormidale concurred, and a more authoritative decision could not have been pronounced. Why shall it not be followed on the present occasion? The circumstances, as they present themselves to my mind are all but identical, and it would be a calamity if, in a Court where uniformity is almost as important as soundness of decision, a distinction without substantial difference were to lead to a reversal of what has been previously determined.

But let us consider the reasons for which the respondent contends that the decision in Veitch v. Young should in the present case not be followed. He says, in the first place, that he has been for five and twenty years upon the roll, which is a period far longer than that for which Mr Veitch had been enrolled. The fact is so, but it is immaterial to his right to be continued on the register in the face of the appellant's objection. Time, however long, is not a bar to an objection against the continuance of a voter on the roll. The question is not, whether he has been for a certain time enrolled, but whether, an objection against him having been stated, his name is to be expunged. I know of no decision nor any other authority which countenances this contention of

the respondent. Certainly none was cited in the course of the argument upon this appeal.

There no doubt are cases in which, though an objection stated against a voter's continuance on the roll could not be repelled, the voter's name nevertheless was not removed from the roll, but this ensued not because the voter had been long enrolled, but because the objector, in proving the grounds of his objection, had also shown that the error appearing on the register was one for the correction of which provision had been made by the County Voters Act of 1861. The case of Smith v. Mackay, and Stewart v. Bruce, of Grierson v. Dunlop, and Stewart v. Moffat, may be referred to as examples of the class to which they belong. Had it been necessary to warrant the Court to continue the names of these voters upon the roll, to enter upon an inquiry at their instance as to the sufficiency of their qualifications, the evidence adduced in support of the objection not being enough to establish their right, there cannot, I think, be a doubt that a judgment the same in effect as was given in Veitch v. Young would have been pronounced. I venture so to say because of what was decided and of what was said in Clark v. Hector, which was prior, and in Anderson v. Ireland, which was subsequent, to the date of that decision.

His

In the second place, the respondent contends that Veitch v. Young is not a precedent by which we should be guided, because there had been a change of circumstances there, while here there is none. On this I would observe-first, that though the change of circumstances referred to was mentioned by Lord Benholme, it was not to any extent made a ground of judgment. reasons, with which the other Judges concurred, are as absolutely applicable to the present case as if the facts in both had in every particular been identical. Secondly, the change alluded to was, on the argument of the respondent, immaterial, inasmuch as, according to the statement in the Special Case, Mr Veitch had all along possessed a sufficient qualification, as was admitted by the objector. The contention here is, that this consideration gave warrant to the Sheriff to correct the register; but the Court there were of a different opinion, deciding that this could not be done upon an objection, but could be done only upon a claim, which I think is the true conclusion.

Lastly, the respondent says that, even if the weight of authority be against his argument, what the Sheriff has done is in conformity with the 44th section of the County Voters Act of 1861. I demur to this. Whatever may be our views of the import of this enactment, we ought on such a question to give effect to that which has been judicially determined to be its true interpretation. But passing from this, the fallacy of this reading of the clause lies in the assumption that all which was involved in the objection was the insertion of the word "joint" before the word "owner." The moment it appeared, either by the admission of the respondent or by proof offered on the part of the objector, that the former was only a joint owner, another inquiry became necessary before his qualification could be established. What was the value of his share upon which his new claim was to be founded? There behoved in one form or another to be a trial of this question. Nor is it of consequence to the point in hand whether the result which the

Sheriff reached was obtained by proof or by admission of party. In either there was an inquiry as to the sufficiency of the new qualification, and such there could not competently be when the only thing before the Court was the appellant's objection to the qualification on which the voter had been enrolled. What the Sheriff may correct are verbal, clerical, or casual errors; and it appears to me to be plain that a case in which there must be proof given by the voter, or an admission vouchsafed by the objector, is not within the purview of this enactment. The case

of Murray is not in contradiction; there the question arose upon a claim-here upon an objection. Nor is this all by which the cases are distinguished. In Murray's case, as there was a claim, proof of the qualification which was to be substituted might be and was admitted, and so the substitution of one word for another in the description of the voter's qualification was all that was then required. Under the one as well as under the other there was the necessary qualification; and the case therefore appeared to me at the time, and appears to me still, to be one in which all that was directed to be done was the correction of a verbal, clerical, or casual error. For these reasons, I think that this appeal ought to be sustained.

The second case which we are to decide, which is No. 2 of the list of appeals, is admittedly undistinguishable from the first, on which my opinion has just been delivered; and therefore in both the same decision must be pronounced.

No. three of the list is the same, I think, as the case of Murray already referred to. The difference between that and the case of Adamson, No. 1, is that the former came before the Court upon a claim, the latter came before the Court on an objection.

The decision in Murray's case, therefore, though it does not affect No. 1, rules No. 3, in which consequently the appeal, according to my view of the matter, should be dismissed.

LORD FRASER-In the cases of Daniel Adamson and Walter Macfarlane, the question that we have to determine is, Whether the Sheriff was entitled to alter the register by substituting "joint proprietor" for "proprietor" without a claim to have this done being lodged? It is said that he had power to do so under the 44th section of the Act 24 and 25 Vict. cap. 83, which is in the following terms:-"No misnomer or inaccurate or defective description of any person, place, or thing, named or described in any list or register of voters, or in any notice required by this Act, shall prevent or abridge the operation of this Act with respect to such person, place, or thing, provided that such person, place, or thing shall be so named or described in such list, register, or notice, as to be commonly understood; and it shall be lawful for the Sheriff, in his Registration Court, if it shall appear to him that there has been no wilful purpose to mislead or deceive, or that such misnomer or inaccurate or defective description was not such as to mislead or deceive, to allow any verbal, clerical, or causal error in any such list, register, or notice, to be corrected or supplied.'

I do not consider that this section authorises the Sheriff to do what he has here done. The word "misnomer" means simply the erroneous

naming of a person-"John" for "James," or "Walter" for "William,”; "'inaccurate or defective description of a person, place, or thing," refers to the designation of a person as a "grocer," whereas he is a joiner "-of the property claimed on being said to be situated in "King Street" instead of "Queen Street." What the defective description of a "thing" may mean, I do not understand; but it is quite plain that the "inaccuracies" or "defects" had no reference to the qualification to be put upon the register. The inaccuracies or defects are to be of such a nature as, notwithstanding of them, the person, place, or thing, shall be "commonly understood" by neighbours. Plainly this has nothing to do with the qualification which entitles one to be registered. Bystanders cannot be supposed to understand that when a man is entered on the roll as joint proprietor he really is proprietor, or the reverse. These two qualifications are totally distinct. The one is based upon the 7th section of the Reform Act of 1832, and the other upon the 8th, and different inquiries must be made in regard to each. A proprietor produces his disposition and sasine, and he is enrolled at once. A joint proprietor, on the other hand, has to show that along with others he is jointly the owner of certain property; that he has a share which in value entitles him to be put upon the roll; and that he is under the Act of 1868 only one of two joint-proprietors who are claiming. To allow the Sheriff de plano, and without a claim, to put s man who is enrolled as proprietor upon the roll as joint proprietor without further inquiry seems to me to be going beyond the purport of the 44th section altogether.

But, indeed, this question is not new. The Court have uniformly refused to sustain such changes except where, as in the case of Nelson v. M'Gowan, 4 R. 3, the entry was the result of the mistake of an assessor, in which case the Court rightly said that the claimant who had made a proper claim, and had it adjudicated upon by the Sheriff, was not to be deprived of his right to be upon the roll because of the blunder of an official. In the present case there is no such excuse open. The person who claims did himself return his qualification to the assessor as proprietor, and consequently must bear or suffer the consequence of his own blunder. The point seems to me to be ruled by cases which are quite direct and explicit, and upon which it would be very inexpedient indeed to throw doubt at the present day. These are Veitch v. Young, 9 Macph. 28; Anderson v. Ireland, 4 R. 1; and Anderson v. Fairgrieve, 7 R. 31.

The last case on the subject is Anderson v. Fairgrieve, in which your Lordship, delivering the unanimous judgment of the Court, pointed out that there was in the case no such specialty as that which occurred in the case of Nelson, viz., an omission on the part of the assessor, proceeded thus-"There was no omission therefore of the assessor in the case; the omission was on the part of the voter, who should have given earlier notice of his change of qualification to the assessor. But he failed to do this, so that there is here no room for the application of the rule laid down in the case of Nelson as to the effect of the 44th section of the County Voters Act. In these circumstances, the party required to claim of new, and in the absence of such a claim I think the

v. Adamson

Sheriff had no power to strike out the word 'joint' when the case came before him. In my opinion the voter must be struck off the roll ;" and it is reported that Lord Ormidale and Lord Craighill concurred. Now, I see no reason whatever, after such a direct judgment as this, taken along with those which preceded it, to hold the point as any longer an open question.

We were, however, urged to sustain the judgment of the Sheriff on the ground that there was "no change of circumstances" since he was put upon the roll, and therefore he ought to be retained upon it--not on the qualification on which he stood on the roll, but upon a newly discovered qualification. Those who practised as counsel, or who administered the law as Sheriff, during the thirty years following the Reform Act of 1832, very well remember the ground of judgment that there was "no change of circumstances," and because of which objections were not listened to. This never was a very intelligible reason for not inquiring into a man's qualification unless it could be stated so high as to amount to this, that the matter was res judicata by the mere fact of the person having got upon the roll. The favour with which this ground of judgment was received by the Sheriffs arose in this way-It was the practice year after year for objectors to state objections to persons on the roll, and unless the objections were met by the appearance of the voter his name was struck off the roll. Neither the Sheriff nor the Appeal Courts had power to award expenses against a frivolous objector. For the protection of the harrassed voter, therefore, the Sheriffs sanctioned a defence which they found ready to their hand under the old election law before the Reform Bill-as to freeholders. After a man had been enrolled a freeholder, and no complaint made against the enrolment within four months from its date, the Act 16 Geo. II. cap. 11, sec. 4, enacted that he shall stand and continue upon the roll until an alteration of his circumstances be allowed by the freeholders at a subsequent Michaelmas meeting or meeting for election as a sufficient cause for striking or leaving him out of the roll;" and the Act defined an alteration of the circumstances to be "an alteration of that right or title in respect of which he was enrolled." Importing this rule of the old statute into the practice under the Reform Act, certain Sheriffs (but not all) held that when there was no change of circumstances, a man who had been put upon the roll by them could not be struck off, however clear the objection was that could be stated against him. This was clearly contrary to the enactments of the Legislature, which has directed the Registration Courts every year to correct the register of the preceding year, and to make the entries of the qualifications of voters in conformity with the facts as they stand proved at the date of each Registration Court. If a man has got himself registered under a wrong qualification, and this is brought under the notice of the Sheriff, it is the latter's province, and it is his bounden duty, at once to strike him off, and not to put him on the register again until a new qualification has been established in the proper form. The reason which induced the Sheriff to impart into modern registration law the rule which had the sanction of statute as regards the old freeholders, was taken away in 1861 by the Act 24 and 25 Vict. cap. 83, sec. 37 (County

Voters Act), which enabled them to put an end to frivolous objections by giving the power to award expenses. The statute says "It shall be lawful for the Sheriff to award expenses against any person maintaining any frivolous objection to the claim of any voter or to his title to remain upon the register." After this enactment (speaking from my own experience as a Sheriff, and of a county where the registration was contested every year) I can say that the old defence of "there is no change of circumstances" entirely disappeared.

But further, the argument founded on "there is no change of circumstances" is inapplicable to the present case. The argument means that the voter is to be let alone. He is to be allowed to rest on the register just as he is found there; and all inquiries as to his right to be there must go away unanswered. He is in possession and there is an end of the matter. All this, however, has no application to the cases before us now. The voters do not wish to remain on the roll on the qualification on which they are enrolled. They themselves wish to change it, and have moved the Sheriff to turn "proprietor" into "joint proprietor." Thus they themselves being the parties seeking to change the circumstances, they must take the course appointed by the law to effect this, viz., by lodging a claim and proving it.

What I have just said is applicable to the two cases of Adamson and Macfarlane. There remains still the Special Case for John M'Kirdy, which differs from the two others in this-that the claimant moved the Court not to amend the register but to amend his claim. It is not stated in the case, but I assume, that M'Kirdy had been omitted from the list published by the assessor and that he made the claim to be admitted to the roll in virtue of the 9th section of the County Voters Act 1861 (24 and 25 Vict. cap. 83), which enacts that "it shall be lawful for any person whose name has been erroneously struck out or omitted from the register of voters, or from the list of voters made up by the assessor, to give notice to the assessor on or before the 4th day of September in any year, in the form No. 1 of the Schedule (C) to this Act annexed, of his claim to have his name entered in the register of voters for the county," and when we turn to the schedule we find the following is the notice"I hereby give you notice that I claim to have my name entered in the register of voters for the election of a Member of Parliament for the county of and that the particulars of my qualification are stated in the columns below." One of the columns below is headed "Nature of qualification," and in this column John M'Kirdy entered himself as "proprietor." He moved the Sheriff to be allowed to correct this to "joint proprietor," and this was allowed; and from the Sheriff's deliverance we have the present appeal.

I am of opinion that it is just as incompetent on the part of the Sheriff to correct the claim by substituting the one qualification for the other as it has been found to be incompetent to correct the register, and for the same reasons. I adhere to all I said on this subject in the case of Murray v. Donnan, December 6, 1882, 10 R. 13 and 20 S. L.R. 203, and I will not again examine the prior cases bearing on the question,-referring to my opinion in Murray's case for all that