appendix for names and dates, I shall endeavour to state the conditions of the question in a somewhat generalised form.

"In 1795 the lands of Carmyle, and the coal and ironstone of that estate, were by separate conveyances vested in Mr Edington of the Clyde Ironworks; and in each of the deeds of conveyance there was inserted a clause empowering the grantee of the mineral estate to work the minerals, he paying surface damages at the rate of £5 sterling per Scots acre, together with a declaration restricting the claim of the owners of the land to £40 sterling 'for any damages that may be done to each house and garden on the said lands by working the said coal.'

"By the other deeds granted in the years 1795 and 1809, Mr Edington's estate in the minerals came to be vested as follows:-The coal and ironstone, other than the 3d and 5th seams or strata of coal, and the ironstone that could be wrought therewith, were vested in James Dunlop, merchant in London; while the 3d and 5th seams of coal, with the related ironstone, were vested in the trustees for the Clyde Iron Company.

"I interrupt the narrative here to point out that as the title then stood the estate which remained to Mr Edington was an estate in the lands without the minerals, and subject to a servitude or licence in favour of the mineral estate entitling its owners to occupy the surface upon payment of surface damage at the rate of £5 per Scots acre, and to undermine the surface upon payment of a maximum sum of £40 for each house and garden that might be damaged by undermining. This was a servitude or real obligation affecting the right of the owner of the surface, whoever he might be. So it was determined by the Court in the litigation which ensued; and I need not add that the concession of a servitude or licence to the owner of the minerals to work them on such terms was a very material abridgment of the rights of the owner of the lands. Not only was the landowner obliged to submit to the occupation of the surface on a scale of liquidated damages which might be less than the true equivalent of the damage done, but the landowner was also in effect debarred from the exercise of his right at common law to obtain protection by interdict against injury to the buildings on his estate, and was bound to accept what might be very inadequate compensation for such injuries. I may add that the clauses constituting the licence to work contain an exception in favour of feuars of existing feus, and, of course, the owners of such feus would not be bound by any agreement which their superior might make with the owners of the minerals. On the other hand, the granters of any feus which might thereafter be created would be bound by the licence to accept £40 as full compensation for injury by mining. Mr Edington's right or title to the lands was thereafter transferred to the Clyde Iron Company, or rather to Mr Edington and the other partners in trust for the company, who, it will be remembered, were also the proprietors of the 3d and 5th seams of coal.

"In such circumstances, Mr Edington, for himself and his copartners of the Clyde Iron Company, in the year 1798 conveyed the lands of Carmyle to Mr John Sligo (the pursuer's ancestor), excepting the coal and ironstone and their per

tinents. But instead of putting their disponee under obligation to submit to the servitudes or licences which had been constituted in favour of the owners of the seams other than the 3d and 5th seams, Mr Edington only inserted in the disposition to Sligo a reserved power of working the minerals in the usual form, together with a clause obliging himself and the disponees of the mineral estate to pay for their occupation of the surface, or damage caused to it, according to the true value of the land occupied or damaged. It is to be observed that the five strata had all been given off by Mr Edington before he granted this deed, although, as I have said, it was not until the year 1809 that the five strata came to be completely vested respectively in James Dunlop of London and the trustees of the Clyde Iron Company.

"From these proceedings obviously a claim of warrandice accrued to Mr John Sligo against Mr Edington and the Clyde Iron Company, whom he represented. That is to say, Mr Sligo was under obligation to submit to the working of the minerals on payment of the liquidated damages, because his title was of later date than that of the mine-owners, and he was entitled to be indemnified by Mr Edington to the extent to which the value of his estate was diminished in consequence of the existence of the licence to work upon payment of liquidated damages. This was found to be the legal result of what Mr Edington had done, but it needed four actions to make this clear to all the parties concerned as appears from the narrative of the proceedings in the deed of discharge and conveyance from which my information is derived.

"I now come to the effective clauses of the deed of discharge and conveyance of 1817. It appears that, pending the litigation referred to, Mr Colin Dunlop had acquired right from the Clyde Iron Company to the third and fifth seams of coal and ironstone, and the deed accordingly is granted by Mr Colin Dunlop and by the testamentary trustees of James Dunlop of London, who was the original grantee of the seams of coal and ironstone other than the third and fifth

seams.

"By this deed Mr Colin Dunlop and the trus tees of James Dunlop respectively renounce and discharge the real lien or servitude' whereby they were empowered to work the minerals upon payment of liquidated damages, and they undertake to make payment to Mr Sligo's heir of the full amount of surface damage which may thereafter arise in consequence of the continued working of the minerals, whether such damage may arise through the working of the third and fifth seams whereof he is proprietor, or through the working of the other seams which are property of James Dunlop's trustees. Then follows the clause, the effect of which is in dispute. In it Mr Colin Dunlop, for the further security of Mr Sligo and his feuars or tenants, does thereby 'sell, alienate, impignorate, and convey' to Mr Sligo and his heirs and disponees the said third and fifth seams or strata of coal, and the ironstone, &c., in the lands of Carmyle, but that only in real warrandice and security to the said John Sligo and his foresaids of the payment of all surface damages already occasioned or that may be hereafter occasioned by the working of the coal, ironstone, and fire-clay within the whole

Sligo 7. Dunlop

17, 1885

or any of the six several seams of coal, &c. to whomsoever these seams may belong.'

"Mr Colin Dunlop reserves his right of relief from the proprietors and tenants of the seams other than the third and fifth seams, and the deed concludes with the usual feudal clauses.

"The defenders are singular successors of Mr Colin Dunlop, and they plead in their fourth plea-in-law (the third plea in the action against Mr M Clelland) that the disposition of the third and fifth seams of coal in security of damages to be found due in the future is invalid at common law, and under the provisions of the Act 1696, cap. 5. In argument the objection to the security was rested mainly on the statute. In answer to this plea the pursuers urge that the conveyance of the third and fifth seams was in 'real warrandice,' and is therefore not within the class of securities which are invalidated by the Act 1696, cap. 5, under its second branch.

The statute annuls all 'dispositions or other rights that shall be granted hereafter for relief or security of debts to be contracted for the future.' It is admitted that a proper conveyance in real warrandice is a valid security, and that the statute will not take effect upon it. I asked counsel why in their view the statute would not invalidate a conveyance in real warrandice, because on the answer to this question I thought the decision of the case must depend. It was observed that such securities are ancillary to conveyances of heritable property. But this cannot be a reason for treating them exceptionally, because the Court has no power to make an exception in favour of securities relating to heritable property which the statute has not made. The reason why the statute has no infirmatory effect upon a conveyance in real warrandice is plain enough. It is because the obligation covered by the warrandice is an obligation instantly prestable, and is not in the words of the statute 'a debt to be contracted for the future.' It is the obligation to give a valid and unencumbered title which the real warrandice is intended to cover, and the measure of the obligation is the estate warranted-the estate which is the subject of the principal conveyance.

"In the present case I am of opinion that Mr Colin Dunlop's conveyance of the third and fifth seams of coal and ironstone in security of the payment of accruing damages is not warrandice in the ordinary sense of that expression, and is not a security for a then existing debt. By 'warrandice' I understand warranty against infirmity in the title, and warranty against encumbrances. In the present case, and until this deed was granted, there was an infirmity in Mr Sligo's title which (in consequence of the warrandice expressed or implied in the title-deed of sale) the partners of the Clyde Iron Company or their heirs were under obligation to cure. Their obligation was primarily to procure if possible a discharge of the servitude or licence to work under which the owners of the first, second, fourth, and sixth seams of mineral were entitled to trespass on Mr Sligo's estate on payment of liquidated damages. If such a discharge could not be procured, then the obligation of warrandice would resolve itself into damages, which damages would apparently be the difference between the amount of the actual damage consequent on occupation of the surface or caused by subsidence, and the amount

of the liquidated damages recoverable from the proprietor of the minerals for the time being. I think that a conveyance bearing to be in real warrandice of such a claim would be a good security for damages accrued and to accrue, because in the case supposed the payment thus secured is one of the nature of an indemnity for the infirmity in the title of the vendor under the deed of sale of 1798, and I am supposing the case of the Clyde Iron Company being unable to obtain a discharge of the licence to work. It would be no objection to such a conveyance in real warrandice that it was granted by a third party at the request of the obligant in warrandice.

But in the actual case the deed is one to which James Dunlop's trustees are parties, and the deed contains a discharge by them and by Mr Colin Dunlop of the servitudes or licences to work which they respectively claimed under their titles, and an undertaking to pay full compensation for surface damage. Now, this is a fulfilment of the obligation of warrandice, because it remits Mr Sligo to his rights at common law with respect to the future operations of the mineral owners and their tenants. Mr Sligo had also a claim of compensation for damage which had accrued and was resting-owing. For this heritable security might be given, and I do not doubt that the conveyance of the third and fifth seams of coal and ironstone was an effectual mortgage or security for damages which had accrued. But the conveyance also purports to be in security for surface damages that may be hereafter occasioned,' and I agree with the argument of the defenders' counsel that this is not warrandice. How is it possible to represent such a security as real warrandice when the acts for which the indemnity is given neither result from infirmity of title nor from the existence of an encumbrance which the seller was bound to purge?

"The infirmity or encumbrance-for it is immaterial under which of these heads the licence to work is classed-was purged by discharge, and there was no obligation whatever on the seller or his heirs to warrant against damages resulting from the exercise of the natural right of the mineowner to win and carry away his minerals. Such damages only give rise to claims at the instance of the proprietors or tenants for the time being of the lands by whom the damages are respectively suffered, and they appear to me to be of the nature of debts contracted for the future,' and for which the infeftment in security, in the words of the statute, 'shall be of no force.' I do not overlook the consideration that this was an onerous obligation, because it was one of the stipulations of an onerous deed. But the statute contemplates the case of onerous deeds, and provides that they shall be effectual only as securities for debt contracted before seisin on the disposition.

"It follows, in my opinion, that the conveyance libelled, although not absolutely reducible, is only a good security for damage caused before 12th May 1817, the date of the infeftment, and as I do not understand that any claim is made for damage of ancient date, I accordingly find that the security is ineffectual. The defenders are singular successors of Mr Colin Dunlop, and no claim lies against them upon his personal obligation of indemnity; the claim is only against the warrandice lands. It thus appears that no relevant case has been made to support the con

clusions for interdict. I understand that the separate pecuniary conclusions are withdrawn under reservation of the pursuers' right to raise a new action."

The pursuer reclaimed, and argued-The estates had been conveyed to him in real warrandice and security of payment of all surface damages already occasioned, or that might be hereafter occasioned, by mineral workings. This was an infeftment in real warrandice, and a valid security by the law of Scotland. It was the common law right of the owner of the surface to have the surface supported unless he had discharged that right. A reservation of minerals did not import a right to bring down the surface, nor did one coupled with a reservation of compensationAspden v. Seddon, March 24, 1875, L.R., 10 Ch. App. 394; White v. Dixon, December 22, 1881, 9 R. 375-10 R. (H. of L.) 45, March 19, 1883. Under the warrandice the pursuer had (1) a right to interfere with any alteration which might bring down his support; (2) he was unrestricted as regards the amount of damages. In short, there was a servitude constituted over the surface, which had not been noticed in the surface title granted in 1798 to Sligo.-Ersk. ii. 3, 28; Blair, November 6, 1741, M. 16,624; Bell's Prin. 894. The Statute 1696, c. 5, did not strike against the disposition as being in security of damages to be found due in the future. debt was not future merely because it was a debt with a tract of future time.

A

But

The defenders replied-The clause in question was not proper warrandice but paction. In the deed of discharge the right of parties are regulated by paction. The proprietors of surface and minerals agreed as to the payment of all surface damages, and therefore if that was so, any claim arising did so under the 'terms of the obligation. When the minerals were taken, and the surface suffered damage, there was no eviction, but the state of affairs contemplated by the clause emerged. This disposed then of calling it warrandice. even if it were, the matter could never have eventuated in interdict. The damages must be liquidated from time to time, and the subjects of the security must be adjudged-Duff on Feudal Conveyancing, 91; 1 Bell's Com., M'Laren's ed., p. 733. But (2) the security was bad under 1696, c. 5, as a future debt arising out of a subsisting obligation. A real security to be good must be for a definite sum, which this was not-Coutts v. Tailors of Aberdeen, August 3, 1840, Ross's Leading Cases, 3; Erskine, ii. 3, 50; Newnham v. Stewart, 1794, 3 Pat. App. 345. It could not be made definite by reference.

Counsel for M'Clelland adopted the argument for the other defenders.

At advising

LORD RUTHERFURD CLARK delivered the opinion of the Court as follows:-The pursuer maintained that he had been evicted, and that he was entitled to have recourse against the estates conveyed by Colin Dunlop "in real warrandice and security of the payment of all surface damages already occasioned or that may hereafter be occasioned by the working of the minerals under the pursuer's lands." So long as there was a discrepancy between the title to the minerals and the title to the surface, there might be room for maintaining that the exercise of any rights with

in the former title but in contravention of the latter was an eviction which would give recourse on the warrandice. But I do not think it necessary to consider any such question. For the discrepancy which existed in the earlier titles was removed by the deed of 1817, and as no act was lawful under the mineral title which was not also lawful under the title to the surface, it seems to me to be impossible for the pursuer to show that he has been evicted in any sense of that word.

But the pursuer contended that under the clause which I have quoted he had a real security for the damages which he had sustained through the working of the minerals. I am of opinion the alleged security is bad, and on the simple ground that it is absolutely indefinite. Nothing can be more fixed in our law than that a real security cannot be given for an indefinite sum of money, and nothing can be more indefinite than the amount of the damage to be sustained by mineral workings. I prefer this ground of judgment to that on which the Lord Ordinary proceeded.

The LORD JUSTICE-CLERK was absent.

The Court pronounced this interlocutor

"Recal the interlocutor submitted to review, of new dismiss the action in so far as concerns the first and second conclusions thereof, in terms of the minute of restriction for the pursuer: Further, find that the deed of security libelled is not effectual as a security for payment of damages occasioned by the working of the minerals under the pursuer's lands: Therefore assoilzie the defender from the third declaratory conclusion for interdict and decree, reserving the right of the pursuer to bring a new action of damages against the defender for damage caused during his tenure of the mines and minerals."

v. Lloyd

,

Circuit-Maiden Circuit-Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 46.

Where notice was given for jury trial at a circuit town, and it appeared that there being no criminal cases to be tried, no jury had been summoned, and further, that the defender had not sufficient time to prepare for the trial, the Court, appointed the trial to proceed in the ensuing summer session before the Lord Ordinary.

John Malcolm of Poltalloch raised this action against Thomas Lloyd of Minard, to have it found and declared that he had right to a servitude road for the passage of carts, horses and cattle, and foot-passengers, from the farm of Achaleck belonging to him, over the defender's estate of Minard to the public road by the side of Loch Fyne.

The action was founded on immemorial possession, which was denied.

The Lord Ordinary allowed the parties a proof of their averments.

The pursuer reclaimed, and moved that the trial should be by jury.

The defenders contended that there should be a proof, as a question of law might arise with regard to a portion of the road which had been substituted in 1854 for the previously existing track.

At advising

LORD PRESIDENT-I understand that the Court is of opinion that this case should be tried before a jury, and I am not disposed to differ from that view. I think there is a disadvantage in having a question of pure fact tried by a proof before the Lord Ordinary, where the evidence is likely to run to some length. In that event the result is that the case afterwards comes up upon a reclaiming note with a big print, which involves the expenditure of a great deal of judicial time, and necessitates considerable expense, which would otherwise be avoided. The probability is that the verdict here will put an end to the case, and that we shall hear no more about it.

LORD MURE, LORD SHAND, and LORD ADAM concurred.

The Court recalled the interlocutor reclaimed against, and remitted the case to the Lord Ordinary for trial before a jury.

Thereafter, issues having been adjusted, the pursuer gave notice for trial for the ensuing Circuit Court at Inverary, which was fixed to be held on 26th March, nine days after the notice. The defender objected that the notice was too short, and moved the Lord Ordinary to fix the trial to proceed before himself.

The Lord Ordinary (KINNEAR) reported the cause to the First Division.

Argued for the defender-A trial at the approaching circuit would put the defender to great inconvenience on account of the exceeding shortness of time, only nine days, and would practically result in injustice, as the defender could not possibly get his case prepared at such short notice. A trial by jury at Inverary in a right-ofway case, where the road in question lay near the place of trial, was a most undesirable method of trying the rights of parties, as it would be impossible to get an unbiassed jury.

Replied for the defender-The issue between the parties was a very narrow one, and depended upon the evidence of witnesses on the spot. The evidence as to the use of the road could easily be obtained, and was not of a kind requiring great research. It was desirable in the interests of all parties that the case should be tried with the least possible delay.

It appeared in the course of the discussion that the approaching circuit at Inverary was to be a maiden circuit, and that in consequence no jury had been cited.

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 46, provides-" "Where a cause is appointed to be tried at any circuit town in any period of vacation or recess, and no special diet is fixed for such trial, it shall be lawful for either of the judges presiding at the sittings of the Circuit Court of Justiciary in such circuit town to try the same, and where a cause is so tried,

it shall not be necessary that a separate list of jurors shall be returned for the trial thereof, but the jury shall be chosen from the list of jurors summoned to attend the Circuit Court of Justiciary, who shall be bound by their citation to serve if required at the trial of all civil causes for which no special diet of trial shall have been appointed."

At advising

LORD PRESIDENT-The pursuer here is exercising a right under the statute, and not appealing to the discretion of the Court. Nor is he proposing it as a matter for consideration when the case should be tried. He has this right subject to the modification that if the opposite party consider himself to be prejudiced he can move the Lord Ordinary to try the case before himself, and the question then becomes one for the discretion of the Court.

The present case seems to me to be one for the interference of the Court. I am not sure how far the pursuer is entitled to have a criminal jury to try a civil case, all the more when there are no criminal causes set down for trial, and I am not by any means sure that he can have a special jury or a civil jury summoned, especially looking to the provisions of section 46 of the Act 1868. There is so much difficulty attending the whole matter that I think we ought to appoint the case to be tried before the Lord Ordinary.

The complaint of want of time for the preparation of the case which has been urged by the defender has its weight too, but too much importance must not be attached to it. If it can be shown that the circuits have been fixed to take place so soon after the rising of the Court that a reasonable time for the preparation of the case has not been provided, that would be a matter requiring consideration also. In the present case I do not say whether the time available is sufficient or not. The embarrassment offered by the circumstance of no criminal jury having been cited for the approaching circuit at Inverary makes me think that the case ought to be tried before the Lord Ordinary.

LORD MURE concurred.

LORD SHAND-If the issues in this case had been adjusted four or five weeks ago, and then notice had been given for the circuit, I should not in these circumstances have been inclined to inter

fere. But looking to what has taken place in this case, and the short notice which has been given, I agree with your Lordship in thinking that the trial ought to take place before the Lord Ordinary.

The defender's counsel says that he has no sufficient time for the proper preparation of the case, and perhaps eight or nine days is too short a time looking to the nature of the case. I am in favour of despatch in all cases, but there must be some discretion, and looking to what has been stated by the defender's counsel I think that this is a case which ought to be tried before the Lord Ordinary.

LORD ADAM concurred with the Lord President.

The Court fixed the trial to take place before the Lord Ordinary in the month of June following.

Counsel for Pursuer (Reclaimer)—J. P. B. Robertson-Graham Murray. Agents-Mitchell & Baxter, W.S.

Counsel for Defender (Respondent)-Mackintosh-Darling. Agents-Pearson, Robertson, & Finlay, W. S.

Wednesday, March 18.

SECOND DIVISION.

[Dean of Guild Court, Edinburgh.

MITCHELL V. GOWANS (DEAN Of guild of

EDINBURGH).

Burgh-Dean of Guild Court-Edinburgh Municipal and Police Act 1879 (42 and 43 Vict. cap. cxxxii), secs. 159 and 160-Appeal-Compet

ency.

Held that an appeal to the Court of Session from a deliverance of the Dean of Guild, acting under secs. 159 and 160 of the Edinburgh Municipal and Police Act 1879, was competent.

Burgh-Dean of Guild-Jurisdiction-Appeal from Deliverance in regard to Ventilation and Sanitary Arrangements.

The Dean of Guild, acting under sections 159 and 160 of the Edinburgh Municipal and Police Act 1879, refused to approve plans of new houses about to be erected, because the plans did not provide sufficiently for ventilation, in respect that the water-closets were not shown thereon next to the outer wall. Held (dub. Lord Young) that the deliverance was within the powers conferred by the Act, and that cause for disturbing it had not been shown.

The Edinburgh Municipal and Police Act 1879 (42 and 43 Vict. cap. cxxxii.) provides by section 159-"Every person who proposes to erect any new house or building within the burgh, shall lodge with the Clerk of the Dean of Guild Court a petition for warrant so to do, and such petition shall set forth a description of the intended house or building . . . and shall be

accompanied by a plan of the site, showing the immediately conterminous properties, and also the position and width of any street, court, footpavement, or footpath from which the property has access, or on which it abuts; and also plans, sections, and such detailed drawings as are necessary to show the mode of structure and arrangement of the intended house or building or alteration, and the lines of the intended drainage thereof, and the levels thereof relatively to the street, court, foot-pavement, or footpath, and to the sewer or drain with which the soil-pipes and drains of the property to be built. . . are intended to be connected; and in regard to any building erected as a place of public resort, such plans shall show the arrangements for ventilation, and the provisions intended to be made for ingress or egress. Section 160 provides--“The clerk of the Dean of Guild Court shall forthwith, on receiving such petition, give notice thereof to the burgh engineer, who shall, before such petition is heard, report to the Court whether in his opinion the plans sufficiently provide for ventilation or other sanitary objects, and the Dean of Guild may decline to grant warrant for the erection of any new house or building . . . until satisfied that the plans provide suitably for such ventilation and other sanitary objects.'

This was an appeal by Alexander Mitchell, builder, 32 Dundee Terrace, Edinburgh, against a deliverance of the Dean of Guild of Edinburgh, finding that the plans of tenements which he proposed to erect on his property at the corner of Tay Street and Dundee Terrace, Edinburgh, "do not provide suitably for ventilation and other sanitary objects, in respect that the waterclosets are not shown thereon next to the outside walls of the petitioner's proposed tenements," and refusing to approve of the plans.

The burgh engineer had reported to the Dean of Guild Court "(1) The sanitary arrangements are here very skilfully planned, the only defect being that they are not located next the outer wall, but are lighted and ventilated on what might be termed the 'intersol' method; that is, light and ventilation are carried over an enclosed scullery closet which intervenes between the W.C. and bath and the outer wall. This arrangement might very justly be allowed for the corner block; as regards the others, there cannot be any practical difficulty in having these appliances next the outer wall, whereby the disadvantages of the "intersol" method would be removed."

The appellant argued-That the burgh engineer while he reported against the sanitary arrangements of the houses in question, was just acting up to the views of the present Dean of Guild, because previous to the appointment of the latter to that office he had sanctioned and approved of similar arrangements. A remit should be made to some other man of skill. The provisions as to ventilation contained in sections 159 and 160 of the Edinburgh Municipal and Police Act 1879, under which the deliverance complained of was pronounced, applied only to places of public resort, and could not be extended to private houses. -Pitman, &c. v. Burnett's Trustees, Jan. 26, 1882, 9 R. 444; Boswell v. Magistrates of Edin burgh, July 19, 1881, 8 R. 986.

Replied for respondent-The appeal was incompetent since the matter in question was en