it, in the fifth article of the condescendence is what is to be the effect of that joint minute. It is in these terms,-"Murray, for the Duke of Athole, stated that his Grace had now discovered that the lands described in his titles as the Miln lands of Boahally are the lands now called Dalcroy, and he therefore admitted that these lands of Dalcroy are situated in the parish of Dull, and so far as known are unvalued for teind; that the rent thereof is £40, one-fifth thereof for teind, being £8; and consented to the revised objection for the Lord Advocate on behalf foresaid being sustained, and the revised answers being repelled, and to a remit to a teind clerk to rectify the locality accordingly,"-and Mr Keir on behalf of the Lord Advocate accepted of that concession, and "both parties concurred in moving the Lord Ordinary to interpone authority to the minute and to sustain objections, and to remit to the teind clerk to rectify the locality." Now, what is the effect of all that? It merely settles this, that the lands of Dalcroy are to be localled upon for minister's stipend to a certain amount, and in that as every other locality where the teinds are unvalued one-fifth of the actual rent is taken as the amount of the teinds, no matter what may be the condition of the teinds as regards title or possession or anything else. Quoad ultra nothing is fixed by that joint minute, or could be fixed within the locality itself, except what was to be the amount of the minister's stipend, and who was to pay it, and the amount to be paid by each heritor either according to his valuation or according to the one-fifth of the rent of the lands. Is there anything in all that to prevent tacit relocation going on under a tack of teinds. I am quite unable to see the slightest inconsistency between the two, and that is all that the defender is here maintaining. Suppose there never had been an inhibition at all, and never a penny of surplus teinds paid to the titular, what would have been the effect of this joint minute? Nothing at all in the way of interrupting tacit relocation. And so if the defender is entitled, as I think he is, to plead possession on tacit relocation as regards the lands of Dalcroy down to the institution of the present action, it does not appear to me that the proceeding in the locality has any effect upon that at all, and therefore while I concur with the Lord Ordinary as to the one parcel of lands-the Pitdornie lands-I think he is wrong in deciding as he has done in regard to the other lands of Dalcroy, and I am for altering that part of the interlocutor.

LORD MURE-I have come to the same conclusion. The inhibition here was used, but it was a bad inhibition, and therefore there is no reason for saying that there was not tacit relocation going on as regards the lands of Daleroy all along. I think it comes almost to be substantially the case of the Governors of Trinity Hospital, where there was a good inhibition used but nothing followed on it, and it was held that the surplus teinds were not payable to the titular.

LORD SHAND-I agree with your Lordships in thinking that the interlocutor of the Lord Ordinary should be adhered to in regard to the lands of Pitdornie, but I am of opinion that his Lordship's interlocutor is also right as regards the lands of Dalcroy. The question between the

VOL. XXII.

parties really is, was there a subsisting tack of the teinds of the defender's land of Dalcroy at the date this action was raised. No doubt originally there was a tack of the teinds of the lands of Pitdornie and Daleroy in 1791. That tack expired in 1810, but it was continued for a number of years as a subsisting tack by tacit relocation. Now, your Lordships are of opinion that tacit relocation is not a plea in the mouth of the defender as regards these lands of Pitdornie in respect of what occurred as stated in article 4 of the condescendence, and from which it appears that in 1860 both parties treated that tack as at an end so far as the lands of Pitdornie were concerned, and a large payment was made to represent the teinds of these lands instead of a payment as representing any rent under that tack. Whether that was because the defender's predecessor had the impression that the inhibition was effectual or ineffectual appears to me to be of no consequence. It rather occurs to me that the only probable explanation of his paying the teinds at that time must be that the inhibition was regarded as effectual. But assuming that it was not so, what was the meaning of the act by which for a number of years the actual teinds of the lands of Pitdornie were paid to the Crown in place of the rent under that tack? The only meaning of it must be that the right under the tack was at an end, because if the right under the tack then subsisted the heritor could have met his liability under it by paying 5s. 3d. a-year, instead of which he paid a sum which was five or six times that amount, if not more. Now, that being so, the question that I put to myself is this, if that tack was valid, if tacit relocation had ceased in regard to the teinds of the lands of Pitdornie, how could the tack subsist to any other effect? The subject let under it was the teinds of the lands there specified. There is one rent, and only one, given for that subject-a rent of 5s. 3d.-and a payment of five or six times that rent as representing the teinds of Pitdornie could only be given on the footing that the right under the lease was at an end. I am unable to see that with an acting of that kind it can be held that the lease shall subsist so far as regards the teinds of Daleroy but shall not subsist so far as regards the teinds of Pitdornie. If indeed no rent had been paid, and no other payment had been made, tacit relocation would undoubtedly have run on. But it appears to me that the sums which were paid in respect of the teinds of Pitdornie were so paid on the footing that a rent of 5s. 3d. a-year could no longer be tendered, and if 5s. 3d. a-year could not be tendered, it could only be for this reason, that tacit relocation was at an end. And so taking the rent here as one and indivisible, it appears to me that the tacit relocation came to an end. I do not know how it might be proposed by the heritor or the Crown to estimate the rent for the teind of Dalcroy, now that it is admitted that the actual teind for Pitdornie is to be paid, and on that ground I am of opinion, with what I take in substance to be the opinion of the Lord Ordinary, that the plea of tacit relocation here in regard to the lands of Dalcroy is bad as a defence to this action.

In regard to the statements in condescendence 5, I quite agree that nothing there stated can have the effect of interrupting the tacit relocation,

NO. XXXVII.

but I had rather apprehended that these averments were made by the Crown, not for the purpose of stating that these facts interrupt tacit relocation, but rather with the view of meeting the defence of bona fide perception and consumption of these teinds. It is pleaded by the heritor that the Crown has done nothing for a number of years since 1861, but has allowed matters to lie over till now. As an answer to that the Crown has stated that this locality had been going on, and until matters came to a settlement in this locality-until it became clear whether Dalcroy was within the parish of Dull or not-it was needless to prosecute their claim. It appears to me that for the purpose for which these averments were made it is quite a sufficient answer to any objections on the part of the defender as to the delay that has taken place in making this demand. That being my view, I am of opinion that the interlocutor of 19th July ought to be adhered to.

The interlocutor of 28th November 1884 raises another and an important question. I see the Lord Ordinary puts the ground of his judgment in the interlocutor itself on this, that the value of the teinds was to be estimated according to the rule established in the locality of Calton. The question raised by that interlocutor is whether that case has established a rule to which the Lord Ordinary has given effect. Upon that matter, looking to the judgment that your Lordships are to pronounce on the first branch of the case, I do not think it necessary to give a final opinion. I can only say that for my part I agree so far with the Lord Ordinary that I think there are weighty considerations in the opinions that were given in that case for saying, or at all events there are indications shewing, that the rule to which the Lord Ordinary refers has been established. If so, the older cases of Sir John Scott and Lady Graham would be seriously affected. But while that is the leaning of my opinion, in the state of division of opinion between your Lordship and myself in the present case I reserve my final opinion on that point.

LORD ADAM -- There are two sums claimed here, one the sum of £30, 4s. as the surplus teinds of the lands of Pitdornie from the year 1861 to the year 1881, and second, a sum of £227, being the surplus teinds of Dalcroy, or otherwise the miln lands of Boahally, from the year 1844 to the year 1881. Now, the teinds of these several lands were let by the Crown to the Duke of Athole or his predecessor by a tack dated the 5th of July 1791, for nineteen years at a rent of 5s. 3d. That tack, therefore, came to an end in 1810, and from that time onwards the teinds were possessed by the Duke of Athole or his predecessor by tacit relocation. I notice in the Lord Ordinary's note a remark which he makes which I confess I do not understand. He says "It must be considered that a tenant who holds by tacit relocation does not possess by will of the proprietor." Now, I do not know how far that view of the case may have entered into his judgment, but it is obvious that the tenant must possess by the will of the proprietor, because if the proprietor does not choose to have him possess by tacit relocation, he had nothing to do but give the requisite notice. And accordingly when the proprietor here-the Crown-wished to put an end to the tacit relocation following on

the tack, he used, or endeavoured to use, the proper means for doing so by using an inhibition. Unfortunately for his case that inhibition was bad, and had really no effect. It was not followed up in this case until the year 1859, when the Crown for the first time came forward, and founding upon the inhibition claimed the teinds of Pitdornie. Now, what took place upon that was that the Duke of Athole consented to pay the arrears of teind claimed from him, and he did so. He did so, he says now, in ignorance of his rights, and without any proper investigation, but certainly as regards the teinds of Pitdornie it must be held that he waived all objections which he might have insisted on had he known of them to this inhibition. And I confess that as regards these lands, after the Duke of Athole paid from 1841 to 1860, it is impossible for him to go back upon that and say that he was still possessing upon tacit relocation. As your Lordship has pointed out, the amount of teinds since due from Pitdornie is ascertained by the admissions of parties in this process, and no difficulty arises upon that. On that matter I agree with the interlocutor of the Lord Ordinary.

The teinds of Dalcroy are in this position, that although the inhibition had been used in 1839, no demand was made by the Crown for the arrears of teinds of the lands of Daleroy or the miln lands of Boahally in 1859, when they claimed and got the arrears of the teinds of Pitdornie, and in point of fact no demand has been made for the arrears of the teinds by the Crown until this action. Accordingly the Duke of Athole has been allowed to possess the teinds, and has possessed them down to the raising of this action, just as he possessed them before the using of this inhibition at all. Now, it is said, as I understand, that no demand was made, because the Crown did not know what the lands were, that they did not know where the miln lands of Boahally were, and that they did not know that the lands of Dalcroy were the same lands. It appears to me that that is no excuse for the Crown not asking these teinds. When any proprietor -the Crown, or anyone else-grants a tack of property to a tenant, he surely ought to know where his property lies. I think the proprietor was bound to know where the lands of Boahally were, and to make the requisite claim for the surplus teinds. But in point of fact, though the Crown did claim the teinds of Pitdornie, they did not claim the surplus teinds of Dalcroy, and they never claimed them till they raised this action. Now, as I understand, the ground on which the Crown now claims these teinds is this-not that they say the inhibition of 1839 was good, and therefore that it put an end to tacit relocation, but they say-because you waived any objections that you might have had as regards the teinds of Pitdornie, that necessarily implies a waiver of all objections you might have had to the claim for arrears of teind for Daleroy. That is the proposition, and unless that proposition is sound it appears to me that the Crown has no case. Now, I think that both in law and in justice the Duke of Athole cannot be held to have waived his objections to his inhibition to any further or other extent than he actually waived them in the claim made against him at that time. The claim made on Pitdornie was a comparatively small claim-a few

. .D. of Athole

20, 1885

shillings a year; and for anything I know the Duke of Athole's advisers may not have thought it worth their while to embark in an expensive litigation or investigation as regards that. But when a large claim like that with reference to Dalcroy is made against him, I do not see how it can be pleaded that because he made an admission in another case he therefore must be held to have made an admission in regard to this case. I do not think it would be fair or just to hold that, and I do not think it is law, for in my opinion the waiver he made as regards the teinds of Daleroy cannot be held to go to any further extent than this particular subject. It has been suggested that the subjects are both in the same tack, and that the same tack-duty, 5s. 3d., is payable for them, and that it is not possible now to hold the tack subsisting as regards one of the subjects and not as regards the other, because we do not know what tack-duty will be payable for the one that is still included in the tack. I think that is a difficulty which would be easily got over, and if there is to be a division of the tack-duty the fair way would be to take it pro rata of the value of the teind subjects. But that would not stand in the way of doing what I think justice to the Duke of Athole. The only other matter that I need refer to is the Lord Ordinary's finding as to the judgment in the Locality of Calton ruling this case as regards arrears. In the view I take of the present case it is unnecessary to consider that matter, but I wish to reserve my opinion entirely upon it, because I have personally very considerable doubt as to how far the Lord Ordinary's judgment is sound upon that point. On that point therefore

I wish to reserve my judgment.

The Court pronounced this interlocutor

"Having considered the cause and heard counsel for the parties on the reclaimingnote for the Duke of Athole against the interlocutors of Lord M'Laren of 19th July 1884, and 28th November 1884, recal the said interlocutors: Decern against the defender for payment of £30, 4s. sterling, being the amount of surplus teinds of the lands of Pitdornie from 1861 to 1881, both inclusive: Quoad ultra assoilzie the defender and decern: Find the defender entitled to expenses," &c.

Counsel for the Crown-Keir. ald Beith, W.S.

Agent-Don

wills, probates, and church registers. Held, as to all these documents, that the proper course to follow was to examine the custodiers of these writs as witnesses with reference to the entries under their charge, and diligence for their recovery refused accordingly.

In obedience to the interlocutor of the First Division, of date 19th February 1885, reported ante, p. 418, a condescendence was lodged by Sir J. R. G. Maitland and answers were lodged by Major Frederick Maitland. The condescender alleged himself to be descended from the Hon. Sir Alexander Maitland, fourth son of the sixth earl. Major Maitland, the competing petitioner, also alleged his descent from the sixth earl. He traced it to the Hon. Richard Maitland, an elder son than Sir Alexander Maitland. He alleged that this Hon. Richard Maitland married, on 11th July 1772, in New York, according to the rules of the Church of England, a certain Mary M‘Adam, that his, respondent's, grandfather Patrick Maitland was a son of this Hon. Richard Maitland and Mary M'Adam born before the date of the marriage, that the Hon. Richard Maitland was a Scotsman and never lost his Scottish domicile, and that Patrick Maitland was therefore legitimated by his parents' marriage.

The condescender denied that Hon. Richard Maitland ever married, and further averred that he was at his death, and for a long period before it, domiciled in British North America, where the law of legitimation per subsequens matrimonium did not exist.

By interlocutor of 18th March 1885 the Court allowed the parties a proof of their averments, Major Maitland to lead in the proof, but with the declaration that the proof was for the present to be limited to an inquiry as to what was the system of law relating to marriage which prevailed in New York in the year 1772.

Specifications of documents, to secure which diligence was sought, were put in by both parties. Sir J. R. Gibson Maitland (the condescender) sought to recover documents relating to real property in what was then British North America, acquired by or granted by the Hon. Richard Maitland in or prior to 1776; Acts of the Local Legislature regarding lands belonging to the Hon. Richard Maitland, including certain Acts specified; wills and probates of wills executed by him; agreements relating to mines in which he was interested; file of newspapers circulating in New York in 1772; church registers in the province of New York for 1772; writings and letters of or by him relating to his status or domicile.

Major Maitland objected to this specification, and argued that the commission was too wide, and sought to include Acts of Parliament and public writs in other countries which could not be recovered to be put into process, and even if recovered would not thereby be rendered competent evidence.

Authorities-Dickson on Evidence, sec. 1354; M'Lean & Hope v. Fleming, Mar. 9 1867, 5 Macph. 579.

No material objection was taken to the specification of Major Maitland.

At advising

LORD PRESIDENT-The articles of this specification to which objection is taken are numbers

2, 4, 6, 7, 8, and 9. As regards the whole of them they seem to refer to public documents said to be in existence in the United States of America, and more of them appear to be books of records, while those that are not so are instruments in publica custodia. Now, it appears to me that the proper course to follow with reference to all those documents is to call the custodiers as witnesses. In the case of a register, let the registrar be called and let him be examined with reference to any entries which may be in the books under his charge. If the entry be short it may be taken down in toto as part of his deposition, and by his oath it would then be made good evidence. There would then be no examination of him as a haver, but he would be examined simply as a witness in the cause. Further, as to the other writs they appear to me to stand in very much the same position. They are probates of wills and documents of that class which clearly cannot be allowed out of the country; but all that the witness has to do is to exhibit the originals, and if he is unable to do this, copies may be furnished and excerpts taken therefrom, and such excerpts when sworn to will also become good evidence in the

cause.

What I have said applies to all the numbers which are objected to, and I can see no need in having the parties examined as havers and also as witnesses, thus doing twice over what requires only to be done once.

I am therefore for giving effect to these objections, and rejecting all these articles of the specification.

LORD MURE concurred.

LORD SHAND-The result of your Lordship's judgment is that Sir James Maitland will have no difficulty in getting all that he really desires. The substance of the document is not objected to; it is merely the form in which their contents are to be made available. In that view of the matter my opinion is of little consequence. I think, however, that a somewhat different course might have been followed from that proposed by your Lordship, when in a litigation in which proof has to be taken both in this country and abroad, either party is entitled to have a diligence to recover documents apart from and in addition to a commission to examine witnesses. If that is the rule when proceedings are to go on in this country, I cannot see that there is any difference because some of the documents happen to be abroad. I think that Sir James Maitland is entitled both to a diligence and a commission to examine witnesses. Two specifications are before us, and I wish that we had so settled their terms, trusting to the Foreign Courts to give effect to the call, as to have been able to save the parties the expense of a discussion in America. The mere fact that interrogatories are to be adjusted does not appear to me to be any sufficient reason for refusing the diligence in America. therefore of opinion that this diligence should be granted, with the exception of those articles As which call for public documents of State. regards the probates and extracts of wills, I can see no reason for refusing them and am therefore for granting all the articles of this specification with the exception which I have just referred to.

I am

LORD ADAM-I concur in the opinion expressed

by your Lordship. In the execution of a diligence there is a well known distinction between productions and exhibits, or in other words, between documents put in process, and those which can only be seen. Now, this is not one of those cases in which we can grant warrant for productions in any proper sense; we can only grant leave that exhibits may be made; and in these circumstances it appears to me that it would be quite wrong to grant a diligence for the recovery of documents which from their very nature cannot be produced in process.

The Court granted diligence for the recovery of documents relating to real property, mines, letters-patent, &c., in which the Hon. R. Maitland was interested; files of New York newspapers for 1772, certificates, warrants, &c., relating to the status of the Hon. R. Maitland; writings and documents, including letters to or by him tending to show where he was domiciled at his death and prior thereto; and refused diligence to recover Acts of the Local Legislature, wills and probates of wills, records of New York courts of law, registers of New York churches, and marriage registers.

Counsel for Sir James Maitland-Mackintosh -Pearson. Agents-John Clerk Brodie & Sons,

MAGISTRATES OF GLASGOW v. THE POLICE COMMISSIONERS OF THE BURGH OF HILLHEAD.

Road-Roads and Bridges (Scotland) Act 1878, secs. 37, 38, and 88-Bridge Locally Situated in Two Burghs-Outside Traffic.

Held (diss. Lord President) that the provisions of the Roads and Bridges (Scotland) Act 1878, sec. 88, apply to the case of bridges locally situated partly in one county or burgh and partly in another, which accommodate traffic coming from adjoining counties or burghs.

Opinion (per Lord President) that sec. 88 only applies to bridges situated wholly within one county or burgh, and that secs. 37 and 38 deal with bridges which are not situated within one county or burgh.

Observations on the effect of the Act 13 and 14 Vict. cap. 21 (an Act for shortening the language in Acts of Parliament), sec. 4. By the Roads and Bridges (Scotland) Act 1878, it is, by sec. 37, inter alia, provided (subsection 1, d), that "Where a bridge is not situated wholly within one county or burgh, the expense of maintaining, and, if need be, of rebuilding, the same shall, failing agreement, be a charge equally against the trustees of the county or counties and local authority or authorities of the burgh or

, of Hillhead

, 1885

The river Kelvin, which forms the boundary between the city of Glasgow and the burgh of Hillhead, is crossed by two bridges, the eastern extremities of both being situated within the burgh of Glasgow, and the western within the burgh of Hillhead. In November 1883 a joint bridge committee was appointed in terms of the above-quoted section.

By the 88th section of the statute it is provided:-"Whereas there are or may be bridges in Scotland which accommodate or may accommodate the traffic not only of the county or counties, or burgh or burghs, as the case may be, within which they are locally situated, but also of the adjoining county, or of other counties and burgh or burghs, or one or more of them, and it is not reasonable that the whole burden of managing, maintaining, repairing, and, if need be, rebuilding such bridges, and of paying the debt affecting, or which may affect, the same, should be imposed upon the county or burgh within which they are so situated: Be it enacted, that in respect of such bridges the following provisions shall have effect:-(1) The trustees of counties and burgh authorities may agree that any such bridge accommodates other traffic than that of the county or burgh in which it is situate, and may agree as to the proportions in which the debt (if any), and the cost of maintenance, and, if need be, of rebuilding such bridge, shall be borne and defrayed by the county or counties and burgh or burghs, to which it is common; and such agreement, when confirmed by a resolution of the trustees in general meeting, and of the burgh authorities, shall have the same force and effect as an order by the Secretary of State, as provided hereinafter: (2) It shall be lawful for the county road clerk, or clerk of supply, of any county, or for the town-clerk or clerk of any burgh, to apply to the Secretary of State to determine that any bridge locally situated within a county or burgh in respect of its accommodating other traffic than that of such county or burgh only, shall be deemed to belong in common to the county or counties, and burgh or burghs, to be named in his determination: (3) Upon such application being presented to the Secretary of State, he may, if he shall think fit, by any writing under his hand, appoint any two persons, as commissioners, to institute a local inquiry as to the circumstances of the case, and after hearing all parties interested, to report thereon to the Secretary of State, and for the purposes of such inquiry the commissioners shall have power, after such public notice as they may think sufficient, to examine witnesses on oath, and to call for such documents as they may consider necessary, and to do all such matters and things as may seem expedient to them for the purposes of inquiry: (4) If the commissioners are of opinion that the Secretary of State should determine that the burden of managing, maintaining, repairing, and, if need be, rebuilding the bridge mentioned in the application, and of paying the debt affecting or which may affect the same, should not be borne wholly by the county or burgh within which the

same is locally situated, they shall prepare and transmit along with their report the draft of the determination which they recommend that the Secretary of State should make, setting forth therein the proportions in which such burden should be borne by the county or counties, or part or parts, or district or districts, of such county or counties, and by the burgh or burghs named in the determination: (5) The Secretary of State after such further inquiry, if any, as he shall deem necessary, may approve of the draft submitted with or without alterations, and any determination made by him, under his hand and seal, shall have the same effect as if it were contained in this Act: Provided always, that such determination shall be laid before both Houses of Parliament, and if either House of Parliament, within forty days after the same has been so laid before it, resolve that such determination ought not to take effect, the same shall be of no effect (without prejudice to the making of any new determination), but otherwise shall come into operation at the expiration of the said forty days, or any later date mentioned in the determination.

In January 1884 the clerk to the Commissioners of Police of the burgh of Hillhead presented to the Secretary of State for the Home Department, an application in terms of this section, craving the Secretary of State to determine "(first) that the bridge over the river Kelvin on the Great Western Road, which is situated partly within the burgh of Hillhead and partly within the City of Glasgow, in respect of its accommodating other traffic than that of the said city and burgh, should be deemed to belong in common to the said city and burgh, and to the county of the Lower Ward of Lanarkshire, or to such other county or counties, or burgh or burghs, as might be named in the determination; and (second) that the bridge over the said river on the Woodlands Road, which is situated partly within the said city and partly within the said burgh, should in respect of its accommodating other traffic than that of the said city and burgh, be deemed to belong in common to the said city and burgh, to the burgh of Partick, and to the county of the Lower Ward of Lanarkshire, or to such other county or counties as might be named in the said determination."

The Secretary of State accordingly appointed two commissioners to make inquiries as to the bridges, in terms of the 88th section.

This was an action at the instance of the Magistrates of Glasgow, acting under the Glasgow Police Act, against (1) the Police Commissioners of the burgh of Hillhead and their clerk, (2) Sir William Harcourt, Secretary of State for the Home Department, (3) Henry Johnston, advocate, Edinburgh, and James Wyllie Guild, accountant, Glasgow, the commissioners appointed by the Secretary of State, to have it found and declared that the bridges above mentioned "are not bridges which accommodate or may accommodate the traffic, not only of the said burghs, but also of the adjoining county, or of other counties and burgh or burghs in Scotland, with the terms and and intent of the 88th section of The Roads and Bridges (Scotland) Act, 1878, and that the defenders are not entitled to institute or follow forth an inquiry with respect to the said bridges, or to report the result of said inquiry, or to issue any determination in respect thereof: And the defen