death. The only other view in which the defender can be liable is, that she is herself the tenant. But this view the pursuer distinctly repudiated, and I think rightly, at least I see no construction of the lease consistent with a right of tenancy in her, and, none was suggested by the pursuer. On the contrary, any such right in the defender was distinctly repudiated by the pursuer. The result is that there is no longer any tenant under the lease, and that since Martin's death in January 1884 the relation of landlord and tenant under this lease has ceased to exist. It may be that after Logan's sequestration, and the termination by the pursuer of his rights and liabilities under the lease, the pursuer agreed to allow Martin to continue as tenant till his death in the following January, on the terms as to rent specified in the lease, and as the defender, to avoid controversy, assents to this view, and tenders the rent on that footing, viz., till Martin's death, the pursuer may have decree accordingly, but beyond this I think his claim ought to be disallowed.

What I have said is sufficient for the decision

of the case. I'desire, however, to say that had the pursuer abstained from discharging Logan, as he avers no doubt truly that he did, and was now proposing to accept him-a sequestrated bankrupt as his tenant under the survivorship clause of the lease, I should have regarded it as an inequitable and unconscionable device to render the defender liable for the rents which he, Logan, certainly could not pay, and for which neither he nor the defender could possibly have any consideration, and so not to be countenanced by the Court. I am of opinion that the pursuer may have decree for the sum tendered by the defender, and no more, and that he ought to be found liable in expenses.

LORD RUTHERFORD CLARK-I am sorry I cannot concur in the opinion which Lord Young has just read, but as I know that that opinion is to become the judgment of the Court I must express the views I entertain with great hesitation.

This is a lease for thirty-one years in favour of William Logan and Hugh Martin and survivor. There is a power on the part of the landlord to terminate the lease on the bankruptcy of both or either of the partners, the clause of the lease applicable to such an event being in these terms"It is hereby specially provided and declared that if the second parties, or either of them or their foresaids, shall become bankrupt, or if sequestration shall be awarded against them or either of them, . . this lease shall, in the option of the first party or his foresaids, be ipso facto void and null."

But I shall in the meantime consider the question on the footing that Logan is the survivor, and that that power on the part of the landlord has not yet been exercised. The question, then, in that simple form in which I have stated it, comes to be this, whether the executor of the predeceasing tenant remains liable for the debts which are due by the survivor Logan. The answer to that question depends entirely upon the construction which is to be put upon the clause which is quoted in the appendix-" for which causes and on the other part the said William Logan and Hugh Martin bind and oblige them

selves and their respective heirs, executors, and successors, all conjunctly and severally, renouncing the benefit of discussion." I do not think the meaning of that clause is really doubtful. I think it lays a burden not only upon Logan and Martin but also upon their respective heirs, executors, and successors, so that the burden on Logan would descend to his heirs and successors, and the burden on Martin shall equally descend to his heirs, executors, and successors. In that way, although one of them ceases to have any interest in the lease, by reason of his predecease, the landlord has taken his heirs bound for the payment of the rent during the subsistence of the lease. No doubt that is a very hard clause, and if one could reach any other construction I would willingly adopt it. But the construction that I put on these words was almost admitted to be their natural and grammatical construction, and I can see nothing in the other clauses of the deed by which I can deprive these words of the meaning which attaches to them according to their natural and ordinary grammatical construction. I therefore hold that when Martin died, Logan, the survivor, was the tenant, and the heirs, executors, and successors of Martin were bound under this clause for payment of the rent that might become due.

But it is said that there are certain statements in the record which present the case in such a shape as to disentitle the landlord from suing upon the clause, even according to the construction of it which I think must be adopted. I am always unwilling to tie up any party very strictly to any averment which he has made upon record, especially as there is a very large power of amendment permitted by statute. But I do not think that the statement on which the judgment of the Court is to proceed is a statement of fact. I rather take it to be an erroneous statement of law. I do not understand that the landlord avers that in the bankruptcy of Logan he exercised the option of putting an end to this tenancy, for if he did, that would terminate not only the lease but terminate the obligations as well as the rights of Martin because of the termination of the lease. I think he meant merely to put a construction upon the lease and to assert, as he has erroneously asserted, that in consequence of the bankruptcy of Logan, not in respect to the exercise of any right competent to him as landlord, conferred by the lease, but simply in respect to the bankruptcy, Logan and his heirs were released from their obligations under the lease. I think he was wrong in that view. The bankruptcy of Logan had no effect merely of itself upon the lease. The lease would continue to exist, and Logan and Martin to be tenants under it. I cannot hold the pursuer bound by any erroneous statement of the law which he may have made, and I do not think that what he says here is more than an erroneous statement of the law. It might have been very different if it had been an erroneous statement of fact. But looking upon it in that light only, and considering that the statement as made on record was repudiated by the pursuer's counsel as an erroneous statement of law, I do not think we can proceed upon it. Nor can I expect the pursuer to renounce the rights, however severe they may be on the defender, which he possesses under the lease to exact the rent from the predeceasing

Y. Martin

17,

tenant's executors notwithstanding the bankruptcy of the other tenant.

LORD JUSTICE-CLERK-I have had very great difficulty in this case, and very much on the grounds which Lord Rutherfurd Clark has stated. But in considering the views which have been stated by Lord Young I am inclined on the whole to concur with him. I think the action is a stringent one, and proceeds on a view of the rights of the landlord of a somewhat hard and oppressive description. No doubt it is argued that the contract has provided that the rights of parties shall be so determined, and that we should give effect to the words of the contract. But I am inclined to think that there is a great deal of force in Lord Young's reading of that clause by which the executors of the two tenants are made liable for the prestations of the lease. The lease is taken to two tenants and the survivor, and I think that the clause in question may be read as binding the heirs, executors, and successors of both the tenants for the prestations incurred while both survived, and that there is nothing inconsistent with this construction in reading the clause as applicable to the heirs, executors, and successors of the survivor only for the prestations incurred after one of the tenants had predeceased. Indeed, I think that is the equitable result, because this is a lease in which the executors of the predeceaser can have no interest in the way of working or managing the subject. They cannot enter into possession, because when the predeceaser dies the survivor takes the whole right of management and possession. I say therefore it is not inequitable to read the clause as binding the executors of the survivor only for the prestations coming due after the lease has devolved upon him alone. But a complication was introduced here which I rather think, followed to its legitimate results, brings us to the conclusion which Lord Young has suggested. The pursuer in stating his case as against the executors of the predeceaser says expressly that the ground of it is that the whole right in the lease vested in the predeceaser before his death, and that Logan therefore was entirely divested of all right under the lease. I think the legitimate result upon that, as the true statement of the rights of the parties, is that this lease and its prestations has come to an end. Logan is disqualified from holding the right, and it vested in Martin, and Martin having died the lease comes to a termination entirely. On the whole matter I concur in the view expressed by Lord Young.

LORD CRAIGHILL was absent.

The Court recalled the Lord Ordinary's interlocutor, decerned against the defender for the amount tendered, and found her entitled to expenses.

Counsel for Pursuer (Respondent)-SolicitorGeneral Robertson-Dickson. Agents-J. & J. Ross, W.S.

Counsel for Defender (Reclaimer)-Balfour, Q.C.-Rhind. Agents-R. P. Stevenson, S.S.C.

[Lord Trayner, Ordinary.

SCOTT PLUMMER, PETITIONER. Entail-Entail Amendment Act 1848 (11 and 12 Vict. c. 36), sec. 4-" Such and the like Consents." Sec. 4 of the Entail Amendment Act 1848 provides that an heir of entail in possession of an entailed estate may sell, alienate, dispose, charge with debts or incumbrances, &c., "with such and the like consents as would enable him to disentail the estate. Held that an heir in possession may avail himself of the provisions of sec. 4 though he is in a position to disentail without consents.

This was a petition under section 4 of the Rutherfurd Act, presented by Charles Henry Scott Plummer, heir of entail in possession of the lands and estates of Middlestead, &c., to charge the estates with a debt or incumbrance of £6000.

Section 4 of the said Act provides-"That it shall be lawful for any heir of entail, being of full age, and in possession of an entailed estate in Scotland, with such and the like consents as by this Act would enable him to disentail such estate, to sell, alienate, dispone, charge with debts or incumbrances, lease and feu such estate, in whole or in part, and that unconditionally, or subject to conditions, restrictions, and limitations according to the tenor of such consents, the authority of the Court of Session being always obtained thereto in the form and manner hereinafter provided; and such heir of entail shall be entitled to make and execute, at the sight of the Court, all such deeds of conveyance and other deeds as may be necessary for giving effect to the sales, dispositions, charges, leases, or feus so made and granted."

The petitioner held the estates under a deed of entail dated 21st October 1799, and was born in October 1859. He was therefore entitled, under sec. 2 of the same Act, to disentail without any consents, being an heir of entail born after 1st August 1848, of full age, and holding under an entail dated before 1st August 1848.

The Lord Ordinary (TRAYNER) remitted to Mr H. B. Dewar, S. S. C., to inquire into the proceedings. Mr Dewar in his report doubted whether, seeing that sec. 4 only enabled heirs to avail themselves of the powers thereby conferred, "with such and the like consents as would by the Act enable them to disentail, the petitioner could avail himself of the provisions of sec. 4, as he was in a position to disentail without any

consents.

1799, and the petitioner was born in October 1859. He is therefore an heir of entail born after 1st August 1848, is of full age, and possesses under an entail dated before 1st August 1848. In these circumstances the petitioner would be entitled under the provisions of the Rutherfurd Act (11 and 12 Vict. cap. 36, sec. 2) to acquire the entailed estate in fee-simple by executing, under the authority of the Court, an instrument of disentail, without the necessity of obtaining any consent from other heirs of entail. He is, however, not desirous of disentailing the estate, but seeks, as I have said, to burden it with a debt, and he maintains that he is entitled, under the authority of the Court, to burden the estate, as he could certainly have disentailed it, without the consent of any of the next heirs of entail.

"By section 3 of the Rutherfurd Act provision is made for disentailing lands by the heir in possession with certain consents; and section 4 provides that it shall be lawful for any heir of entail, being of full age, and in possession of an entailed estate in Scotland, with such and the like consents as by this Act would enable him to disentail such estate, to sell, alienate, dispone, charge with debts or incumbrances,' &c. &c. The question therefore arises, whether under section 4 just quoted an heir of entail can burden the entailed estates without any consent whatever when he is in circumstances which enable him to disentail without consents?

"It appears to me that sections 3 and 4 were not originally intended to apply to cases where the heir in possession was in a position to take advantage of the provisions of section 2, it probably not having been anticipated that an heir who could disentail would content himself with merely burdening the estate. If this had been anticipated, the words of section 4 would probably have run thus, with such and the like consents, if any,' or 'if necessary,' &c. But although section 4 (under which alone authority to burden is provided for) appears from its language to contemplate the necessity of some consent, I am humbly of opinion that the petitioner's application may be granted without requiring any consent from the next heir or heirs. The greater power of disentailing the estate without consents seems to me to include the lesser power of burdening without consents. Besides, when the Act provides that such and the like consents' must be had to authorise an incumbrance on the property, as are needed to disentail, and also provides that no consents whatever are necessary to disentail, I think it follows that no consent is necessary to burden, or otherwise the consent to burden would be something different, and not 'such and the like' as is required for a disentail. If any consent is necessary it is scarcely possible to discover from the Rutherfurd Act whether the consent of the next heir would be sufficient, or whether the consent of the three next heirs would be required. I understand that this question has never arisen before, and I have therefore deemed it right to report it to the Court for authoritative decision."

Argued for the petitioner-The words "if any" were implied in sec. 4. There was no reason why an heir should not do directly what he could do indirectly by disentailing, charging, and reentailing.

At advising

LORD PRESIDENT-By the first three sections of the Rutherfurd Act certain powers of disentailing are given to heirs of entail, and according to the position in which any heir stands; the power is given subject to a number of conditions. There is one case under section 1 in which an heir is entitled to disentail without any consents, another under section 2, and another under section 3. Under all these sections there are also cases in which consents are required, and in these cases the consents vary according to circumstances.

Now, I cannot help thinking that section 4 was intended to apply to all the cases that are dealt with by the three preceding sections. The 4th section is not happily expressed, for there is an omission of words which would make the meaning of the section quite clear. But I agree that the fair meaning of the section is that stated in the opinion of the Lord Ordinary. The opposite view would lead to this very anomalous result, that there would be three cases of heirs under sections 1, 2, and 3 very highly favoured in respect of their power of disentailing, which they can do without any consents, who would be deprived altogether of availing themselves of the provisions of section 4. I say altogether deprived, for I do not see how one could extract from section 4 alone, or from section 4 in combination with the previous sections, any statements as to the consents which would enable these most favoured heirs to exercise the powers conferred by section 4. If consents are necessary in order to enable an heir in the most favoured position to avail himself of the provisions of section 4, the question arises what consents must be got to entitle him to burden. He cannot find that from the statute, for no consents are required in the case of an heir in his position with regard to disentailing.

I think the interpretation suggested by the reporter would lead to this very anomalous result, that an heir of entail in such a position would be altogether deprived of the benefit of section 4, which I think is entirely against the scope and meaning of that section.

LORD MURE-I concur, and on this broad ground, that the plain object of the 4th section of the statute was to enable all heirs of entail who could disentail to do the other things mentioned in the section, on the same conditions as they could disentail, and these words even as they stand do not, I think, exclude that construction.

LORD SHAND-On a fair construction of section 4 I think the words "if any" are clearly to be implied. If consents require to be given in order to disentail the estate, then the consents required by the preceding sections are to be obtained, but if no consents are required to disentail the estate, then the heir of the estate can burden the estates without any consents.

LORD ADAM-If you take the case which is also provided for by section 4, of leasing and feuing, I think it brings the matter to a reductio ad absurdum if you are to say that an heir must disentail and re-entail in order to grant these leases or feus.

FIRST DIVISION.

[Lord Curriehill, Ordinary. WALKER, HENDERSON, & COMPANY V. J. & P. HUTCHISON.

Ship-Contract to Build Ship-Damages for Deficient Carrying Capacity-Mode of Estimating Damage.

Where a shipbuilder has undertaken to build a vessel of a certain carrying capacity, and the vessel is found on delivery not to be of the stipulated capacity-held that the damage to the purchaser ought to be estimated by deducting from the total price a sum proportional to the difference between the actual and the stipulated capacity. This was an action by the builders of a vessel to recover from the purchasers a sum alleged to be still due for the cost of the vessel. The total price was to be £12,550. The defenders made counter claims of damage, and it was proved to have been agreed by the parties in the course of their correspondence that the vessel should be retained by the defenders, subject to all claims of damage for breach of contract. It was also agreed that these claims should be pleadable, if well founded, by way of compensation. The carrying capacity of the vessel, according to the contract, was to be 470 tons (including 70 tons in bunkers), and the defenders maintained that there was a deficiency in carrying capacity It was proved that there was such deficiency, and that it amounted to 25 tons. There was a dispute as to the manner in which damages thereby arising should be estimated, it being maintained (1) that the proper mode of assessing it was by estimating that the ship would earn less than if she had been of the proper capacity by the number of tons she was short, and then multiplying that deficiency by the number of years which the vessel might be expected to last; or (2) by the method adopted by the Lord Ordinary in the following passage of his note:-"Various modes of calculating the damage are suggested by the defenders' witnesses, but that which most commends itself to my mind is to deduct from the total price a sum proportional to the difference between the actual and stipulated weight-carrying capacity of the vessel [470: 25: £12,550 the damage to be ascertained] which gives as the result the sum of £667, 15s., which I propose to allow under this head." *Decided 19th July 1878.

Tuesday, July 14.

FIRST

DIVISION.

[Lord Kinnear, Ordinary.

THE GLASGOW CITY AND DISTRICT RAILWAY COMPANY V. THE GLASGOW COAL

EXCHANGE COMPANY (LIMITED).

(Ante, vol. xx. p. 855).

Reparation -Interdict— Unjustifiable Application for Interdict-Application periculo petentis.

A railway company who had power by their Special Act, subject to liability to make compensation, to "appropriate and use" the subsoil under a street, were delayed in their operations and suffered damage in consequence of an interim interdict obtained by a proprietor in the street, on the ground that the company were bound before proceeding with their operations to "purchase and take" the subsoil in question. This interdict having been recalled as erroneous in law-held that a sum of money only having been exigible in any event, the interdict was wrongous, and the proprietor was liable in damages to the company for the consequences of it.

This was an action by the Glasgow City and District Railway Company for £5000 as damages against the Glasgow Coal Exchange Company, Limited. The action arose out of the proceedings for interdict at the instance of the defenders the Coal Exchange Company, against the pursuers the railway company, which are fully reported ante, July 20, 1883, 20 Scot. Law Rep. 855, and 10 R. 1283. As there reported, the defenders, as proprietors of property bounded on the north by the centre of W. Regent Street of Glasgow, beneath which street the company's railway was to pass, and which the company had, in the alleged exercise of a power conferred by sections 34 and 55 of their Act (Glasgow City and District Railway Act 1882), opened up and excavated to a considerable depth, and the subsoil of which they had interfered with, had petitioned in the Sheriff Court for, and obtained from the Sheriff-Substitute interim interdict against the operations of the company. That interdict was subsequently recalled by the Sheriff, to whose judgment the Court adhered on appeal. The pursuers averred that the petition for interdict was unjustifiable and improper, that defenders were well aware, and had been warned, of the loss which would be caused by interim interdict being granted, but had insisted on moving for interim interdict on the petition instead of waiting for a record to be made up, that the result had been a stoppage under the interdict

for 33 days in their work, that this delay had caused other and subsequent delay in resuming operations, whereby they had suffered loss in damages to contractors and claims for statutory penalties for keeping up the excavations in the street longer than the Act allowed.

The pursuers pleaded, inter alia-"(1) The defenders having wrongfully prevented the pursuers from proceeding with the works necessary for the construction of their railway, by means of interim interdict as above stated, to the loss, injury, and damage of the pursuers, are liable to the pursuers in reparation as concluded for."

The defenders pleaded, inter alia-" (2) The interdict complained of having been obtained by the defenders in bona fide, and in vindication of their right of property in the solum of said street, they are not liable in damages. (3) The defenders having been in the circumstances entitled to maintain their possession until the merits of the question between them and the pursuers had been decided, they are not liable in damages for wrongful interdict."

By interlocutor of 24th March 1885 the Lord Ordinary assoilzied the defenders from the conclusions of the summons.

Opinion.—It is decided by the judgment upon which the pursuers found that they were entitled to appropriate and use the subsoil under the street in question without purchase, and without giving previous notice in terms of the Lands Clauses Act, and the interim interdict which the defenders had obtained from the Sheriff-Substitute was accordingly recalled. But it was decided at the same time that the subsoil was the property of the defenders, and that they were entitled to compensation for any injury which they might sustain from the operations of the railway company within their ground. The defenders were therefore protecting their property against encroachment, and although it was ultimately found that the encroachment of which they complained was justified by the provisions in the pursuers' Act of Parliament, the question was one which they were fairly entitled to try. It cannot be said that there was anything unreasonable in their contention, although it was found to be erroneous; for Lord Mure in his opinion observes that the case is one of difficulty and nicety, and that it was not surprising that the Sheriff-Substitute and the Sheriff should have come to different conclusions.

"This is not in my opinion a case in which the defenders can be made liable in damages for wrongous interdict. The interdict was not given upon any false or erroneous representation of facts, but because the Sheriff-Substitute, after hearing parties, was of opinion that the pursuers were not entitled to enter upon the defenders' property without making payment or a deposit in terms of the Lands Clauses Act. It was a possessory judgment, which was not asked or obtained for the purpose of inverting, but of continuing the existing state of possession. It was not, therefore, in my opinion a special remedy in the sense in which that term is explained in Kennedy v. The Police Commissioners of Fort William, Dec. 12, 1877, 5 R. 302, and Woltheker, 1 Macph. 211; but the ordinary remedy to which the defenders were entitled for maintaining the possession which they had held upon a habile title. The

case falls within the principle on which Moir v. Hunter, 11 S. 32, appears to have been decided."

The railway company reclaimed, and argued— This was a relevant action. The defenders had no interest which an interdict could protect. Their interest must in any event resolve into a money claim, which as the railway company had substantial means was certain to be fully met when once its extent was determined. The defenders were not in the beneficial enjoyment of the subsoil, and so their interdict was unnecessary and improper. The interdict caused great delay and damage to the pursuers, and it was recklessly taken out. In such a case as this interdict is always granted periculo petentis.

Authorities-Robinson v. N. B. Railway Co., March 10, 1864, 2 Macph. 841; Miller v. Hunter, March 23, 1865, 3 Macph. 740; Ford v. Muirhead, May 19, 1858, 20 D. 949.

Replied for defenders-The defenders were entitled to vindicate their right of property. The proceedings were not vexatiously adopted or kept up, but were decided with the greatest speed. The interdict was sought in order to continue the existing state of property. It was a possessory judgment. The defenders were resisting a trespass.

Authorities-Moir v. Hunter, Nov. 16, 1832, 11 Sh. 32; Mudie v. Miln, June 12, 1828, 6 Sh. 967; Reid v. Bruce, July 11, 1755, 17 D. 1100; Abel's Executors v. Edmond, July 10, 1863, 1 Macph. 1061; Gilmour & Anderson v. Gilchrist, June 1859, 29 Scot. Jur. 411; Kennedy v. Police Commissioners of Fort William, Dec. 12, 1877, 5 R. 302.

At advising

LORD PRESIDENT-The railway company under their statute were taking steps to promote what is known as the Underground Railway through the city of Glasgow, and were for that purpose taking possession of the subsoil of West Regent Street, in which the premises of the Coal Exchange Company were situated. The Coal Exchange Company were of opinion that the railway company were not entitled to take possession of that subsoil without giving notice under the terms of the Lands Clauses Act, and without paying compensation or the price of the land before taking possession of it. They therefore presented a note of suspension and interdict to the Sheriff, asking him to interdict the defenders from entering upon their property and taking possession of the subsoil. There was also an application for interim interdict. The Sheriff-Substitute finding that a caveat had been put in, appointed parties to be heard upon the question of interim interdict, and thereafter granted interim interdict until the future orders of the Court. It was argued by Mr Mackintosh that this was not a case of interim interdict, but of final interdict. I cannot view it in any other light than as a case of interim interdict, and as such I think it must be dealt with.

The interlocutor granting interim interdict was appealed to the Sheriff, who recalled the interim interdict and dismissed the petition.

In the course which he followed in dismissing the petition without requiring a record to be made up the Sheriff may have acted in a somewhat unusual way, but he was certainly doing a great service to the Coal Exchange Company,