I have said that I agree with the Lord Ordinary in the conclusion to Mar. 11, 1911. which he has come in favour of the pursuer. At the first hearing of the Duke of case I did not think that it presented much difficulty. In fact, it appeared Argyll v. Riddell. to me that the careful sifting of the facts, as I have explained them, left it perfectly plain that the effect, direct and indirect, of the entry of 1849 was Ld. Johnston. exhausted the moment an heir presented him or herself under the investiture of 1872 who could not claim to be heir of line of the person last entered by the Duke, and consequently that such heir must pay composition on his or her entry. Quoad two-thirds of the estate the defender was

in that position when she succeeded in 1907. On her recording her decreet of special service on 26th March 1907 she became impliedly entered and the composition became due.

The grounds of my opinion may be stated more formally thus. I hold— First. That Sir James Milles Riddell was already, in 1851, entered with the pursuer's predecessor on a destination to himself and his heirs whomsoever, which was then the standing investiture of the estate.

Second. That by his entail of 1851 he altered the fee-simple destination of the estate, and substituted a tailzied destination in favour of a selected order of heirs. When I use the term "tailzied destination," it does not matter in this respect whether that tailzie is a mere substitution of heirs of provision for the heirs of line, or is fenced by the fetters of a strict entail. Third. That while it was quite within his power to do this, if he was not content to create a mere base holding, and desired that the heirs under his new destination should hold directly of his superior, this required the joint act of himself and his superior to effect it; in other words, he or they must go to the superior for a new investiture, which they could only compel him to give on terms determined by law.

Fourth. That so long and so far as the new destination did not depart from the line of heirs at law, the disponee and subsequent heirs were entitled to enter for relief, the superior being entitled to reserve his right to composition whenever the new destination departed from that line; and that, when it did depart from that line, then, provided the claim had been reserved in the charter or writ enfranchising the new investiture, the superior was entitled to exact his composition.

Fifth. That in the circumstances, as they existed after the execution of the entail of 1851 and until the entry of 1872, Sir James Milles Riddell and his son, Sir Thomas, could at any time have obtained an enfranchisement of the new and tailzied destination, the one free, the other for relief, under reservation as above, and that Sir Thomas did so in 1872.

Sixth. That the reservation inserted in the writ of investiture granted to Sir Thomas was in such form as to be effective.

Seventh. That Sir Rodney on succeeding to Sir Thomas was entitled to an entry for relief, under the terms of the reservation, as heir of line.

Eighth. That Miss Riddell, not being heir of line of her brother, Sir Rodney, in two of the three one-third pro indiviso shares of the estate, which she takes by virtue of the entail of 1851, is bound to pay therefor composition, not relief.

I remain, and without hesitation, of the opinion which I originally formed and have above explained. But in respect that a second hearing

Mar. 11, 1911. of the case was deemed desirable, and of the course which that second hearing took, I feel that I must now regard the case as one of difficulty, and may therefore be excused if I state at some length the reasons which have led me to the above conclusions.

Duke of

Argyll v.
Riddell.
Ld. Johnston.

The first two of the propositions which I have above stated can hardly be controverted. I thought the third was in the same position, but, by what appears to me to be a misapprehension of the case of Hamilton v. Hopetoun,1 a strenuous attempt was made to dispute it.

First. There can be no question that Sir James Milles Riddell, by the combined effect of his entry in 1849 in the mid-superiority on payment of a composition, and of his consolidation in 1851, was entered in the dominium plenum of the estate, and that the destination enfranchised in his person was to himself and his heirs whomsoever.

Second. There can be equally little question, I think, that in 1851, when he executed his entail of that year, though the tailzied destination, which he then provided, did not, so far as appears, go beyond his own blood, Sir James Milles Riddell sought to disturb the line or legal order of succession both directly and by the exclusion of heirs-portioners. It has been, I think, fully recognised that when an heir of blood is taken out of the order of the heirs of line, he is as much a singular successor as is a stranger heir who is introduced (Lord Advocate v. Moray of Abercairney 2). There, a second son, though called as a substitute heir of provision in an entail created by his uncle in favour of himself and the heirs of his body, whom failing, his sister, whom failing, her second son, was the heir who actually entered with the superior, but the Crown, as superior, entered him by mistake for relief "instead of exacting the composition for which he was undoubtedly liable as a singular successor."

Third. If this new destination was to be enfranchised by an entry in terms of it, there can, I think, be no doubt that the joint act of Sir James Milles Riddell and his superior was required to effect it. An argument to the contrary was, as I have said, at the second hearing, founded on the case of Hamilton v. Hopetoun.1 But it was only made stateable by failing to observe the distinction in fact between that case and the present. In both, the superior on payment of a composition granted a charter in favour of heirs whatsoever and assignees. In both, the grantee of that charter sought to create a tailzied destination, disturbing the line, though not going beyond the blood. But the difference between the two cases is this (and it is essential): In the present case Sir James Milles Riddell sought to do this after the superior's precept was exhausted by infeftment in favour of himself, and when he was an entered vassal, whereas in Hamilton v. Hopetoun,1 Charles, Earl of Hopetoun, sought to do so while the superior's precept was as yet unexecuted, and therefore assignable. The one had to proceed. by a disposition and deed of entail, the other could proceed by a disposition and assignation and deed of entail. I think that there is a further distinction between the two cases. For Charles, Earl of Hopetoun, though creating a destination differing from that of his heirs of line, did not go beyond his heirs at law, whereas I think that Sir James Milles

11 D. 689.

2 21 R. 553.

Riddell did so, as I cannot admit that an eldest heir-portioner is an heir at Mar. 11, 1911. law in the whole fief.

Duke of

The decision in Hamilton v. Hopetoun1 was that, I gather, of the whole Argyll v. Riddell. Court, and bears on the face of it that it was framed with most anxious care and precision. It consists of two propositions:

1st, that a purchaser paying a composition is entitled to obtain from his superior a new charter and precept of sasine of the fee in favour of himself and his heirs at law, in any order of these heirs he pleases, provided only that he shall not in this destination go beyond his heirs at law to strangers. This limitation I shall subsequently notice. But the condition precedent of the obtaining such new charter is the paying of a composition.

2nd, that the purchaser paying a composition is further entitled to demand that such new charter and precept shall be assignable before the precept is exhausted by sasine taken upon it, in favour of any other person he pleases, and as a necessary consequence in favour of the heirs at law of that person. The charter is therefore not only to the purchaser himself and his heirs generally or as he may direct, but to his assignees. "Under the term 'assignees' are included," the Court say, "not only the acquirer of the inchoate right under the open charter himself, but also his heirs." But as the purchaser is entitled to select among his heirs, so also is the assignee. This he does, when he desires to do so, by dictating the terms of the assignation which he will accept. I quote from the judgment of the Court: "The superior "—and it is on the disposition, or rather the assignable precept contained in it and the assignation, that the assignee takes infeftment in favour of himself and the heirs named in the assignation—" could name the original grantee, and specify the heirs that grantee chose, but he could not name the assignee or specify his heirs; for it could not be known whether there would be an assignation or not, or to whom, or what order of heirs the assignee, if there were an assignee, might choose. The ordinary style, therefore, of charters and precepts to purchasers, paying one year's rent, is to their assignees' generally, neither attempting to specify the first assignee nor his heirs, but leaving that to be done in the assignation to be executed afterwards. And then upon this generally expressed charter and precept, granted in favour of assignees, joined with the assignation, sasine is taken in favour of the person and his heirs named in the assignation. Under a conveyance executed in this form, we can imagine no reason for doubting that the right of the assignee to specify his own heirs must have effect by his getting them expressed in the assignation, just as freely as the right of the first purchaser has effect by his specifying them to the superior before the charter is granted. Neither in substance nor in form do we see any ground for doubting this. And here again we must remark that we know no instance, and the pursuer has specified none, since the statute of George II., in which a superior, after receiving payment of one year's rent for a new infeftment to a purchaser, ever disputed the right of that purchaser to assign his open charter and precept of sasine to any assignee, or any destination of heirs of the first assignee, to whom the parties chose to

6

1 1 D. 689.

Ld. Johnston.

Mar. 11, 1911. take the assignation, provided the destination of the heirs did not extend further than his heirs of law."

Duke of
Argyll v.
Riddell.

There is no question of the importance of this decision, though I read it as hostile to the defender's contention. It appears to me to be based, not Ld. Johnston. on feudal principle, but on the practice which had grown up, as feus became more and more transmissible at the will of the vassal. The Court were, I think, exercised in ascertaining how far this practice led them. And the decision was a compromise between feudal instinct and equitable relaxation supported by practice. For I cannot escape the conclusion that there is a good deal underneath the limitation, repeated both in relation to the original purchaser or grantee of the charter and to the assignee; thus, "provided only he" (the original purchaser) "shall not, in this destination, go beyond his heirs of law to strangers" (p. 694), and "provided the destination of the heirs" (of the assignee) "did not extend further than his heirs of law" (p. 696). It was more than once assumed in subsequent cases that the limitation meant no more than that the Court would not decide more than was necessary for determination of the question before them. But this was disclaimed by Lord Mackenzie, who took part in the decision, and, as he says in Stirling v. Ewart, wrote the opinion, and whose words imply that the limitation was deliberate. And why? Because, I am persuaded, the Court saw that a decision carrying further the right of the purchaser to dictate to the superior any destination he pleased would have made an encroachment on the rights of superiors which might lead to the further encroachment of sustaining the right of the assignee to use his assignation as a means of imposing on the superior an equally wide destination—a step for which the Court was not prepared. But the fact that they imposed a limitation on their judgment, which was removed by the immediately subsequent decision of Stirling v. Ewart, does not detract from the value of their judgment so far as it carried the law. And again I must emphasise the fact that the condition precedent to the enfranchisement of the destination to heirs of provision named in the assignation was the payment of a composition by the cedent, who was able to assign because he held a still open or unexecuted precept from the superior.

I turn now to the special bearing of this decision, taking it as it stands with its limitation, on the present case. Once a purchaser has gone to a superior, paid his composition of a year's rent, and got a new charter and precept, whether to himself and his heirs whatsoever and assignees, or to his heirs whatsoever in any particular order he may choose to dictate, the superior has done all he can be required to do. There is nothing in the decision to warrant the idea that the purchaser can go back to the superior and demand another charter in different terms, selecting among his heirs, even if the precept given him is unexecuted, still less if it has been executed and the purchaser is infeft. But the decision does not leave the purchaser, who still holds the precept unexecuted-who still holds, as it is said, an open charter and precept-without remedy. He may, even within the limits of the decision, effect the purpose of his selection, provided he

14 D. 684, at p. 703.

does not go beyond the class of his heirs at law, by assignation. That is Mar. 11, 1911. exactly what Charles, Lord Hopetoun, having paid a composition, did, and Duke of the infeftment following on his assignation was held to enfranchise the Argyll v. Riddell. destination which he inserted in his assignation, no stranger in blood being introduced. But this course was not open to Sir James Milles Riddell in Ld. Johnston. 1851. He had closed the door upon himself by taking infeftment in 1849 upon the precept which he then obtained. He could then only effect his purpose by going to his superior. And the question then was: On what terms was his superior bound to comply with his request for a new charter either by resignation or confirmation?

1

It is of no materiality to the present question that, as regards the purchaser and the series of heirs which he may dictate to the superior, the limitation imposed by the Court in the case of Hamilton v. Hopetoun 1 was, as I have said, removed by the decision in Stirling v. Ewart.2 The substantial result of the case of Hamilton v. Hopetoun 1 would have been just the same had it occurred after Stirling v. Ewart, if Earl Charles, having paid his composition, had inserted in his assignation not merely heirs of line of his assignee out of their order, but stranger substitutes. His assignee, using the open precept (Earl Charles having necessarily paid the composition on receiving the charter), would on taking infeftment have been entered with the superior on an enfranchised destination in favour of all such substitutes, and not merely of those who were of the blood, as heirs of provision.

Fourth and fifth. On what terms, then, was the superior bound to comply with Sir James Milles Riddell's, or, as it happened, his heir Sir Thomas Milles Riddell's demand for recognition of the new destination of 1851? The writ of confirmation of 1872 was the equivalent at that date of the former charter of confirmation and precept.

The situation created when the heir in possession under a tailzied destination—that is, an heir of provision-desired to alter that destination while retaining the heirs immediately substituted to him in the order of the existing destination, as the first called in his new destination, had given rise to much litigation extending over more than a century before Sir Thomas Milles Riddell in 1872 obtained his writ of confirmation from his superior. The present is a late recrudescence of the same question in slightly altered form. In the long series of decisions referred to there have, I think, been several departures from strict feudal principles, but these departures have been made, and must, so far as we are concerned, be taken as settling the law. I suppose it may be said that custom, and the Court recognising custom, has interposed on equitable grounds to mitigate the rigour of strict feudal principles. But in doing so they have fixed the law just as firmly as an English Court of Equity could have done.

It is trite in legal history, that the earliest conception of a feu was a personal grant; that then a substitution of heirs, at least of male heirs, came to be implied, afterwards of heirs general; but that it took centuries to make fiefs alienable at the will of the grantee or his heirs. This was effected by the Acts 1469, cap. 36; 1669, cap. 39; and 20 Geo. II. cap.