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OUTER this section was intended to apply at all to HOUSE. cases in which damages were claimed against Thom v. the shipowner by a member of the crew on board Owners his ship in respect of the compulsory pilot's of S.S. negligence. Subsection (1) of the section is expressed in wide terms and makes a far-reachJanuary 17, ing alteration of the law. The opening words, Notwithstanding anything in any public or local Act," are capable of being read as words of limitation, but I think they were inserted only ob majorem cautelam.

1924

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Accordingly the important words in the section for the purposes of this case are: The owner. . . . of a vessel navigating under circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel in the same manner as he would if pilotage were not compulsory."

As I read the subsection one test of the obligation which it imposes is whether the shipowner would be liable for the loss claimed if the pilot whose fault caused it was a voluntary pilot. If this view is correct, then, in my opinion, the pursuers' case necessarily fails, because the deceased would have been a fellow-servant with the voluntary pilot. It appears to me that a voluntary pilot is pro hac vice the acting captain of the ship, and it was held in the case of Leddy v. Gibson & Co. (1873, 11 M. 304) that the captain and the sailors are colla

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Counsel for Pursuers, W. T. Watson, K.C.,
Ingram; Agents, Allan-Lowson & Hood, S.S.C.,
and W. P. Martin, Solicitor, Montrose.-Counsel
for Defenders, The Dean of Faculty (Sandeman,
K.C.), Normand; Agents, Boyd, Jameson &
Young, W.S.
T. G. S.

COURT OF SEVEN JUDGES.

(The Lord President, the Lord Justice-Clerk,
Lords Skerrington, Cullen, Ormidale, Hunter,
and Anderson.)

18th January 1924.

from 22nd February 1881, when it was recorded in the Register of Sasines, until his death on 17th May 1921, a period of more than forty years-Action by heir, who under the truster's destination would have taken the estate in 1921, to declare his right and to reduce the deed of entail so as to exclude the stranger to the deed from the succession-Extrinsic or intrinsic nullity-Pursuer maintaining that the disconformity of the dispositive clause with the narrative clause was an intrinsic nullity, and that the deed of entail was accordingly not an ex facie valid irredeemable title habile to found the plea of prescription-Held by a Court of seven judges (diss. Lords Ormidale and Hunter) that the alleged nullity not being intrinsic, the compearing defender had acquired an indefeasible right to the estate by prescription on an ex facie valid irredeemable title, and that he should be assoilzied.

Reclaiming Note against an Interlocutor of
Lord Blackburn.

On 3rd August 1922 John Albert Douglas Cooper Scott, of Redfordhill and Deans Houses in the county of Peebles (formerly known as John Albert Douglas Cooper), residing at Kamloops, British Columbia, brought an action of declarator and reduction against (1) Robert John Gill (designing himself as Robert John Gill Scott), farmer, Strathclyde, via Nelligan, New South Wales; and (2) the heirs male whomsoever of the deceased Mrs Jane Gill or residing in Galashiels. Young, sometime wife of William Young, residing in Galashiels.

The defenders second named did not lodge defences.

The circumstances in which the action was brought and the object of the various conclusions of the summons appear from the following narrative taken from the opinion of the Lord Ordinary (Blackburn) :

Peter Redford Scott died on 23rd May 1865, leaving a trust disposition and settlement dated in 1861, by the last purpose of which he directed his

trustees on the death of the survivor of his brother and sisters, or on the death of the survivor of himself and his wife, whichever of these events should last happen, to lay out and invest the residue of his estate in the purchase of lands and to convey them along with the lands and estates already belonging directed by the testator was in the first place to the to him by a deed of strict entail. The destination heirs male of his body and the heirs male of their bodies, whom failing to the heirs female of his body and the heirs male and female of their bodies. The next heir called was his brother Francis Scott, whom failing the heirs male and heirs female of his body. When the event occurred on which the trustees were Prescription Positive prescription-Conveyancing (Scot-directed to execute the deed of entail, which proved land) Act, 1874 (37 & 38 Vict. cap. 94), section 34- to be the death of the testator's widow on 16th Ex facie valid irredeemable title-Negative pre- October 1876, the testator and his brother Francis scription Deed of entail narrating correctly in had both predeceased, leaving no issue, and accordits narrative clause the destination from truster's ingly both the above branches of the destination had trust disposition and settlement, but dispositive clause of deed erroneously disponing to a substitute failed. The destination as directed by the testator who was a stranger to the destination-Institute further proceeded: whom failing the heir male of of entail possessing under the deed of entail the said now deceased Mrs Jane Gill or Young, whom

53.

Cooper Scott v. Gill Scott.

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failing the heirs male of the body of the said Mrs Janet Gill or Cooper, whom failing the heirs female of her body whom failing my own nearest heirs whomsoever. Both the ladies above mentioned were cousins of the testator through their mothers, and at the date when the entail fell to be executed the heir male of the said deceased Mrs Jane Gill or Young was her only son John, who afterwards adopted the name of Scott and was known as John Young Scott. A deed of entail was executed by the trustees, dated 2nd December 1880 and recorded in the Register of Entails on 15th February 1881. Under this deed the estate was conveyed to John Young Scott as the institute under the tailzied destination, and he completed his title by recording a warrant of registration in the General Register of Sasines on 22nd February 1881. He continued in undisturbed possession of the estates under this title till his death without male issue on 17th May 1921. It then appeared that in the tailzied destination the heir called next after the institute was described as "the heir male of the deceased Mrs Jane Gill or Young." Now, as the destination to the heir male of Mrs Jane Gill or Young had already been exhausted by the conveyance of the estates to her son John Young Scott as institute, it would appear that the trustees had no warrant to call another of her heirs in the destination. The result of their having done so is that the defender in this action, who is the person now answering the description of heir male of Mrs Jane Gill or Young, is not himself any connection by blood of the testator. He now seeks to make up a title to the estates under the destination in the deed of entail while his right to do so is challenged by the pursuer, who is the heir male of the body of Mrs Janet Gill or Cooper and who claims that he is the person designated by the testator in his trust disposition and settlement to succeed to the estates on the event which has now occurred. In the present action the pursuer asks declarator (first) that the trustees were bound to give effect in the deed of entail to the destination contained in

the trust disposition and settlement; (second) that they failed to do so in respect that they substituted the heir male of the said Mrs Jane Gill or Young to

the institute John Young Scott and accordingly that the deed of entail is to that extent unwarrantable, illegal, inept, and null and void; and (third) that the pursuer is now entitled to succeed to the entailed estates. The summons concludes that in any event the deed of entail should be reduced in so far as it purports to convey the estates on the failure of John Young Scott to the heir male of his mother, and that the pursuer should be restored and reponed thereagainst in integrum.

The parties averred, inter alia:

COND. 5. . . . . The deed of entail proceeds on the narrative of the provisions of the said trust disposition and deed of settlement and relative codioil, and correctly sets forth the direction to

entail the aforesaid lands and others contained therein on the groups of heirs mentioned. As all the groups of heirs preceding the heir male of Mrs Jane Gill or Young had failed prior to the execution of the deed of entail, the said trustees had to deal only with the subsequent groups, and they did so,

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COURT

1924.

but with an addition which is a manifest error and is unwarranted by the terms of the said trust dis- OF SEVEN position and deed of settlement and relative codicil. JUDGES. The destination in the dispositive clause of the deed Cooper of entail is in the following terms: to and in favour Scott v. of John Young Scott (formerly named John Young) Gill Scott. the heir male of the said deceased Jane Gill or Young, whom failing the heir male of the said Mrs Jane Gill January 18, or Young, now deceased, sometime wife of Mr William Young, residing at Galashiels, whom failing the heirs male of the body of Mrs Janet Gill or Cooper, wife of John Cooper, residing in Jamaica Street, Edinburgh, whom failing the heirs female of her body, the eldest heir female always succeeding without division throughout the whole course of succession and excluding heirs portioners, whom all failing to the nearest heirs whomsoever of the said Peter Redford Scott." It will be thus seen that the trustees in executing the deed of entail unwarrantably, and without any right whatever, after calling the said John Young Scott, the then heir male of the said deceased Jane Gill or Young (and who took the estates in that capacity), proceeded to call on his failure the heir male of the said deceased Jane Gill or Young, when, had they carried out the direction properly, they would have called next to John Young Scott the heirs male of the body of Mrs Janet Gill or Cooper. The averments in answer are denied.

Ans. 5. The deed of entail and certificates of registration are referred to for their terms. Quoad ultra denied. Explained that before execution the draft of the deed of entail, together with the trust disposition and settlement and other documents, was submitted to eminent counsel for revisal, and was revised and adjusted by him. As revised and adjusted, the said deed was subsequently executed. The said deed is in terms of the said trust disposition and settlement.

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"4. Esto that the terms of said deed of entail are not warranted by or did not duly comply with the said trust disposition and settlement, any right in the pursuer to reduce the said deed is excluded by (a) positive prescription, et separatim (b) the long negative prescription, and the defender is entitled to absolvitor.'

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COURT

On 11th January the Lord Ordinary assoilzied Accordingly, it appears to me that the pursuer's OF SEVEN the compearing defender.

JUDGES.

January 18, 1924.

Cooper Lord Blackburn [after the narrative above quoted]. Scott v. -The destination in the trust disposition and Gill Scott. settlement may be open to criticism and may have occasioned some ambiguity as to the testator's intentions, but I do not entertain any doubt that his trustees having by the conveyance of the estates to John Young Scott exhausted the direction to convey to the heir of Mrs Jane Gill or Young were not entitled to call another of her heirs immediately on his failure, and that had the objection now taken to the destination in the deed of entail been stated timeously it must have been successful (Ochterlony v. Ochterlony and Others, 1887, 4 R. 587). But the institute after being infeft under the deed of entail continued in possession of the estates without challenge for over forty years, and accordingly the defender now pleads both the positive and negative prescription in support of his claim.

answers to the plea of prescription fail and that the institute of entail having been infeft under the deed for over forty years the defender is entitled to have his fourth plea in law sustained and to be assoilzied from the conclusions of the action. I may add that had I thought effect should have been given to the minority plea as an interruption of prescription this would in my opinion only have affected the defender's plea so far as founded on the negative prescription. The period required. for the running of the positive prescription is in my judgment regulated by section 34 of the Act of 1874, which does not in any event require more than thirty years' possession.

The pursuer reclaimed, and after hearing the case the Second Division ordered it to be heard before a Court of seven judges.

Argued for the Pursuer: The deed of entail correctly set forth in its narrative clause the provisions of the truster's testamentary writings. The pursuer meets this plea by maintaining that the deed of entail is not a habile document on which In the dispositive clause of the deed of entail to found prescription in respect that it is intrinsically the trustees, after calling John Young Scott, null and void. It is argued that since the deed of the then heir male of Jane Gill or Young, had entail proceeds on a full narrative of the trust dis- unwarrantably, and without any right whatever, position and settlement, including the destination proceeded to call on his failure the heir male of therein, it is possible by comparing the two destina-Jane Gill or Young, which last-mentioned heir tions one with the other to reach the conclusion ex gremio of the deed that the trustees had no warrant for the substitution of Mrs Jane Gill or Young's heirs to the institute in the destination of the entail

itself. This assumes that the destination of the trust disposition and settlement has been accurately repeated in the narrative of the deed of entail which, however, can only be proved by extrinsic enquiry, and accordingly the argument so far as based on an intrinsic nullity necessarily fails. But even if a disposition were to bear in gremio conclusive evidence that it was granted a non habente potestatem this would not in my opinion amount to an essential nullity but would only render the deed voidable within the prescriptive period (H.M. Advocate v. Graham, 7 D., per L. J. Hope at p. 195). Next it was argued that the pursuer himself had no title to raise the present proceedings until the death of the institute and accordingly that prescription could only begin to run against him from that date. Assuming as I do that the deed of entail was not executed by the trustees in strict accordance with the testator's directions, I do not think it doubtful that any of the substitutes designated under the destination in the trust disposition and settlement might have challenged its validity from the date when it was recorded and that the proper person to defend the action

would have been the institute infeft under the deed. But the pursuer further argues that so far as he is concerned the running of prescription was interrupted by the fact that he was a minor for two years after he became on his father's death the heir next entitled to succeed under the destination in the trust disposition and settlement. It has, I think, been long settled that in questions of succession to heritable property the plea of minority as a suspension of prescription is only available to one to whom the right to claim possession of the estates has opened during his own minority (Gordon, 1784, M. 10968; Maule v. Maule, 1829, 7 S. 527; Black v. Mason, 1881, 8 R. 497).

male was a stranger to the deed. According to the truster's directions they should have called next to John Young Scott the heirs male of the body of Mrs Janet Gill or Cooper, and at the present time the pursuer was, as such heir male, the person the truster intended to succeed to the estate.

The heir male of Jane Gill or Young had been erroneously called twice, and the second calling ought to be treated as mere surplusage. The dispositive clause referred back to the narrative clause, and on such reference being made, an intrinsic nullity on the face of the deed stood revealed in the form of a plain contradiction in terms between the two clauses. The Act of 1617, relating to prescription, was to secure persons who had possessed for the prescriptive period against claims of prior rights (Napier on Prescription, p. 49; Millar on Prescription, p. 5). Section 34 of the Conveyancing (Scotland) Act, 1874 (37 & 38 Vict. cap. 94), reduced the length of the period to twenty years, but required an irredeemable title. If invalid the title was null, ex facie and the intrinsic nullity in the present case was fatal to the deed. There never could be prescription in favour of a deed containing an intrinsic nullity, so that the Act of 1617 did not apply to this deed. The portion relied on by the defender was ultra vires, and ought never to have been there. The deed was probative of the narrative of the will. Here the defender could not found on a valid charter and sasine, or the modern equivalents thereof, which he was bound to do (Ersk., III. vii. 4, p. 857 n., III. vii. 9; Scott v. Bruce Stewart, 1779, M. 13519, 3 Ross's L.C. 334). The deed was not

one on which prescription could run, in respect that it was not an ex facie irredeemable title. Counsel referred to and discussed the following cases: Duke of Buccleuch v. Cunynghame, 1826, 5 S. 57, 3 Ross's L.C. 338; Forbes v. Livingstone, 1827, 6 S. 167 at pp. 173, 176, 3 Ross's L.C. 342; Lord Advocate v. Graham, 1844, 7 D. 183 at pp. 193, 195, 3 Ross's L.C. 352; Fraser v. Lord Lovat, 1898, 25 R. 603; Paterson v. Purves, 1823, 1 Sh. App. 401; Simpson v. Marshall, 1900, 2 F. 447; Paton v. Drysdale, 1725, M. 10709, 1 Ross's L.C. 194; Ainslie v. Watson, 1738, M. 10736, 1 Ross's L.C. 196; Cubbison v. Hyslop, 1837, 16 S. 112 at p. 119, 3 Ross's L.C. 328; Shepherd v. Grant's Trs., 1844, 6 D. 464, 6 Bell's App. 173; Bruce Stewart v. Scott (cit.). A deed could be partly intrinsically null and partly good (Abernethie v. Forbes, 1835, 13 S. 263; Porterfield v. Steuart, 1829, 8 S. 33). The dispositive clause was the ruling clause, but could be corrected by the executive clauses (1 Ross's L.C. at p. 44 (et seq.); Chancellor v. Mosman, 10 M. 995; Mackenzie v. Duke of Sutherland's Trs., 1896, 23 R. (H.L.) 32; Sandford on Entails, p. 246). The effect of the negative prescription only arose if the title was good, which it was submitted it was not. The defender was thus a stranger (Cubbison v. Hyslop (cit.)). Decree should be granted.

Argued for the compearing Defender: The defender was entitled to absolvitor in respect that prescription had run in favour of the deed of entail. The institute of entail had possessed the estate under the deed of entail for more than forty years, and his possession was possession for all the substitutes of entail. Not only the positive prescription could be pleaded-the negative prescription was pleaded also. Intrinsic nullity meant that the deed contained an incurable defect, e.g. absence of witnesses, writing upon erasures, etc., but there was no intrinsic nullity here. Prescription having run, every presumption fell to be made in favour of the title (Stair, II. xii. 25). Any extrinsic nullities were wiped out (Ersk., III. vii. 4, p. 857 n.; Bell's Lect. (3rd ed.), Vol. II. P. 706; Ainslie v. Watson (cit.); Scott v. Bruce Stewart (cit.); Duff on Deeds, p. 175; Wood's Lect., p. 254). The defender had no concern with the grantors of the deed of entail. The Court could only look at the dispositive clause as it overruled the narrative clause. If the narrative clause did contain an untrue statement, the narrative must now be presumed to be wrong. The cases on the positive prescription supported the defender (Paterson v. Purves (cit.); Duke of Buccleuch v. Cunynghame (cit.); Bell's Lect., Vol. II. p. 1031; Stair, II. viii, 15; Ersk., I. v. 3; Forbes v. Livingstone (cit.); Abernethie v. Forbes (cit.)).

JUDGES.

Gill Scott.

1924.

If the positive prescription were not sufficient COURT the defender here was entitled to the benefit oF SEVEN of the negative prescription, so that if any doubts existed as to the deed they were got Cooper over by the negative prescription (Cubbison v. Scott v. Hyslop (cit.); Thomson v. Stewart, 1840, 2 D. 564 at pp. 570, 573; Macdonald v. Lockhart, January 18, 1842, 5 D. 372 at p. 375; Shepherd v. Grant's Trs. (cit.); Lord Advocate v. Graham (cit.), at pp. 195, 196, 205, 206, 211; Eglinton v. E. of Eglinton, 23 D. 1369; Kinloch v. Bell 1867, 5 M. 360 at p. 368, 370; Ochterlony v. Ochterlony, 1877, 4 R. 587). The dispositive clause, being plain and unambiguous, must receive effect (Chancellor v. Mosman (cit.); Orr v. Mitchell, 20 R. (H.L.) 27 at pp. 29, 33).

On 18th January 1924, the Court (diss. Lords Ormidale and Hunter) adhered.

The Lord President intimated that the

opinion of the consulted judges would be read by Lord Skerrington.

The Lord Justice-Clerk (Alness).-This case raises interesting and important questions relating to the law of the positive and the negative prescriptions. We have had the advantage of an elaborate and erudite argument from both sides of the bar, and we have been furnished with a copious citation of authority.

The questions to which I have referred arise from the terms of the trust disposition and settlement of the late Peter Redford Scott. The Lord Ordinary has rehearsed the circumstances which lead up to the action with great particularity, and I abstain from resuming them in detail. So far as material, they are not in dispute. Suffice it to say that Mr Scott directed his testamentary trustees, on the occurrence of certain events, to execute a deed of strict entail, conveying the heritage which he left, and the heritage which he directed his trustees to purchase, to a carefully defined series of heirs. The trustees, on the occurrence of the events contemplated by the testator, executed and recorded a deed of entail, which in its narrative clause repeated the destination in the trust disposition and settlement. Certain institutes contemplated by the testator in point of fact failed, and the direction which operated at the date of his death is thus set out in the trust disposition and settlement and in the narrative clause of the deed of entail : Whom failing the heir male of the said now deceased Mrs Jane Gill or Young, whom failing the heirs male of the body of the said Mrs Janet Gill or Cooper." Both the ladies referred to were cousins of the testator. The heir male of Mrs Jane Gill or Young, who was in point of fact her only son, John Young Scott, duly took the estate, as the trust disposition and

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JUDGES.

Gill Scott.

1924.

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COURT settlement enjoined. On his death in 1921, positive clauses in the deed of entail, it is
OF SEVEN after enjoying undisturbed possession for forty intrinsically null. The defender replies that
years, it was discovered that the destination the defect in the deed is not intrinsic but ex-
Cooper contained in the deed of entail called as the trinsic, and that it has been cured by the
Scott v. next heir "the heir male of . . . . Mrs Jane positive prescription. He maintains that, after
Gill or Young.' For this provision Mr Scott's twenty years' possession, which he has ad-
January 18, trust disposition and settlement afforded no mittedly enjoyed, all enquiry into earlier titles
warrant. The heir male of Mrs Jane Gill or is excluded, and that he is feudal owner of the
Young, who is a defender in this action, was estate. He further maintains that, if the
a stranger to the deed. He, however, essayed positive prescription does not avail him, he
to make up a title to the estate under the can fall back, and successfully fall back, on
destination referred to. The pursuer, who is the negative prescription, which has now-
the heir male of Mrs Janet Gill or Cooper, and so he contends-cut off all right of action by
who, in virtue of the direction contained in the the pursuer. The law of the matter is not
trust disposition and settlement, should have doubtful. If a deed is intrinsically null, it
been called as the next heir of entail, presented does not afford a foundation for the operation
a competing petition for service, and claimed of prescription. If, however, the defect in the
the right to succeed to John Young Scott. deed is not intrinsic, but extrinsic, the deed
He has brought this action to vindicate that is a good title on which to prescribe. The
claim. The Lord Ordinary, however, assoil- question accordingly comes to be-Within which
zied the defender, and against his judgment category does this deed fall? Is the nullity
this reclaiming note has been taken. The with which we are here concerned extrinsic or
case for the pursuer is that the trustees under intrinsic?
the trust disposition and settlement failed to
incorporate in the deed of entail the destination |
determined by the testator, that the deed of
entail is to that extent inept, and that he (the
pursuer) is the heir now entitled to succeed to
the entailed estate. The defender, on the
other hand, pleads that he enjoys the protec-
tion afforded both by the positive and the
negative prescription. To this the pursuer
replies that the deed on which the defender
founds is subject to intrinsic nullity, and that
accordingly the defence of prescription is
elided.

The area of discussion was considerably narrowed in the course of the second debate. Certain pleas which had been originally urged by the defender were jettisoned by him. The plea of minority, to which the Lord Ordinary in his opinion refers, was abandoned. The plea that the existence of adverse possession is an essential requisite of the positive prescription, and that there was in this case no adverse possession by John Young Scott, was also abandoned. The plea that prescription enfranchises only the individual and not the investiture was abandoned too, and it was conceded that the possession of the institute is the possession of all the substitutes. This admission, though probably inevitable, is at the same time, in my judgment, a most damaging one on the part of the pursuer.

In point of fact, the sole question debated before the Court of seven judges was-Does the deed of entail suffer from an intrinsic nullity or does it not? The pursuer maintains that the defender's title is not habile to found prescription, in respect that, looking to the contradiction between the narrative and dis

In order to answer that question, it is obviously imperative to ascertain, with as much precision as may be, what is an intrinsic and what is an extrinsic nullity. How are they to be defined? It is difficult to furnish an exhaustive definition; but one can at least say, on a survey of the examples given in the authorities, that a deed which is intrinsically null may be described as a deed which suffers, on the face of it, from an incurable defect in its essentials. The deed must per se afford complete and exclusive proof of its nullity. It must be, in short, a self-destructive title. Such a deed is one which, while the older law applied, omitted the word "dispone," a deed which is witnessed by only one witness, or a deed in which essential words are written on an erasure. Such a deed has no effect whatever upon the lands which it purports to convey, and cannot be buttressed by extrinsic evidence. On the other hand, any deed which, though defective, may be made good by separate documentary evidence does not suffer from an intrinsic nullity. The defect is in that case not intrinsic but extrinsic. Stair (Inst. II. xii. 25) gives as an illustration of a deed which may be set up by extrinsic evidence one in which the sasine bears not to have been given on the lands. Such a deed appears prima facie to be null. But it may not necessarily or truly be so, inasmuch as there may be a Crown clause of dispensation. And the deed may be set up by shewing that such a clause in point of fact exists. After twenty years such a deed is unassailable.

As regards the deed of entail in this case, it is plain that the narrative and dispositive clauses are disconform the one to the other.

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