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recorded in the Scottish Barony Register, the Petitioner holds the Lordship and Regality of the Garioch being of the genus of barony, which ownership brings the Petitioner within the jurisdiction of the Lord Lyon, King of Arms", and which was argued to be binding as a judicial decision. As Mr Lindsay departed from that analysis, I need not record the argument advanced under the misconception of Menking as being a judicial decision.
Who is the proper defender?
[64] Mr Lindsay objected to the defender's argument, which emerged in submissions, that the proper defender was the Advocate General. This had not been foreshadowed in any note of argument or at any case management hearing prior to the debate. If that argument were entertained, he submitted that it was competent to sue either the Lord Lyon or the Advocate General. If it were a good point, he invited the court to put the case out by order to enable an appropriate minute of amendment to be presented addressing this point.
The termination issue
[65] In relation to the defender's argument that the Agreement was terminated and had been terminated, Mr Lindsay submitted that the Agreement, as a contract of compromise, cannot be terminated by either party giving reasonable notice. Rather it remains in full force and effect until there has been a material change in circumstances. That is apparent from both the terms of the Agreement and from the circumstances in which the parties entered into it. The applicable legal principles, for determining the duration of a contract, are accurately summarised in paragraph 9.15 of the leading textbook The Law of Contract in Scotland, 3rd Edition, McBryde:
