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Chapter 8
Agreement between the Parties
Answers to Questions

REVIEW QUESTIONS

Question 8.1 Explain why the courts have found it necessary to look to
other approaches in addition to the traditional analysis of offer and
acceptance to establish agreement.

The traditional approach to evaluating whether or not an agreement between

parties exists is to identify if an offer and an acceptance of that offer have take
place. However, there are situations in which this analysis will be unsuccessful,
namely where it is not easy to locate an offer or an acceptance: Brambles Holdings
Ltd v Bathurst City Council [2001] NSWCA 61, Heydon JA. Examples of occasions in
which it will be difficult to identify an offer or an acceptance include competitors in
a regatta (Clarke v Earl of Dunraven and Mount-Earl (The Satanita) [1897] AC 59),
and exchange of contracts to sell land (Gibson v Manchester City Council [1979] 1
WLR 520 (CA)).

8.2 In cases where the traditional approach of offer and acceptance cannot
be applied, how does the court determine whether an agreement has been
reached between the parties?

In cases where the traditional approach of offer and acceptance cannot be applied,
the court determines whether or not an agreement has been reached between the
parties by looking at the conduct of the parties. In Integrated Computer Services
Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11 at 110, McHugh
AJA, as he then was, said that ‘contracts may be inferred from the acts and conduct
of parties as well as or in the absence of their words’. The court must consider
whether or not the facts, when viewed objectively and as a whole in light of the
relevant circumstances, demonstrate that, from the perspective of a reasonable
person on both (or all) sides of the agreement, it can be seen that a concluded
agreement has been reached. If the parties have not yet agreed on essential or
critical terms that they regard as necessary for the creation of a binding
agreement, the court cannot find such agreement exists: see, for example, Azzi v
Volvo Car Australia Pty Ltd [2007] NSWSC 319.

8.3 In Clarke v Earl of Dunraven and Mount-Earl (The Satanita) [1897] AC

59 and Raguz v Sullivan [2000] NSWCA 240, on what grounds did the
courts rely to find that there were agreements?

In both Clarke v Earl of Dunraven and Mount-Earl (The Satanita) [1897] AC 59 and
Raguz v Sullivan [2000] NSWCA 240, the courts found it hard to apply the
conventional approach of offer and acceptance to the fact situations since there
were several parties involved and no clear offer and acceptance. Therefore, they
instead determined that agreements existed by looking to the conduct of the

Copyright © 2016 Pearson Australia (a division of Pearson Australia Group Pty Ltd)
9781486019274 Gibson and Fraser/Business Law 9e
1
parties and the documents that governed entry into the relevant competition. While
mere participation will generally not of itself provide the basis of a contract between
the participants themselves and the organisers, in both these cases there was
sufficient evidence of an intention to enter into a contract based on the conduct of
the parties having to sign undertakings to be bound by the rules as a condition of
participation (a multipartite transaction).

Question 8.4 Explain what an offer is.

An offer is a clear expression of the terms under which a person is prepared to

enter into a contract with another person and be bound by their acceptance of
those terms.

Question 8.5 List and explain the main rules relating to an offer.

The main rules relating to an offer are as follows:

• An offer must be communicated to the offeree. This can be in writing, oral, or
by conduct.
• An offer can be made to a particular person, a group of people, or to the whole
world.
• An offer can be revoked at any time before acceptance, unless it is in the form
of an option.
• An offer can be terminated by rejection, counter-offer, lapse of time, failure of a
condition, or the death of a party if the contract is one of personal service.

Question 8.6 Explain why it is necessary to distinguish between an offer

and an invitation to treat.

An invitation to treat is not an offer, but rather is an offer to consider offers. This is
because the person making the statement does not intend for their words or
conduct to constitute an offer—for example, as in the case of advertisements. An
invitation to treat cannot be accepted and can never give rise to a contract.

An offer is a clear expression of the terms under which a person is prepared to

enter into a contract with another person and be bound by their acceptance of
those terms. In the case of an offer, the person making the offer does intend to be
bound by the offer. The distinction is important because acceptance of an offer
brings a contract into existence.

Question 8.7 Under what circumstances will an apparent invitation to treat

situation become an offer?

An apparent invitation to treat can be construed as an offer where it is clear in the

circumstances that a party intends to be legally bound. In that case, the words or
conduct used will constitute an offer.

An example of where an advertisement was thought by the advertiser to constitute

an invitation to treat, but the courts considered it to be an offer, can be found in
Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256. The Carbolic Smoke Ball
Company published an advertisement claiming that anyone who used their ‘smoke
balls’ according to their instructions would not catch influenza. If an individual did,
the firm would pay them £100. As a sign of good faith, the Carbolic Smoke Ball
Company deposited £1000 with their bankers, and it was this fact that the court
considered clearly evidenced an intention to pay anyone who performed the
conditions of the offer and who claimed the money.

Copyright © 2016 Pearson Australia (a division of Pearson Australia Group Pty Ltd)
9781486019274 Gibson and Fraser/Business Law 9e
2
Question 8.8 Explain under what circumstances an offer can be terminated.

An offer can be terminated in the following circumstances:

• revocation (withdrawal);
• rejection or counter-offer;
• lapse of time;
• the death of a party where that person’s personal involvement is necessary; or
• failure of a condition

Question 8.9 Andrew offered to purchase Rob’s house and gave Rob six
weeks for a definite answer. Rob, on the basis of this offer, bought another
house. Before the six weeks expired, but after Rob had bought the second
house, Andrew withdrew his offer. Is Andrew entitled to do this?

This question deals with the problem of offer and acceptance, and, in particular,
with the withdrawal/revocation of an offer.

Andrew has offered to purchase Rob’s house and given Rob six weeks in which to
indicate his acceptance or rejection of the offer. From the information given in the
question, it seems that no consideration has been given to keep the offer open by
Rob. If consideration had been provided by Rob to keep the time period open, then,
as in the case of Goldsborough Mort & Co Ltd v Quinn [1910] HCA 20, there would
have existed an option contract and Andrew would then have had no right to
withdraw the offer until the expiry of the agreed six weeks.

As it appears that Rob has given no consideration to keep the promise open, as in
Routledge v Grant (1828) 4 Bing 653, the court would come to the conclusion that
before Rob bought another house he should have accepted the offer. It makes no
difference that Rob, relying on Andrew’s intention to maintain his offer, had gone to
the expense of buying another house in the place of the one he expected to sell. A
promise unsupported by consideration will not be binding on the offeror, and may
be withdrawn at any time up until acceptance or the time period lapses.

(Note: Routledge v Grant does not appear in the text.)

Question 8.10 Hardy sent out a circular to all his clients which read: ‘We
are instructed to offer for sale by tender the stock-in-trade of ABLE
Imports … which will be sold at a discount in one lot … The tenders will be
received and opened at our offices.’ Spence submitted the highest tender
but Hardie refused to sell the goods to him. Has a contract been concluded
between the parties?

The question requires consideration of tenders and whether or not there is an

invitation to treat or an offer in the circumstances of these facts.

Tenders are generally treated as an invitation to treat. The facts are similar to
Spencer v Harding (1870) LR 5 CP 561. The defendants sent out a circular saying
that they were instructed to offer certain stock-in-trade for sale by tender. The
plaintiffs submitted a tender, but the sale did not proceed. The court held that there
was no undertaking to sell to the highest bidder, rather an indication that the
defendant was willing to consider offers.

Where the tender clearly states that the highest or lowest tender will be accepted
then it will be considered to be an offer: Harvela Investments Pty Ltd v Royal Trust

Copyright © 2016 Pearson Australia (a division of Pearson Australia Group Pty Ltd)
9781486019274 Gibson and Fraser/Business Law 9e
3
Co. of Canada (CI) Limited [1986] 1 AC 207.

Here it appears, from the information given, that the announcement calling for
tenders by Hardy was not a firm promise to sell to the person submitting the
highest tender. It only indicates that he was prepared to receive offers to buy. As a
result, Spence cannot demand that the goods be sold to him.

TUTORIAL QUESTIONS

Question 1 Could an offer sent by fax be accepted by letter if the offeror

had not specified a particular method of acceptance? Give reasons.

If the offeror had specified a particular method of acceptance, the offeree must
comply with that method. However, since the offeror has not specified a particular
method of acceptance, the general custom of the trade or what is reasonable in the
circumstances is deemed to be an appropriate means of acceptance. Therefore,
since the offer has been sent by fax, it suggests a sense of urgency with respect to
the reply and thus a response by fax or a method as fast or faster would be
effective.

Question 2 Explain what is required for an offer to be validly accepted.

For an offer to be validly accepted, it:

• must be made in reliance on the offer;
• must be strictly in accordance with the terms of the offer;
• must be communicated to the offeror orally, in writing or by conduct;
• cannot be a cross-offer;
• can only be accepted by the party to whom the offer was made;
• must be absolute and unqualified; and
• once made, cannot be revoked without the assent of the offeror.

Question 3 Explain why the rules as to acceptance differ between contracts

by post and instantaneous communication.

The rules as to acceptance differ between contracts by post and instantaneous

communications due to the speed by which the offer and acceptance can be made.
Where the parties decide to use post as the means of exchanging promises, the
offeror is taken to have contemplated and intended that the offer be accepted by
post or a method of similar speed. Thus, the rules as to the time of acceptance
dictate that an offer made by letter is not effective until received by the offeree and
acceptance is effective as soon as it is posted. Where the communication of offer
and acceptance is instantaneous, the postal rules do not apply; the contract is
formed when acceptance is received: Entores Ltd v Miles Far East Corp [1955] 2 QB
327.

Question 4 How can businesses that make offers protect themselves from
the risk of loss associated with the rules of offer and acceptance by post?

If businesses make offers by way of post, they should frame their offers carefully in
such a manner as to promote their goods or services in a manner that would be
considered an ‘invitation to treat’. An invitation to treat is not an offer, even if it is
described as an offer, and, as such, cannot be accepted. A party who responds to
such advertising would be the one making the offer, which could then be accepted
by the relevant business.

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9781486019274 Gibson and Fraser/Business Law 9e
4
Question 5 What problems can you envisage occurring where businesses
use printed standard order forms in the course of negotiations?

Where businesses use printed standard order forms in the course of negotiations,
there can be problems in ascertaining whether or not agreement has actually
transpired and, in some cases, which party’s terms will form the content of the
contract.

Question 6 Is it possible for a contract to be formed without an identifiable

offer and acceptance? If so, how does a court determine whether
agreement has been reached? What tests does a court apply?

It is possible for a contract to be formed without an identifiable offer and

acceptance. In such cases, a court determines whether or not an agreement has
been reached by considering the respective parties’ conduct. The court may infer a
contract from the parties’ conduct and acts, in addition to, or in the absence of,
their words: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust)
Pty Ltd (1988) 5 BPR 11, McHugh AJA at 110.

The court must consider whether or not the facts, when viewed objectively and as a
whole in light of the relevant circumstances, demonstrate that, from the
perspective of a reasonable person on both (or all) sides of the agreement, it can
be seen that a concluded agreement has been reached.

If the parties have not yet agreed on essential or critical terms that they regard as
necessary for the creation of a binding agreement, the court cannot find such
agreement exists: see, for example, Azzi v Volvo Car Australia Pty Ltd [2007]
NSWSC 319.

Question 7 A contract to purchase a car contains the following clause: ‘If

you are not completely satisfied with the car, return it in good condition
within seven (7) days and we will give you your money back.’ Is this
clause a condition precedent or a condition subsequent? Explain your
answer.

The clause quoted from the car purchase contract is a condition subsequent. A
condition subsequent clause is one that causes the contract to terminate, as the
parties have stated that the occurrence of a particular event will give the parties
that right. Unlike a condition precedent, a condition subsequent is activated when
the contract is already in operation. In this situation, the condition subsequent is
the purchaser’s dissatisfaction with the car and its return in good condition within
seven days, which, if it were to occur, would terminate the contract.

Question 8 On 7 March, Brendan sent a letter by express courier to Sydney

offering to buy fabric from Steven. At the foot of the letter he added:
‘Please write and return by express courier whether you accept my offer.’
The letter was delivered to Steven on 8 March, and he wrote accepting the
offer. However, instead of giving the letter to the express courier, Steven
sent it by post. An express courier letter would have arrived back in
Melbourne on 9 March, but the letter of acceptance did not arrive until 12
March. On 15 March, Brendan replied to Steven’s letter saying that he had
bought his requirements of fabric elsewhere. Steven claimed that there
had been a breach of contract. Advise Brendan as to his legal position.

Copyright © 2016 Pearson Australia (a division of Pearson Australia Group Pty Ltd)
9781486019274 Gibson and Fraser/Business Law 9e
5
Brendan specifically informed Steven that he wished his offer to be accepted by
express courier. Where the offeror specifies a special or particular method of
acceptance, it must be followed exactly. Steven failed to do this; he accepted the
offer by regular post. Therefore, his acceptance may not be recognised as an
agreement between the two parties. Had Brendan stated that the offer would only
be accepted on receipt by him via express courier, he could have excluded the
operation of the postal rules and then definitely been able to ignore Steven’s
acceptance by post. However, Brendan only stated a desire for the acceptance to
be via express courier.

Applying the postal rules, Brendan’s offer was made on 8 March, when received by
Steven, and accepted that same day when posted by Steven. For Brendan to
successfully revoke his offer, the revocation must have been received by Steven
before he posted his acceptance. Since the revocation did not occur until 15 March,
such termination of the contract by revocation would not be permissible under the
postal rules. See Byrne & Co v Leon Van Tienhoven & Co [1880] 5 CPD 344.

Question 9 An insurance company advertised an invitation to the public to

subscribe for shares. Grant applied for 100 shares through the mail. The
shares were duly allotted to him, and a letter of allotment was posted.
However, the letter got lost in the mail and was never received by Grant.
Nothing further was heard from the company for several years until a
demand for payment of $400, a call on the shares. Grant claimed that he
was never a shareholder and refused to pay. Advise Grant.

Grant could argue that the insurance company was simply advertising its shares to
the public, which should thus merely be viewed as an ‘invitation to treat’. An
invitation to treat is not an offer, even if it is described as an offer, and, as such,
cannot be accepted. Therefore, Grant, as a party having responded to such
advertising, would be the one making the offer, which could then be accepted by
the relevant insurance company. Since, by way of the postal rules, acceptance is
effective as soon as it is posted, the contract concerning the shares would be
complete upon the insurance company’s posting of Grant’s 100 allotted shares to
him, despite the letter having been lost in the mail. Alternatively, if the insurance
company’s advertising was specific as to the number of shares it had available for
the public, it might be deemed to be an offer (Partidge v Crittendon [1968] 2 All ER
421), in which case Grant’s application for 100 shares through the mail would have
constituted acceptance of the offer.

Question 10 Kelly was very thirsty, so when she passed a vending machine
owned by Vending Machines Pty Ltd selling ‘icy cold Coke’ she couldn’t
resist. After checking the price on the machine and that she had the
correct change, she inserted the coins in the machine and pressed the
button. The machine accepted the payment but did not give her a drink.

Advise Kelly whether a contract exists and with whom.

The display of ‘icy cold Coke’ for the advertised price in the vending machine is an
example of an offer as there is an intention or a willingness to be bound by the
offer to supply purchasers with the goods displayed. The offer is accepted when the
correct change is inserted into the machine. Thus, a contract exists between Kelly
and Vending Machines Pty Ltd, which has been breached by the latter.

Question 11 Jenny received a circular from Beauty and the Beast Hair
Salon advertising massages and manicures for $10. Realising that this was

Copyright © 2016 Pearson Australia (a division of Pearson Australia Group Pty Ltd)
9781486019274 Gibson and Fraser/Business Law 9e
6
an exceptionally good deal, but not surprised because she knew that they
had only just opened and were running a number of good opening specials,
she rang and made a booking.

When Jenny arrived at the salon she was told that there had been a
mistake on the circular and it should have said $100. The manager of the
salon explained that this was still a good price because normally a
massage and manicure would cost $150.

Jenny was furious, as it had taken her 30 minutes to get to the shop by
car, and if she had known it would cost $100 she would never have made
the booking. Advise Jenny.

Would your advice have been any different if Jenny had the massage and
manicure before being told that the cost was $100? Would she have to pay
the full price?

The circular from Beauty and the Beast Hair Salon advertising massages and
manicures for $10 is an example of an ‘invitation to treat’: Pharmaceutical Society
of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401; Grainger &
Sons v Gough [1896] AC 325. An invitation to treat is not an offer, even if it is
described as an offer, and, as such, cannot be accepted. Therefore, Jenny, as a
party having responded to such advertising, would be the one making the offer for
a massage and a manicure for $10, which Beauty and the Beast Hair Salon would
then reject and counter with an offer of those services for $100 (Hyde v Wrench
(1840) 3 Beav 334), which was what it had intended to advertise in its original
circular. Jenny would then have the option to accept or reject that counter-offer.

If Jenny had the manicure and massage before being told the cost was $100, it
could be argued that an agreement existed between the parties for these services
to be provided for $10 based on Jenny’s conduct—she would not have driven a one-
hour return journey had she known the cost of the services was $100. However, a
court may question if, on the facts, when viewed as a whole and objectively in light
of the surrounding circumstances, that, from the point of view of a reasonable
person in Jenny’s position, it would have seemed a reasonable offer that a manicure
and massage be provided for only $10. In this circumstance, it is difficult to advise
whether or not Jenny would have to pay the full price ($100). The parties might try
to negotiate a compromise by way of counter-offer/s (Hyde v Wrench (1840) 3
Beav 334).

In either situation, Jenny may have recourse against Beauty and the Beast Hair
Salon by way of the Australian Consumer Law (ACL) provisions, and particularly ss
18 (misleading or deceptive conduct) and 29 (false representation). Care must be
taken when advertising pricing by an offeror when promoting or selling their
services. Beauty and the Beast Hair Salon would not be able to rely on their
‘mistake’ in advertising a price of $10 rather than $100 as a defence to civil
proceedings being taken by Jenny for misleading and/or deceptive conduct or
misrepresentations about price under the ACL.

Question 12 Greta decided that it was time to sell her car. However, she
was not certain of its value and so, when she advertised the car, she left
out the price. When Sam responded to the advertisement, he asked for the
price. Greta responded by saying, ‘Oh, I don’t know. I guess a fair price
would be around a couple of thousand dollars’. When Sam arrived the
following day with $2000 for the car, Greta told him that she really meant

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9781486019274 Gibson and Fraser/Business Law 9e
7
$2500.

Does a contract exist?

The price of the car is an essential term for a binding agreement with respect to the
sale of Greta’s car. Unless Sam agrees to the price of $2500, Greta and Sam have
not come to an agreement with respect to this critical matter, and, as such, there
can be no contract between them: Azzi v Volvo Car Australia Pty Ltd [2007] NSWSC
319.

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9781486019274 Gibson and Fraser/Business Law 9e
8
Another random document with
no related content on Scribd:
The Project Gutenberg eBook of The flight of the
heron
 This ebook is for the use of anyone anywhere in the United
States and most other parts of the world at no cost and with
almost no restrictions whatsoever. You may copy it, give it away
or re-use it under the terms of the Project Gutenberg License
included with this ebook or online at www.gutenberg.org. If you
are not located in the United States, you will have to check the
laws of the country where you are located before using this
eBook.

Title: The flight of the heron

Author: D. K. Broster

Release date: February 10, 2024 [eBook #72918]

Language: English

Original publication: London: William Heinemann Ltd, 1925

*** START OF THE PROJECT GUTENBERG EBOOK THE FLIGHT

OF THE HERON ***
THE FLIGHT OF THE HERON
 BY THE SAME
AUTHOR

“Mr. ROWL”
THE WOUNDED
NAME
THE YELLOW POPPY
SIR ISUMBRAS AT
THE FORD
THE FLIGHT OF THE HERON
BY
D. K. BROSTER

“But the heron’s flight is that of a celestial messenger bearing important, if not
happy, tidings to an expectant people.”
—“V.”, As You See It.

1925

London: William Heinemann Ltd.

 First published . . . 1925

Made and Printed in Great Britain by Butler & Tanner Ltd., Frome and London
 TO
VIOLET JACOB
IN HOMAGE
 CONTENTS

PAGE
Prologue. A Promise of Fair Weather 11
I Through English Eyes 27
II Flood-Tide 105
III The Ebb 161
IV ‘Your Debtor, Ewen Cameron’ 231
V The Heron’s Flight is Ended 333
Epilogue. Harbour of Grace 403
 PROLOGUE
A PROMISE OF FAIR WEATHER
 THE FLIGHT OF THE HERON

PROLOGUE
A PROMISE OF FAIR WEATHER

(1)
The sun had been up for a couple of hours, and now, by six o’clock,
there was scarcely a cloud in the sky; even the peaked summit of
Ben Tee, away to the north-east, had no more than the faintest veil
floating over it. On all the western slopes the transfiguring light, as it
crept lower and lower, was busy picking out the patches of July bell-
heather and painting them an even deeper carmine; and the
mountains round were smiling (where sometimes they frowned) on
Loch na h-Iolaire, to-day a shining jewel which to-morrow might be a
mere blot of grey steel. It was going to be a very fine day, and in the
West of Scotland such are none too plentiful.
Loch na h-Iolaire, the Loch of the Eagle, was not large—little
more than a mile long, and at its greatest breadth perhaps a quarter
of a mile wide. It lay among the encircling hills like a fairy pool come
upon in dreams; yet it had not the desolate quality of the high
mountain tarns, whose black waters lie shoreless at the foot of
precipices. Loch na h-Iolaire was set in a level space as wide as
itself. At one end was a multitude of silver-stemmed birches, of
whom some loved the loch (or their own reflection) so dearly that
they leaned over it until the veil of their hair almost brushed its
surface; and with these court ladies stood a guard of very old pines,
severe and beautiful, and here and there was the feathered bravery
of a rowan tree. Everywhere underfoot lay a carpet of bogmyrtle and
cranberry, pressing up to the feet of the pungent-berried junipers and
the bushes of the flaming broom, now but dying fires. And where this
shore was widest it unexpectedly sent out into the lake a jutting crag
of red granite, grown upon in every cranny with heather, and
crowned with two immense Scots pines.
The loch’s beauty, on this early summer morning of 1745,
seemed at first to be a lonely and unappreciated loveliness, yet it
was neither. On its northern shore, where the sandy bank, a little
hollowed by the water, rose some three feet above it, a dark, wiry
young Highlander, in a belted plaid of the Cameron tartan, was
standing behind a couple of large juniper bushes with a fowling-piece
in his hands. He, however, was plainly not lost in admiration of the
scene, for his keen eyes were fixed intently on the tree-grown islet
which swam at anchor in the middle of the loch, and he had all the
appearance of a hunter waiting for his quarry.
Suddenly he gave an exclamation of dismay. Round the point of
the island had just appeared the head, shoulder and flashing arm of
a man swimming, and this man was driving fast through the barely
rippled water, and was evidently making for the shore in his direction.
The Highlander dropped out of sight behind the junipers, but the
swimmer had already seen him.
“Who is there?” he called out, and his voice came ringing
imperiously over the water. “Stand up and show yourself!”
The discovered watcher obeyed, leaving the fowling-piece on the
ground, and the swimmer, at some six yards’ distance, promptly trod
water, the better to see.
“Lachlan!” he exclaimed. “What are you doing there?”
And as the Highlander did not answer, but suddenly stooped and
pushed the fowling-piece deeper into the heather at his feet, the
occupant of the loch, with a few vigorous strokes, brought himself in
until he was able to stand breast-high in the water.
“Come nearer,” he commanded in Gaelic, “and tell me what you
are doing, skulking there!”
The other advanced to the edge of the bank. “I was watching
yourself, Mac ’ic Ailein,” he replied in the same tongue, and in the
sulky tone of one who knows that he will be blamed.
“And why, in the name of the Good Being? Have you never seen
me swim before?”
“I had it in my mind that someone might steal your clothes,”
answered Lachlan MacMartin, looking aside.
“Amadain!” exclaimed the swimmer. “There is no one between
the Garry and the water of Arkaig who would do such a thing, and
you know it as well as I! Moreover, my clothes are on the other side,
and you cannot even see them! No, the truth, or I will come out and
throw you into the loch!” And, balancing his arms, he advanced until
he was only waist-deep, young and broad-shouldered and glistening
against the bright water and the trees of the island behind him.
“Confess now, and tell me the reason in your heart!”
“If you will not be angry I will be telling you,” replied Lachlan to his
chieftain Ewen Cameron, who was also his foster-brother.
“I shall make no promises. Out with it!”
“I cannot shout it to you, Mac ’ic Ailein; it would not be lucky.”
“Do you think that I am coming out to hear it before I have
finished my swim?”
“I will walk in to you if you wish,” said Lachlan submissively, and
began to unfasten his plaid.
“Do not be a fool!” said the young man in the loch, half laughing,
half annoyed; and, wading to the bank, he pulled himself up by the
exposed root of a birch-tree, and threw himself unconcernedly down
among the heather and bogmyrtle. Now it could be seen that he was
some inches over six feet and splendidly made; a swift runner, too, it
was likely, for all his height and breadth of shoulder. His thick auburn
hair, darkened by the water to brown, was plaited for the nonce into
a short pigtail like a soldier’s; his deepset blue eyes looked out of a
tanned face, but where the sunburn ended his skin was as fair as a
girl’s. He had a smiling and determined mouth.
“Now tell me truly why you are lurking here like a grouse on
Beinn Tigh,” he repeated.
The half-detected culprit glanced from the naked young man at
his feet to the only partially concealed fowling-piece. “You will not be
pleased, I am thinking.”
“All the more reason for knowing, then,” responded his chieftain
promptly, hugging his bent knees. “I shall stay here until you tell me .
. . dhé, how these vegetables prick! No, I do not want your plaid; I
want the truth.”
“I am here,” began Lachlan MacMartin with great unwillingness,
“because there is something in the loch which may bring you ill-
fortune, and——”
“In the loch! What, an each uisge, a water-horse?” He was
smiling.
“No, not a water-horse. But my father says——”
 “Ah, it is a matter of the two sights? Angus has been ‘seeing’
again! What was the vision?”
But at that moment the speaker himself saw something, though
not by the supernatural gift to which he was referring. He stretched
out a wet, accusing arm and pointed towards the juniper bush. “What
is that gun doing here?” And at the very plain discomposure on its
owner’s face a look of amusement came into his own. “You cannot
shoot a water-horse, Lachlan—not with a charge of small shot!”
“It is not a water-horse,” repeated his foster-brother. He suddenly
crouched down in the heather close to the swimmer. “Listen, Mac ’ic
Ailein,” he said in a low, tense voice. “My father is much troubled, for
he had a ‘seeing’ last night across the fire, and it concerned you, but
whether for good or ill he could not tell; neither would he tell me what
it was, save that it had to do with a heron.”
“It is a pity Angus cannot be more particular in his predictions,”
observed the young man flippantly, breaking off a sprig of bogmyrtle
and smelling it. “Well?”
“You know that I would put the hair of my head under your feet,”
went on Lachlan MacMartin passionately. “Now on the island yonder
there lives a heron—not a pair, but one only——”
The young chieftain laid a damp but forcible hand on his arm. “I
will not have it, Lachlan, do you hear?” he said in English. “I’ll not
allow that bird to be shot!”
But Lachlan continued to pour out Gaelic. “Eoghain, marrow of
my heart, ask me for the blood out of my veins, but do not ask me to
let the heron live now that my father has seen this thing! It is a bird of
ill omen—one to be living there alone, and to be spying when you
are swimming; and if it is not a bòchdan, as I have sometimes
thought, it may be a witch. Indeed, if I had one, I would do better to
put a silver bullet——”
“Stop!” said the marrow of his heart peremptorily. “If my father
Angus has any warning to give me, he can tell it into my own ear, but
I will not have that heron shot, whatever he saw! What do you
suppose the poor bird can do to me? Bring your piece here and
unload it.”
Out of the juniper bush and the heather Lachlan, rising, pulled the
fowling-piece, and, very slowly and reluctantly, removed the priming
and the charge.
“Yet it is an evil bird,” he muttered between his teeth. “You must
know that it is unlucky to meet a heron when one sets out on a
journey.”
“Yes,” broke in Ewen Cameron impatiently, “in the same way that
it is unlucky to meet a sheep or a pig—or a snake or a rat or a
mouse, unless you kill them—or a hare, or a fox, or a woman, or a
flat-footed man . . . and I know not what besides! Give me the gun.”
He examined it and laid it down. “Now, Lachlan, as you have not yet
promised to respect my wishes in this matter, and a gun is easily
reloaded, you shall swear on the iron to obey me—and that quickly,
for I am getting cold.”
Startled, the Highlander looked at his young chieftain to see
whether he were serious when he suggested the taking of so great
and inviolable an oath. But, unable from his expression to be sure,
and being blindly, fanatically devoted to him, he obediently drew his
dirk from its sheath, and was about to raise it to his lips to kiss it
when his foster-brother caught his arm.
“No, I was jesting, Lachlan. And . . . you do not keep your biodag
very clean!”
“Not clean?” exclaimed its owner, lowering the formidable, hiltless
blade. Then he bit his lip. “Dhia gleidh sinn! you are right—how came
that rust there?”
“Rust? It is blood!” Ewen took it from him by its black handle of
interlaced design and ran a finger down it. “No, I am wrong; it was
only the early sun on the steel.”
For the weapon lay across his palm, spotless and shining, the
whole foot and a half of it.
The dark Lachlan had turned very pale. “Give it to me, Mac ’ic
Ailein, and let me throw it into the loch. It is not well to keep it if we
both saw . . . what we saw.”
“No,” said his master with more composure, “it is a good dirk, and
too old a friend for that—and what I imagined can only have been
some memory of the times when it has gralloched a deer for us two.”
He gave it back. “We are neither of us taibhsear like your father. I
forbid you to throw it away. Nor are you to shoot that heron—do you
hear?”
 If his young chief was not, Lachlan MacMartin was plainly shaken
by what had happened. He thrust the dirk deep into the heather as
though to cleanse it before he returned it to the sheath. “I hear,” he
muttered.
“Then see that you remember!” Shivering slightly, the young man
sprang to his feet. “Now, as you have forced me to land on this side
of the loch, Lachlan, I shall dive off the creag ruadh. A score of times
have I meant to do it, but I have never been sure if there were
enough water below. So, if a water-horse gets me, you will know
whose was the fault of it!” And laughing, disregarding entirely his
foster-brother’s protests, which went so far as the laying of a
detaining hand on his bare shoulder, he slid down the bank, ran
along the narrow strip of sand below it, and disappeared round a
bend of the shore. A moment or two later his white figure was seen
clambering up the heather-clad side of the red crag which gave the
whole property its name. A pause, then he shot down towards the
lake in the perfect dive of the athlete; and the water received him
with scarcely a splash.
“The cross of Christ be upon us!” murmured Lachlan, shutting his
eyes; and, though he was no Papist, he signed himself. When he
opened them the beloved head had reappeared safely, and he
watched it till the island once more hid it from his view.

Still tingling with his dive, Ewen Cameron of Ardroy, when he had
reached the other side of the little island, suddenly ceased swimming
and, turning on his back, gave himself to floating and meditation. He
was just six-and-twenty and very happy, for the sun was shining, and
he felt full of vigour, and the water was like cold silk about him, and
when he went in to breakfast there would be Alison, fresh as the
morning, to greet him—a foretaste of the mornings to come when
they would greet each other earlier than that. For their marriage
contract was even now in his desk at Ardroy awaiting signature, and
the Chief of Clan Cameron, Lochiel himself, Mac Dhomhnuill Duibh,
Ewen’s near kinsman by marriage as well as his overlord, was
coming to-morrow from his house of Achnacarry on Loch Arkaig to
witness it.
 Lochiel indeed, now a man of fifty, had always been to his young
cousin elder brother and father in one, for Ewen’s own father had
been obliged to flee the country after the abortive little Jacobite
attempt of 1719, leaving behind him his wife and the son of whom
she had been but three days delivered. Ewen’s mother—a Stewart of
Appin—did not survive his birth a fortnight, and he was nursed, with
her own black-haired Lachlan, by Seonaid MacMartin, the wife of his
father’s piper—no unusual event in a land of fosterage. But after a
while arrived Miss Cameron, the laird’s sister, to take charge of the
deserted house of Ardroy and to look after the motherless boy, who
before the year had ended was fatherless too, for John Cameron
died of fever in Amsterdam, and the child of six months old became
‘Mac ’ic Ailein,’ the head of the cadet branch of Cameron of Ardroy.
Hence Ewen, with Miss Cameron’s assistance—and Lochiel’s
supervision—had ruled his little domain for as long as he could
remember, save only for the two years when he was abroad for his
education.
It was there, in the Jacobite society of Paris, that he had met
Alison Grant, the daughter of a poor, learned and almost
permanently exiled Highland gentleman, a Grant of Glenmoriston, a
plotter rather than a fighter. But because Alison, though quite as
much in love with her young chieftain as he with her, had refused to
leave her father alone in exile—for the brother of sixteen just
entering a French regiment could not take her place—Ewen had had
to wait for four long years without much prospect of their marriage.
But this very spring Mr. Grant had received intimation that his return
would be winked at by the Government, and accordingly returned;
and so there was nothing to stand in the way of his daughter’s
marriage to the young laird of Ardroy in the autumn. And Alison’s
presence here now, on a visit with her father, was no doubt the
reason that, though her lover was of the same political creed as they,
never questioning its fitness, since it was as natural to him as
running or breathing, he was not paying very particular attention to
the rumours of Prince Charles Edward’s plans which were going
about among the initiated.
With deliberate and unnecessary splashings, like a boy, Ewen
now turned over again, swam for a while under water, and finally