No. 141. for the respondent, refused the warrant craved, and dismissed the petition.

June 8, 1901.
Smellie v.

Gallon.

The petitioner appealed to the Court of Session, and argued;There was no proof (probation having been renounced), and nothing on record to justify the Dean of Guild's finding that the building had been taken down with consent of the petitioner to be altered. The petitioner's statement on record must be accepted that it was taken down in order to be restored to its original condition. The General Turnpike Act of 1831, sec. 91, did not apply to the re-erection of buildings on previously occupied sites. The Burgh Police Act of 1892, sec. 158, applied only to buildings taken down in whole or in part to be altered or rebuilt. Here no alteration was contemplated, and no rebuilding beyond what was necessary for restoration.

Argued for the respondents;-By the minute renouncing probation the Dean of Guild Court was entitled to use its own knowledge of the facts, and the finding complained of was in accordance with that knowledge. The proposed building was within 25 feet of the centre of the turnpike, and therefore required the written consent of the Local Authority to its erection.2 Further, the prayer of the petition included "alterations," and the provisions of section 158 of the Burgh Police Act, 1892, therefore applied.

At advising,

LORD JUSTICE-CLERK.-In this case the procedure in the Dean of Guild Court has been in some respects irregular. The Court, by the interlocutor and note, plainly dealt with facts which were not in any competent way before it, and made assumptions which the only facts admitted did not justify. The case of the appellant is, that a building belonging to her had, by the improper proceedings of a neighbour, had a side gable practically brought down, and as a consequence the stability of part of the front affected, and accordingly she applied to the Dean of Guild for authority to take down the broken gable, and the adjoining portion of the south front which had been injured, and replace these portions of the building.

The Master of Works resisted the granting of a warrant by the Court, maintaining that as the petitioner proposed to take down her building or part thereof, the Commissioners of the burgh were entitled, under section 91 of 1 and 2 Will. IV. c. 43, and the Burgh Police Act of 1892, section 158, to prevent the work, and to insist that the building should be put back from its original line to the new line of the street under the rules laid down in these statutes. He denies the statement of the proprietor as to how the part of the building came to be taken down. This contention the Dean of Guild Court gave effect to, sustaining the second and third additional pleas for the Master of Works.

I am of opinion that in the circumstances neither of these pleas ought to have been sustained. The petitioner was not proposing to take down her building in the sense of the Act. She was only proposing to repair an injury done to part of the building by the action of others. The Master of Works does not aver that the petitioner took down the gable for any other

1 Macdonald v. Commissioners of Fort-William, March 19, 1895, 22 R. 551; Whyte v. Bruce, March 20, 1900, 2 F. 823.

2 Whyte v. Glass, Dec. 20, 1900, supra, p. 291.

reason than that which she avers. He only says of it-Not known, and not No. 141. admitted. It was for him to raise that question. Further, the building was not to be removed and another substituted for it, nor was any part of Smellie v. June 8, 1901. it to be made different from what it was before. No doubt a part had to Gallon. be taken down, just as a part might require to be taken down if a building was struck by lightning, or injured by a flood caused by a thunderstorm, or partially destroyed by a fire. But where a part of a building has suffered an injury it is not the less a work of mere repair, because, in order to make what a tradesman calls “a good job,” some of the existing structure must be removed and replaced. If what the petitioner avers is true,—and there was nothing admitted by her, and nothing averred by the contradictor, or disclosed in what was competently before the Court, entitling the Court to hold the contrary, then the decision of the Dean of Guild Court could not be justified, and the sustaining of the second additional plea would be wrongthat is just the state of the matter. But the Court had nothing competently before it to the contrary, and therefore I feel bound to hold that the sustaining of this plea was wrong.

The

The same follows in regard to the third additional plea. The resolution of the Commissioners could not justify the decision of the Dean of Guild Court unless the circumstances were such as to give it validity. Now, the 158th section of the Burgh Police Act relates to two cases---(1) where a building has been taken down in whole or in part in order to be altered, and (2) or is to be rebuilt. The second alternative is not in this case. house is not to be rebuilt. Therefore the plea must be based on the first alternative. A part of the house has admittedly been taken down. But is it so taken down in order to be altered? Of that there is no trace in the case. The petitioner states that the part taken down because of the injury is to be put up again as it was before, and this is not denied. I therefore think that there was no ground for sustaining this plea.

I would move your Lordships to recall the interlocutor, to repel the second and third additional pleas for the respondent Gallon, and to remit to the Dean of Guild Court.

LORD TRAYNER.-The Dean of Guild has sustained the second and third of the respondent's additional pleas in law, and dismissed the petition. In doing so, I think he has overlooked the character of the petition presented to him. The petitioner is not asking a lining for a new erection; she is asking authority to take down a part of an existing tenement which has been injured by the operations of an adjoining proprietor, and to restore it to its former condition. To such a state of circumstances neither the provisions of the General Turnpike Act of William IV. nor the provisions of the Burgh Police Act of 1892, on which the respondent's pleas are founded, have, in my opinion, any application. The provisions of the former Act have reference to buildings which it is proposed to erect on a site then unoccupied, which is not the case here. The Burgh Police Act (section 158) refers to buildings taken down in whole or in part to be altered or rebuilt, and enables the Commissioners to require that the altered or rebuilt premises shall be erected in a line with the line of the street or of the adjoining buildings. But this presupposes, I think, that that part of the tenement

June 8, 1901.
Smellie v.

Gallon.

No. 141. taken down is a part which affects the line of the street, and the removal of which affords reasonable opportunity for altering or rectifying the line, or making a new line. For example, if the whole front wall of a house was taken down with a view to some alteration in the character of the house, the clause might apply. The Commissioners might require the new front wall to be set back. But if a part-say at the top of the front wall—was taken down to be restored-it might be merely a chimney-stalk—which had no immediate connection with the line of the street, it would be unreasonable to insist that in these circumstances the proprietor should be called on to take down his building with a view to alter or improve the line of the street. That is really the kind of case we have here. The upper part of the petitioner's gable has been partly destroyed by the neighbour's operations, which have also cracked the front wall. Nothing is proposed to be done in the way of alteration of her building, nor any rebuilding beyond what is necessary as a proper work of restoration.

The Dean of Guild finds as matter of fact that the present condition of the petitioner's property is the result of operations executed with her consent or on her instruction. Even if that were so, it would not alter my view of the case, but I find it difficult to see how the Dean of Guild can issue such a finding, as no such thing is averred by the respondent, and is directly contrary to the averments made by the petitioner. I think the appeal should be sustained, and the pleas for the respondent to which I have referred repelled. The case will then go back to the Dean of Guild as proposed by your Lordship, to be proceeded with.

LORD MONCREIFF.—I am of the same opinion, and for the reasons which your Lordships have fully stated.

The Dean of Guild's judgment proceeds on a finding in fact that this house has been taken down in whole or in part in order to be altered. If that were so, the case would appear to fall under the terms of section 158 of the Burgh Police (Scotland) Act, 1892. But I find no ground on record for that finding in fact, and there has been no proof. On the contrary, it appears plain that what your Lordships have pointed out happened, namely, that part of the front wall was damaged by reason of operations on a neighbouring property, and that the wall was taken down in order to be put up again. I do not think that that is a case to which section 158 applies.

LORD YOUNG was absent.

THE COURT sustained the appeal, recalled the interlocutor appealed against, repelled the second and third additional pleas in law for the respondent, and remitted to the Dean of Guild to proceed.

WHIGHAM & MACLEOD, S.S.C.-W. & J. L. OFFICER, W.S.-Agents.

JAMES BARR AND OTHERS (John Barr's Trustees), Pursuers and Real No. 142.

Raisers.

THE ARDROSSAN CASTLE CURLING CLUB, Defender (Respondent).—

Kennedy-Wilton.

WILLIAM M'CONNELL (James Barr's Curator Bonis) AND OTHERS,

Defenders (Reclaimers).-A. S. D. Thomson-Younger. Succession-Legacy-Ademption-Stock-Shares-Uncertainty of subject of bequest-Falsa demonstratio.-By his trust-disposition and settlement, dated in 1878, a testator directed his trustees "to transfer to the A. C. Curling Club "two five per cent guaranteed shares of £100 each of the Glasgow and South-Western Railway Company." No part of the capital of the railway company consisted of guaranteed shares of £100 each, but the testator held £460 ordinary stock, £310 preference consolidated stock, and £70 perpetual guaranteed stock, interest at the rate of five per cent being payable on the two latter stocks.

The testator died in 1884.

Between the date of his will and his death the testator borrowed money on the security of his estates and executed an inter vivos trust-disposition and assignation, under which his whole estates, including the railway stocks above mentioned, were realised, the surplus, after payment of his debts, being handed over in 1896 to his testamentary trustees. Thereafter, in a competition between his residuary legatees and the curling club, the former maintained (1) that the bequest to the club was a specific legacy, and had been adeemed by the inter vivos disposition; or otherwise (2) that the bequest was void from uncertainty, the subject of it not being susceptible of identification with any of the stocks of the railway company.

Held (1) that the bequest was not a specific legacy, but a legacy of such sum as might be required at the date of the testator's death to purchase the stock described in the will; and (2) that the expression "guaranteed" as used by the testator meant other than ordinary, and included preference stock, and that the bequest was not therefore void from uncertainty.

By his trust-disposition and settlement, dated 4th September 1878, 1ST DIVISION Mr John Barr, contractor, Ardrossan, conveyed his whole estate to Lord Low. trustees. The sixth purpose of the deed was as follows:-" I direct my trustees at the first term of Whitsunday or Martinmas after my death, to pay or transfer, free of legacy-duty and charges, the legacies following, namely, to pay to a legacy of £500 sterling; to pay to a legacy of £100 sterling; and to transfer to the president, vice-president, and treasurer for the time being of the Ardrossan Castle Curling Club two five per cent guaranteed shares of £100 each of the Glasgow and South-Western Railway Company, to be held by them, in trust, for the purpose of applying the income thereof, to the extent of £1, 5s. yearly, in purchasing a medal to be competed for annually, and of applying the balance of the income in the purchase of coals for the poor.

By the last purpose the testator appointed certain persons to be his residuary legatees.

At 4th September 1878 the testator was proprietor of £460 ordinary stock, £310 preference consolidated stock, and £70 perpetual guaranteed stock in the capital of the Glasgow and South-Western Railway Company. He held no part of the share capital thereof.

Mr Barr was a holder of stock in the City of Glasgow Bank, which failed in 1878. His means and estate, although sufficient to meet the calls upon him, would have had to be unfavourably realised if realised at that time; accordingly, he borrowed certain sums of money to

June 11, 1901.
Barr's

No. 142. enable him to pay the calls, and granted a trust-disposition and assignation of his whole estate, heritable and moveable, for the security of the lenders of those sums, and the cautioners or guarantors for him of the money borrowed, and to secure the balance, if any, of the calls. This trust-disposition and assignation was dated 9th July 1880. Castle Curling The trustees under the inter vivos disposition of 1880 duly entered into possession of and realised the estates conveyed to them, including, inter alia, the above-mentioned stocks of the Glasgow and SouthWestern Railway Company.

Trustees v.
Ardrossan

Club.

Mr Barr died in 1884.

In 1896, after the purposes of the disposition of 1880 had been satisfied, the balance of the estate was transferred to Mr Barr's testamentary trustees.

Questions having arisen as to the parties entitled under Mr Barr's settlement to the estate, his trustees raised this action of multiplepoinding.

One of the questions was with reference to the bequest, under the sixth purpose, to the Ardrossan Curling Club.

A claim was lodged by the Club, who stated,-(Cond. 3) "By the terms of the said legacy the testator intended that a fund yielding £10 per annum should be placed in the hands of the claimants for administration by them as trustees for the purposes of the legacy, and he referred to guaranteed shares per incuriam for stock of the Glasgow and South-Western Railway as a suitable investment, to be transferred, or procured and transferred by his trustees to the claimants accordingly for the satisfaction and security of his said bequest." (Cond. 4) "At 4th September 1878, being the date of the testator's settlement, the capital of the Glasgow and South-Western Railway Company, yielding £5 per centum per annum, consisted of guaranteed consolidated stock, preference consolidated stock, perpetual guaranteed stock, perpetual guaranteed stock No. 2, Castle-Douglas preference stock, and £20 5 per cent preference shares. The company issued no part of its capital in shares of £100 each, but it had certain preference shares of £20 each bearing interest at the rate of £5 per centum per annum. The said stocks were converted in 1881 by the company under their Parliamentary powers into guaranteed four per cent preference stock, each £100 of the original three stocks being entitled to £125 of the new stock, so as to yield £5 per centum per annum as prior to the conversion. The said £10 preference shares were also converted into stock upon the same basis."

Claims were also lodged by William M'Connell and others (representing the residuary legatees), who stated that the testator neither in 1880, at the date of the inter vivos disposition, nor at the date of his death, was possessed of any five per cent guaranteed shares of the Glasgow and South-Western Railway Company.

The Curling Club claimed (1) the sum of £338, 2s. 6d., or such other sum as would purchase such an amount of stock in the Glasgow and South-Western Railway Company as would yield £10 per annum for transfer to them in trust for the purposes specified in the testator's settlement; and (2) such a sum as represented £10 yearly for the period from Whitsunday 1884 to the execution of the said transfer, to be applied by the claimants in accordance with the provisions of the said legacy.

The residuary legatees pleaded;-The specific legacy of two shares of £100 each of guaranteed stock of the Glasgow and South-Western