failure is wilful, on the application of all the compearing creditors, and on their motion, decerns the debtor Thomas Smith to execute a disposition omnium bonorum to and in favour of Alexander Sturrock, solicitor, Jedburgh,' whom he appointed trustee for behoof of Smith's creditors. Thereafter, on the trustee's application, the Sheriff-Substitute on 24th June granted a warrant to take possession of all money and moveables belonging to the debtor, and, if necessary for that purpose, to search the debtor's premises, to open lockfast places, and search his person. Smith appealed against these interlocutors to the Sheriff.

On 22d July 1884 the Sheriff pronounced this interlocutor: "Finds that the pursuer of the action failed to lodge in the hands of the Sheriff-Clerk, as required by the fourth section of the Statute 6 and 7 Will. IV., cap. 56, all the books, papers, and documents relating to his affairs, and failed, on the day appointed for the compearance of the creditors, to appear in Court for examination, without any sufficient cause for said failures; therefore dismisses the petition, and decerns.

"Note. This is a petition for cessio, not at the instance of a creditor, but at the instance of a debtor against his creditors. The procedure in it is regulated by the seventh section of the Debtors (Scotland) Act 1880, which imports into it the provisions and conditions of the 6 and 7 Will. IV., cap. 56, as well as those of the relative Acts of Sederunt of the Court of Session of 6th June 1839. By the seventh section of that Act of Sederunt it is provided that if the debtor failed to lodge in the hands of the Sheriff-Clerk the state book and other documents required by section 4 of the statute by the time therein specified, the process shall be dismissed by the Sheriff, unless he shall be satisfied that the debtor had sufficient excuse.' There is no doubt as to the fact of failure, and no sufficient excuse for it either was at the time or has now been stated.

No

"The fifth section of the statute enacts that on the day appointed for the compearance of the creditors the debtor shall appear in public court in presence of the Sheriff for examination as to his affairs;' and certain provisions are made for the event of the debtor refusing to be put on oath, or to answer questions, or to subscribe his examination, all implying that he shall have appeared for the purpose of being examined. express sanction is provided for the case of a debtor failing to appear for examination. But that he shall appear is an imperative enactment of the statute, the non-observance of which is inconsistent with further procedure under it as therein provided. The Sheriff therefore is of opinion that in such case nothing can follow but a dismissal of the action. It is like the case of a pursuer not appearing to maintain his action. In a work of practice (M'Glashan, p. 482-3, non-compearance of debtor) dismissal of the action is said to be the course followed in such case; and although the Sheriff has not been able to find any decision upon the point, he sees no other appropriate deliverance.

"The action of cessio bonorum at the instance of a creditor and the proceedings therein are regulated by sections 8 and 9 of the Debtors (Scotland) Act 1880. These do not apply to the present action.

"In pronouncing the interlocutor appealed from, this distinction has not been adverted to. But these later statutes are not clearly expressed, and do not appear to be carefully framed."

The Marquis of Lothian appealed to the Court of Session, and argued that the debtor was not entitled first to commit a statutory default and then to take the benefit of it to the effect of annulling all the procedure that had taken place in the

case.

The respondent argued that he had not failed to appear in "obedience to a citation," and therefore the condition on which decree of cessio could be granted in his absence did not exist. The decree of 19th June was therefore erroneous. At advising

LORD PRESIDENT-This is an application for cessio at the instance of the debtor himself, and upon the 23rd May 1884 the Sheriff-Substitute granted the usual warrant appointing the petitioner to publish a notice in the Gazette, and requiring the creditors to appear, and the bankrupt himself to appear, and to lodge a state of his affairs. The date of compearance was the 19th of June following, and as the debtor did not then appear, what the Sheriff-Substitute did is embodied in the first part of his interlocutor of that date:"The debtor having failed to appear in obedience to the order of Court of date 23rd May last, at a meeting held this day, and the Sheriff being satisfied that such failure is wilful, on the application of all the compearing creditors, and on their motion, decerns the debtor Thomas Smith to execute a disposition omnium bonorum to and in favour of Alexander Sturrock, Solicitor, Jedburgh, who is hereby appointed trustee for behoof of the creditors of said debtor." Now, this interlocutor was pronounced, I apprehend, in terms of sec. 9 of the Bankruptcy and Cessio (Scotland) Act 1881, which is in these terms— "If the debtor fail to appear in obedience to the citation under a process of cessio bonorum at any meeting to which he has been cited, and if the Sheriff shall be satisfied that such failure is wilful, he may, in the debtor's absence, pronounce decree of cessio bonorum." But the Act of 1881 was passed to amend the previous Act of 1880. The Act of 1880 provides for a process of cessio being brought either by a debtor or by any of his creditors, and therefore every section of the amending Act which is not limited in its operation to one of these two classes of cessio must be held to apply to both, and this 9th section from the generality of its language plainly does apply to both, that is to say, it applies to a cessio at the instance of a creditor, and it also applies to a cessio at the instance of a debtor. Now, in a cessio at the instance of a debtor himself it is argued that there is no such thing as a citation of a debtor; undoubtedly the language might have been better selected, but I think that the intention of the Legislature is quite apparent, and that the order to appear upon the day appointed for the compearance of the creditors was to be an equivalent for formal citation of the debtor. If it were otherwise, then this section would apply only to cessio when pursued by a creditor. As the matter stands under section 9 of the Act of 1881, I am perfectly satisfied that the intention of the Legislature was that wilful failure to appear should be attended by the same consequences

of Lothian v

1, 1884

whether the petition for cessio was presented by the debtor or by his creditors. I therefore think that the interlocutor pronounced by the SheriffSubstitute upon the 19th June was the proper interlocutor in the circumstances, while that of the 24th June followed as a matter of course. The Sheriff on the other hand seems to have been led into an error through not attending to the provisions of the Act of 1881. I think, therefore, that we should recall the interlocutor of the Sheriff, and affirm the two interlocutors of the Sheriff-Substitute.

LORD MURE Concurred.

LORD SHAND-In no view of the case does it appear to me to be possible that the Sheriff's interlocutor can be sustained. The provisions of the 9th section are clearly in favour of the rights of creditors, and the Sheriff is authorised to pronounce a decree of cessio if he believes that the debtor's failure to appear is wilful. In the present case the bankrupt committed what the Sheriff-Substitute believed to be a wilful default, and he now asks that he is to derive a benefit from this wilful default. The creditors met, and litiscontestation ensued, and I think that they are entitled to keep the proceedings in Court, and that the debtor is not entitled to have his petition dismissed through a failure on his part to comply with the provisions of the statute. I think also that the Sheriff-Substitute was right in his interpretation of section 9 of the Act of 1881, and that in the case of a petitioning debtor citation in the literal sense of the word is not necessary.

The Court recalled the interlocutor of the Sheriff, and affirmed the two interlocutors of the Sheriff-Substitute, and authorised the trustee to pay the appellant's expenses as taxed.

Counsel for Appellant (Marquis of Lothian)— Graham Murray-Baxter. Agent-P. Morison, S.S.C.

Counsel for Respondent (Smith) — Campbell Smith. Agent-David Hunter, S.S. C.

Saturday, November 1. *

FIRST DIVISION.
HOPE V. HOPE.

Trust-Removal of Trustee-Judicial Factor-
Differences between Trustees.

It is not a relevant ground of application by a trustee for the removal of trustees and the appointment of a judicial factor that the trustees have been for many years at variance as to the management of the estate, and that the management of the estate is at a dead-lock in consequence.

Averments by a trustee in a testamentary trast, which were held insufficient to warrant the removal of himself and his co-trustee from office and the appointment of a judicial factor.

This was a petition by James Hope, W.S., for removal of himself and his co-trustee John Hope, W.S., from the office of trustees on the trustestate of the late Dr Thomas Charles Hope, and

VOL. XXII.

* Decided 18th October.

for appointment of a judicial factor on the estate. Dr Hope died in 1844. By his trust-disposition and settlement he left his whole estate, heritable and moveable, to trustees. For more than twenty years before 1884 the petitioner and the respondent, John Hope, had been the only surviving and acting trustees in the trust. Dr Hope, by his settlement, conveyed to the trustees Wardie House, near Edinburgh, and land adjoining it. The trustees were directed to sell the house and ground, and divide the proceeds in manner provided by the trust-disposition for division of the residue of the estate. It was, however, declared that the house and grounds should not be sold so long as the truster's five nieces, or any two of them, should be alive and unmarried, or in widowhood, and should desire to reside there. The division of residue was to be equally among the seven nephews and nieces of the truster who were named in the settlement.

The averments on which the petition was presented were-That there had been from time to time interim divisions of the estate, by which much the greater part of it had been divided, but there still remained Wardie Lodge, and certain sums of money; "that for very many years past the petitioner and his co-trustee, the said John Hope, have been unable to agree upon the management of the said trust-estate, and in consequence thereof the trust has for some considerable time been at a dead-lock, and as the trust-estate is suffering through the differences between the petitioner and his co-trustee it is necessary and proper that a judicial factor should be appointed to manage the said estate and carry out the purposes of the trust so far as remaining unfulfilled."

John Hope lodged answers. He denied the material averments of the petitioner, stating that there was only one matter on which a difficulty had existed (as to a payment of £350 to each beneficiary); that the existing trust management was simple and inexpensive; and that the appointment of a judicial factor would be expensive and wholly unnecessary.

After hearing counsel on the petition and answers, the Court allowed the petitioner to amend the petition by averring more specifically the differences that existed between the trustees.

The petitioner then stated—(1) That for a long period there had been no law-agent in the trust, though the deed contemplated that one should be appointed, and the petitioner had frequently urged such an appointment. (2) That a sum of bank stock had been some years before set free for distribution, and he had urged the distribution of it; that he had done so in 1877, but the respondent had disregarded his representations; that the stock was then selling at £232 per cent., but in consequence of the respondent's attitude it had been held till 1881, when it could only be sold at £203, and serious loss was thus caused; that the price had never been distributed, because the respondent insisted on the beneficiaries giving formal discharges instead of mere receipts, which was quite unnecessary. (3) That though only a few matters remained undisposed of in the trust, it had become unworkable owing to the obstruction and often unreasonable action of the respondent, who did not answer the petitioner's letters, and refused to furnish a state of the trust affairs. (4) That diverse opinion, and hence inaction, existed

NO. III.

as to Wardie Lodge; that the petitioner held that the time had come for selling it, as only one of the truster's nieces lived there, and the others had determined not to do so. (5) That a certain road used before 1846 as an approach to Wardie Lodge had been disused since then for that purpose, but had been used by conterminous proprietors, who had asserted a servitude over it; that the period of prescription for this servitude would soon have run, and the petitioner was apprehensive that the truster's right over the road would be lost, and the respondent had refused to concur in any step to check the running of prescription. (6) That the petitioner was convinced from the experience of twenty years, and from his present relations with the respondent, that the trust could not be worked, and that a judicial factor would best serve the interests of the beneficiaries.

Of the five beneficiaries other than the petitioner and respondent, two desired that a factor be appointed, two maintained a neutral position, and one was averse to the appointment.

Counsel were again heard on the petition as amended.

Authorities cited at debate-Thoms on Factors (Fraser's edition), p. 27; Thomson v. Dalrymple, 3 Macph. 336; Taylor, 18 D. 1097; Halcomb, 15 D. 861 (Lord Ivory's opinion); Forbes, 14 D. 498; Drummond, 19 D. 859 (Lord Colonsay's opinion); Adie, 14 S. 185; Laird, 12 S. 187.

At advising

LORD PRESIDENT-If it were sufficient reason for the removal of trustees that they do not get on very comfortably together, then we should have sufficient grounds for removing them here. But if we did so we should not be following the rules and practice of this Court in such questions. It is not sufficient for trustees to come to the Court and say, "We cannot get on together, so we wish to be removed, and to have the estate put under a factor." We sometimes see somewhat parallel cases in partnerships, where the parties who have contracted together for a number of years come to the Court and ask that the partnership should be dissolved. The answer to them is, "Why did you enter into such a partnership without duly considering whether you would get on well together?" and the answer is just the same in the case of trustees. If the petitioner had shown that the respondent had obstructed the administration of the trust, and had acted against the express wish of the truster, the question would have been very different, but I think nothing of that kind can be said here. Mr Dundas was able on one or two occasions to make a plausible statement as to the sale of Wardie as if that were a step which fell now to be taken as a matter of course, but it seems to me to be by no means certain that it is so; on the contrary, it is matter of doubt whether the time for selling it has arrived, and we certainly cannot settle that question under this petition. The other ground stated is simply that the trustees do not get on well together, and I do not think that a sufficient ground. I am of opinion that we should refuse the petition.

LORD MURE and LORD SHAND concurred.

The Court refused the petition, finding no expenses due.

Election Law-Burgh Franchise-OccupancyPig-stye-Reform Act 1832 (2 and 3 Will. ÏV. cap. 65) sec. 11.

Held that, assuming a pig-stye to be a "building" within the meaning of sec. 11 of the Reform Act of 1832, there had not been sufficient occupancy to satisfy the provisions of the section and confer a qualification. At a Registration Court for the burgh of North Berwick held on 8th October 1884, Thomas Johnston objected to the name of James Lyon Guild, tenant of the farm called The Abbey, near North Berwick, being retained on the roll.

Guild's alleged qualification was part of his farm which was within the boundary of the burgh, on which he had erected a wooden pig-stye, and the objection was that the pig-stye was not such a building as taken along with lands entitled the owner or occupant to be entered on the register under section 11 of 2 and 3 Will. IV. cap. 65.

The Sheriff-Substitute (SHIRREFF) repelled the objection.

The objector took a Case.

The facts stated were-"The Sheriff-Substitute inspected the pig-stye in question. It is situated at some distance from the farm-steading, and detached from any other building, and within thirty yards of a dwelling-house on an adjoining property. It is a substantial erection. It appears to have been constructed by driving strong wooden posts firmly into the ground; to these posts wooden boards are securely nailed, forming the sides of a small house and court, the house and court being each four or five feet square. The roof of the house is also of substantial boards. The house could not have been lifted up and carried away unless by a considerable number of men."

"It was admitted that the pig-stye had been on the ground in Mr Guild's occupation for a year prior to 31st July last, but he had only kept a pig in it for about a fortnight."

66

The questions for the opinion of the Court were (1) Whether the wooden pig-stye in question is a 'building' within the meaning of the statute 2 and 3 Will. IV. cap. 65?; and (2) Whether there had been sufficient occupation of said pig-stye to satisfy the provisions of the said section of the statute?"

Argued for the appellant-The pig-stye was not a "building" ejusdem generis with those enumerated in sec. 11 of the Reform Act. A burgh qualification was not territorial, but must

LORD CRAIGHILL-Two questions have been raised here, the first of which is, "Whether the wooden pig-stye in question is a building within the meaning of the eleventh section of the statute 2 and 3 Will. IV. cap. 65?" And the second, "Whether there had been sufficient occupation of said pig-stye to satisfy the provisions of the said section of the statute?" The first of these is a very important question, and has been the subject of many decisions both here and in England. If it had been necessary to come to a conclusion upon it I should probably have been inclined to do that which has been done in other cases. But the view which I take of the second question suspends the necessity of giving any answer to the first. The second question is, whether, assuming always that the subject is one which comes within the definition contained in the statute, this pig-stye has been occupied for the requisite period? Now, the pig was in it only for the fortnight immediately prior to the preparation of this Case; that occupation was good for the fortnight; and if that was the period required by the statute, the conditions of the statute would have been fulfilled. But there was no use made of the stye for any other period of the year, therefore the question is raised, whether this stye having been put on the farm, occupation of the farm for the requisite period was sufficient occupation of the stye also? I refuse to adopt that view, in consequence of the provisions of section 11 of the Act of 1832. By that Act the subject to be the foundation of a qualification must be a building and must have been in the occupation of the claimant for a year. If it is not separately of the value of £10 yearly, then it shall be sufficient if jointly along with other buildings or lands it is of that yearly value. The primary inquiry then is not if the claimant is in the occupation of the lands; the primary question is if the claimant has been in the occupation of the building; the building must be something more than merely standing on the farm; it must be in occupation. As the stye here has not been occupied I think the occupation of the farm is of

no use.

I am of opinion that the view taken by the Sheriff-Substitute is erroneous, and that there has been no sufficient occupation.

LORD FRASER-I am of the same opinion. The first question is, what kind of building is required by the statute? It is not necessary to decide that question, but I may say that I could not adopt the view that because a building is constructed of wood it is therefore not within the requirement of the statute. We are quite familiar with houses

before.

built of wood, and houses and churches built of iron; and I do not think it necessary that a building should be of stone and lime to come within the Act. Each case must be judged according to its circumstances. In the present case the building is a pig-stye, substantially built, and might have been sufficient in other circumstances to afford a vote. All we are told is that the stye is on the ground, and that it was in the occupation of the pig for a fortnight. It is therefore implied that the pig-stye was not occupied This is not a case in which the occupation was discontinued for eleven months and two weeks from the year preceding, and then resumed again. I should have then been prepared to hold that that was occupation within the meaning of the statute. According to this case the claimant only began to use the pig-stye within the fortnight preceding the time when the claim was lodged. I do not think that was occupation within the meaning of the Act. Occupation does not mean actual personal possession, for occupation may be by servants or others. But there must be de facto occupation, which there was not here.

LORD MURE-I agree with your Lordships in holding that the Sheriff-Substitute is mistaken with regard to this case. It is essential for a burgh qualification that there should be a building of the kind required by the statute, and that it must have been in occupation for the twelve months preceding the time when the claim is made. By the Act of 1832 it is provided, that if the building is not of sufficient value by itself, then it may be combined with land so as to make up a subject of sufficient value. But on the face of the facts here stated there has been no occupation. The pig-stye stood unoccupied for a year after it was built, and then the only occupation was for a fortnight. I am very clearly of opinion that it was not occupied for the requisite period.

On the first question I give no opinion, as it is not necessary. I think that this case fails on the question of occupation.

The Court sustained the appeal and disallowed the claim.

Counsel for Appellant (Objector)-Ferguson, Agent-W. G. L. Winchester, W.S.

Counsel for Respondent (Claimant)-Patten. Agents-Irons, Roberts, & Lewis, S.S.C

Monday, November 3.

[Sheriff of Selkirkshire. STEEDMAN V. CAIRNS.

Election Law-County Franchise-Burgh Boundary running through Subjects-Reform Act 1832 (2 and 3 Wili. IV. cap. 65), sec. 5, sub-sec. 4-Representation of the People (Scotland) Act 1868 (31 and 32 Vict. cap. 48), sec. 10, Sched. A, sec. 56.

The boundary line dividing the burgh of Galashiels from the county of Selkirk ran through certain subjects in respect of which the proprietor claimed to be entered on the roll of voters for the county. Sec. 5, subsec. 4, of 2 and 3 Will. IV. provided, in reference to the burghs contained in Schedule M of that Act, that every building through

which any boundary hereby established shall pass, shall be considered as within such boundary." Galashiels was one of a district of burghs constituted in 1868 by the Act 31 and 32 Vict. cap. 48, sec. 10, Sched. A. The Court rejected the claim, and held, on a construction of sec. 56 of 31 and 32 Vict. cap. 48, that the rule contained in said sec. 5, sub-sec. 4, of the Act of 1832 was applicable to the district of burghs constituted in 1868, and that the subjects were therefore to be held as within the burgh. At a Registration Court for the county of Selkirk held at Galashiels on 6th October 1884, William Cairns claimed to have his name entered on the register of voters for the county of Selkirk as "proprietor of dwelling-houses in Scott Street, Galashiels, No. 138 of that street, in the parish of Galashiels, in the county of Selkirk."

John Steedman, solicitor, Selkirk, a voter on the roll objected to the claim.

The Sheriff (PATTISON) admitted the claim. The objector took a Case, in which it was stated that there was no objection to the ownership and its duration in point of time, or to the valuation of the subjects. The subjects were situated partly in the county of Selkirk and partly in the burgh of Galashiels as defined by 31 and 32 Vict. cap. 48, sec. 10, Sched. A.

The property claimed on was limited to the part of the subjects in the county of Selkirk. The boundary line passed obliquely through the subjects, dividing them into two nearly equal parts.

Argued for the objector-It was enacted by sec. 35 of 2 and 3 Will. IV. cap. 65, and sec. 53 of 31 and 32 Vict. cap. 48, that no person should be entitled to be registered as a county voter in respect of any premises owned or occupied by him within any burgh. By the 4th subsection of section 5 of the Act 2 and 3 Will. IV. cap. 65, it was enacted, in reference to the burghs the boundaries of which were set forth in Schedule M of that Act, that every building through which "or through any part thereof any boundary hereby established shall pass, shall be considered as within such boundary. The district of burghs of which Galashiels was one was not constituted until 1868 by the Act 31 and 32 Vict. cap. 48, sec. 10, but by sec. 56 of the last-mentioned Act the rule of the Act of 1832 was made applicable to the burghs constituted into a district of burghs in 1868. The subjects belonging to the claimant were therefore within the burgh, and he was not entitled to be entered on the roll of voters for the county.

At advising

LORD FRASER-I think this appeal must be sustained. Under the Reform Act of 1832 the very reasonable rule was adopted, in cases where the boundary line between the burgh and the county runs through a building, and in reference to the burghs contained in Schedule M of that Act, that the building should be held to be in the burgh.

Here, however, we have a set of burghs, not contained in Schedule M, which were created by the Act of 1868, and are called the Border Burghs. I think that the same convenient rule which was foreseen in 1832 must be held to apply

LORD CRAIGHILL-The Act of 1868 provides that no person shall be entitled "to be registered as a voter, or to vote in any election for any county in respect of any premises owned or occupied by him within the burgh;" and the claimant here claims on a subject which he says is within the county. The boundary line runs through his house.

This being so, the appellant maintained that the whole must be regarded as within the burgh. Now, there is not in the Act of 1868, by which the Border Burghs were created, any express provision on this subject, but section 56 of that Act provides that" subject to the provisions

of this Act, all laws, customs, and enactments now in force conferring any right to vote, or otherwise relating to the representation of the people in Scotland and the registration of persons entitled to vote, shall remain in full force, and shall apply, as nearly as circumstances admit, to any person hereby authorised to vote, and shall also apply to any constituency hereby authorised to return or contribute to return a member or members to Parliament, as if it had heretofore returned or contributed to return such members to Parliament, and to the franchises hereby conferred, and to the registers of voters hereby required to be formed."

According to my opinion, the rule of 1832 is thereby made to apply to burghs created by the Act of 1868 to the same effect as if they had previously existed, so that as regards the determination of what is burgh and what county the rule is as applicable as if it had been set forth in the Act of 1868. I think that any other conclusion would be very unfortunate, for one practical inconvenience would be this-A proprietor might have one part of his property in the county and another in the burgh, and yet neither sufficient to entitle him to vote, so that in that case he would be disfranchised although his property might be sufficient as a whole to give him a vote in one or the other but not in both.

I therefore agree that the judgment should be reversed and the appeal sustained.

LORD MURE-This gentleman claims to have his name entered in the register of voters for the county of Selkirk as "proprietor of dwellinghouses in Scott Street, Galashiels, No. 138 of that street, in the parish of Galashiels, in the county of Selkirk." The facts as stated in the case are these:-"The property claimed on consists of dwelling-houses and gardens, valued in whole in the valuation-roll at £84." These subjects are situated partly in the county and partly in the burgh, the boundary running obliquely through them. Now, there can be no doubt that if such a claim had been made with reference to any of the burghs originally scheduled in the Act of 1832, it would have been struck at by sec. 5, sub-sec. 4, which provides that the whole of any