Building

there were no assets other than heritage, which was fully bonded and would yield no reversion, that was no answer in view of the provisions of section 141 of the Act.

Argued for the respondents — (1) The practice in England was not to order a winding up where the debt was under £50 unless there were special circumstancesin re Industrial Insurance Association, Limited (1910), W.N. 245; in re Fancy Dress Balls Company (1899), W.N. 109; Buckley on the Companies Acts, 9th ed. 309. (2) The Court would not pronounce a windingup order where no benefit would accrue to the petitioners-in re Krasnapolsky Restaurant and Winter Garden Company (1892), 3 Ch. 174; in re Crigglestone Coal Company Limited (1906), 2 Ch. 327; Gardner & Company v. Link, July 11, 1891, 21 R. 967, 31 S.L. R. 804.

At advising

LORD PRESIDENT This is a petition for the winding-up of the Central Building Company Limited. The petition sets forth that the petitioners are creditors of the company, and that on 6th December 1909 they obtained decree for the sum of £40, that the decree was extracted, and that the company was charged to make payment within seven days; that £32 was paid to account, but that the petitioners have been unable to obtain payment of the balance.

The petitioners therefore aver that the company is unable to pay its debts and should now be wound up, looking to the terms of section 130 of the Companies (Consolidation) Act 1908, which enacts"A company shall be deemed to be unable to pay its debts. . . if, in Scotland, the induciæ of a charge for payment on an extract decree... have expired without payment being made." They therefore maintain that they are entitled to a winding-up order.

The company have put in answers, and the argument on their behalf was rested upon what was stated to be English practice. It was said, first, that a windingup order would confer no benefit on the petitioners because there were no assets except heritable property over which prior securities were held. I do not think that that argument can avail them.

I am content to take it that before the Companies (Consolidation) Act was passed the law was correctly laid down by Mr Justice Buckley in the case of the Crigglestone Coal Company (1906), 2 Ch. 327, confirmed by the Court of Appeal. What he points out there is that one whose debt is not paid is entitled to a winding-up order ex debito justitiæ, and that the cases to the contrary are really not exceptions to that rule, because they are cases in which there were no assets upon which a windingup order could operate, and the Court would not pronounce a decree which would have no effect.

That being the state of the law in 1906, in 1908 the Companies (Consolidation) Act was passed, and section 141 enacts-"“ (1) On hearing the petition the Court may

make any interim order or any other order that it deems just, but the Court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets."

The Legislature is presumed to know the law as it stands, and when it says, in face of the law as laid down in Crigglestone, that the fact of there being no assets is not to be a reason for refusing a winding-up order, I do not think anything more can be said.

The second ground of argument for the company was that the petitioners' debt is under £50, and a case only reported in the Weekly Notes was read to us, in which Mr Justice Neville seems to have said that a winding-up order will not be granted if the debt in question is under £50. That judg ment does not bind us, and I am unable to see that there is any foundation for it in the statute. Section 130 specifies circumstances in which a company shall be deemed to be unable to pay its debts, and sub-section (1) of that section deals with the limitation to debts exceeding fifty pounds, but sub-section (3) contains no such limitation, and enacts-" if, in Scotland, the induciæ of a charge for payment on an extract decree . . . have expired without payment being made," then a company shall be deemed to be unable to pay its debts. I therefore am of opinion that a winding-up order must be granted in this case.

The LORD PRESIDENT intimated that LORD KINNEAR, who was absent at the advising, concurred in this opinion.

LORD JOHNSTON-By Section 129 of the Companies (Consolidation) Act 1908 it is provided that a company may be wound up if it is "unable to pay its debts," and section 130 defines the circumstances when a company is to be deemed unable to pay its debts. It defines, to use a short but appropriate expression, the "notour bankruptcy" of a company, e.g., in Scotland by section 130 (3) it is to be deemed notour bankrupt if it allows a charge to expire without payment.

But

This company is in that position. the balance unpaid of the sum charged for is small; it is under £10. In these circumstances it is said that in England a practice exists of refusing a winding-up order when the debt due to the petitioner is under £50. The sum of £50 may have been suggested because under section 130 (1) it is the minimum debt by which the notour bankruptcy can be produced by mere notice of demand, not complied with for three weeks.

Neville, J., is reported in in re Industrial Insurance Association, Limited (1910), W.N. 245, to have expressed himself to the effect that the practice is not to order a windingup when the debt is under £50 unless there are special circumstances, and to have added that he found such special circumstances in in re World Industrial Bank, Limited (1909), W.N. 148, where the com

v. Robinson

additional legacies, videlicet:-To Miss Janet Grant... the sum of ten pounds sterling, and to Ernest Taylor, son of my cousin, the sum of five pounds sterling. .. And I confirm the legacy of twenty pounds sterling to Mrs Agnes Cullen or Pollok, and except as altered by this codicil I confirm my said trust-disposition."

Questions having arisen as to the rights of parties under Miss Taylor's testamentary writings, a Special Case was presented to the Court. The first party was James Cullen Pollok, Miss Taylor's sole trustee. The third party was William Mackay Sutherland. The fourth parties were Miss Janet Grant and Ernest Taylor. The second parties were the other beneficiaries under the trust-disposition and settlement.

The Special Case stated, inter alia-"5. The said Williamina Taylor left moveable estate of the value of £837 or thereby. She left no heritable estate. . . The said Williamina Taylor left no writings of a testamentary nature other than the said trust-disposition and settlement and codicil. 6. The first party has made inquiry by way of advertisement and otherwise for any relatives of the testatrix other than those mentioned in the trust-disposition and settlement and codicil, but he has been unable hitherto to discover any such, with the exception of a maternal cousin's daughter, who is not in his opinion in necessitous circumstances. 7. Questions have arisen between the parties as to the powers of the first party under the said trust-disposition and settlement and codicil, and as to the nature and extent of the rights of the beneficiaries named therein in the residue of the estate -(a) The first party does not propose to retain or set aside any portion of the residue for division among any relatives of the testatrix other than those named in the trust-disposition and settlement and codicil. He maintains that on a sound construction of the direction with regard to residue contained in the trust-disposition and settlement he is entitled to divide the whole residue among the beneficiaries named in the trust-disposition and settle. ment and codicil, including the third party, or any one or more of them, in such proportions as he thinks proper. (b) The second parties maintain that they are the only beneficiaries' named in the trustdisposition and settlement, and are accordingly the only persons entitled to participate in the residue, and that they are entitled to have the whole of the residue divided among them by the first party in such proportions as he may decide. (c) The third party maintains that, notwithstanding the revocation by the codicil of the legacy bequeathed to him by the trustdisposition and settlement, he is still a beneficiary named in the settlement, and is entitled to participate in the division of the residue along with the second parties just as if the codicil had not been executed, and that the fourth parties are not entitled to participate in the division. (d) The fourth parties maintain that they are entitled to a share of the residue along with the second

parties, and that the third party is not entitled to any share therein."

The following questions of law were submitted:-"(1) Is the first party entitled, in exercising the power of division conferred on him by the trust-disposition and settlement, to include, in addition to the second parties, (a) the third party, and (b) the fourth parties, or either and which of them? (2) Is the first party bound to set aside any portion of the residue for division among relatives of the testatrix, other than those named in the trust-disposition and settlement and codicil, who may be found by him to be in necessitous circumstances?""

Argued for the first party-Where a discretionary power was given to trustees to select from a class, that involved absolute discretion on the part of the trusteesM'Cormack v. Barber, January 25, 1861, 23 D. 398.

Argued for the second parties - They alone were entitled to the residue. The third party had no right to share therein. His legacy was definitely revoked in the codicil. He therefore was not a beneficiary named in the trust-disposition and settlement. Neither were the fourth parties, whose names only appeared in the codicil. The trustees were not bound to hold any portion of the fund for behoof of necessitous relatives.

Argued for the third party-Though his legacy of £10 was revoked in the codicil, he was one of the beneficiaries already named in the trust-disposition and settlement. He adopted the second parties' argument as to the trustees holding any part of the fund.

Argued for the fourth parties - They were entitled to share in the residue. The will and codicil together were to be regarded as a new will-Theobald on Wills (7th ed.), 146. There was here a bequest to a class of named persons who must qualify the description of beneficiaries. They adopted the second parties' argument on the second point.

LORD JUSTICE - CLERK - I have formed a clear opinion in this case. This lady executed a will and afterwards added a codicil, the codicil having the effect of taking out the name of one legatee and of adding the names of two new legatees. These documents must be read as constituting this lady's will at the time of her death, and I take it to be the same as if she had deleted one name from the will, the deletion being properly authenticated, and had added a marginal addition containing the two new names, the marginal addition being also properly authenticated. Therefore I can have no hesitation in holding that Mr Sutherland is in the same position as if he had never been named in the will. At the time of this lady's death he was not in the position of being one of the beneficiaries already named," and therefore I think that branch (a) of the first question must be answered in the negative. As to branch (b) of the first question the position is just the converse,

66

and this branch must be answered in the affirmative. The only remaining question is the second, whether the first party is bound to set aside any portion of the residue for division among relatives of the testatrix who may be found by him to be in necessitous circumstances. We are certiorated that every possible effort has been made to discover the relatives of the testatrix, that only one relative has been discovered, and that she is not in necessitous circumstances. In these circumstances I do not think that the trustees are bound to hold the fund for behoof of necessitous relatives of the testatrix, and therefore I think that the second question must be answered in the negative.

LORD ARDWALL concurred.

I think

LORD SALVESEN-I also concur. that the two deeds, the will and the codicil, must be read together as if they formed one document, and on the same footing as if they had been placed before a conveyancer and he had been asked to embody their terms in one settlement. If that had been done by an expert conveyancer he would simply have left out one name and inserted other two names in the list of legatees. Otherwise the will would have remained unchanged, and would then have been very easy to construe. I have no difficulty in reaching the result at which your Lordship in the Chair has arrived, and substantially on the same grounds as you have more fully explained.

LORD DUNDAS was absent.

The Court answered head (a) of the first question in the negative, and head (b) in the affirmative, and the second question in the negative.

Counsel for the First Party Agents-Patrick & James, S.S.Č.

Wark.

Counsel for the Second Parties-Chree. Agent-R. J. Calver, S. S.C.

Counsel for the Third Party-Aitchison. Agents-Whigham & MacLeod, S.S. C.

Counsel for the Fourth Parties-W. A. Fleming. Agents-Thomson, Dickson, & Shaw, W.S.

proprietor of two tenements in the neighbourhood on the ground that the buildings for which warrant was sought would contravene, as, indeed, was admitted, restrictions in the title of the petitioner, and that the respondent was a tertius who had a jus quæsitum to enforce the restriction. The petitioner and respondent were each disponees tracing from a common author, and the dispositions by which the common author had disponed the subjects and others to the respective authors were of the same date, contained similar restrictions and a stipulation that the disponer (the common author) should impose similar restrictions upon another portion of land still remaining with him, and declared the restrictions to be real burdens and that they must be inserted in all future dispositions. The titles produced did not show what other pieces of ground were under similar restrictions to those of the petitioner and respondent, nor the sequence of transmission to petitioner or respondent, nor did the exact relative position or nearness of the ground of the petitioner and respondent appear. The magistrates, on the ground that there was a competition of title, sisted the case in order that the petitioner might raise an action of declarator in a competent court, and on the petitioner lodging a minute stating he did not propose to do so dismissed the petition.

The Court held (1) that no question of competition of title had arisen, and that the magistrates ought to have decided the questions raised - Pitman v. Burnett's Trustees, July 7, 1881, 8 R. 914, 18 S.L. R. 659; Walker and Dick v. Park, February 29, 1888, 15 R. 477, 25 S.L.R. 346; and Macandrew v. Dods, 1908 S.C. 51, 45 S. L.R. 49, commented on; and (2) that there was enough in the respondents' title to allow of the admission of evidence as to the community for whose benefit the restriction had been inserted, but that there was not sufficient before the Court to enable them to decide the matter, and remitted the cause to the magistrates to proceed as accords.

Hislop v. MacRitchie's Trustees, June 23, 1881, 8 R. (H.L.) 95, 19 S.L.R. 571, explained by the Lord President. William Nicholson, proprietor of certain subjects situated at Hayburn Crescent and Minard Road, Partick, bounded on the north by Minard Road, on the east and south by a lane behind Annfield Road, and on the west by Hayburn Crescent, Partick, wishing to erect certain tenements of houses thereon, applied to the Magistrates of the Burgh of Partick for a lining.

The application was opposed by the Managers of the Glasgow Asylum for the Blind, who were proprietors of two tenements forming Nos. 5, 6, 7, and 8 Hayburn Crescent, Partick.

The following narrative of the facts is taken from the note of the Magistrates

appended to their interlocutor of 26th January, but with fuller quotation of the dispositions "This is an application by William Nicholson for warrant to erect ten tenements of houses on ground belong. ing to him, and situated between Hayburn Crescent on the west, Annfield Terrace on the east, Minard Road on the north, and a meuse lane on the south. The ground in question extends to 6556 square yards, and is part of a plot containing 14,212 square yards, and the proposed tenements if sanctioned will consist of houses of two rooms and kitchen, and will be four square storeys in height. The application is practically similar to one presented by Daniel Nicholson, a son of the petitioner, to this Court in May last, which the Court, after having sisted it to enable the petitioner to determine his rights in the Supreme Court, finally dismissed. The only difference between the two is that a billiard saloon for which warrant was craved in the former is omitted in the present application.

"From the titles lodged in process the petitioner appears to be feudally vest in the subjects in question, and no objection was taken at the Bar by the respondents to his right to appear as proprietor in the present case.

The previous application was opposed by the proprietors of houses in Annfield Terrace, Hayburn Crescent, and Annfield Road, which lies to the east of Annfield Terrace. The application now before the Court is objected to only by the Managers of the Glasgow Asylum for the Blind, who are the proprietors of two tenements in Hayburn Crescent.

"The subjects in question are part of the lands of Partickhill, which at one time belonged to William Hamilton. Hamilton became bankrupt, and William Anderson was appointed trustee on his sequestrated estates. A portion of these lands of Partickhill, extending to 11 acres 3roods and 27 poles, was sold in 1887 by Anderson to William Towers Clark and Thomas Binnie, as trustees acting under a certain deed of agreement. The petitioner's property and a portion of Hayburn Crescent form part of these 11 acres.

"Towers Clark died in 1870, after a portion of the 11 acres of ground had been feued off. A partition of the remaining ground was thereafter made between Towers Clark's representatives and Binnie. In carrying out this scheme Binnie, as surviving trustee, in 1874 conveyed to himself as an individual a portion of the ground extending to 6 acres 3 roods and 8 poles.

"In 1875 Binnie sold a part of the 6 acres to M'Meeken & Reith, accountants, who before being feudally vest sold in turn 14,212 square yards of their ground to James Millar. At the request of and with consent of M'Meeken & Reith, Binnie accordingly conveyed this plot of 14,212 square yards to Millar by a disposition granted on the same date as that conveying to M'Meeken & Reith the plot of ground extending to 13,758 square yards after mentioned.

VOL. XLVIII.

"The disposition in Millar's favour contains the following-Declaring also, as it is hereby specially provided and declared, that the tenements to be erected on the plot of ground before disponed shall not exceed in height three square storeys with attics, and the half of a sunk storey above the level of the street, and shall consist of houses of not less size than three rooms and kitchen, but each tenement to be erected on the west side of a protraction northwards of the line of the said Hayburn Crescent Road may have three houses of two rooms and kitchen: And in conveying the ground situated between the ground conveyed by me, the said Thomas Binnie, to trustees for the Partick Annfield Bowling Club, and the said lands sold to the said James M'Meeken and William Reith, and which is also part of the said six acres three roods and eight poles, I oblige myself to take my disponee bound in the event of his not erecting thereon two detached villas or a double villa, to build such tenements of dwelling-houses as he may erect thereon of a handsome elevation, to the satisfaction of John Burnet, architect in Glasgow, not exceeding in height three storeys and attics, and onehalf sunk storey, and each dwelling-house to contain not less than four rooms and kitchen. .. [There followed provisions as to the widening of Hayburn Crescent Road and another road] . . ., and so far as the obligations as to the widening, formation, and maintenance of roads or streets, and contributing of ground therefor, are imposed upon or undertaken by me as proprietor of the ground above disponed by the disposition granted by me of even date herewith in favour of the said James M'Meeken and William Reith, the said James Millar by acceptance hereof shall be bound to implement and free and relieve me of the same, which conditions, provisions, and others before written are hereby created real liens and burdens and servitudes on the lands before disponed, and as such shall be inserted or validly referred to in all transmissions and investitures of the same, or any part thereof, under pain of nullity. . .

"Millar's plot, to the extent of 6556 square yards, is now vested in the petitioner Nicholson, and the disposition in his favour which was granted in 1893 bears that the plot of ground so conveyed is disponed always with and under the conditions, provisions, restrictions, &c., inter alia, contained in the disposition by Binnie in favour of Millar. . . . The subjects lying between the ground of the Partick Bowling Club and that of M'Meeken & Reith, together with those conveyed to Millar and M'Meeken & Reith, form the whole area then belonging to Binnie.

"On the face, therefore, of the petitioner's title his ground is restricted to buildings that shall not exceed in height three square storeys with attics and the half of a sunk storey above the level of the street, and that shall consist [of houses of not less than three rooms and kitchen.

NO. XVIII.