Page images
PDF
EPUB

REPORTS-1924, SCOTS LAW TIMES.

pp. 605, 606; Stewart on Diligence, p. 231); and it was therefore proper for the Lord Ordinary, instead of disposing of the matter himself, to report the case to the Division, whose powers in a matter of this kind are wider than those available in the Outer House.

There is no doubt that an intervention such as is now proposed is not in the circumstances of the present case the only means of carrying the joint minute, as judicially authorised, into effect; for there are well-known forms of legal procedure by resort to which it would be possible to clear the property of the bonds. Furthermore, such an intervention is not admissible without due regard to the fact that the purchasers of the property-who are not parties to the multiplepoinding or to the joint minute -have an interest (in the matter of the title by which they are to acquire the property) which might be prejudicially affected-or at least not satisfied-by a discharge of the bonds granted in the manner proposed. Now, as regards the first point, it has been explained to us, and it is indeed clear from the circumstances of the case, that there is not available from the balance of the fund in medio which still remains, or from the interests therein of any of the parties concerned who could be asked to bear the burden of resorting to the ordinary judicial procedure, funds sufficient to make resort to that procedure a practicable course. It would have been the natural thing to put the burden of the expense of clearing the title and discharging the bonds upon the person who is recalcitrant, indeed the joint minute contains a clause to that effect; and, if the value of the ranking given him had been such as to meet the expense, that would have been the proper course. But the balance of the fund in medio available to satisfy that ranking (along with the rest) is too small for the purpose, and there is no prospect of recovering those expenses otherwise than out of the recalcitrant person's share of the fund in medio. In these circumstances it seems to me that we are justified in using our powers to carry into effect a joint minute, which has had judicial authority interponed to it and represents the decree of the Court, and to prevent it from being annulled or defied by the obstinacy of one of the parties to it. With regard to the second point, it is necessary, I think, to make sure that no difficulty will arise in connection with the division and sale and the rights of the purchasers thereunder to get a proper title. Accordingly, before we send the case back to the Lord Ordinary with authority to allow the Clerk of Court to sign the discharges, we must have before us in writing evidence that the purchasers in the division and sale are willing to accept a discharge of the bonds by the Clerk under the authority of this Court as sufficient to clear

169

[merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors]

in view of the intimation to said claimant of the intention of the Lord Ordinary to report the matter to this Division on said 19th December ult. and of there being no appearance by him or on his behalf on said date, and having also seen and considered the holograph letter

[ocr errors]

written by or on behalf of the purchasers of the subjects Nos. 47 and 49 Waverley Place, Aberdeen, agreeing to accept said discharge if signed by the Clerk of Court on his being specially authorised by the Court to sign the same, as being as valid and sufficient to all intents and purposes as if same had been executed and delivered by the said Robert Robert Smith Wallace himself, authorise and empower John Cairns, D.C.S., to sign the said discharge in place of the said Robert Smith Wallace, and to deliver the same to the agent of the real raiser, and decern: find the claimant and real raiser Charles Williamson (Marian Wallace's curator) entitled in terms of Article 5th of the joint minute to the expenses incurred by him in consequence of the said Robert Smith Wallace's failure to sign the said discharge out of the sum of £600 stg. mentioned in Article 3rd of said joint minute.

[ocr errors]

Counsel for Real Raiser, J. A. Christie, W. A. Murray; Agent, James P. Niven, S.S.C., for Morice & Wilson, Advocates, Aberdeen. M. D.

Curator.

January 11, 1924.

[blocks in formation]

Burgh-Dean of Guild-Order on Procurator-Fiscal to

pull down upper flats of tenement-Power to allocate expense among proprietors, including owner of ground floor-Glasgow Police Act, 1866 (29 & 30 Vict. cap. colxxiii.), section 381-Flatted tenement becoming dangerous owing to use of upper flats by their proprietors for machinery and storage-On application by the Procurator-Fiscal of the Dean of Guild Court, Dean of Guild ordering tenement to be taken down to the level of the ceiling of the ground floor -Expense of doing so being allocated upon all the proprietors of the various floors Owners of the ground floor objecting to allocation upon them on the ground that the order partially to take down the tenement did not affect them-Held (dissenting The Lord Justice-Clerk, Lords Ormidale and Anderson) that, as the expenses in question had been incurred for behoof of all the owners, the ground floor proprietors were liable to pay their proportions.

[blocks in formation]

On 15th October 1919 George Smith, Procurator-Fiscal of the Dean of Guild Court of Glasgow, presented a petition to that Court. The circumstances in which it was presented appear from the following narrative, taken from the opinion of the Lord Justice-Clerk:

"This is an appeal from the Dean of Guild Court in Glasgow. It arises in this way. As far back as October 1919 the ProcuratorFiscal of that Court presented a petition under the Glasgow Police Act, 1866, to the Dean of Guild, in which he averred that certain buildings, or parts of buildings, situated at 56 to 68, both inclusive, Argyle Street, Glasgow, were in a dangerous state, that it was necessary that they, or parts of them, should be taken down or secured or repaired, and craving that, after the appropriate statutory procedure had been carried out, a decree should be pronounced to that end. To that petition the appellants, who are proprietors of certain shops on the ground floor of the buildings in question, were convened as respondents, along with the proprietors of the upper flats. In the course of the procedure which followed, the Dean of Guild remitted to two reporters to inspect and report to him upon the state of the property. Their report was duly presented to the Dean of Guild, and it makes two things clear, viz. (1) that the building as a whole-i.e. 56-68 Argyle Street--was in a dangerous condition,

(2) that its dangerous state was solely due to the condition of the upper flats. The reporters recommended that the building should be taken down to the level of the first floor. The Dean of Guild thereupon pronounced an order in terms of that recommendation.

"Certain procedure followed, which it is unnecessary to detail, and on 10th June 1920 the Dean of Guild remitted to the same reporters to make a further inspection of and report upon the property. They presented a second report to him, which, so far as this case is concerned, does not appear to me to add anything material to the first report. The Dean of Guild then of new ordered the building to be taken down to the level of the first floor, and this work was done at the instance of the Procurator-Fiscal. The Master of Works thereafter lodged an allocation of the cost of the work among the various proprietors of the building, and in that allocation he included the appellants. Their share in the cost amounted to £368, 11s. 6d. The Dean of Guild pronounced an order approving of the allocation, and finding the various proprietors, including the appellants, liable in terms of it. Against that order the present appeal is taken."

66

to

The petition craved the Court remit to one or more competent persons to inspect and report on the state of the said building, or parts thereof, which appear to be dangerous, and to grant warrant to take down or to secure the said buildings, or parts of said buildings, if reported to be dangerous; to take such other steps as appear to your Lordship to be necessary to the public safety; to grant warrant to cite. ... and, after receiving the report of the inspectors, to proceed to enquire into and decide the questions raised in this application; to order the said buildings or parts thereof, above referred to, to be taken down or secured by the said defenders, or by the petitioner, and, if such operations are not directed to be executed by the said defenders, to ascertain and award the expense of executing the said operations against the said defenders . . . . and to decern for the expenses of this application and subsequent procedure, all in terms of the Glasgow Police Act, 1866, particularly section 381 thereof."

The material sentences from the report as to the dangerous condition of the tenement are quoted in the opinions of the judges.

The total cost of the work carried out was £3193, 6s. 2d. The Master of Works allocated the sum upon the proprietors whose names appeared in the Valuation Roll for 1919-1920. The amount allocated on Leopold Giuliani, 60 Argyle Street, Glasgow, was £368, 11s. 6d. Objections on his behalf were lodged to the

[ocr errors][ocr errors]

allocation, to which answers were lodged. called upon to pay £368, 11s. 6d., making a They set forth, inter alia:

OBJECTION 2. The objector denies liability not only for the sum allocated on him in the proposed allocation, but also for any proportion of the cost of the demolition of the said portion of the building; and further he reserves all claims against the proprietors of the upper storeys of the said property for any expense to which he may have been or may be put or damage suffered in consequence of the demolition of the said portion of the building.

Ans. 2. Reference is made to the terms of section 398 of the Glasgow Police Act, 1866.

OBJECTION 3. The title of the objector to his shop is separate and distinct, and the said objector is in no way jointly interested in the other portions of the building beyond the extent stated in his title, to which reference is made for the terms thereof.

OBJECTION 4. The objector is in a position to dispose of his premises without reference to, or consent or concurrence of, any of the other proprietors of the property.

Ans. to Objections 3 and 4. Not known and not admitted, and reference is again made to section 398 of the Glasgow Police Act, 1866.

OBJECTION 5. It is averred that the dangerous condition of the upper portion of said property was brought about through its misuse by the proprietors thereof, and that the order by the Dean of Guild Court for the demolition of the said upper portion proceeded upon the ascertained fact of such misuse by the proprietors of the upper portion of the said property. Averred further, that the proprietors of the upper portions are alone responsible for the cost of the said demolition.

Ans. 5. Not known and not admitted, and, in any event, this objection is irrelevant to the question at issue.

OBJECTION 6. It is further averred that the objector has not been called upon by the public authorities to strengthen his property, not even when the demolition order was made for the upper portions of the property, and, at the present time, the property of the objector is believed to be in such a state as to give the support to the proprietors of the storey immediately above which at common law the proprietors thereof could be called upon to provide.

Ans. 6. This objection is irrelevant. The operations were carried out by order of the Dean of Guild Court dated 21st November 1919, in terms of the Glasgow Police Act, 1866, section 381.

OBJECTION 7. The Master of Works and the Procurator-Fiscal are called upon to state, in writing, under what authority they have based the said

allocation of the cost of demolition.

Ans. 7. The allocation of the cost of the operations carried out under order of Court is made in terms of the Glasgow Police Act, 1866, particularly sections 381 and 398 thereof.

OBJECTION 8. For the reasons above stated the objector should be excluded from the allocation of

the cost.

Ans. 8. Denied.

There were also similar objections for three other parties. Each of the objectors was

total for the four of £1474, 6s.

COURT OF SEVEN

The Glasgow Police Act, 1866 (29 & 30 Vict. JUDGES. cap. cclxxiii.) enacts :

Giuliani v. Smith.

1924.

Section 381. The Procurator-Fiscal of the Dean of Guild Court appointed by the Corporation may at January 18, any time apply to the Dean of Guild for a remit to one or more competent persons to inspect and report on the state of any building or part of a building which appears to be dangerous, and for a warrant to take down or to secure or repair such building or part of a building if reported to be so; and the Dean of Guild shall thereupon proceed as follows:

He shall, after receiving the report of the inspectors, proceed to enquire into and decide the questions raised in the application, and may order the building or part of a building referred to in it to be taken down or secured by the proprietor or by the ProcuratorFiscal of the Dean of Guild Court appointed by the Corporation.

He may ascertain and award the expenses of executing the operations against the proprietor, and may also award the expenses of all proceedings in the application to any of the parties thereto.

On 7th June 1923 the Dean of Guild (F. C. Gardiner) repelled the objections, approved of the allocation, and granted decree in terms thereof, with expenses.

Note.-. The objections of the respondents Giuliani and Dows turn upon the question that as they are proprietors of the ground floor, which was intact and required no operation at the instance of the public authorities, they should not be liable for any part of the expense caused through the condition of the flats above the street flat. It is, of course, in some respects a hard The shop proprietors may hold separate titles, and case for the proprietors of the shops in question. it may be that the dangerous condition of the upper portion of the property was brought about through its misuse by the upper proprietors, but that is a question among the proprietors themselves. The shop proprietors were interested at any rate to this extent, that if any portions of the dangerous building had fallen there might, and very likely would, have been injury caused to their premises. It may be that they are entitled to be relieved by the upper proprietors. That is not a matter for the Dean of Guild Court. It is one for another tribunal.

The

Dean of Guild has inserted an ample reservation of any such right of relief in the above interlocutor.

The building as a whole was a dangerous one, and the Dean, after having given fair and sympathetic consideration to the matter, has come to the conclusion that the allocation of the Master of Works is a fair and reasonable one and the only one possible in this process. There may be questions between the proprietors themselves, but these must be decided elsewhere.

The objector appealed, and after hearing parties the Court on 20th October 1923

COURT appointed the cause to be argued before seven OF SEVEN judges.

1924.

66

[ocr errors]

the operations " (connected with the demolition
of the upper four storeys of a building in
Argyle Street) against the proprietor
(as defined by section 4). The Dean of Guild's
statutory power in this respect presents a close
analogy to-but must be construed altogether
apart from the ancient common law juris-
diction exercised by jedge and warrant.

The Lord President (Clyde).-Section 381 is the second of five consecutive sections in the JUDGES. Argued for the Objector: The operations Glasgow Police Act, 1866 (29 & 30 Vict. cap. Giuliani v. were upon the upper part of a tenement and cclxxiii.), which regulate the Dean of Guild's adSmith. no allocation should have been made upon ministrative functions with regard to the comJanuary 18, the ground floor proprietors. Since their pro- pulsory repair, demolition, reconstruction, and perties were not touched, they were not liable sale of ruinous buildings. The question in for any part of the cost. The burden of this appeal relates to the exercise by the Dean payment fell upon those whose properties of Guild of the statutory power given to him were taken down, being the proprietors of the in the final subparagraph of section 381 to upper floors. The necessity to take down the" ascertain and award the expenses of executing upper floors had been occasioned by the wilful actings of the proprietors thereof by putting these floors to uses for which they were neither built nor suitable, e.g. the introduction of machinery, etc. Each of the separately owned premises or flats in the tenements were in law separate properties, and at common law the burden of maintaining one's own property rested on the owner. Accordingly the taking The powers of the Dean of Guild under section down of the upper floors which did not belong 381 (other than the emergency powers comto the objector could not render him liable for petent to him under the second and third subany portion of the expense of doing so as he paragraphs of the section) are exercisable on got no benefit from the operations. There was application by the Procurator-Fiscal of his Court no order issued against the objector's property, for a remit to one or more competent persons and he was not within the ambit of section 381. to inspect and report on the state of any buildThe order was against the proprietors of the ing or part of a building which appears to be upper floors, who were accordingly liable. dangerous, and for a warrant to take down or to It was that order that ruled the question of secure or repair such building or part of a buildliability to pay a proportion. The objector ing if reported to be so." The Dean of Guild was in the same position as the owner of ad-is directed by the fourth subparagraph to joining property which perhaps gave or received" grant warrant to cite the proprietor of the lateral support but which could not be liable building or part of a building referred to in for the expense of taking down a dangerous the application." "Proprietor of course building which if it fell would have fallen upon includes the plural, but it is worth while to and damaged such adjoining property. The notice that, if only a part of a building is objector's property was neither taken down nor alleged to be dangerous, the Dean of Guild secured in the sense of the section. There was is not required to cite the proprietor of no warrant either in the statute or at common any other part of it. Further, it is necessary law to order the objector to take down property to keep in mind that the proprietor which was not his and which he was not bound whether of a building the whole of which is by his titles to take down. The objector was alleged to be dangerous, or of a part only of accordingly not liable. a building, where only such part is alleged to be dangerous-is defined in section 4 of the Act to mean indifferently owners, liferenters, lessees not in actual occupation, legal administrators, the persons in actual enjoyment of the rents, and factors.

was

[ocr errors]
[ocr errors]

66

tr

[ocr errors]
[ocr errors]

Argued for the Respondent: The question turned on a construction of section 381 of the Act of 1866, and it had to be kept in view that the fasciculus in which the section appeared "Buildings-Their Erection, Alteration and Use." The words "land" and "heritage By the fifth subparagraph of section 381 the were not used. Building" and "proprietor "Dean of Guild is directed, after receiving the in the section fell to receive their natural report, "to enquire into and decide the questions meanings. The remit under the section to raised in the application." In the present case inspect and repair the tenements demon- the enquiry was by inspection on the part of strated the weight to be attached to the re- the Dean of Guild himself with his lyners and port of the reporters which clearly affected in the presence of the parties. the whole building and not merely the upper floors.

On 18th January 1924 the Court (diss. the Lord Justice-Clerk, Lords Ormidale and Anderson) affirmed the judgment appealed against.

The next step under the fifth subparagraph is that, as the result of the decision so arrived at, the Dean of Guild" may order the building or part of a building referred to in it to be taken down or secured by the proprietor or by the Procurator-Fiscal." "It" here means the

or

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

JUDGES.

1924.

application; and the building or part of a build- tions carried out by the Procurator-Fiscal COURT ing which may be "taken down or secured" is awarded against them. It is nothing to the OF SEVEN therefore the building or part of a building point that some " proprietors " might be origin"referred to in the application" as dangerous ally convened in respect of parts of a building, Giuliani v. and "reported to be so." It necessarily which parts were alleged in the application to Smith. follows that, as matter of strict construction, be dangerous, but which turned out on report January 18, the "proprietor" mentioned is the "proprietor" not to be so; nor that as appears from the proprietors" of the building which was concluding words of the section-there may referred to in the application as being dangerous parties to an application of this sort other than and which has been reported to be so, or of the the "proprietors" of a dangerous building or part so referred to and reported. It is no of a dangerous part of a building, or even other doubt true that, while the Dean of Guild's than " proprietors of any part of it whatsotake down or secure powers to may be ever. It is natural in itself, and it appears, exercised so as to destroy, or to interfere at first sight at least, to be the natural meaning directly with, the whole of the dangerous of the section, that the burden and expense of building or of the dangerous part thereof, they removing the danger should be borne by the may not require to be so extensively employed persons interested in the property which is for the purpose of avoiding danger, pending ascertained to be dangerous in fact; and in reconstruction. There is nothing in the section the case of a building consisting of parts in to prevent the Dean of Guild from using his which different persons are interested, that powers in this less extensive manner. But the burden and expense should be borne by the neither is there anything in the strict construc- persons interested in those parts which are tion of the section to warrant the view that if ascertained to be dangerous. This is not only he makes such less extensive use of them the a natural but a perfectly unmistakable criterion "proprietor" or "proprietors " referred to are of liability. It is, moreover, from an adlimited to those interested in the particular ministrative point of view, a just one. As parts of the building which are made the subject has already been pointed out, the whole purof direct physical interference. poses of the section are administrative, and in no way regulative, or dependent on, common law rights and responsibilities.

As will appear hereafter, this is not favourable to the view contended for by the appellants. But it is always possible that a strict construction may be fallacious; and the appellants found on the circumstance that the Dean of Guild did not in the present case order the whole of the dangerous building to be taken down. However that may be, it is not unimportant meanwhile to observe with regard to the provisions of the section-especially when viewed in the light of the definition of the word "proprietor "-how independent they are of the operation of common law rights and responsibilities. The section says nothing about these. It merely prescribes a code regulating the exercise of an administrative power for the expeditious removal of an impending danger to life and property.

So far, then, it is clear (1) that the basis of the Dean of Guild's powers under the section is the ascertained existence of a dangerous building in the one case, or of a dangerous part of a building in the other; (2) that the " proprietor

or

[ocr errors]

"proprietors" of the dangerous building, or of the dangerous part, as the case may be, are necessary parties to the proceedings; (3) that those "proprietors " may (if the Dean of Guild directs his order and warrant to them, and not to the Procurator-Fiscal) be ordered to "take down or secure ; and (4) that (if the Dean of Guild's order and warrant is directed to the Procurator-Fiscal, and not to them) they may have the expense of executing the opera

[ocr errors]

In the present case the whole building, which consists of basements and five storeys and attics, occupied as shops on the ground floor (the appellants were respectively proprietors of the four shops Nos. 60, 64, 66, and 68 Argyle Street) and as warehouses, factories, and workshops on the upper floors, was ascertained to be dangerous from top to bottom, including part of the foundations. According to the report, confirmed by the Dean of Guild's inspection, the building was an old one, originally built for residential occupation, which had come to be used for industrial purposes involving the assemblage of machinery and the storage of heavy weights. "When carrying out the consequent alterations, no attempt," so the report says, "has apparently been made to increase the strength of the floors to meet the extra loads, and the haphazard manner in which the work has been done has affected the general stability of the structure." The floors, from the level of and including the first floor (which constituted the division between, inter alia, the appellants' property and the storey immediately above), were reported to be "sagged to a very dangerous extent," while the walls were "very dilapidated, badly racked, and generally in a dangerous condition-the back wall being worse than the front one, as it has been seriously affected by a settlement at the north-west corner of the cart entrance, and is bulged

« PreviousContinue »