No. 5. the jurisdiction of the Dean of Guild, it is his duty to sist the case, in order to have the question determined in this Court. In such circumOct. 18, 1895. Wilson & Sons stances it is according to all precedent for the defender to raise the action. v. Mackay's Now, the petitioners produced a prima facie title, and in the absence of any attempt of the defenders to disprove it by an action, the Dean of Guild had no alternative but to act upon it and grant a warrant. Trustees. I think that no sufficient ground has been stated for our displacing this warrant, and accordingly I am for dismissing the appeal. LORD ADAM.-I agree, and while I think that the form of the warrant is not a happy one, and that it would have been better if it had been expressed as approving of works already executed, instead of sanctioning their erection, it does not appear to me that the appellants have been in any way prejudiced by this incorrectness of form. Had the petition craved approval of works already executed, the appellants' objections to it would have been the same, viz., that the property was theirs, and that a nuisance was caused by the petitioners, and the Dean of Guild would have acted just as he has done,that is to say, he would have sisted the case, to allow the objectors to make out their case by raising an action. The only difference would have been that in the event of their not doing so he would have pronounced an interlocutor approving of the works executed instead of a warrant to erect, but the appellants would have been in precisely the same position as they are now. Accordingly, their real objection is not to the form of the petition, but to having, as they say, the onus of raising an action thrown upon them. I agree that the Dean of Guild was quite right in what he did. There may be cases in which the onus should be on the petitioner, as for example, where the subjects are ex facie the objector's property, and are not included in the petitioner's titles; but that is not the case here, and nothing has been said to shew that this should have been done. The result of the action would of course be the same, on whichever party this onus lay, so that the question is comparatively unimportant. On the whole matter I agree that the appeal should be dismissed. The LORD PRESIDENT and LORD KINNEAR concurred. THE COURT dismissed the appeal. Curror, Cowper, & Curror, W.S.-JOHN MACKAY, S.S.C.—Agents. No. 6. Oct. 19, 1895. Alston v. Alston. JOHN STIRLING ALSTON AND OTHERS, Petitioners (Respondents).— MRS A. A. M. ALSTON, Respondent (Reclaimer).-Cook. Curator Bonis-Insanity-Opposition of alleged incapax-Necessity for inquiry. A petition was presented, along with two certificates by medical men, for the appointment of a curator bonis to a person, on the ground that he was of unsound mind. The alleged incapax lodged answers, in which he denied that he was insane. He further averred that he was a domiciled Englishman, and not subject to the jurisdiction of the Scots Courts. The Lord Ordinary (Low) granted the petition without inquiry. On a reclaiming note, held that, having regard to the statements in the answers, the petition should not have been granted without inquiry as to the question of domicile and as to the respondent's insanity. ON 4th July 1895 a petition was presented by John Stirling Alston, No. 6. residing in Ayr, and others, for the appointment of a curator bonis to Harry Ritchie Alston. Oct. 19, 1895. Bill-Chamber. The petitioners stated that Mr Alston was an inmate of a private Alston. asylum kept by Dr Chambers at the Priory, Roehampton, near London, and that he was " of unsound mind, and incapable of managing his own 1ST DIVISION. affairs, or for giving direction for the management thereof," and they Lord Low. produced two medical certificates to that effect. They further stated that Mr Alston was a native of Lanarkshire, and a domiciled Scotsman. Answers were lodged for Mr Alston and his wife, who stated that Mr Alston had for a short time been, and still was, resident at the Priory, Roehampton.' They averred, "The respondent, Harry Ritchie Alston, is not a domiciled Scotsman, or subject to the jurisdiction of the Scotch Courts. He is and has for some time been a domiciled Englishman. The said respondent is not of unsound mind, or incapable of managing his affairs, or giving directions for their management." No medical certificates were produced with the answers. On 20th July 1895 the Lord Ordinary (Low), "having considered the petition and answers and heard counsel," appointed a curator bonis to Mr Alston. The respondents reclaimed, but before the hearing Mr Alston died, and parties agreed that the appointment of the curator must be recalled. On the question of expenses the respondent Mrs Alston argued ;The Lord Ordinary was wrong in appointing a curator bonis without inquiry of some sort into the state of the respondent's mind. His Lordship had acted as he did because the respondents did not support their answers with medical certificates. But in circumstances like the present an inquiry was always ordered. Moreover, the respondents had averred that Mr Alston was a domiciled Englishman. If he was, then the jurisdiction of the Scots Courts was excluded, for it was not averred that there was any moveable estate in Scotland which required protection. The petitioners had recognised this, for they had made a similar application in England. The respondent was entitled therefore to expenses, or at least to the expenses of the reclaiming note. Argued for the petitioners;-The respondent Mr Alston was admittedly resident in an asylum when the petition was presented, and the petitioners had produced two medical certificates that he was incapable of managing his affairs. In these circumstances, mere statements in denial were not sufficient, and the respondents had not even produced medical certificates. The Lord Ordinary was right therefore.2 LORD PRESIDENT.-All parties are agreed that the appointment of curator must be recalled, Mr Alston having died, but the first question is, Can the Lord Ordinary's judgment be maintained? In a word, I think he went too fast, because the answers contain a distinct and articulate denial of the essential allegation of insanity. There is also a question of domicile. Accordingly, the Lord Ordinary was not in a position to disregard the answers as he did. Mr Cook's clients therefore were justified in presenting 'A B v. C D, Nov. 8, 1890, 18 R. (H. L.) 90; Yule v. Yule, Nov. 29, 1881, 19 S. L. R. 140; Taylor v. Macfarlane, Nov. 12, 1847, 10 D. 38; 19 Scot. Jur. 105. AB v. CD, 18 R. (H. L.) 90. B No. 6. Oct. 19, 1895. a reclaiming note, and accordingly Mrs Alston is entitled to expenses from the date of the interlocutor reclaimed against. Then, as regards the period anterior to that, we have really no means of coming to a conclusion; we have no material for deciding who was right and who was wrong, and the parties do not propose a proof. We shall therefore find no expenses due to or by any of the parties prior to the date of the interlocutor reclaimed against. LORD ADAM, LORD M'LAREN, and LORD KINNEAR concurred. THE COURT recalled the interlocutor reclaimed against, dismissed the petition, and found the respondent Mrs Alston entitled to expenses since the date of the Lord Ordinary's interlocutor, and quoad ultra found no expenses due to or by any of the parties. WEBSTER, WILL, & RITCHIE, S.S.C.-A. P. PURVES & AITKEN, W.S.-Agents. No. 7. Oct. 22, 1895. John Wilson & Son, Limited, v. Inland Revenue. 1ST DIVISION. JOHN WILSON & SON, LIMITED, Appellants.-Balfour-Shaw-Cook. Lord-Adv. Sir Charles Pearson-A. J. Young. Stamp-Conveyance on sale-Transfer of assets of private partnership to public company--Identity of partners and shareholders-ConsiderationCompany-Stamp Act, 1891 (54 and 55 Vict. c. 39), secs. 54 and 55First Schedule. Where a private partnership conveyed its whole assets to a joint stock company limited by shares, consisting exclusively of the same partners, in consideration of each partner getting shares in the new company equal in value to his holding in the old partnership, held that the conveyance was a conveyance on sale within the meaning of the Stamp Act, 1891, and that the disposition was chargeable with ad valorem stampduty on the value of the stock transferred. John Foster & Sons v. Commissioners of Inland Revenue, L. R. [1894], 1 Q. B. 516, approved. THIS was an appeal on a case stated by the Commissioners of Inland Revenue under the Stamp Act, 1891 (54 and 55 Vict. c. 39), at the request of John Wilson & Son, Limited, with respect to the stampduty chargeable on an instrument executed in connection with the conversion of the private firm of John Wilson & Son into a limited company. The case set forth the following facts : * The following clauses, inter alia, of the Stamp Act, 1891 (54 and 55 Vict. c. 39), were referred to :-By the first schedule there are charged the following stamp-duties, viz. : "Conveyance or transfer on sale of any property (except such stock as aforesaid) where the amount or value of the consideration for the sale does not exceed £5, "For every £50, and also for any fractional part of £50 of "And see sections 54, 55, 56, 57, 58, 59, 60, and 61. "Conveyance or transfer of any kind not herein before de- "And see section 62. £0 0 6 050 0 10 0 "Deed of any kind whatsoever not described in this schedule, 0 10 0" Section 54 of the Act is as follows :-" For the purposes of this Act the No. 7. Oct. 22, 1895. John Wilson Inland By deed of assumption dated 25th, 26th, and 27th December 1894, which proceeded on the narrative that John Wilson and Matthew G. Wilson, his son, had carried on business in partnership for a number of years as malleable iron tube manufacturers and as brassfounders & Son, under the name of John Wilson & Son, and that the whole capital of Limited, v. the firm, amounting to £100,000, belonged to John Wilson, the other Revenue. members of Mr Wilson's family and two gentlemen in the employment of the firm were assumed as partners-making eight partners in all. To these eight persons Mr Wilson, with consent of himself and his son Matthew, as trustees vested in the whole assets of the firm, donated, assigned, and conveyed the capital of the firm in various amounts. By a subsequent minute of agreement among John Wilson & Son and partners thereof," dated 28th, 29th, and 31st December 1894, it was agreed,First, "That the said whole parties have resolved and now resolve to convert the company into a company limited by shares to be registered under the Companies Acts, 1862 to 1890, the capital of the company after registration being the same as at present, videlicet, £100,000 sterling, but divided into shares of £10 sterling each. Second, "That the share and interest which each of the partners has at present in the company shall remain the same after registration, only it shall then be expressed in shares instead of in pounds sterling, and accordingly the company after registration shall forthwith allot its shares as follows: And the said several parties agree and engage to accept of such shares in full satisfaction to them respectively of their present shares and interests in the capital of the company and whole assets thereof." Third, "That the parties agree and engage that at or prior to the issue of the shares mentioned in the preceding article, the company, as constituted after registration, shall formally assent to this minute of agreement, and procure this minute and such assent filed in the office of the Registrar of Joint Stock Companies in Edinburgh, in terms of section 25 of the Companies Act, 1867. This deed was impressed with a stamp-duty of 10s. It was filed in the office of the Registrar of Joint Stock Companies at Edinburgh on 3d January 1895. Thereafter, John Wilson and Matthew G. Wilson, as trustees for behoof of the company of John Wilson & Son, granted the following expression conveyance on sale' includes every instrument, and every decree or order of any Court or of any Commissioners, whereby any property, or any estate or interest in any property, upon the sale thereof is transferred to or vested in a purchaser, or any other person on his behalf or by his direction." Section 55, subsection (1), is as follows:-"Where the consideration, or any part of the consideration, for a conveyance on sale consists of any stock or marketable security, the conveyance is to be charged with ad valorem duty in respect of the value of the stock or security." Section 57 is as follows:-"Where any property is conveyed to any person in consideration, wholly or in any part, of any debt due to him, or subject either certainly or contingently to the payment or transfer of any money or stock, whether being or constituting a charge or incumbrance upon the property or not, the debt, money, or stock is to be deemed the whole or part, as the case may be, of the consideration in respect whereof the conveyance is chargeable with ad valorem duty." No. 7. Oct. 22, 1895. Inland Revenue. disposition (dated 2d and 5th February 1895):-" Considering that The Commissioners of Inland Revenue were of opinion that the |