tor bonis to an imbecile person, and suggested a party to fill that office, the other nearest of kin on the father's side objected to the appointment of the party named, and suggested another. The Court having remitted to the Sheriff to name a proper party, he recommended a third person-Circumstances in which the Court allowed the petitioners only the expense of the petition, and printing thereof, and to the respondents their expenses, out of the imbecile person's estate.

John Cochran, with the concurrence of James Cochran, brothers of, and two of the nearest of kin on the father's side of Andrew Cochran, residing at Chapelpark, Cambuslang, presented the present petition for the appointment of a curator bonis to the latter. They stated that he had during life been in a state of mental imbecility, and was possessed of a small property, inherited from his father, yielding about £30 per annum; and they suggested Mr. William Eadie, grocer, Cambuslang, as a proper person to fill the office of curator bonis.

Mrs. Janet Cochran and her sisters, sisters of, and the other nearest of kin on the father's side of Andrew Cochran, with concurrence of their husbands, gave in answers, in which they stated, that while they did not dispute the necessity of appointing a curator bonis, they could not concur in the appointment of Mr. Eadie. They stated further

"The petitioners have for some time managed the estate of Andrew Cochran, and the respondents aver that they have diverted the rents to their own purposes, leaving their brother in a state of misery and destitution. The respondents believe that the appointment of Mr. Eadie to the office of curator would only perpetuate the treatment to which the lunatic is at present subjected, that person being the employer of the petitioners, and entirely in their interest.

"The respondents have no interest in the matter further than to see that the funds of the lunatic are applied to his maintenance in decency and in comfort. While, therefore, they would suggest Mr. Andrew Buchan, thread spinner, residing in Cambuslang, an elder of the parish, and a person of undoubted respectability, as curator, they will at the same time be perfectly satisfied that your Lordships should confer the appointment on any neutral person who will faithfully discharge the duties of the office."

The Court remitted to the Sheriff to name a proper person.

The Sheriff named Mr. George Wink, accountant in Glasgow-whom the Court accordingly appointed.

Both parties claimed expenses from the estate.

Lord Justice-Clerk.-I rather think we cannot allow the petitioners their expenses. This is a very peculiar case. They allege that their brother has been from infancy in a state of mental imbecility, and yet they have gone on through his whole life managing this property without any legal powers. Then they suggest a person as curator bonis, who is objected to; and the Sheriff recommends another party.

Lord Moncreiff.-If the petitioners had suggested a party whom the Court approved of, they would have had their expenses; but that is not the case here.

The Court pronounced as follows:

:

"Allow the petitioners the expense of the petition, and printing thereof, and to the respondents their expenses, out of the estate of the said Andrew Cochran."

Act. Mackie; Thomas Ranken, S.S.C. Agent.-Alt. W. H. Murray; Murray and Beith, W.S. Agents.—T. Clerk.—[W.G.T.]

21st November 1849.

SECOND DIVISION.

No. 13.-ALEXANDER ROBERTSON and others, Complainers, v. ELIZABETH FINLAY, Respondent. Process-Jurisdiction-Justices of Peace Small-Debt CourtStatute 5 Geo. IV. c. 48--Competency--A party executed a trustdeed, whereby he made over to certain trustees £300 of railway stock, with a guaranteed dividend of £30 per annum, to be divided yearly, or half-yearly, in equal portions, amongst five persons to be named by himself. The trustees accepted, and the truster named the annuitants. Difficulties having arisen as to registering the transfer of the stock in the names of the trustees, it was arranged that the same should be registered in name of a corporation, who were to uplift the dividends as they fell due, and pay them over to the trustees. The transfer was, accordingly, made in name of the corporation; but a misunderstanding having arisen between them and the truster as to whether the certificate of transfer should be held by the former or by the trustees, the corporation refused to uplift the dividends. Thereupon, a dividend having become due, one of the annuitants brought an action before the justices in the small-debt court, against the trustees, for payment of £3, as her half-year's proportion of the annuity. The justices having decerned against the trustees, a majority of the latter suspended. Circumstances in which-Held, that the suspension was incompetent.

On 7th March 1846, Mr. Connell, of Manchester, executed a trust-deed, whereby he disponed £300 of the North Union Railway Company's stock, with a guaranteed dividend of £30 per annum, to the minister of the Established Church at Irvine, the two eldest officiating elders of the same, and the provost, bailies, and dean of guild of that burgh, and their successors, as trustees. The deed declared that the trustees "shall stand possessed of the said stock and principal sum, and dividends or interest to arise therefrom, being of the present value of ten per centum per annum on the said principal sum, in trust, for the purpose of receiving half-yearly, or yearly, as the same may fall due, the said dividends or interest, from time to time in perpetuum, upon receipts to be subscribed by two at least of their number, the minister or provost being alway's one of these two, and applying the same in manner hereinafter directed; declaring that this fund shall be called or designated 'Connell's Benevolent Fund:' It being hereby provided and declared, that I, the said Edward Connell, during my lifetime, and thereafter my successors hereinafter provided, shall nominate and appoint five persons, male or female, as annuitants and recipients of the said fund, being residents of Irvine or Fullarton, Friarscroft, or the Halfway adjoining Irvine, who are not receiving parochial relief, or relief from any Christian congregation; and the said trustees and their said successors, in all time coming, shall pay over, in yearly or half-yearly payments, £6 per annum, being an equal share of the said dividends or interest, to each of the said recipients so to be named and appointed, less any expenses or deductions that may hereafter unavoidably arise; declaring, that as often as a vacancy or vacancies shall occur, by death, by change of residence, by change of pecuniary circumstances, or by immoral conduct," such vacancy should be filled up by the truster or his representatives.

The trustees accepted.

Subsequently, it having been represented that the law of England presented some technical difficulty in reference to vesting the railway stock directly in the trustees, Mr. Connell's agents proposed to the magistrates and town-council of Irvine that the same should be vested in their name as an incorporation. The council, on 8th June 1846, acceded to this request, and passed an act declaratory of the trust, and authorizing the burgh factor to uplift the dividends on the railway stock as they fell due, and to pay them over to the trustees-it being at the sametime declared, that the council were not to be held as guaranteeing the investment, but were only to be responsible for the actual amount of profits or dividends uplifted by them. On 15th September, Mr.

Connell, by a letter addressed to the trustees, nominated five persons as recipients of the fund, of whom the respondent was one. The transfer was ultimately made in name of the corporation of Irvine, though parties were not agreed as to the date when the transfer took place. With reference to this point the respondent stated, that, on 1st July, "a half-year's dividend on the railway stock became due; and the transfer to the name of the corporation of Irvine not having been registered in the books of the company, the dividend was paid over to Mr. Connell, who transmitted it to the trustees, from whom the respondent received her proportion, being £3." The answer made to this statement was-"Denied that the railway stock had not been transferred to the corporation of Irvine on 1st July 1846. Quoad ultra, not known to, and not admitted by, the complainers." In November, Mr. Connell transmitted the certificate of transfer to Mr. Brown, minister of Irvine. Thereupon the suspender Robertson, provost of the burgh, wrote Mr. Connell expressing his dissatisfaction, and representing that, as the stock was held in name of the town-council, that body were the proper custodiers of the certificate. Mr. Connell having declined to alter the arrangement, the town-council resolved

"That, until matters are satisfactorily arranged, they shall not interfere farther in the business; neither shall the town-factor interpose his name for uplifting any dividends which may become payable from the railway stock which forms the subject of the trust."

In December 1846, another dividend having become due, the secretary of the railway company forwarded to Mr. Dean, as factor for "the magistrates and towncouncillors of the royal burgh of Irvine," a bank order for the amount due. Mr. Dean wrote, in reply, that he was not authorized to receive the money, and returned the order indorsed to him. In these circumstances, the respondent presented a petition, in the small-debt court, to the justices of peace of Ayrshire, setting forth that the trustees by name,

"are owing the complainer the sum of £3 sterling, conform to account, which they refuse to pay, unless compelled.” The account libelled on was as follows:"The Rev. Andrew Brown, minister of the Established Church of Irvine, Alexander Robertson, and the other trustees by name-To Elizabeth Findlay, residing in Irvine. "To her proportion for half-year, due at the term of Candlemas last, of mortification denominated Connell's Benevolent Fund,' in terms of deed dated 7th March, and recorded in burghcourt books of Irvine 8th June 1846, and minute of council of last date......... £3 0 0"

The justices found the trustees liable in the sum libelled, with 7s. 5d. of expenses—

"reserving all competent relief to the defenders against others, and without entertaining the question of the custody of the coupon and other papers."

In this decision the minister and elders acquiesced; but the other trustees, for themselves personally and individually, and as a majority of the trustees, presented the present note of suspension.

The act 6 Geo. IV. c. 48, § 2, authorizes justices of the peace

to hear, try and determine, as shall appear to them agreeable to equity and good conscience, all causes and complaints brought before them concerning the recovery of debts, or the making effectual any demand, and that in a summary way." Provided always "that the debt or demand shall not exceed the value of £5 sterling, exclusive of expenses."

And § 3 provides

"That all such causes shall proceed upon complaint agreeable to the form in schedule (A) subjoined to the present act, stating shortly the origin of debt or ground of action."

And § 25

"That this act, or anything herein contained, shall not extend to any debt or demand where the title of any lands, tenements or hereditaments, or where any heritable right whatsoever, is brought in question, nor to any other debt, matter or thing, that shall or may arise upon or concerning the validity of any will, testament, or contract of marriage, although the same shall not amount to the sum of £5 sterling."

The Lord Ordinary repelled the reasons of suspension. The nature of the argument is indicated in his Lordship's note, which was as follows:

"That such a litigation as this should have occurred, is very distressing. It is quite clear that, but for the question as to the right of the provost and magistrates of Irvine to the possession of certain papers, and the disputes thence arising, there never would have been any litigation in the matter. The complainers would have had in their hands the funds which were benevolently destined by Mr. Connell to be applied to the support of the respondent and others; and thus the interests of these poor persons have, in the meantime at least, been seriously injured by the hostile position in which those who (in the separate parts assigned to them to perform) were to be the instruments for carrying Mr. Connell's donation into effect, came to stand to each other. To whosoever conduct, whether that of Mr. Connell, or the provost and magistrates, or the complainers, the difficulties in regard to the management of the complainers, as trustees, are either wholly or partially imputable, it might have been expected that some interim arrangement would have been made between the complainers and the provost and magistrates, pending the ultimate adjustment of differences, which would have enabled the fund to go on in its appointed course of distribution, and prevented the interests of the beneficiaries under the trust from being prejudiced--(for the Lord Ordinary must conclude, that as the respondent has not been paid her annuity, so neither have the other parties similarly situated)- which interests are really the substantial ones, and of a very different character indeed from those but for the agitation of which the present proceedings would, it is to be presumed, never have been heard of. But it would appear that the provost and magistrates absolutely declined to assist in enabling the dividend on the stock to be received, so that it might, through them, as the appointed channel, come to the hands of the complainers, the trustees of the fund. Whether the complainers could in any other way have got the dividend, or whether, under the circumstances, they were, at any rate, bound in law to pay the annuitants, is not a question which here presents itself to be disposed of. Nor does the Lord Ordinary enter into the consideration, whether this litigation is truly more than the mere endeavour of a poor annuitant to make good her alleged right. Throwing all that aside, the question is, whether the claim of the respondent for a half-year's annuity, as insisted in before the justices in the small-debt court, was within their jurisdiction or not.

"1. Now, in the first place, the Lord Ordinary thinks that the plea, that the provision of the statute, in regard to stating the origin of the debt or ground of action, was not observed, is unfounded. Taking the complaint, together with the account therein referred to, and which forms a part of it, that requisite of the statute seems to have been sufficiently complied with. "2. In the second place, it is conceived that the objection, that the respondent's debt or demand truly exceeded the sum of £5, to debts or demands of which amount or value the jurisdiction is limited, cannot be sustained.

"The right given to the respondent is an annuity of £6 a year, which the trustees are directed to pay over in yearly or halfyearly payments. It is said that this makes the debt or demand one of £6, and that, although a party may no doubt, by restricting a claim which exceeds £5 to that on a less sum, and absolutely giving up the remainder, render it competent to sue for it in the justices small-debt court, that is not the state of the present case; the demand for £3, as a half-yearly payment of the annuity of £6, being manifestly no restriction of the respondent's claim, which is still kept up to the annuity of £6 in full.

"But (1st.) when the annuity is made payable yearly or halfyearly, it would be difficult, it is apprehended, to hold that the

annuity was so essentially indivisible, that any demand for a half-year's annuity, or for anything short of the whole sum of £6 brought into the small-debt court, must be considered as a mere evasion, for the purpose of escaping from the effect of the provision of the act confining the jurisdiction to debts or demands not exceeding £5. And if that cannot be held, then, where £3 is sued for as a half-year's annuity-being a sum clearly within the jurisdiction-it is truly a question upon the merits, whether the complainers were liable to pay the annuity half-yearly or not. (2d.) And in addition to this, it is averred, that the first half of the year's annuity had been paid to the respondent by the complainers, which, although not admitted by them, is not denied. They answer to the respondent's averment, "Not known, and not admitted." But the fact must have been within their knowledge, and they were, therefore, bound to have denied it, to deprive the respondent of her averment being taken to be true. Taking it to be so, then, whatever might be contended with respect to subsequent years' annuities, it cannot, it is supposed, be soundly maintained, that for the second half of that year's annuity, of which the first half-year had been paid, the jurisdiction of the justices was excluded, on the ground that the respondent's debt or demand was one of £6, and, consequently, not recoverable in the small-debt court.

"3. In the third place, and assuming the objections which have been adverted to, to be unfounded, however strong the Lord Ordinary's impression may be that the respondent's debt or demand was such, and sued for in such circumstances as to render it having regard to the matters which might arise for discussion, and require to be disposed of in deciding the merits of the claim-one very far from being fitted for adjudication in the justices small-debt court, he has been unable to discover any satisfactory ground on which it can be held that the debt or demand was not within the jurisdiction of the justices, and that it was, therefore, incompetent for them to try and determine the cause as brought before them by the respondent.

"The grant of jurisdiction, as conferred by the statute, is of the broadest and most comprehensive kind-subject to the provision, that "the debt or demand shall not exceed the value of £5; and the exceptions from the general grant are specially and explicitly set forth. Of course, had the complainers been able to bring the respondent's claim within any of the exceptions, that would have been sufficient to show that the justices' jurisdiction was excluded. But they have not done so to the conviction of the Lord Ordinary. He does not think that the respondent's claim brought any matter of heritable right into question; nor was it a debt, matter or thing, arising upon, or concerning the validity of, any will, testament, or contract of marriage;' for Mr. Connell's trust, on which the claim is founded, is, properly speaking, neither a will or testament. And even granting that the trust may in some respects partake of the character of a will or testament, there is no question as to its validity. The validity of the trust is not disputed. The complainers have accepted and acted as trustees; and it cannot be, and is not even alleged to have been, contested before the justices that the trust is invalid, whatever difficulties may have" occurred in its management or administration.

"The cases of Lindsay, 23d June 1826, 4 Shaw 736, new edition, and Millar, 14th Nov. 1840, 3 Dun. 65, manifestly involved matter not competent to be tried before the small-debt court. The court had clearly no jurisdiction. In the present instance, nothing of the kind appears from the proceedings. They were all in regular form, as required by the act; and, so far as appears from them, the debt is one competent to be recovered before the justices. That being so, the case of Henderson v. Wilson, 18th January 1834, as reported in the Faculty Collection, may be referred to as illustating the view which the Court has taken, where proceedings before the justices, under the statute in question, have been sought to be quashed or set aside on the ground of incompetency or want of jurisdiction."

The suspenders reclaimed.

Lord Justice Clerk.-I do not think I ever saw such a case as the present. This, properly speaking, is not a suspension by the trustees of Connell's fund, but by certain members of the town-council, on the most absurd and frivolous grounds. The dividend is actually sent down by the secretary of the railway to the town-council, and then, because of this foolish piece of humour with Mr. Connell as to the possession of a document of no use to them, they refuse to uplift the dividend, and so this poor woman is not allowed her little pittance. The only use of

a certificate was in case of a sale of the stock. They say, we do not intend to sell; and because you suspect we are going to do that which we are not, therefore we must have this document, which would enable us to do it. It seems very natural that Mr. Connell should wish to give this document to the kirksession. Then, what are the grounds of the suspension. It is said that this, being an annuity, is an heritable right. Why, the whole doctrine that an annuity is heritage belongs to the law of succession alone. Besides, this is not a proper annuity; it is simply a payment to certain persons so long as the truster chooses. He does not divest himself of the power of turning off any one from the fund, and the trustees could do so also. Then, as to the objection that it is a right involving a term of years, we know that actions have been sustained which involved the payment of aliment to a child till he should be of age to support himself, where the paternity was not disputed. The grounds of suspension seem to me as frivolous as the subject of the quarrel in which the whole matter originated.

Lord Medwyn:-I think the proceedings were quite competent. I am sorry to see such a case in this Court.

Lord Moncreiff. I am of the same opinion. I see no cause for this quarrel; and I cannot but think Mr. Connell has been somewhat hardly dealt with.

Lord Cockburn.-I am of the same opinion; but I say nothing as to the point, whether the magistrates should have been put in possession of this deed or not.

The Court adhered.

Lord Ordinary, Wood.-Act. Inglis, J. A. Wood; L. Mackintosh, S.S.C. Agent.-Alt. Gordon, Tytler, A. Campbell; Andrew Stein, W.S. Agent.—W. Clerk.—[W.G.T.]

22d November 1849.

FIRST DIVISION.

No. 14.-GEORGE MACINTOSH and others, Pursuers and Suspenders, v. THE TRUSTEES OF THE WEST STIRLINGSHIRE TURNPIKE-ROADS, Defenders and Respondents.

Clause-Construction-Turnpike Act-Held, upon the construction of certain local road acts, empowering turnpike-road trustees "to make and alter, widen, improve, repair and maintain," certain statute-labour roads “as turnpike-rouds," that the extension of their breadth to the minimum of twenty feet required by the General Turnpike Act was not a condition precedent to the trustees' right to levy toll-the trustees having assumed these roads as turnpike-roads under their management.

The local act 3 and 4 Vict. c. 101, provided, (§ 7), that the defenders, as turnpike-road trustees,

"shall be, and they are hereby authorized and empowered to make and alter, widen, improve, repair and maintain, as turnpike-roads, the new and improved roads, and the statute-labour roads following, namely."

The roads enumerated passed through the western district of Stirlingshire.

The 8th section of the act provided, that their conversion into turnpike-roads should not take place without the consent of the statute-labour trustees. This latter provision was repealed by another local act, 5 Vict. c. 11, which farther provided, (§ 10)

"That in case the trustees shall not, within the space of two years from and after the passing of this act, (22d April 1842), exercise the power, granted to them by said recited act, of assuming and making turnpike the foresaid statute-labour roads, then and in such case the power granted to them for said purpose shall cease and determine."

The former act, which was maintained in full force so far as not repealed by the second, provided, by its 17th section, that

"the trustees hereby appointed, or any person or persons duly authorized by them, shall be, and they are hereby authorized and empowered to demand and take, or cause to be demanded and taken, at the several toll-bars or turnpike-gates already

erected, or which may hereafter be erected, on the several roads hereinbefore authorized to be made, altered, widened, improved, repaired and maintained, a sum not exceeding the rates and duties after specified," &c.

The 24th section provided, that all roads falling under this statute should be subject to the provisions of the general act.

The General Turnpike (Scotland) Act 1 and 2 Will. IV. c. 43, provides, (§ 61)—

"That the trustees of all turnpike-roads shall have power, and they are hereby authorized to widen and extend all such turnpike-roads, so as the same shall be in all places twenty feet of clear passable road, exclusive of the bank, ditch and fence, on either side thereof-twenty feet being hereby declared to be the least legal breadth of a turnpike-road."

At a meeting of the defenders, held on 1st June 1842, it was unanimously resolved, that certain of the roads mentioned in the above local acts

"should be assumed and rendered turnpike, in terms of the powers contained in the acts of parliament."

Toll-bars were immediately thereafter erected by the defenders, as turnpike-road trustees, on the roads referred to in the foregoing resolution.

The pursuers were parties making use of these roads. They resisted the exaction of tolls on the ground that the roads were not completed as required by the general act; more especially, that they had not the statutory minimum breadth of twenty feet. They raised a suspension and interdict, and a summons of declarator, for the purpose of trying the question, whether any tolls could be levied by the defenders, the roads in question not having been completed and widened, as required by the general act, within the two years allowed by the local act. The conclusions of the summons were as follow :

"That the period of two years allowed to the defenders by the said act of the 5th of our reign, session 2d, c. 11, for the defenders exercising the power of assuming and making turnpike the foresaid statute-labour roads, expired on 22d April 1844; that the defenders did not, within that space, assume and make turnpike both or either of these roads, and that, in consequence, the power granted to them for said purpose did then cease and determine; and that neither of the said two roads is turnpike; and that the defenders are not, and never were, entitled to levy, exact or demand, any toll-dues or rates, or to make any other charges for the use of the said roads, or to erect or keep up bars thereupon; and the defenders ought and should be ordained to discontinue and desist from making such levies, demands or exactions, upon or for the use of the said two roads, or any of them, and to remove the said bars therefrom; and the defen. ders should be interdicted and prohibited, in terms of the prayer of the said note of suspension and interdict, from making such erections, levies, demands or exactions, in future: And it ought and should be further found and declared, by decree foresaid, that no operations by the defenders on the roads after the expiry of the said two years, and still less any after 4th December 1846, when the judicial proceedings commenced, can or do affect the defenders' right to levy tolls, upon or for the use of the said two roads, or either of them, or the question, whether the same are or are not turnpike, and that the defenders, the Trustees of the First of the West Stirlingshire District of Turnpike-Roads, and John Findlay as their clerk, and for their behoof, and David Sym their tenant, have not, and never had, any legal right or title to demand, levy or exact, any toll-dues or rates thereon, and are bound and liable to make repetition and repayment to the pursuers of the whole sums levied, or to be levied, from them respectively, at any of the bars upon either of the said two roads, for the use of such roads, or at least for all sums so levied, or to be levied, from and after 4th December 1846."

The Lord Ordinary pronounced the following interlocutor:

"23d December 1848.-The Lord Ordinary having advised the cases for the parties, and resumed consideration generally of the records separately closed in the two processes of suspension and declarator, (since conjoined), with the report of Mr. Thomas Kyle, statutes libelled, productions, and whole causeFinds, Imo, That, by 1 and 2 Will. IV. c. 43, § 61, 'twenty feet' is expressly declared to be the least legal breadth of a turnpikeroad,' and this (as further explained and defined) 'so as the same shall be in all places twenty feet clear of passable road, exclusive of the bank, ditch and fence, on either side thereof:' Finds, 2do, As regards the particular roads here in question, that, by neither of the local acts referred to, are they directly and specifically declared or rendered turnpike; but, on the contrary, both of the said local acts are, in their whole terms, confined to a mere investing of the trustees therein named, with powers to make and alter, widen, improve, repair and maintain,' the said roads, along with certain others, 'as turnpike-roads;' and finds that, on a sound construction of the said local acts, it was a condition precedent to the said roads becoming turnpike, in the full legal sense, that they should be made and completed so as in all places to be at least of the statutory and legal breadth of twenty feet of clear passable road, as explained and defined in the General Turnpike Act: Finds, 3tio, That the roads in question, besides being otherwise objectionable, and at variance with the requirements of the General Turnpike Act, have never been made and completed so as to be, and that they are not now, of the said statutory and legal breadth, and, consequently, that they have never been, and that they are not now, entitled to the character or privilege of lawful turnpike-roads: Finds, 4to, That the defenders being limited, in the exercise of the statutory powers conferred upon them as aforesaid, to the space of two years from and after the passing' of the latest of the said local acts, viz. from and after the 22d April 1842, the right to exercise said powers, and to assume and make turnpike the said roads, did, on and after the 22d April 1844, in terms of the said last mentioned act, 'cease and determine:' Finds, finally, that, in these circumstances, the chargers and defenders had not, at or since the date of instituting the present challenge, and have not now, any legal right or title to erect toll-bars, or to levy tolls upon the said roads, or either of them, as being turnpikeroads: And, therefore, on the whole matter-in the suspension and interdict, sustains the reasons, and suspends and interdicts as craved, and decerns: And, in the declarator, finds, decerns and declares, in terms of the conclusions of the libel, with the exception, in the meantime, of the conclusion for repetition of the tolls levied from and after 4th December 1846, being the date of the first deliverance on the note of suspension and interdict, as to which appoints the cause to be enrolled for further hearing; and except as regards any expenses connected with the question of repetition, which also in the meantime reserves: Finds expenses due in both processes; appoints accounts thereof to be given in, and remits the same to the auditor of Court for his taxation and report.

"Note.-It is with reluctance the Lord Ordinary has pronounced this interlocutor, considering not only how very far its principle carries when reduced into practical operation, but likewise how narrow in itself is the whole ground of distinction on which the more important findings of the judgment turn.

"Had the present question arisen with reference to any already existing and acknowledged turnpike, whether expressly created and declared to be such by local statute, or falling within the more general recognition and authority of the general road act, he should certainly have been disposed (as in the cases decided by the Sheriffs both of Perth and Edinburgh, and on the same grounds which appear to have satisfied these learned judges) to construe and apply the statutory enactment 1 and 2 Will. IV. c. 43, § 61, as, in that case, merely remedial. For it is assumed, in the statutory words, that there do exist turnpikes, having legal authority as such, of a breadth less than twenty feet; and it is for the very purpose of widening all of this class that the powers conferred by the statute are given.

"But the local statutes in the present case do not of themselves create or declare the roads in question to be turnpike. Neither do they at once, and vi statuti, confer upon them privilege as such. All that they do is, to empower the trustees to make, widen, and maintain them as turnpike. But in this is implied, as the Lord Ordinary conceives, that the trustees are to make them of the minimum breadth which the statute declares to be necessary for constituting a legal turnpike-where not otherwise specifically declared and recognized to be already turnpike,

though not fulfilling this condition. And the trustees not having done this, the conclusion to the Lord Ordinary humbly seems inevitable, that the roads which were not turnpike-roads at the passing of the statute, and which the statutes themselves did not convert into or recognize as turnpike, and which have not to this hour been widened to the statutory standard, are not, and have never been, constituted into legal turnpikes.

"The distinction upon which the Lord Ordinary thus holds the case to turn raises much the same kind of question, in point of legal principle, as would have arisen under local statutes empowering the trustees to make a turnpike-road between certain termini-if the trustees had fallen short in completing the road, at one or both of the termini, to its full statutory length. In such a case, the rule is undoubted, that, in obtaining the statutes, 'there is a bargain with the public'-that the trustees have these powers given to them in respect of the whole undertaking mentioned in the act, and that that must be completed'--that 'if any part of the work contemplated is undone, the whole must be considered undone'—and, in short, that the completion of the line of road, and of all its parts, must be considered a condition precedent' to the attaching thereto of the statutory protection and privilege as a legal turnpike.

"These principles will be found well illustrated and brought out in several English cases, particularly in Rex v. Inhabitants of Cumberworth, 4 Ad. and Ellis, 731; Rex v. Inhabitants of Edgelane, Ib. 723; Rex v. Inhabitants of Cumberworth, 3 Barn. and Ad. 108. And that they no less expressly apply, as making part of the law of Scotland, is to be gathered from many authorities in our own books, some of which accordingly have been noticed by the parties in their printed argument.

"The conclusion at which the Lord Ordinary arrives is this, that as, towards making a legal turnpike, it must not less be a condition precedent that it be made of the legal statutory breadth, than that it be made of the legal statutory length, the roads here in question, as falling short in the first of these indispensable and statutory requisites, have not hitherto been duly converted into turnpike roads."

The defenders reclaimed.

Anderson, for the defenders, argued─We are entitled to levy tolls on roads "authorized to be made" turnpike-roads. We have within the two years authorized these roads to be made turnpike-roads under the statute, and are therefore entitled to levy tolls.

Lord Advocate, for the pursuers, argued―The trustees must do something before tolls are levied, and they have two years to do it in. They say that this something to be done is merely an entry in their minutes. We say that it is the making of the roads by the mattock and spade. Besides, the second act of parliament says the roads must be "assumed and made." Has the word made no meaning?

Lord Justice-General.—I would have great difficulty in adhering to this interlocutor. Had the challenge been brought at the first, there would have been much difficulty whether tolls could at once have been levied before the road was of the requisite statutory breadth. But the roads have been two years in the management of the turnpike-road trustees, and they must have expended money upon them. This acquiescence places the challenge now made in a very unfavourable aspect. We must, how. ever, decide according to the true meaning of the statutes.

These trustees have power to make new roads, and also to take possession of old statute-labour roads, and to 'make' them turnpike-roads. A good deal of contention has arisen as to the meaning of the word 'make.' It has been said that means actual construction of the road. Suppose they were making a new road, they could be interdicted from making it less than twenty feet broad. It is said that here the roads must be made to that breadth before they can levy tolls. There I differ from the Lord Ordinary. There is no such rigid phraseology in the statute. I think if trustees, within the two years, set about assuming statute-labour roads, and labour at their conversion into turnpike-roads, they are to be allowed to proceed in the discharge of their duties. One of these is to raise funds for improving the roads by imposing tolls. No doubt they have duties as well as rights. They must complete the roads according to the requirement of the statute. I have considered the English case

which has been referred to, but I do not think it in point. I

cannot concur.

Lord Mackenzie.-This is a case of difficulty, and I cannot agree with the Lord Ordinary. The statute is awkwardly expressed. It does not expressly provide that the roads are to be made turnpike by assumption; but the reasonable interpretation of the statute is, that this assumption must be implied. Without assuming the roads, these trustees could not do all they are required to do. The act does not make these roads turnpike vi statuti; it gave the power of assuming them. They were to be assumed first and foremost, and then all the directions of the statute, as to making, widening, &c., were to be complied with. It is said, on the other side, that these roads were not to be turnpike at all till they were turnpike out and out. Is that a reasonable or practicable interpretation? It would lead to this, that if the roads were not completed within two years, they were not turnpikes at all, but would go back to the statute-labour trustees, with all the labour expended on them within the two years. I cannot hold that to be the meaning of the statute. No doubt there was a power of compelling roads, assumed under the statute, to be made twenty feet broad. But where is there any authority for holding that a turnpike-road less than twenty feet in breadth shall fall out of the list of turnpike-roads? It would lead to this, that wherever a turnpike-road, at particular portions, became narrower, there it ceased to be turnpike. soon as they assumed them under the statutory powers, they were bound to broaden them. If at any point the road was less than twenty feet, it was not thereby disturnpiked; but there was an obligation to make it broader. That is the view which occurs to me. Any one may say to the trustees, You have assumed the road-you are therefore bound to make it broader.

As

At

Lord Fullerton.-I am of the same opinion, and without difficulty. I think the plain reading of the statute is, that the word 'as' must be read in connection with all the words which precede it. These roads are to be dealt with as turnpike-roads, in the various operations of making, repairing, widening, &c. first, the consent of the statute-labour trustees was necessary; but the second statute took away that necessity. They made them turnpike-roads by putting turnpikes upon them. When they took them under their management, they required funds to meet the expenses of that management. The Lord Ordinary says, You can't assume them to be turnpikes, because they are not twenty feet broad-that is a condition precedent. The statute would be quite inextricable if this were so. The trustees had power to widen the road assumed by them; any one having interest might come forward and compel them to do so. But the statute contains no declaration that a road not twenty feet broad shall not be a turnpike. If, within the two years, they entered upon the management of them, and erected turnpikes upon them, that was making them turnpike-roads; and, by doing so, the trustees exposed themselves, no doubt, to a requisition to make them twenty feet wide. I see that the same construction of similar acts was adopted by Lord Abinger and Baron Rolfe in the English case referred to. Here, the trustees did assume the road as a turnpike-road within the two years, although they did not broaden it. To hold the widening as a condition precedent, would make the statute quite inextricable. They must have expended funds in widening it; yet they cannot expend funds on a road which is not turnpike. It would follow that no road could be made turnpike unless the road had previously been made of the proper width. How can a road be widened by the turnpikeroad trustees unless it be previously assumed as a turnpikeroad? These trustees, by entering de facto upon the management, by putting on toll-bars, and by expending money on the road, and all this within the two years, did make it a turnpike-road, and are, therefore, entitled to levy toll upon it.

Lord Jeffrey.-This is a case of some nicety and novelty; but, on the whole, my impression is rather in favour of the Lord Ordinary's view. This is a question upon the construction of certain local acts. They must, I think, be read as if the general act was incorporated with them. Under these acts, there are three descriptions of turnpike-roads to be made, and managed as such. There are, first, new roads; secondly, statute-labour roads; and, thirdly, turnpike-roads existing under previous statutes. Now, my impression is much strengthened, and the difficulties adverted to by your Lordships are to a great extent removed, by considering the application of those words to the first classthe class of new roads. The power to make these roads must be read, in the local act, as if the provision in the general act had followed the enactment; as if, immediately after saying