Kinnear & Company, December 21, 1883, 11 R. 387; Findlay v. Angus, January 14, 1887, 14 R. 312; Cormack v. School Board of Wick and Pulteneytown, June 21, 1889, 16 R. 812. A person was bound to have his premises and machinery so as to be safe for the public legitimately using them-Brady v. Parker, June 7, 1887, 14 R. 783-and it was no defence to say he had employed a capable tradesman-Cleghorn v. Taylor, February 27, 1856; Campbell v. Kennedy, November 25, 1864, 3 Macph. 121; Tarry v. Ashton, January 24, 1876, L.R., 1 Q.B.D. 314; Francis v. Cockrell, February 21, 1870, L.R., 5 Q.B. 181. Besides, Sangster here did not say he had applied heat, although he said that that was the only thorough method of testing. If he had employed that method the defenders would have elicited the fact from him. More careful and more frequent inspection would have discovered the defect.

At advising

LORD PRESIDENT-The Sheriff has found it proved that this crane fell "in consequence of its being defective and insufficient, and that said insufficiency was due to the fault of the defender," and he has fully explained the grounds of his judgment. I desire specially to refer to the passage in his note where he says "Res ipsa loquitur. A crane does not come down when lifting nothing without some cause. It is not for the injured person to explain what the cause was. It is for the owner to show that the crane was not defective when first put up, and that there had been no want of supervision to detect any supervening flaw. I acquit the defender of any failure on the latter head. I think his foreman did examine it periodically without detecting any signs of weakness, but I think he has failed to prove that in the selection of material for its construction, adequate care was taken to insure its strength and guard against the possibility of accident when it was re-erected in 1889." Now, as that passage is somewhat absolutely expressed, it is perhaps well to say that I do not read it as intended to lay down a general doctrine of law, and certainly as such it could not be supported. It is certainly not, as a general rule, for the owner to show that his appliances are not defective when an accident occurs, the burden of proof is on the person coming to the Court and alleging fault. Accordingly I read this somewhat general statement along with the more specific passage on the preceding page, where the learned Sheriff says "According to Mr Garvie, a witness for the defender, who examined the lower strap after the break of 1891, the right hand side at the breakage was fibrous, and the left hand side crystalline, and there was a crack distinctly visible which had existed for a length of time. Assuming, then, that the pursuer's witnesses are wrong in thinking that the strap was too light for the work it had to do, I see no answer to the argument that Mr Sangster, when he had the defender's instructions to give the crane a complete overhauling, should have dis

carded both the old straps, and not run the risk of again employing the one which had not given way, but which has led to a second accident exactly the same as the first.'

Now, the first question to be determined is, what was in fact the cause of the collapse of the crane? The Sheriffs are at one on this matter, for the Sheriff takes the same view as that expressed by the Sheriff-Substitute in his fourteenth finding in fact, which is to the effect that the strap broke through the iron becoming crystalline. I am willing to take that view of what is more or less a speculative question. It appears that the iron did become crystalline and it seems to have been the general opinion of the witnesses that that would account for the accident. I say this because the case on the record does not specify that as the cause of the accident. Indeed, there is exceeding vagueness in the theory of the pursuer as stated on record. It is very much just the view suggested in the more general passage in the note of the Sheriff, res ipsa loquitur. Condescendence 3 says"The cause of the accident was the snapping or giving way of an iron band which fastened one of the crane stays to the ground, and the defect"-it is not stated what the defect was-"could have easily been discovered upon a fit and careful examination of the crane by the defender."

Taking the case, then, as I have said, on the assumption of both the Sheriffs, that the strap broke from its internal portion collapsing through the crystallisation of the iron, where was the fault on the part of the defender? The reasoning of the Sheriff rests on the fact that another strap in a different part of the crane had given way previously, and the cause of its failure had been found to be the crystallisation of the iron. He says, inasmuch as one strap had collapsed through the iron becoming crystalline, there was fault on the part of the defender in not removing the other strap which would in all likelihood crystallise also. I cannot assent to this reasoning. Prima facie, the two pieces of iron have no connection with each other except in so far as they both are artificially made parts of one structure. That does not raise the inference that because one piece is bad, the other must have a similar infirmity. There is no evidence in support of that conclusion, which, apart from evidence, seems a somewhat crude and superstitious apprehension, rather than a scientific deduction. The defender, I think, took a more practical view of the case when he handed the crane over to Sangster, a very competent engineer, to be overhauled; he says that he examined the strap now in question, passed it as sound, and used it in the reconstruction of the crane. In doing so the Sheriff finds the defender was in fault. A curious feature of the case is, that a very close inspection in 1889 could at most only have detected a crack, and that crystallisation probably did not exist in 1889 but existed for a very much shorter period. The pursuer's case therefore fails unless the defender was bound to discard

all the iron on the crane because one piece was found to be in a somewhat uncommon condition. The defect was latent, and the facts do not sustain the view of the Sheriff, that in reconstructing the crane in 1889 there was any negligence on the part of the defender or on the part of Sangster in retaining this strap as part of the renewed

crane.

The defect being latent, it was for the pursuer to establish either that it was in the original structure and that the defender was bound to examine and test for such defects on the crane coming into his possession, or else (on the theory that it was a supervening defect) he was bound to make out that there was a duty of periodical inspection which would have revealed its existence, and that the defender failed to provide such periodical inspection. On the first point the pursuer has failed. There was very little argument upon the second, the witnesses agreeing that if there was a thorough inspection made in 1889 there was no need to have another inspection before 1891 when the accident happened.

I am of opinion that we should recal the interlocutor of the Sheriff and revert to that of the Sheriff-Substitute.

LORD ADAM-In this case the question of onus is not important, because we know the facts and we must decide the case according to the facts ascertained.

A person who meets with an injury and claims reparation must show that there was fault on the part of the defender. It has been held in some cases, as the Sheriff says, that res ipsa loquitur, but the res can only speak so as to throw the inference of fault upon the defender in some cases where the exact cause of the accident is unexplained. That does not arise in the least here, because the cause of the accident has been ascertained to have been the state of the iron of the strap which was defective in two respects. Its substance had crystallised, and there was an external crack. It is, however, material to note that these two states have no connection with each other. As regards the crystalline nature of the iron, that was beyond doubt a latent defect which nothing less than heating would have disclosed, and it was probably that state of the iron which led to the accident and not the crack, which apparently was merely a surface crack. If there is no doubt that the crystalline nature of the iron caused the accident, the question of the crack is immaterial. But suppose the question of the crack were important, it is said examination would have disclosed it, and for not so examining it the defender must be held responsible. That that examination would have revealed it is more than doubtful. The foreman was in the habit of examining it, and the evidence for the pursuer as well as for the defender provides that if the crane came back from a competent engineer in 1889 as it did, there was no need before 1891 for such an examination as would alone have disclosed the crack, viz., an examination by scraping

off the paint. I think therefore there was no fault on the defender's part on that ground.

The fault found by the Sheriff was not insufficient examination or that examination would have disclosed defects in the crane, but he finds fault in the defender's treatment of the crane in 1889. At that time one of the four straps was found to be in a similar state to that in which this strap was at the date of the accident, and he says a man of skill ought to have drawn the inference that the other three straps were in a similar condition, and ought de plano to have discarded them all. Whether he would carry his argument so far as to say he ought to have discarded all the iron about the crane, and not merely the four straps, I do not know. I cannot follow that reasoning, and I cannot affirm the Sheriff's view that there was fault on the defender's part in not rejecting all the straps in 1889. I think we must believe Sangster when he says that he then examined all the straps including this one, and that there was no fault in the defender after that continuing to use them. I am of opinion we should revert to the judg ment of the Sheriff-Substitute.

LORD M'LAREN- Everyone will agree that when a pursuer comes into Court with a claim for damages for personal injuries he must prove the negligence which he avers. I do not think that the Sheriff meant to lay down any law to the contrary, but there are expressions in his note to the effect that it is enough for a pursuer to prove that there was a fault in the machinery-it may be a latent defect-and then it is for the defender to exonerate himself of

responsibility for the fault. That is an inversion of the true rule, and although here the question of onus is not material since we know the facts, it may be material in other cases.

Where the defect is latent the pursuer must prove that it was known to the maker or user, or that it was discoverable by careful inspection. The crane here was a comparatively new one. It was erected in 1887, four years before this accident happened, and in consequence of one of the guy-straps having given way in 1889 the crane was taken to pieces and re-erected. At that time it was given back to the defenders as substantially a new crane, and two years thereafter the accident in question occurred. One of the pursuer's witnesses, Henderson, says that "in the case of a young crane a competent foreman would go over the iron work every two years." Now, as only two years had elapsed since the crane had been overhauled, it is evident from the pursuer's own case that there was no omission of necessary supervision or inspection. The cause of the breakdown was, as far as we can see, the general disintegration of the iron of the strap when passing into a crystalline state. But whatever the cause was the injury appears to have been the result of a pure misadventure, for which no one is responsible.

v. Robertson's

Di

Trust-Disposition and Assignation vestiture of Truster-Contingent Right of Beneficiary-Subsequent Revocation.

A truster by trust-disposition and assignation conveyed certain subjects, including certain policies of insurance, to trustees for the purpose, inter alia, of paying a sum of £500 to his nephew out of the proceeds of the policies to be received after his death. It was declared that the beneficiary should have no vested interest until payment. The truster bound himself to keep up the policies. He completely divested himself of the estate conveyed, and reserved no power to revoke. Subsequently, on the narrative that the obligation in favour of his nephew was quite gratuitous, that his nephew's circumstances had improved while his own estate had become materially reduced, and that to give effect to the provision of the trust in question would unfairly prejudice his wife and children, who would now necessarily be seriously affected by the change in his circumstances, he revoked the said gift. The truster having died, and his trustees having received payment of the proceeds of the policies, it was held that the nephew was entitled to receive payment of £500, the truster having had no right to revoke the provision in his favour.

The late John Robertson, Elmwood Villa, Pollokshields, Glasgow, by trust-disposition and assignation, dated 21st November 1881, and recorded in the Books of Council and Session the 4th day of February 1890, on the narrative that he was, at the date of granting said deed, in solvent circumstances, and that he regarded himself as morally and legally liable to the persons thereinafter named for the sums thereinafter mentioned, and that he was desirous of making a suitable provision for his wife and children, with consent of his wife, the said Mrs Jane Ross or Robertson, disponed and made over to her, and James Robertson and David Robertson, his two sons, and William Mathie, No. 15 South Park Terrace, Hillhead, Glasgow, and to their legal suc

cessors, as trustees for the ends, uses, and purposes therein mentioned, and to their assignees and disponees, certain heritable subjects, stocks, and insurance policies, and bound himself to make payment to the trustees of the future contributions required to keep the said insurance policies in force, and delivered up the policies to them to be used as their own proper writs and evidents. By the trust-disposition and assignation the truster declared that his trustees should hold and apply the trust-estate thereby created, and the annual interest or produce thereof..."(Third) in payment to my nephew James Henderson Robertson, Paterson Street, Glasgow, of the sum of £500 sterling, . . . which payment . . . I direct my trustees to make so soon as they receive payment of the proceeds of the insurance policies." These policies were all payable after the truster's death. The truster further declared "that none of the provisions herein before made in favour of any person shall become vested interests in such persons until the terms of payment thereof." The trust-deed contained no power of revocation, but the trust-disposition and assignation was delivered to the trustees, who all accepted office, conform to minute dated 23rd November 1881, and the deed was then intimated by the trustees to the insurance companies, and the trus tees also completed titles in their favour to the heritable properties conveyed to them by the trust-disposition and assignation.

On 7th September 1887 John Robertson, with consent and concurrence of Jane Ross or Robertson, his wife, executed a deed of revocation with the following narrative:"Considering that since the granting of the trust-disposition and assignation the value of my estates, heritable and moveable, has been so materially reduced as to render the provisions therein contained in favour of certain friends and relatives, out of proportion to the residue which would remain as a provision for my wife and children, and considering further that the circumstances of some of the friends and relatives have since the granting thereof improved to such an extent as to relieve me of the feeling of obligation to make provision for their support to the extent therein provided, and that in the case of my nephew James Henderson Robertson the considerations which led to my making a provision in his favour have ceased to exist; and considering further that the provisions therein in favour of the said James Hender son Robertson and the beneficiaries after mentioned were purely gratuitous on my part, and were made solely because of favour and affection for them, and that the same have not become vested interests in them.' By the said deed of revocation John Robertson, inter alia, revoked, rescinded, and recalled the direction to his trustees to pay to his nephew James Henderson Robertson the sum of £500 sterling, and declared that he should not be entitled to participate in any part of his means and estate falling under the said trust-disposition and assignation or outwith the same. The deed of revocation

v. Robertson's

also contained this clause-"And I hereby further provide and declare that these presents shall be read and construed as a portion of the said trust-disposition and assignation, and which trust-disposition and assignation, so far as inconsistent herewith, shall be, and the same is hereby revoked, rescinded, and recalled." The said trust-disposition and assignation, along with the deed of revocation, were all recorded in the Books of Council and Session on 4th February 1890.

The truster died on 22nd June 1891, and his trustees thereafter received payment from the insurance companies of the amounts contained in the policies.

In October 1891 James Henderson Robertson brought an action against the surviving and acting trustees of the late John Robertson for payment of £500, in which he pleaded-"(1) In respect of the terms of the trust-disposition and assignation libelled on, and the payment to the defenders of the proceeds of the policies of insurance, the pursuer is entitled to decree as concluded for. (2) The trust-disposition and assignation founded on by the pursuer was irrevocable in respect of the terms thereof, and that the same was delivered."

The defenders pleaded-"(2) The provision in favour of the pursuer condescended on being revocable by the truster during his lifetime, and the truster having validly revoked the same during his lifetime the defenders ought to be assoilzied. (3) The trust-estate being insufficient to satisfy the purposes of the trust, the provision in favour of the pursuer, if held to be irrevocable and unrevoked, is subject to abatement along with the other provisions of the settlement, pro rata, and that after payment of the expenses of administration.

Upon 6th January 1892 the Lord Ordinary (KYLLACHY) pronounced the following interlocutor; "Sustains the second plea-inlaw stated for the pursuer, and repels the second plea-in-law stated for the defenders; and with reference to the defenders' third plea-in-law, appoints the case to be put to the roll for further procedure: . . . Grants leave to reclaim."

Opinion.-The question in this case is, whether a certain trust assignation of certain policies of assurance and heritable subjects executed by the late John Robertwas revocable, so as to have been effectually revoked by a subsequent deed of revocation which he executed.

son

"I have considered the argument which I heard on this question, and have referred to the authorities cited, and also to the more recent case of Mackie's Trustees, 10 R. 746 and 11 R. (H. of L.) 10, in which some of these authorities were considered. In result I have come to the conclusion that no sufficient grounds exist for holding the deed revocable. It is not, it will be observed, a conveyance of the truster's whole estate or of the whole estate belonging to him at the time of his death. On the contrary, it is a conveyance of specific subjects, including no doubt policies of assurance payable at death, but including also various heritable properties, and with respect even

VOL. XXIX.

to the policies, conferring upon the trustees certain rights prestable against the truster during his life. It cannot, therefore, I think, be held to be a testamentary deed; and that being so, I am unable to hold that it was revocable merely because of the declaration that there should be no vesting in any of the beneficiaries until payment. Such a declaration may be important for purposes of construction when the question is whether a deed is or is not testamentary. Even on that question, however, it is not conclusive, and where a deed not testamentary, but plainly intended to operate inter vivos, is executed and delivered to trustees, it cannot, I think, make such a deed revocable that the interests of the beneficiaries (for whom the trustees hold) are in whole or in part contingent upon survivance of some certain period, or upon some other circumstance or event.

"On the whole, I am of opinion that I must sustain the second plea-in-law for the pursuer, and repel the second plea-in-law for the defenders; and with reference to the defenders' third plea-in-law, appoints the case to be put to the roll for further procedure, finds the pursuer entitled to expenses, and grants leave to reclaim."

The defenders reclaimed, and arguedThis deed was testamentary and revocable. At least it was revocable to the extent that the truster could readjust the provisions. The provision in favour of the pursuer was a unilateral and gratuitous obligation. The cases relied upon by the pursuer were all cases of onerous consideration. Payment could not take place until after the truster's death, and until payment he had by the trust-deed no vested interest. There was here no jus quæsitum tertio. Was such a provision to be held irrevocable with the result that the wife and children were insufficiently provided for? [By the Court -Would the trustees have had to make the trust funds forthcoming for creditors in the event of the truster's bankruptcy during his lifetime?]-Dunlop v. Johnston, April 2, 1867, 5 Macph. (H. of L.) 22; Dickson v. Somerville's Trustees, May 16, 1867, 5 Macph. (H. of L.) 69; Mackenzie, July 10, 1878, 5 R. 1027; Wightman v. Costine, March 20, 1879, 6 R. (H. of L.) 13; Jarvie, January 28, 1887, 14 R. 411.

Argued for respondent-This deed was irrevocable because there was complete divestiture, which was the element wanting in Jarvie (supra). This was not the case of disposal of the universitas of the truster's estate. The respondent had an irrevocable contingent right which the law recognised, although he had not a vested interestTurnbull v. Tawse, April 15, 1825, 2 W. & S. 80; Smitton v. Tod, December 12, 1839, 2 D. 225; Tennent, July 2, 1869, 7 Macph. 936; Spalding, December 18, 1874, 2 R. 237, see L. P. Inglis' review of previous authorities, although in special circumstances of that case he was in a minority; Mackie v. Gloag's Trustees, March 6, 1884, 11 R. (H. of L.) 10.

At advising

LORD ADAM-This is an action brought

NO. XLVIII.

by the pursuer James Henderson Robertson against the trustees of the late John Robertson for payment of a sum of £500.

The claim is founded on a trust-disposition and assignation executed by him ou 23rd November 1881, by which, inter alia, he directed his trustees to pay to his nephew, the pursuer, the sum of £500. On 7th September 1887 Mr Robertson executed a partial revocation of the trust-disposition and assignation, and inter alia, of the provision therein contained of £500 to his nephew. The question in this case is whether that is a valid revocation. Robertson died on 22nd June 1891.

Mr

The trust-disposition and assignation proceeds on the narrative that the granter was then in solvent circumstances, and that he regarded himself as morally and legally liable to the persons therein named for the sums therein mentioned, and that he was desirous of making a suitable provision for his wife and children. He therefore, with consent of his wife, assigns and dispones to trustees, for the purposes thereinafter written, the dwelling-house and grounds called Elmwood Villa, three heritable bonds secured over property in Glasgow, £1000 A debenture stock of the Somerset and Devon Railway Company, and four policies of insurance on his life for £200, £300, £500, and £500 respectively. He further bound himself to make timely payment to his trustees of the future yearly contributions required to keep the foresaid policies of insurance in force, and he declared that he had therewith delivered up to the trustees the policies of insurance to be used by them as their own proper writs and evidents. He then directed his trustees to hold and apply the trust-estate, and the annual interest or produce thereof, first, in payment of the expenses of the trust; second, in payment to his daughter Georgina Robertson of £500; third, in payment to his nephew, the pursuer, of £500; and fourth, in payment to Henrietta Ross of £500-which payments to Georgina Robertson, the pursuer, and Henrietta Ross he directed his trustees to make so soon as they received payment of the proceeds of the insurance policies.

The fifth purpose of the trust need not be particularly mentioned, but by the sixth he directed his trustees to pay to Mrs Ross an annuity during her widowhood at the rate of £45 per annum, beginning the first term's payment at Whitsunday then

next.

By the seventh purpose he directed his trustees, on Mrs Ross' death, to divide among her children on their respectively attaining twenty-one years of age, a sum of £1000, with power to advance the interest for their maintenance and support.

By the eighth purpose he directed his trustees to grant the use of Elmwood Villa to his wife during her life, so long as it should remain unsold.

By the ninth purpose he directed his trustees, after satisfying the other purposes of the trust, to apply the free annual proceeds of the trust-estate for the maintenance of his wife and children, but

exclusive of his jus mariti and right of administration.

And lastly, he directed his trustees on the death of his wife to divide the residue of his estate among his lawful children, payable to sons on majority and to daughters on majority or marriage, whom failing to their issue.

The truster further declared that none of the provisions made in favour of any person should become vested interests in such persons until the terms of payment thereof.

The deed contains no power of revocation. The only reservation in the truster's favour is that the trustees should exercise the general power thereby given to them of paying the interest of the sums prospectively falling to the children, or of making advances therefrom, only with his consent during his lifetime. So far as I see he reserves no other power.

The trust-disposition and assignation was duly delivered to the trustees, who accepted office. They were infeft in the heritable subjects thereby conveyed to them, and the assignation of the policies of insurance therein contained in their favour was duly intimated to the insurance companies in the months of November and December 1881.

By deed of revocation dated 7th September 1887 the truster, on the narrative of the foresaid trust-disposition and assignation, and, inter alia, that the provisions therein in favour of the pursuer and certain other beneficiaries were purely gratuitous on his part, and were made solely because of favour and affection for them, and that the same had not become vested interests in them, revoked the direction to his trustees to pay to his nephew the pursuer the sum of £500, and declared that he should not be entitled to participate in any part of his means and estate falling under the trustdisposition and assignation. He also revoked the annuity to Mrs Ross and certain other provisions.

The question in this case is, as I have said, whether this is a valid revocation.

on

From the narrative I have given, perhaps in too much detail, of the contents of the trust-disposition and assignation it will be apparent that it is not of the nature of a revocable or testamentary deed. It conveys only certain specific heritable and moveable subjects, and has no reference to the truster's property as at his death. It reserves no power of revocation, and as far as the pursuer is concerned it proceeds, the narrative that the truster was legally and morally liable for the sum provided to him. Most of the provisions come into immediate operation, and none of them are contingent on the truster's death except only the provisions of £500 each to the pursuer, Miss Robertson, and Miss Ross, and that only in this way, that the fund out of which they are to be paid being the proceeds of the policies on his life, only become available to the trustees for payment of the provisions after his death. But the truster bound himself to make payment to the trustees of the funds necessary to keep the policies in force-an