cutors at first gave up his interest was estimated at £10,000 for confirmation purposes.' On the Commissioners of Inland Revenue thereafter asking for evidence of that valuation, the agents of the executors wrote on 16th December 1885 a letter explaining that the business of Campbell, Rivers, & Company was in process of liquidation at the time of Mr Alston's death, and that until the liquidation, which might extend over a period of several years, was completed, it would be impossible to say what the deceased's interest therein would be. The letter concluded thus-If, however, the Inland Revenue Commissioners desire it, we would instruct our clients to instruct Alston, Scott, & Company to obtain valuations of the properties with the view of having the question of inventory and legacy duties settled at once if the Commissioners agree to accept such valua tions as the basis for making up the balancesheet of Campbell, Rivers, & Company.' The Deputy-Controller replied on 24th December 1885-'It is impossible to say whether the valuation of the properties will be accepted or not until such is actually before this office, but the course proposed would appear to be the speedier mode of settling the question." Ultimately a valuation and statement was obtained showing Mr Alston's interest in the firm of Campbell, Rivers, & Company to be £11,696, 16s. The executor's agents transmitted that statement to the Inland Revenue, along with a letter dated 16th May 1886, in which they said-Referring to our letter to you of 16th December last, and your reply thereto, we have now received from Messrs Campbell, Rivers, & Company a statement of the late Mr R. F. Alston's account with them showing his interest in that firm to be £11,696, 16s. We enclose that statement certified by them. We shall be glad to know if the Commissioners of Inland Revenue will accept that statement as the basis for a settlement now of the inventory and legacy duties. We would advise our clients to settle the duties on that basis so as to have the matter closed and done with instead of keeping it open for perhaps the next five years, and take their chance of the final realisation of the assets being less than stated in the account. We may remind you that the deceased's interest in Campbell, Rivers, & Company was estimated in the inventory of his personal estate at £10,000, so that if the statement of account now made out is accepted, an additional inventory will be given up at once, and the necessary residuary account made out and legacy duty paid." On 4th June 1886 the Deputy Comptroller replied as follows:-'I duly received your letter of the 26th ulto. regarding the estate of the late Rob. F. Alston, and now return the statement which accompanied same, and have to inform you that the estimate of the deceased's interest in the firm of Campbell, Rivers, & Company will be accepted on the part of the Revenue, and you will therefore proceed with the payment of the duties without undue delay.' Accordingly an additional inventory was

given up and recorded on 11th June 1886, in which the whole nett personal estate was declared to be £16,937, 17s. 7d., of which his interest in the firm of Campbell, Rivers, & Company "as now ascertained was stated to be £11,696, 16s. An additional inventory duty of £60 was paid thereon, which, with the sum of £444 paid on the original inventory, makes up the £504 now sued for.

The surviving partners of the old firms of Campbell, Rivers, & Company and Alstons, Scott & Company continued the windingup of these firms till 10th July 1891, when the new firms of Campbell, Rivers, & Company and Alstons, Scott, & Company stopped payment. The new firm of Campbell, Rivers, & Company was sequestrated upon 31st August 1891. It appeared that the debts of the old firm of Alstons, Scott, & Company were greatly in excess of its assets, and that consequently as the only asset of the old firm of Campbell, Rivers, & Company was its interest in that firm, Robert Findlay Alston's interest in the old firm of Campbell, Rivers, & Company, estimated in the additional inventory at £11,696, 16s., was of no value at all. The trustees and executors and the survivors and survivor of them administered the trust estate till 12th January 1892, when on the petition of the last survivor a judicial factor was appointed. The estate was sequestrated on 17th April 1894, on the petition of a creditor of the old firm of Campbell, Rivers, & Company, and Mr James Muir, C.A., Glasgow, the pursuer in the present action, was appointed trustee. He admitted the creditors of the old firm of Campbell, Rivers, & Company to rank on the estate. The trust-estate, other than the deceased's interest in that firm, had been realised and paid away to beneficiaries, but these creditors' claims greatly exceeded the amount so realised and paid away, which was the whole of the deceased's estate, his interest in Campbell, Rivers, & Company having proved ultimately, as before explained, to be of no value.

In these circumstances the trustee claimed repayment from the Board of Inland Revenue of the inventory duty paid on Robert Findlay Alston's estate, on the ground that his debts exceeded his assets, and that he died bankrupt, or at any rate part of the inventory duty paid corre sponding to the sum at which the deceased's interest in Campbell, Rivers, & Company was estimated in the inventory; but the Board of Inland Revenue refused to repay the inventory duty or any part of it. The trustee then brought the present action, in which he concluded for repayment of £504, being the amount of inventory duty paid upon the personal estate of Robert Findlay

Alston.

The Customs and Inland Revenue Act 1881 (44 Vict. cap. 12, section 31) provides as follows:-" If at any time after the grant of probate or letters of administration, and during the administration of the estate, the value mentioned in the certificate of the officer of the court shall be found to

7, 1595

exceed the true value of the personal estate and effects of the deceased, or if at any time within three years after the grant, or within such further period as the Commissioners of Inland Revenue may allow, it shall appear that no amount or an insufficient amount was deducted on account of debts and funeral expenses, it shall be lawful for the said Commissioners, upon proof of the facts to their satisfaction, to return the amount of stamp duty which shall have been overpaid, and to cause a certificate to be written by an authorised officer on the probate or letters of administration setting forth such true value, or as the case may be, the amount or corrected amount of deduction, and such certificate shall be substituted for and have the same force and effect as the certificate of the officer of the court."

The Stamp Duties Act 1842 (5 and 6 Vict. cap. 79, sec. 23) enacts as follows-"When it shall be proved by oath and proper vouchers to the satisfaction of the said Commissioners of Stamps and Taxes that an executor or administrator hath paid debts due and owing from the deceased and payable by law out of his or her personal or moveable estate to such an amount as being deducted from the amount or value of the estate and effects of the deceased

...

which shall be included in any inventory duly exhibited and recorded . . . in a Commissary Court in Scotland, shall reduce the same to a sum which if it had been the whole gross amount or value of such estate or effects would have occasioned a less stamp duty to be paid on such . . . inventory than shall have been actually paid thereon, it shall be lawful for the said Commissioners of Stamps and Taxes, and they are hereby required, to return the difference, provided the same shall be claimed within three years after the date of such probate or letters of administration, or the recording of such inventory as aforesaid; but where by reason of any proceeding at law or in equity the debts due from the deceased shall not have been ascertained and paid, or the effects of the deceased shall not have been recovered and made available, and in consequence thereof the executor or administrator shall be prevented from claiming such return of duty as aforesaid within the said term of three years, it shall be lawful for the said Commissioners of Stamps and Taxes to allow such further time for making the claim as may appear to them to be reasonable under the circumstances of the case."

The Customs and Inland Revenue Act 1889 (52 Vict. cap. 7, sec. 5, sub-sec. 6) provides as follows:-"The provisions contained in section 31 of the Customs and Inland Revenue Act 1881 for the return of stamp duty overpaid shall apply to the return of duty overpaid on any statement delivered under this section, and in Scotland a return of duty overpaid on any statement so delivered shall be made in like manner as a return is now made of stamp duty overpaid on an additional inventory.'

The pursuer averred that Robert Findlay Alston died insolvent, and pleaded :

Trs. v. Ld. Adv., Nov.

"(1) The debts of the late Robert Findlay Alston having now been ascertained to exceed his assets, the pursuer is entitled under the Inland Revenue statutes, and particularly the Customs and Inland Revenue Act, 1881, section 31, to recover for the benefit of his creditors the inventory duty provisionally paid by his executors, on the footing that a surplus for the beneficiaries would be realised. (2) In any view, the pursuer is entitled under the said statutes as administered in Scotland to a return of the inventory duty corresponding to the sum of £11,696, 16s. condescended on, in respect that the item of the late Robert Findlay Alston's estate represented by that sum is ascertained to be of less than no value. (3) The estate of Robert Findlay Alston having at and since his death been insolvent, no inventory duty was due, and the pursuer as representing his creditors is entitled to recover the duty provisionally paid. (4) The alleged compromise and settlement having been entered into with the trustees and executors of the deceased while his estate was insolvent, it is not binding on the pursuer as representing creditors."

The defender pleaded, inter alia-“(2) The pursuer's claim under section 31 of the Inland Revenue Act 1881 is untenable, because the provision founded on does not apply to inventory duty. (3) As the deceased's executors were not prevented by any legal proceedings from claiming a return of duty within the statutory term of three years, the Commissioners have no power to make such a return, and the pursuer's claim cannot be sustained. (4) The pursuer's claim is barred by the compromise and settlement agreed to when the additional inventory was given up, and a further payment of duty was accepted."

On 7th November, after a discussion in the Procedure Roll, the Lord Ordinary (MONCREIFF) assoilzied the defender.

Opinion." The object of this action is to obtain a return of £504, being the amount of inventory duty paid to the Inland Revenue in 1886 upon the personal estate of Robert Findlay Alston, who died on 1st March 1885. The return is demanded partly on the ground that certain assets were overestimated, and partly on the ground that the deceased's debts exhausted the remainder of his estate.

"The first matter to be ascertained is whether there is any statutory authority which entitles the pursuer to a return of duty.

"As regards the claim for return of duty on the ground that the value of assets was over-estimated, the reply is simple. Strange as it may appear, there is, as regards Scotland, no statutory authority or direction for a return of inventory duty on that ground. Section 31 of 44 Vict. cap. 12, the Customs and Inland Revenue Act 1881, which is appealed to by the pursuer, is as follows-His Lordship quoted the section). "But unfortunately this provision does not apply to Scotland. An examination of sec tions 29, 30, 31, and 32 of that Act makes it quite plain that the provisions of section

Trs. v. Ld

7, 1895

31 apply only to probates and letters of administration in England or Ireland; and I may say in a word that there is no earlier statute which allows or enjoins such a return. For instance, section 40 of 55 Geo. III. cap. 184 (which is now repealed), is also confined to probates or letters of administration.

"Again, as to the return claimed in respect of debts, section 31 of the Act of 1881, as I have said, does not apply to Scotland. The statutory provision which applies in this matter, viz., section 23 of 5 and 6 Vict. cap. 79 (which applies to inventories as well as probates and letters of administration), contains this provision [His Lordship quoted the proviso].

"This provision, however, does not avail the pursuer, because his claim was not made within the three years, and the delay was not caused by reason of any proceeding at law or in equity within the meaning of the Act.

"But whatever may have been the reason for drawing a distinction in the statutes between probates and letters of administration in England, and inventories in Scotland, as regards return of duty on the ground that the value was over-estimated there is a practice of old standing in Scotland, according to which the Board of Inland Revenue are in use to return duty overpaid, substantially upon the same lines as the statutory rules which regulate in England and Ireland. This is done upon a corrected inventory being lodged.

find

this practice referred to and recognised in 52 Vict. cap. 7, sec. 5, sub-sec. 6, which deals with estate duty,' and is as follows--[His Lordship quoted the sub-section].

But this practice, taken at its highest, merely amounts to this, that the Commissioners of Inland Revenue in their discretion allow a return of inventory duty if it is established to their satisfaction that the value stated in the original inventory exceeds the true value of the estate. they declare that they are not satisfied of this, I apprehend that this Court has no power to interfere with their discretion.

If

He

"There remains only to consider the pursuer's argument at common law. maintains that in the absence of any statutory provision he is entitled to recover on the ground of condictio indebiti.

46 It may be doubted whether condictio indebiti applies to and is available in such a case. The values put upon items of personal estate for Revenue purposes being often necessarily conjectural, it is right that there should be some remedy in the event of them proving to be erroneous,-either too high or too low. But the fact that in the Revenue Statutes, whether relating to probate or inventory duty or income tax, power to return duty overpaid is generally conferred in express terms and under conditions, seems to indicate that the common law as to payments made in error is inapplicable. I may refer to my observations in The National Bank of Scotland v. Lord Advocate, 30 S.L.R. 579.

66

But passing from that, there are no ter

mini habiles for the claim-[His Lordship stated the facts above set forth].

"In order to recover on the ground of condictio indebiti it must be shown that inquiry was not waived, and that the money was paid in excusable error. In the present case it will be seen from the correspondence there was no mistake. The value put upon the assets was known to be conjectural; and the money was paid, not in the expectation that a return would be made should the value of the asset ultimately prove to have been over-estimated, but in order that there might be a settlement once for all, and that the matter should not be hung up for several years pending the liquidation of Campbell, Rivers, & Co. The duty was paid and accepted on that footing, and therefore, to state the case at its lowest against the pursuer, he waived all inquiry as to the ultimate and real value of the asset.

"This is sufficient apart from the Crown's defence on the ground of compromise or transaction. In the general case there is no transaction. The Inland Revenue accepts the duty but grants no discharge.

But it

has not, so far as I know, been decided that the Crown can be barred in no case by a deliberate transaction entered into in the full knowledge of the circumstances, and in the absence of neglect or omission on the part of its officers. Had the Crown not been one of the parties, I should have had no hesitation in holding that on the correspondence there was a concluded transaction. But it is settled law that the Crown is not barred by the neglect or omission of its officers, and it is difficult to define the limits of this exemption. The cases of The Lord Advocate v. Meikleham's Trustees, 22 D. 1427; The Lord Advocate v. Pringle, 5 R. 912; The Lord Advocate v. Miller, 11 R. 1046; The Lord Advocate v. The Duke of Hamilton, 1891, 29 S.L.R. 213, sufficiently illustrate the difficulty.

66

Whether it be called a compromise or not, it remains that the executors of Robert Finlay Alston, who paid the duty, were under no mistake as to what they were doing. They deliberately waived further inquiry for the sake of an immediate settlement which they intended and believed to be final. The result, therefore, is that the defender must be assoilzied."

Counsel for the Pursuer - Lorimer Clyde. Agents-Menzies, Black, & Menzies, W.S.

Counsel for the Defender The Lord Advocate-Young. Agent Solicitor of Inland Revenue.

Tramways Ca

Friday, December 20.

SECOND DIVISION.
[Lord Low, Ordinary.

OGSTON v. THE ABERDEEN DISTRICT TRAMWAYS COMPANY. Burgh-Street-Management of Streets

Obstruction-Nuisance-Interdict-Title

to Sue.

Where the management of the streets in a burgh is vested in a public authority, it has alone the title to interfere, and the duty of interfering, to prevent a use of the streets causing obstruction to traffic or a nuisance to the public using the streets.

A tramway company, with the approval of the town council of a burgh, adopted a certain method of clearing their lines of rails from snow.

An

action to interdict the company continuing this method was brought by a member of the public, who alleged that it caused an obstruction to his use of the streets and was injurious to the health of his horses.

Held that the action was incompetent. James Ogston of Norwood, manufacturer in Aberdeen, raised an action of interdict against the Aberdeen District Tramways Company, incorporated by Act of Parliament. The complainer prayed the Court "to suspend the proceedings complained of, and to interdict, prohibit, and discharge the said respondents, and all others acting by their authority, (1) from removing the snow, hail, slush, or other matter of a like kind, from the lines of tramway running through the public streets or thoroughfares of Aberdeen, on to or upon the sides of the said streets or thoroughfares between the said lines of tramway and the foot-pavements, or otherwise from so removing said snow, hail, slush, or other like matter as in any way to interfere with, interrupt, or impede the traffic along the said streets and thoroughfares, and (2) from putting or scattering upon the said streets and thoroughfares and lines of tramways, or any part thereof, . . . or the lines of tramways therein, salt, or any other similar substance, or otherwise from doing so in time of frost, or when there is snow or slush on the ground."

...

On 28th November 1895, after a proof, the Lord Ordinary (Low) refused interdict. In the following note to this interlocutor the facts of the case are fully stated :

Note. "The complainer, who is a manufacturer in Aberdeen, seeks to have the Aberdeen Tramways Company interdicted from removing snow from the Tramway lines on to the sides of the streets, so as to interrupt or impede the traffic along the streets; and also from scattering salt on the tramway lines in time of snow.

"There is no dispute as to what the respondents actually do. When there is a considerable fall of snow (and it is only in the case of a considerable fall of snow that the alleged nuisance arises) they send a

20, 1895

snow-plough along the tramway lines, which to a great extent clears the snow off the lines, and also off a space of from a foot to eighteen inches on either side of the lines. The snow so cleared from the lines is, of course, heaped up by the action of the snow-plough on either side of the street. Although the snow-plough removes the bulk of the snow from the part of the street operated upon, it does not entirely remove it, and in particular it does not remove it from the grooves in the rails. In order, therefore, to remove the snow from the grooves so that the tramway traffic may be carried on, and to remove the remainder of the snow upon the part of the street occupied by the tramway lines so that fresh snow may not be thrown by the traffic into the grooves, and also that the horses dragging the tramway cars may not slip, the snow-plough is followed by a cart of salt, which is sprinkled npon the lines, and the remaining snow thereby melted.

"It is proved that if the snow was not removed from the grooves, tramway traffic could not be carried on, because the cars would leave the rails. It is further proved that the only known method of effectually removing snow and ice from the grooves is by the use of salt.

"After the operations of the respondents are completed, and before the town authorities have carried away the heaps of snow, there is no doubt that a very inconvenient state of matters exists. The centre of the street where the tramway lines are is absolutely cleared, but upon either side of the lines are banks of snow (varying in depth according to the amount of the snowfall) and a quantity of slush at a low temperature caused by the mixture of snow and salt. The Town Council say that they remove the snow from the streets as quickly as they possibly can, but in the heavy and protracted snowstorm which occurred during the winter of 1894-95 it is proved that the heaps of snow and slush sometimes remained for many days-so long as a week in some cases-before they were removed.

"During the continuance of that state of matters a carriage using the street meets with no obstruction so long as it can keep upon the tramway track. But if it meets a tramway car, or requires to draw into the pavement, it has to be dragged through or over a bank of snow or slush, it may be several feet in depth, and the horses have to pass through or stand in a slush of low temperature composed of brine and halfmelted snow.

"A large body of evidence was led as to the effect of such slush upon horses, and of

Tramways Co.

20, 1895

course there was a good deal of difference of opinion among the skilled witnesses. I am satisfied, however, that slush caused by a mixture of snow and salt does frequently injure horses which stand in or are frequently driven through the slush, even if there is no previous abrasion of the skin of the leg, and if a horse has a cut or an abrasion of the skin of the leg, contact with briny slush is apt to convert what might otherwise be a trivial matter into a serious

sore.

"The complainer's case is that the state of matters which I have described is a nuisance; that he is entitled to proceed directly against the author of the nuisance, especially as the Town Council, upon the matter being brought before them by the complainer, repudiated all responsibility for the respondents' actings; and that it is no answer on the part of the respondents to say that there would be no nuisance if the town authorities were more expeditious in removing the heaps of snow.

"It appears that in 1886 the complainer made a complaint to the Town Council in regard to the action of the Tramway Company in putting the snow in heaps at the sides of the streets, and putting salt upon the snow. He also sent to the town clerk an opinion of counsel which he had obtained. After considering the matter the Town Council instructed the clerk to inform the secretary of the Tramway Company that the Council are advised that the operations referred to are in both cases unwarrantable and illegal, to request that the company will in future discontinue the proceedings complained of, and to intimate that if the request is not complied with, the Council will be compelled to have recourse to legal proceedings.'

"That resolution was intimated by the town clerk to the respondents, but no action was taken by the Town Council to prevent the respondents removing the snow from the track and using salt, and they have continued to do so until the present time.

"In the beginning of 1895 the complainer again brought the matter before the Town Council, and requested that they would take proceedings against the respondents. The complainer subsequently intimated a claim of damages to the Town Council for injuries which he alleged that one of his horses had received by being driven through the salt slush. In reply the town clerk wrote to the complainer's agents on the 8th February 1895 as follows-The operation complained of is, as you are aware, not carried out by the Town Council, but by the Tramway Company, and under these circumstances I am instructed to inform you that the Town Council repudiate all responsibility with the matter.'

"After receipt of that letter the complainer brought the present note of suspension and interdict against the Tramway Company. After the note was presented the Town Council made a remit to the Streets and Roads Committee to consider the matter, and the Committee sent in a report, which was approved by the Council, in

which they expressed the opinion that if the complainer was successful serious inconvenience would be caused to the public, and recommended that such members of the Council as may be selected by the company should be authorised to give evidence on behalf of the Council in favour of the respondents.'

"Accordingly, the Provost and other members of the Council appeared as witnesses, and gave evidence to the effect that they were now satisfied that it was in the public interest that the respondents should be allowed to clear their lines as they have been in the habit of doing, and that they approved of the method adopted by the respondents.

"These being the circumstances under which the question arises, the first point to be considered is the respondents' plea of all parties not called. That plea, of course, is founded upon the fact that the Town Council are not made parties to the action.

"Now, the management of the streets is vested in the Town Council, and it is their duty to see that there is no obstruction placed in the streets, and that substances dangerous or offensive to the public are not put upon the streets. Therefore, if the result of the action of the respondents was to cause obstruction to the traffic, or a nuisance to the lieges, it was the Town Council who had the title to interfere, and (as guardians of the public interests in the streets) the duty of interfering. If, then, in the case of obstruction or nuisance in a street, the Town Council, or other local authority in whom the streets are vested, do not take action, or refuse to take action, is any citizen entitled to apply for interdict against the alleged wrongdoer without calling the Town Council or other local authority? In the general case I do not think that an application for interdict at the instance of the individual against the wrongdoer would be sustained, unless the local authority was also called, because the footing upon which such a proceeding would be brought, and the justification for bringing it, would be that the local authority had neglected or refused to do their duty.

"These considerations are, I think, very applicable to the present case, because what the respondents have done is to clear a part of the streets of snow, with the acquiescence and approval of the Town Council, and witness after witness for the complainer admitted that there would be nothing to complain of in the operations of the respondents if the Town Council had with due expedition removed the snow and slush from the sides of the streets."

The complainer reclaimed, and arguedIf the operations were injurious to the complainer, they were a nuisance which he was entitled to interdict, even although the result was to stop the tramway traffic for a time altogether. The evidence showed clearly that damage had been caused to the complainer by the actings of the respondents. The Lord Ordinary argued that the operations of the complainers were sanctioned by the Town Council. But the evidence showed that ten years ago the Town