UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 S'i'JS WBLISBERS' 
 
 LAW 
 
 AFFECTING 
 
 BUILDING OPERATIONS 
 
 AND
 
 Printed by LORIMKR AND CHALMERS, Edinburgh 
 
 FOR 
 
 WILLIAM GREEN AND SONS 
 February, 190S
 
 LAW 
 
 AFFECTING 
 
 BUILDING OPERATIONS 
 
 AND 
 
 ARCHITECTS' AND BUILDERS' 
 CONTRACTS 
 
 BY 
 
 ISAAC CONNELL, S.S.C., EDINBURGH 
 
 in 
 AUTHOR OF " THE AGRICULTURAL HOLDINGS (SCOTLAND) ACTS, 1883 TO 1900 " 
 
 EDINBURGH 
 
 WILLIAM GREEN & SONS 
 3Lafo 
 
 1903
 
 r 
 
 T
 
 PREFACE. 
 
 IN the course of preparing a paper some years ago for 
 the Edinburgh Architectural Society, I was struck with the 
 circumstance that no work on the law affecting building 
 operations had been written by a Scottish lawyer : hence 
 the idea/ to produce this book which, written as it has been 
 entirely during evening hours and at broken intervals, does 
 not profess to be exhaustive of its subject, or more than the 
 suggestion of a more complete work on what is obviously an 
 important branch of law. Notwithstanding its defects, it 
 may prove of some use to members of my own profession, 
 and also to architects and builders. The works which have 
 been freely consulted are chiefly Rankine's " Landownership," 
 Irons' " Dean of Guild Court Practice," Glegg " On Repara- 
 tion," Guthrie Smith " On Damages," Hudson " On Building 
 Contracts," Emden " On Law regarding Building," and 
 Roscoe's " Digest of Building Cases." To the authors of 
 these works I acknowledge my indebtedness. I am also 
 obliged to the Royal Institute of British Architects and the 
 Institute of Builders for certain of the forms printed in the 
 Appendix. 
 
 I. C. 
 
 January, 1903.
 
 CONTENTS. 
 
 PAGE 
 
 PREFACE ......... v 
 
 TABLE OP CASES CITED xi 
 
 CHAPTEK I. 
 
 THE ARCHITECT AND SURVEYOR THEIR APPOINTMENT, DUTIES, &c. 
 
 The Appointment of Architects ..... 1 
 
 Architect's Contracts Personal ...... 3 
 
 Authority and Powers of Architects . . . . .5 
 
 Qualifications and Duties of Architects . . . .9 
 
 Remuneration of Architects . . . . . .11 
 
 Appointment, Duties, and Remuneration of Surveyor . .18 
 
 CHAPTER II. 
 THE EXECUTION OF THE WORK. 
 
 The Site, Foundations, Conditions affecting the Site, &c. . . 22 
 
 Examination of the Site . . . . . .23 
 
 Preparation of Plans . . . . . . .23 
 
 Ownership of Plans . . . . . . .25 
 
 Retention of Plans . . . . . . .27 
 
 Preparation of Schedules and Estimates . . . .27 
 
 Tenders ......... 28 
 
 Architect's Superintendence of Works, &c. . . . .31 
 
 Building Materials . . . . . . .36 
 
 CHAPTER III. 
 EXTRAS . 39
 
 CONTENTS. 
 
 CHAPTER IV. 
 
 PAYMENT OF PRICK, ARCHITECT'S CERTIFICATES, AND DESTRUCTION 
 OF WORK BEFORE PAYMENT. 
 
 PAGE 
 
 Payment of Contract Price . . . . . .49 
 
 Architect's Certificates ..... 55 
 
 Destruction of Work before Payment . . . . .61 
 
 CHAPTER V. 
 DAMAGES TO PROPERTY. 
 
 Liability of Contractor for Damage to Property . . .64 
 
 Liability of Owner for Damage to Property . . . .68 
 
 CHAPTER VI. 
 
 ARBITRATION RELATING TO BUILDING CONTRACTS. 
 
 The Subject of Reference . . . . . .81 
 
 Arbiters ........ 83 
 
 Remuneration of Arbiters . . . . . .86 
 
 Oversman ...... .87 
 
 Duties of Arbiters . . . . . . .88 
 
 Procedure ........ 89 
 
 Endurance of Submission . . . . . .90 
 
 Notes of Findings . . . . . . .91 
 
 The Award ...... 91 
 
 Reduction of Award ..... 92 
 
 CHAPTER VII. 
 
 DEAN OP GUILD COURT. 
 
 Nuisance Q7 
 
 . al 
 
 Edinburgh Dean of Guild Court .... 98 
 
 Jurisdiction of Dean of Guild in questions of Heritable Title 100
 
 CONTENTS. 
 
 CHAPTER VIII. 
 THE LAW OF THE TENEMENT. 
 
 PACK 
 
 Right of Common Property ...... 105 
 
 Solum and Front and Back Ground ..... 107 
 
 Foundations and Front and Back Walls . 109 
 
 Floor and Ceiling and Space between Walls . . . .112 
 
 Mutual Gables . . . . . . . .113 
 
 The Roof ........ 119 
 
 Common Passages and Stairs . . . . . .120 
 
 Mutual Walls other than Gables . . . . .122 
 
 CHAPTER IX. 
 
 BUILDING CONDITIONS AND RESTRICTIONS. 
 
 Particular Plan or Elevation . . . . . .130 
 
 Villas ......... 134 
 
 Building in Front Plot or Areas . . . . .135 
 
 Erections in Back Ground and Back Areas . . . .139 
 
 Height of Buildings . . . . . . .140 
 
 Restrictions on Use . . . . . . .141 
 
 Maintaining Sewer . . . . . . .143 
 
 Streets and Ish and Entry . . . . . .143 
 
 Rights of Superior to enforce Restrictions . . . .145 
 
 CHAPTER X. 
 
 SERVITUDES. 
 
 Some well known Servitudes and Natural Rights . . .150 
 
 Support of Land to Land . . . . . .157 
 
 Support of Land encumbered with Buildings . . . .157 
 
 Support of Buildings to Buildings . . . . .158 
 
 Light, air and prospect ....... 158 
 
 Eavesdrop or stillicide ....... 165 
 
 APPENDIX 167 
 
 INDEX . 205
 
 TABLE OF CASES CITED. 
 
 ABBOT (1854), 3 S. 4 . . . . . .91 
 
 Adams (1890), 18 R. 1 . . . . . . . 92, 93 
 
 Adams v. Great North of Scotland Railway Co., 21st June, 1899, 16 R. 843 85 
 Addie & Sons v. Henderson & Dimmack, 24th October, 1879, 7 R. 79 . 85 
 Alexander (1869), 7 M. 492 . . -. . . . .93 
 
 Alexander v. Butchart, 24th November, 1875, 3 Rettie, 156 . 105, 111 
 
 Allinson v. Davies, Peake's " Add. Gas.," 82 .... 37 
 
 Anderson v. Dalrymple, 20th June, 1799, M. 12,831 . . . 120 
 
 Andrew v. Buchanan, 11 Macph. H.L. 16 . . . . . 157 
 
 Andrew v. Henderson & Another, 10th March, 1873, 11 Macph. H.L. 13 . 68 
 
 Appleby v. Myres (1867), L.R. 2 C.P. 651 51, 56 
 
 Argyleshire Commissioners of Supply v. Campbell, 10th July, 1885, 12 R. 
 
 1255 ........ 160, 161 
 
 Armitstead (1888), 15 R. 814 . . . . . . 68, 85 
 
 Armour v. Somerville, 13th June, 1902, 10 S.L.Times 138 . . . 98 
 
 Arrol v. Inches, &c., 27th January, 1887, 14 R. 395 ... 108 
 
 Ayr Road Trustees v. Adams, 14th December, 1883, 11 R. 326 . . 60 
 
 BAIKIE v. CHANDLESS, 3 Camp. 17, 1811 ..... 10 
 
 Baird v. Addie (1854), 16 D. 400 . . . . . .75 
 
 Bald (1854), 16 D. 870 . . . . . . 79, 157 
 
 Balfour v. Ernest (1859), 5 C.B., N.S. 601 . . . . .3 
 
 Banks & Company v. Walker, 5th June, 1874, 1 R. 986 . 124, 151, 161, 164 
 Barclay v. M'Ewen, 21st May, 1880, 7 R. 792 . . . 104, 108 
 
 Barr v. Robertson, 12th July, 1854, 16 D. 1049 . 124, 125, 127, 144, 163 
 
 Baston v. Butter, 7 East, 479 ...... 62 
 
 Batterbury v. Vyse, 2 Hurl, and C. 42, 1863 . . . .59 
 
 Baxter (1836), 14 S. 549 91 
 
 Beattie and Another v. Edinburgh Tramways Co. (1891), 28 S.L.R. 763 . 4 
 
 Beattie v. Gilroy (1882), 10 Rettie, 226 . . . . 18, 20, 28 
 
 Beattie v. Macgregor, 5th July, 1883, 10 R. 1094 . . . . 21, 82 
 
 Bennett v. Playfair, 24th January, 1877, 4 R. 321 . . . . 160 
 
 Berkeley v. Baird, 16th February, 1895, 32 S.L.R. 281 . . 118 
 
 Birmingham v. Allen, 6 Ch. Div. 284, per Selborne, L.Ch. . . . 157 
 
 Black v. Cornelius, 24th January, 1879, 6 R. 581 . . . 18, 20, 28 
 
 Blackwood & Others v. Bell, 30th May, 1825, 4 S. 26 . . . 149 
 
 Borrowman v. Free (1878), 4 Q.B.D. 500 . . . .28 
 
 xi
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Boswell v. Inglis, 9th March, 1848, 10 D. 888 ... 152, 160 
 
 Boswell v. Magistrates of Edinburgh (1881), 8 R. 986 . . 152, 162 
 
 Boucher & Cousland v. Rev. A. Russell and Others (Guthrie's Sheriff Court 
 
 Cases, 2nd Series, p. 114) ...... 13 
 
 Bower v. Peate, L.R. 1 Q.B.D. 321 .. ... 74 
 
 Bradfeer. Chinto Hospital (1842), 4 M. &G. R. 1714 ... 70 
 Brisbane v. Lang (1846), 7 D. 1221 ... 17 
 
 Broom r. Davis, 7 East 480 n. (a) . . . . .62 
 
 Brown v. Boyd, 13th July, 1841, 3 D. 1205 ..... 78 
 
 Brown v. Burns, 14th May, 1823, 2 S. 298 N.E. 261 ... 142 
 
 Brown v. Windsor, 1 Cr. and J. 20 . . . . . 71, 110 
 
 Brown v. Young, 21st February, 1900, S.L. Times Reports, p. 458 . . 100 
 
 Buchanan (1873), 1 1 Macph. (H.L.) 13 . . 79 
 
 Buchanan v. Carmichael (1823), 2 S. 460 . . . .111 
 
 Buchanan v. Marr, 7th June, 1883, 10 R. 936 . . . .135 
 
 Buchan v. Melville, 28th February, 1902, 39 S.L.R. 398 . . . 81, 84 
 
 Burr v. Ridout (reported in Times of 22nd February, 1893) ... 16 
 Burrell & Son v. Russell & Company, 26th March, 1900, 37 S.L.R. 641 . 124 
 Burton v. Griffiths, 11 M. & W. 817 . . . . . . 24 
 
 Bush v. Trustees of the Port and Town of Whitehaven, Q.B.D., 26th June, 
 
 1888 40 
 
 Buyers v. Gray (1845), 1 C.B. 578 . . . . . .73 
 
 ('A I.DEI', v. MERCHANT Co. OP EDINBURGH, 20th February, 1886, 13 
 
 R. 623 ' 108, 148 
 
 Caledonian Railway Company, 1869, 3 Macqueen, 808 . 89 
 
 Callander v. Eddington, 4 Mur. 108, 111 . . . . .72 
 
 Cameron, 25th July, 1868, 6 Macph. 279 ..... 94 
 
 Cameron v. Fraser (1881), 9 R. 26 . . . . . . 69 
 
 Campbell r. Allan, 18th December, 1855, 18 D. 267 . . . 140 
 
 Campbell v. Clydesdale Banking Co., 19th June, 1868, 6 Macph. 943 146, 149 
 Campbell v. Kennedy (1864), 3 Macph. 121 .... 68 
 
 Campbell's Trustees v. Corporation of Glasgow, 20th March, 1902, 39 
 
 S.L.R. 461 . 124, 151 
 
 Canon v. Miller (1863), 1 Macph. 604 .... 125, 145 
 
 Chalmers (1876), 3 R. 464 . . . . . . .78 
 
 Chapman v. Edinburgh Prison Board, 16th July, 1844, 6 D. 1288 . . 57 
 
 Clark & Sons, 1898, 25 R. 919 . . . . .151 
 
 Clarke r. Watson, 34 L.J., C.P. 148 . . . . .59 
 
 Cleghorn v. Taylor and Others, 27th February, 1856, 18 D. 664 . 75, 78 
 
 Clemence v. Clarke, RoRCoe'a "Building Cases," 4th ed., p. 137 . 35, 61 
 Cochran r. Paterson, 7th February, 1882, 9 R. 634 .... 140 
 
 Cochrane v. Ewart (1860), 22 D. 358 ... 153, 154 
 
 Coles v. Trecothick, 9 Ves. 236, 251, 252 . . . . . 3 
 
 Collen v. Wright, 7 E. and B. 301 . . . . . . 9 
 
 Colvillev. Carrick, 19th July, 1883, 10 R. 1241 . . . .98 
 
 Connor v. Belfast Water Commissioners, 5 Ir. Rep., C.L. 55, 1863 . 68 
 
 Cowan r. Magistrates of Edinburgh, 14 R. 682 . . . 134, 139 
 Cowan v. Stewart, 24th May, 1872, 10 Macph. 735 ... 151 
 
 Crabbe r. Brimsley (1888), 5 Timet L.R. 14 . . . . 8 
 
 Craig v. Gould, 9th November, 1861, 24 D. 20 . . 164
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Crawford v. Field, 15th October, 1874, 2 R. 20 . . . 125, 144, 163 
 
 Crawford v. Magistrates of Paisley, 10th March, 1870, 8 M. 693 . . 95 
 
 Croall v. Magistrates of Edinburgh (1870), 9 Macph. 323 . 125, 127, 131, 153 
 Croshaw v. Pritchard & Renwick, Q.B. Div. (Bigham J.), 20th November, 
 
 1899 . . . . . . . .30 
 
 Crouch v. Glasgow & South-Western Railway Co. (Guthrie's " Sheriff Court 
 
 Cases," 2nd Series, p. 109) . . . . . .14 
 
 Cuddie v. M'Kechnie (1804), Hume, 516 ; Professor Rankine, p. 586 . 120 
 Cumming v. Brown, 2nd February, 1859, 21 D. 752 . . .145 
 
 Currie and Another v. Notman, 25th January, 1900, S.L. Times, 345 . 164 
 
 DALRYMPLE v. HERDMAN, 5th June, 1878, 5 R. 847 . . . 149 
 
 Dalton v. Angus (1881), L.R. 6 App. Cas. 740, 791 ... 74 
 
 Daniel v. Met. Railway, L.R. 5 H.L. 45 . . . . .73 
 
 Deas v. Magistrates of Edinburgh, 10th April, 1772, 2 Paton's App. Cas., p. 
 
 259 . .162 
 
 Denew v. Daverell, 3 Camp. 451 . . . . .62 
 
 Dennistoun v. Bell, 10th March, 1824, 2 S. 784 . . . 78,152 
 
 Dennistoun v. Thomson, 22nd November, 1872, 11 M. 121 . . . 136 
 
 Dickson, 8 Macph. 566, 17th February, 1870 . . .84, 85, 86 
 
 Dickson v. Morton, 23rd November, 1824, 3 S. 310 (N.E.) 220 . 105, 111 
 
 Dobson v. Hudson, 1 C.B., N.S. 659 ..... 43 
 
 Dodd v. Churton, L.R. 1897, 1 Q.B. 562 . . . . .54 
 
 Dodd v. Holme, 1 A. and E. 493 . . . . . . 70, 73 
 
 Dolan v. Anderson (1855), S.L.R. 774 . . . .17 
 
 Donaldson v. Pattison, 14th November, 1834, 13 S. 27 . . . 96 
 
 Dougall v. Hutcheson, 19th January, 1827, 5 S. 224 (N.E. 208) . . 96 
 
 Douglas v. Monteith, 4 Mur. 130 . . . . . .72 
 
 Dow & Gordon v. Harvey, 9th November, 1869, 8 Macph. 118 . . 122 
 
 Drummond, llth March, 1835, 13 S. 684 . . . . .87 
 
 Ducksworth v. Alison, 1 M. and W. 412, 1836 . . . .53 
 
 Duke v. Somerville, June, 1902, 10 S.L. Times, 5th July, 1902, p. 116 . 100 
 Duncan v. Blundell, 3 Stark, 6, cited M. and P. 548 . . . 9, 11 
 
 Duncan's Trustees v. A. & P. Steven, 1st June, 1897, S.L.R. 657 . 66 
 
 Duncanson v. Bayles, 3rd December, 1869, 7 S.L. R. 139 . . . 25 
 
 Dundasr. Blair (1886), 13 R. 759 .... .155,159,162 
 
 Dunlop v. Dean, 12th November, 1824 ..... 96 
 
 Dtinlop v. Robertson, 1st December, 1803, Hume 515 . . .159 
 
 Dunlop's Trustees v. Corbet, 20th June, 1809, F.C. ... 79 
 
 Dunmore, Earl of (1829), 7 S. 595 . . . . . .90 
 
 E. & G. RAILWAY Co. v. DTMOCK, 27th November, 1847, 10 D. 158 . 97 
 
 Ebdy v. M'Gowan (Times, 7th July, 1870, p. 11) . . . .. 25 
 
 Edinburgh Oil Gas Company, 6th February, 1835, 13 S. 413 . . 87 
 
 Eglinton v. M'Jannet, 30th October, 1890 ..... 96 
 Elder v. Croall, 20th June, 1849, 11 D. 1187 . . . .17 
 
 Elkington v. Hurter (1892), 2 Ch. 452 . . . 38 
 
 Ellis v. Sheffield Gas Company, 185, 2 E. and B. 767 . . . 74 
 
 Erskine v. Glendinning (1871), 9 Macph. 656 . . . .28 
 
 Ewing v. Campbell, 23rd November, 1877, 5 R. 230 . . .141 
 
 Ewing v. Hastie, 12th January, 1878, 5 R. 439 .... 142
 
 xiv TABLE OF CASES CITED. 
 
 PAGE 
 
 FALL'S TRUSTEES v. SCOTTISH PROVIDENT ASSOCIATION, 9th January, 
 
 1867, 3S.L.R. 155 101 
 
 Fannett 4 Co. r. Hannay, 31st January, 1894, 1 R. 440 . . . 17 
 
 Farnsworth v. Garrard, 1 Camp. 38 . . . . . . 62, 63 
 
 Farthing v. Tompkins (1893). 9 Times L.U. 566 . . . .16,17 
 
 Ferguson, 12th November, 1816, F.C. . . . . .152 
 
 Ferric, 1824, 3 S. US . . . . . . .80 
 
 Ferrier (1843), 15 D. 456, 1845 ...... 88 
 
 Fimisterr. Milne, 24th May, 1860, 22 D. 1100 . . . .145 
 
 Fleming, 7th July, 1827, 5 S. 906 . . . . . .90,91 
 
 Fletcher v. Dyke, 2 Term Rep. 32, 1787 ..... 53 
 
 Fletcher r. Gillespie, 3 Bing. 637 ...... 40 
 
 Forbes v. Commercial Bank, 9th June, 1831, 9 S. 705 . . . 144 
 
 Ford 4 Co. v. Bemrose & Sons, Ltd. , Court of Appeal, Collins, M.R. , 
 
 Romer and Matthew, L.JJ., 18th March, 1902, 10 S.L.T. 170 . 43 
 
 Fowler v. Commercial Bank, 9th June, 1831, 9 S. 705 . . . 129 
 
 Frame v. Campbell, 14 S. 914 (1836) ..... 9 
 
 Francis v. Cockrell, L.R. 5 Q.B. 501 . . . . .62 
 
 Fraser v. Downie, 22nd June, 1877, 4 R. 942 . . . . 135 
 
 Frazer, 24th June, 1743, M. 8476 ...... 80, 86 
 
 Free St. Mark's r. Taylor's Trustees, 26th January, 1869, 7 Macph. 415 
 
 127, 151 
 
 GELLATLT v. ARROL, 13th March, 1863, 1 Macph. 592 . . .138 
 
 Glasgow City and District Union Railway Company v. M'Brayue, 31st 
 
 March, 1883, 10 R. 894 . . . . . . . 136 
 
 Glasgow Corporation Waterworks Commissioners v. Jardine Henry (O.H.), 
 
 3rd February, 1866, 1 S.L.R. 137 ..... 88 
 
 Glasgow Jute Company r. Carrick, 5th November, 1869, 8 Macph. 93 . 145 
 Glaagow Royal Infirmary v. Wyllie (1887), 4 R. 494 . . .118 
 
 Gbwsford v. Astley, 12th May, 1808, M. App. Prop. No. 7 . . 159 
 
 Glen v. Milne 4 Bruce, 29th May, 1895 . . . . .111 
 
 Goodyear v. Mayor. &c., of Weymouth (1865), 35 L.J., C.P. 12 . . 40, 58 
 
 Gordon v. Ford 4 Son, 5th June, 1902, 10 S.L. Times, 121 . . 49 
 
 Gordon v. Marjoribanks, llth March, 1814, 6, Note to 18 F.C. 25 126, 143 
 
 Gould v. M'Corquodale (1869), 8 Macph. 165 .... 152 
 
 Gourlay r. Lang, 4th June, 1887 ...... 96 
 
 Gow'n Trustees v. M'Alls, 28th May, 1875, 2 R. 729 . . .154 
 
 Gowans, 3rd February, 1859, 21 D. 403 . . . . . 90 
 
 Graham v. Greig, 6th December, 1838, 1 D. 171 . . 96, 121 
 
 Grainger v. Raybould, 9 C. and P. 229 . . . .37 
 
 Grant v. Squair, 16th December, 1868, 41 J. 151 . . . 93 
 
 Grayr. Greig, 18th June, 1825, 4 S. 105 . . . 72,77,78,113,152 
 
 Greenhill v. Forrester, 26th November, 1824, 3 S. 325, N.E. 231 . . 140 
 
 Grove r. Johnston (1889), 24 L.R.,Ir. 852 ..... 5 
 
 HALKET, 16th December, 1826, 5 S. 154 ..... 91 
 
 Hall v. Burke (1886), 3 Titnei L.R. 165 ..... 24 
 
 Hall v. Holt, 2 Vern. 322 .... . . 6 
 
 Hamilton (1867), 5 Macph. 1086 . . . .79 
 
 Harmer r. Cornelius, 5 C.B., N.S. 236 9
 
 TABLE OF CASES CITED. xv 
 
 PAGE 
 
 Hazle v. Turner and Others, 22nd May, 1840, 2 D. 886 . . Ill 
 
 Hemming v. Hale, 7 C.B., N.S. 498 . . . . . .3 
 
 Henderson v. Nimmo, 20th May, 1840, 2 D. 869 . . . . 144 
 
 Henderson v. Paul, 16th March, 1867, 5 Macph. 628 .. . 86 
 
 Herdman (1878), L.R. 3 C.P.D. 168, 174 . . . . .79 
 
 Heriot's Hospital v. Gibson (1809), 18 F.C., reversed 1814, 2 Dow 
 
 301 ........ 125, 130, 163 
 
 Heron v. Gray, 27th November, 1880, 8 R. 155 .... 155 
 
 Higgins & Son v. Dunlop (1847), 9 D. 1407 .... 30 
 
 Hill v. Heatherstonehaugh, 5 M. & P. 544, 548 . . . .63 
 
 Hill v. Millar, 17th March, 1900, S.L. Times Rep. 460 . '. . 142 
 
 Hill v. South Staffordshire Railway Co. (1865), 11 Jurist N.S. 192 . 46 
 
 Hislop v. M'Ritchie's Trustees, 23rd June, 188], 8 R.H.L. 9f. . . 146 
 
 Holme v. Guppy (1838), 3 Messon and Welsby, 387 ... 54 
 
 Hopkins v. Southwick Local Board (1890), 59 L.J., Q.B. 250 . . 23 
 
 Hughes v. Percival, L.R. 8 App. Gas. 443 ..... 69 
 
 Hume, 7th February, 1671, M. 8402 ..... 80 
 
 Hunt v. Rutherford (1855), 17 D. 305 . . . . . 9-23 
 
 Hunt and Wimbledon Local Board, 3 C.P.D. 208 . . . . '2, 10 
 
 Hunter v. Ponton, 22nd December, 1821 ..... 96 
 
 INCHBALD v. NEILGHERRY COFFEE Co., 17 C.B., N.S. 733 . 16 
 
 Inglis v. Clark (1901), 39 S.L.R. 195 .... 155, 158 
 
 Ireland v. Livingston, L.R. 2 Q.B. 99 . . . . 7, 8, 9 
 
 JACK v. BEGG, 26th October, 1875, 3 R. 35 . . . . 114, 122 
 
 Jack v. Roberts & Gibson (1865), 3 Macph. 554 . . .28 
 
 Jackson v. Galloway, 20th December, 1867, 5 S.L.R. 130 . . .88 
 
 Jackson v. The Union Marine Insurance Company, 8 Law Reports 
 
 Common Pleas, p. 581 ....... 41 
 
 Jamiesonv. M'Innes, 29th October, 1887, 15 R. 17 ... 42 
 
 Jamieson v. Simson, 12th July, 1899 (36 S.L.R, 883) . . .10,31 
 
 Johnson v. Kershaw, L.R. 2 Ex. 82 . . . . . 7 
 
 Johnston (1817), 5 Drew 1855 . . . . . . 86, 89 
 
 Johnston v. Edinburgh Gas Light Co., 27th March, 1885, 12 R. 974 . 97 
 Johnston v. M'Ritchie, 15th March, 1893, 20 R. 539 . 129, 130, 149, 153 
 
 Johnston v. Walker's Trustees, 10th July, 1893, 34 S.L.R. 791 . . 143 
 
 Johnston v. White, 18th May, 1877, 4 R. 723 . . 78, 107, 108, 136 
 
 Johnstone v. Aitken, 10th June, 1829, 7 S. 732 . . 152 
 
 Johnstone v. Clark (1855), 18 D. 70 . . . . .28 
 
 Johnstone v. Murray, 5th March, 1862, 24 D. 709 . . . .101 
 
 Jones v. Just (1868), L.R. 3 Q.B. 202 ..... 24 
 
 Jones ?.-. Jones, 17 L.J., Q.B. 170 . . . . . .57 
 
 Jones v. St. John's College, L.R. 6 Q.B. 115 . . . .55 
 
 KEMP v. ROSE, 1858, 1 Giff. 258 . . . . . .44, 61 
 
 Kennedy, 20th January, 1819, F.C. ..... 86 
 
 Kerr v. Dundee Gas Co. (1861), 23 1). 343 . . . . .50 
 
 Kerr v. Earl of Orkney, 20 D. 298 . . . . . .79 
 
 Kidd, 19th June, 1810, F.C. ...... 91
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Kimberleyr. Dick (1871), L.R. 13 Eq. 1, 17 . . . .6,61 
 
 King (1896), 24 R. 81 . . . . . . .153 
 
 Kingdom v. Cox (1848), 17 L.J., C.P., 155 ..... 24 
 
 Kingston-on-Hull v. Fetch (1854), 10 Ex. 611 . . . .29 
 
 Kintore, Earl of, v. Lyon, 27th February, 1802, 13 F.C. 53 95 
 
 Kirkwood r. Morrison (1877), Rettie, 79, 82 ... 19, 21, 35, 82 
 
 Kirkwood's Trs. v. Leith & Bremner, 20th December, 1888, 16 R. 255 . 97 
 Kittle v. Lovett (1885), L.R. 16 Q.B.D. 605 .... 73 
 
 LAINO f. MUIRHEAD, 7th December, 1822, 2 S. 73 . . . 128, 139 
 
 Lamont v. Gumming, llth June, 1875, 2 R. 784 . 106, 112, 113, 114, 116, 117 
 Landless v. Wilson (1880), 8 R. 289 .... 11, 12; 13, 16 
 
 Lang (1855), Macqueen, 93 . . . . . . .93 
 
 Laurent v. Lord Advocate (1869), 7 Macph. 607 . . 68, 70, 78 
 
 Law v. Local Board of Redditch, L.R. 1892, 1 Q.B. 127 ... 53 
 Law r. Monteith, 30th November, 1855, 18 D. 125 . . 117,119 
 
 Lawson v. The Wallasey Local Board, L.R. 11 Q.B. 1>. 229 . . 52 
 
 Lawson t;. Wilkie, 4th March, 1897, 34 S.L.R. 455 ... 140 
 
 Lee v. Bateman, Q.B.D. (1893), Times, 31st October . . . 3, 31 
 
 Legge v. Harlock, 12 Q.B. 1015 (1848) ..... 54 
 
 Leslie v. Cumming (1793), M. 14,542 .... 152 
 
 Lewis v. Brass (1877), L.R. 3 Q.B.D. 667 ..... 30 
 
 Lindley, M. R. , Kigby and Vaughan Williams, L..IJ. , Court of Appeal, 
 
 16th February, 1900 ....... 142 
 
 Lindsay v. Watson (1843), 5 D. 1194 ..... 1 
 
 Livingstone, 23rd February, 1830, 8 Shaw, 504 . . . .80 
 
 Lockhart v. Stevenwright (1788), M. 10,488 . 122 
 
 Lovelock v. King, I Mood, and Rob. 60 38 
 
 Lucas t-. Goodwin, 3 Bing. N.C. 744 . . 52 
 
 Ludbrook r. Barrett, 46 L.J., C.P.D. 798 . . . . 57, 58 
 
 MAGISTRATES OF EDINBURGH v. BROWN, 17th January, 1833, 11 S. 255 160, 164 
 Magistrates of Edinburgh r. Macfarlane, 2nd December, 1857, 20 D. 156 . 132 
 Magistrates of Edinburgh r. Paton, 3rd March, 1858, 20 D. 731 . .164 
 
 Magistrates of Dunbar v. Sawers (1829), 7 S. 672 . . . .152 
 
 Magistrates v. Sheriff of Stirling, 21st July, 1752, M. 7584 . . 95 
 
 Malloch v. Gray, 31st May, 1872, 10 Macph. 774 . . . . 160 
 
 Mannon v. Forrwt, 14th June, 1887, 14 R. 802 . . . .97 
 
 Marlborough, Duchess of, r. Strong, 5 Vin. Ab. 533 ... 7 
 
 Marshall v. Callander and Trossachs Hydropathic Co. and Others, 12th 
 March, 1897, 34 S.L.R. 530 ...... 
 
 Maule, 9th April, 1816, 4 Dow's App. 363 . 
 
 Mellor r. Britten (Timit, 27th June, 1900) ..... 
 
 Merry v. Cunninghame (1860), 22 D. 1148 ..... 
 
 Metcalf v. Purdom, 31st January, 1902, 39 S.L.R. 378 
 
 Micbie's Trustees v. Grant, 8th November, 1872, 11 Macph. 51 
 
 Millar v. Cannichael, 19th July, 1888, 15 R. 991 . 
 
 Miller r. Renton (1885), 13 R. 309 . 
 
 Mills v. Bayley, 2 H. & C. 36 
 
 Milnr. Madie, 12th June, 1820, 6 S. 967 ..... 
 
 Milne v. Melville, 27th November, 1841 , 4 D. Ill .
 
 TABLE OF CASES CITED. xvii 
 
 PAOE 
 
 Milnerv. Field, 5 Exch. 829 . . . . . .57,58 
 
 Mitchell, 7th June, 1848, 16 D. 1387 . . . . . 89, 94 
 
 Mitchell v. Dean of Guild of Edinburgh, 18th March, 1885, 12 R. 844 . 97 
 Moffat v. Dickson, 13 C.B. 543 . . . . . .11 
 
 Moff at v. Laurie, 15 C.B. 583 ...... 12 
 
 Moir's Trustees v. M'Ewan, 15th July, 1880, 7 R. 1141 . . . 135 
 
 Moneypenny v. Hartland, 2 C. and P. 378 . . . 12, 23, 24, 62 
 
 Montgomery, 23rd June, 1848, 10 D. 1387 ..... 91 
 
 Moody v. Steggles, 24th June, 1879, L.R. Ch. D. xii., p. 261 . . Ill 
 
 Moon v. Guardians of Witney Union, 3 Bing. N.C. 814, 1837 . . 6, 20 
 
 Moor v. Paterson, &c., 16th December, 1881, 9 R. 337 . . . 37, 66 
 
 Morgan v. Birnie, 9 Bing. 672, 1833 . . . . . 57, 58 
 
 Morris v. M'Kean, 19th February, 1830, 8 S. 564 . . . 159, 162 
 
 Muirhead v. Glasgow and Highland Society, 15th Jan., 1864, 2 Macph. 420 164 
 Muldoon v. Pringle, et e contra, 9th June, 1882, 9 R. 915 . . . 60, 67 
 
 Munro v. Jervey (1821), 1 Shaw, 154 ..... 165 
 
 Murdoch (1887), 8 R. 855 . . . . . . .79 
 
 Murray, 8th December, 1808, F.C. . . . . . .157 
 
 Murray v. Gullan, 10th March, 1825, 3 S. 639 . . . . 77, 78 
 
 Murray v. Johnston (1834), 13 S. 119 . . . . .71,72 
 
 Murray v. Mackenzie (1812), Hume, 520 ..... 105 
 
 Murray v. North British Railway Co., 26th January, 1900, 37 S.L.R. 370 . 87 
 Murray v. Rennie & Angus, 18th June, 1897, 24 R. 965 . . . 30 
 
 Mutrie, 26th June, 1810, F.C. ...... 152 
 
 MACBEAN v. NAPIER, 21st December, 1870, 8 S.L.R. 250 . . . 60 
 
 Macbride v. Hamilton & Son, llth June, 1875, 2 R. 775 . . . 66 
 
 Macdonald, 8th December, 1843, 6 D. 186 . . . . .89 
 
 Macgregor v. Magistrates of Leith, 18th June, 1897, 34 S.L.R. 707 . 100 
 
 Mackay v. Parochial Board of Barry, 22nd June, 1883, 10 R. 1046 39, 82, 85 
 Mackay & Son v. Leven Police Commissioners, 20th July, 1893, 20 R. 
 
 1093 . . . . . . . . 42, 44, 83, 88 
 
 Mackenzie, 19th December, 1828, S. 215 ..... 84 
 
 Mackenzie v. Hill, 2nd June, 1868, 5 S.L.R. 578 . . . .89 
 
 Mackersey v. Ramsays, 9 C. and F. 818 ..... 10 
 
 Mackintosh v. Scott, 1st February, 1859, 21 D. 363 . . 68, 71, 72 
 
 McAlpine v. Lanarkshire and Ayrshire Railway Company, 26th November, 
 
 1889, 17 R. 113 . . . . . .24, 25, 44 
 
 M'Arly v. French, 10 R. 578, 1883 .... 103, 105, 107, 111 
 
 M'Arthur, 20th February, 1836, 14 S. 549 . . . . . 91 
 
 M'Callum (1826), 2 W. and S. 344 91 
 
 M'Dougall v. Laird & Son, 16th November, 1894, 22 R. 71 . . 85 
 
 M'Ewan v. Stewart, 10th March, 1880, 7 R. 682 . . . . 140- 
 
 M'Gibbon v. Rankin (1871), 9 Macph. 423 . . . . . 152 
 
 M'Intyre v. Clow, 8th January, 1875, 2 R. 278 . . . 61, 65 
 
 M'Intyre v. Gallacher, 6th November, 1883, 11 R. 64 . . . 64 
 
 M'Kellar v. Swan & Johnston, 13th July, 1872, 9 S.L.R. 620 . . 98 
 
 M'Kerrol, 23rd May, 1826, 2 Wilson & Shaw 244 . . . .91 
 
 M'Larenv. Houston, 22nd June, 1884, 31 S.L.R. 764 . . .111 
 
 M'Lean v. Russell, M'Nee & Co., 9th March, 1850, 12 D. 887 . . 74, 75 
 
 M'Neill v. Mackenzie, 5th February, 1870, 8 Macph. 520 . . . 161
 
 xviii TABLE OF CASES CITED. 
 
 PAGE 
 
 NAISMYTH v. CAIRNDUFF, 21st June, 1876, 3 R. 863 . . . 130 
 
 Napier (1844), 7 D. 166 91 
 
 Neilson & Farqubar v. Donald, 22nd February, 1750, M. 7584 . . 101 
 
 Neil, 16 East's Kept*. 51 .... 87 
 
 Ness v. Feme*, 13th February, 1825, 4 S. 7 . . . .118 
 
 Newman r. Fowler (1874), 37 N.J. Law (8 Vr.) 89 ... 36 
 
 Newton v. Forster, 12 M. and W. 772 37 
 
 Nisbet v. Dickson & Co., 8th July, 1852, 14 D. 973 ... 74 
 
 Nisbet v. Dixon, 22nd February, 1851, 13 D. 776 . . . . 69 
 
 North r. Bassett, L.R. (1892), 1 Q.B.D. 333 . . . 6, 20, 27 
 
 OB AN HILLS HYDROPATHIC SANATORIUM (LTD.) r. J. FOKD MACKENZIE 
 (Sheriff-Court of Lanarkshire, 21st April, 1883, Guthrie's "Select 
 Sheriff -Court Cases," 2nd Series, p. 498) . . . ; 26 
 
 Ogilviev. Donaldson (1678), M. 14,534 . . . . .159 
 
 Oliver v. Robertson, 10th November, 1869,8 Macph. 137 . . . 151 
 
 Otto(1871),9Macph. 660 ....... 80 
 
 I'AKKKS v. PKKSCOTT, L.R. 4 Ex. 182 . . . . .6 
 
 Parochial Board of Greenhill v. Coghill & Low, 5th March, 1878, 5 R. 732 36, 82 
 Pashby v. The Mayor and Corporation of Birmingham, 18 C.B. 2, 1856 . 58 
 Paterson, 19th February, 1819, F.C. ..... 86 
 
 Paterson,7 S. 616 ........ 90 
 
 Patrick (1867), 5 Macph. 683 .. ... 156 
 
 Pattinson v. Luckley, L.R. 10 Ex. 330 ..... 8 
 
 Paul, 5 Macph. 613 . . . . . . . .90 
 
 Pawley v. Turnbull, 3 Giff. 70 . . . . . .59,93 
 
 Peddie v. Henderson, 1st July, 1869, 6 S.L. R. 608 . . .49, 60 
 
 Pendlebury r. Greenhalgh (1875), L.R. 1 Q.B.D. 36 ... 73 
 
 Pepper r. Burland, 1792,1 Peake.N. P. 139 .... 42 
 
 Pirnier. M 'Ritchie, 5th June, 1819, F.C. .... 78,152 
 
 Pitman, &c., r. Burnett's Trustees (1882), 9 R. 444 . . 24,101 
 
 Pitt v. Yalden, 4 Bur. 2060(1767) ...... 10 
 
 Pocock v. Gelham, 27th June, 1883, 1 C. and E. 104 ... Ill 
 
 Pollock r. Wilkie (1856), 18 D. 1311 . . . .10, 47, 67, 77 
 
 Preston's Trustees v. Preston (1844), 22 D. 366 . . . 153 
 
 Priestley v. Stone, 4 Times Law Reports, 730, 1880 . . .21 
 
 Purves v. Landell, 17 S.J. 308 . . . . .10 
 
 RAMHAT v. BRAND, 20th July, 1898, 35 S.L.R. 927 . . . 50, 52, 56, 60 
 
 Randell v. Trimen, 18 C.B. 786 (1856) ..... 9 
 
 Rankin v. Dixon & Company, 19th March, 1847, 9 D. 1048 . . 69 
 
 Rankine t. Rankine (1825), 4 S. 127 (N.E. 128) .... 1 
 
 Rattray (1868), 5S.L.R. 219 . . . . . .151 
 
 Rattray r. Yuille (Guthrie's " Sheriff-Court Decisions," 2nd Series, p. 107) 19 
 Reid v. Duff (1839), 1 D. 400 . . . . . .1 
 
 Reid r. Nicol, 16th November, 1799, M., App. Property. No. 1 . . 120 
 
 Restell v. Nye, 23rd January, 1900, Q.B. Div. (Matthew, J.), 16 Times 
 
 L.R. 154. . . . . . . . .20, 57 
 
 Rex . Peto, 1 Youuge & Jervise, 37, 1826 ..... 8 
 
 Richardi v. May, L.R. 10 Q.B.D. 400 57 
 
 Richardson v. Anderson, 1 Camp. 43 n. . . . .7
 
 TABLE OF CASES CITED. xix 
 
 PAGE 
 
 Richardson r. Dumfriesshire Road Trustees, 27th May, 1890, 17 R. 805 . 62, 64 
 Ritchie v. Purdie, 21st June, 1833, 11 S. 771 . . . . 121 
 
 Roberts v. Bury Improvement Commissioners, L.R. 5 C.P. 310 . . 52 
 
 Roberts i: Watkins, 32 L.J., C.P. 291 . . . . .58 
 
 Robertson v. Driver's Trustees, 2nd March, 1881, 8 R. 555. . . 67 
 
 Robertson v. Hamilton's Trustees, 1825, 4 S. 6 . . . 71, 109 
 
 Robertson v. Scouler (1825), 1 F.C. 126 ..... 152 
 Robsonv. Godfrey (1816),! Stark N. P. 275 .... 42 
 
 Rodger v, Russell, 10th June, 1873, 11 M. 673, &c. . . . 114, 116, 119 
 
 Rodgers v. James (1891), 8 Times L.R. 67 . . . . .57 
 
 Ross v. Cuthbertson, 3rd March, 1854, 16 D. 732 . . . 151,163 
 
 Royal British Bank v. Turquand, 5 E. & B. 248 . . . .1,7 
 
 Russell v. Cowpar, 24th February, 1882, 9 R. 660 . . . 97, 152 
 
 Russell v. Sa Da Bandeira (1862), 13 C.B., N.S. 149 ... 40, 54 
 
 Rylands (1864), 3 H. & C. 774, 186S ..... 78 
 
 SALTOUN, LORD, AND OTHERS, Petrs., 19th March, 1897, 34 S.L.R. 560 . 100 
 
 Sandys v. Innes, 15th February, 1823, 2 S. 221 . . . 121 
 
 Saunders v. Broadstairs Local Board (1890), Hudson, Vol. II., p. 64 . 31 
 
 Schulze v. Campbell, 29th November, 1815, F.C. . . . .162 
 
 Scott v. Cairns, 18th December, 1830, 9 Shaw, 246 . . . . 141 
 
 Scott v. Carluke Local Authority, 1st February, 1879, 6 R. 616 . . 84 
 Scott v. Liverpool Corporation, 35 L. J., C.L. 230 .... 57, 58 
 
 Scrivener v. Pask, L.R. 1 C.P. 715 . . . . . . 8, 30 
 
 Sharp, 24th February, 1815, 3 Dow's App. 102 . . .89 
 
 Sharp, 17th May, 1813, 6 Dow's App. 223 . . . . .94 
 
 Sharp v. Robertson (1800), Morison, App. Property, No. 3 . . . 120 
 
 Sharpe v. San Paulo Railway Company (1873), L.R. 8 Ch. 597 7, 8, 57 
 
 Shotts Iron Company (1882), 9 R. (H.L.) 78 . . . .79 
 
 Skinner v. Dicy, 5th December, 1855, 18 D. 158 . . . 128, 132 
 Sraellie v. Struthers (1803), M. 7588 ...... 96 
 
 Smellie v. Thomson, 9th July, 1868, 6 Macph. 1024 . . .101 
 
 Smith v. Barton (1886), 15 L.T. 294 . . . . . .23 
 
 Somervil v. Somervil, M. 12,769 . . . . . .156 
 
 Somerville v. Macgregor, 7th November, 1889 . . . .96 
 
 Speed v. Philip, 16th March, 1883, 10 R. 795 . . . 96 
 Spencer v. Harding, 39 L.J., C.P. 332 ..... 28 
 
 SSpratt v. Dornford (1862), Times, 1st December, p. 11, and App. B. . 6 
 
 Stephen v. Thurso Commissioners (1876), 3 R. 535, 540 . .73 
 
 Stevens v. Taylor, 2 F. and F. 419 . . . . . . 12, 24 
 
 Stevenson (1867), 3 S.L.R. 184 . . . . . .152 
 
 Stevenson v. Watson, L.R. 46 P.D. 148 . . . . .57 
 
 Stewart v. Burk, 9th December, 1820, F.C. .... 128, 139 
 
 Stewart v. Meikle, 27th January, 1874, 1 R. 408 . . . . 143 
 
 Stirling v. Finlayson (1752), M. 14,526 . . . . .165 
 
 Straiton Oil Co. v. Sanderson, 14th June, 1882, 9 R. 929 . . .36 
 
 Stubbs v. Holyhead Railway Co., L.R. 2 Ex. 311 . . . 4, 5 
 
 Sutherland v. Barbour, 17th November, 1887, 15 R. 63 . 131, 136 
 
 TAILORS OF ABERDEEN v. COUTTS, 20th December, 1834, 13 S. 226 . 123 
 
 Taylor v. Dunlop, 1st November, 1872, 11 Macph. 25 . . 78, 119 
 
 Taylor v. Greenhalgh, L.R. 9 Q.B. 487 . . . .73
 
 TABLE OF CASES CITED. 
 
 PACK 
 
 Taylor r. Hall, 4 Irish L.R. C.L. 467 (1869) . . . . 6, 20 
 
 Taylors v. Maclellans, 21st October, 1891, 19 R. 10. . . .37 
 
 Tennant, 16th June, 1836, 14 S. 999 ..... 84 
 
 Tharsis Sulphur and Copper Company r. M'Elroy (1878), 5 R. 161 
 
 7, 45, 47, 52, 54, 56, 66 
 Thomson r. James (1855), 18 D. 1 . . . . . .30 
 
 Thorn r. Mayor of London (1876), 1 App. Cas. 120 . . 7, 30, 40 
 
 Thornhill v. Neats, 8 C.B., N.S. 831 (1860) ..... 54 
 
 Thornton v. Place, 1 Mood, and Rob. 219 . . . . . 40, 52 
 
 Tracey v. M'Cabe (1873), 39 L.R. , Ir. 21 . . . . . 5 
 
 Trent v. Humber Co. ex parte Cambrian Steam Packet Co. (1868), L.R. 6 
 
 Eq. 396 . . . . . . . . .31 
 
 Tullis v. Jaeson, L.R. (1892) 3 Ch. 441, 59 
 
 Turner v. Hamilton, 21st February, 1890, 17 R. 501 . . 107, 141, 149 
 
 UNION HERITABLE SECURITIES Co. LTD. v. MATHIE, 3rd Mar., 1886, 13 R. 670 156 
 Urquhart v. Gregor, 19 D. 853, 1857 ..... 10 
 
 Urquhart v. Melville, 22nd December, 1853, 16 D. 307 . . . 108 
 
 VRICKBTTV. BADGER (1856), 1C.B..N.S. 296 .... 14 
 
 WAGHORN . WIMBLEDON LOCAL BOARD, Times, 4th June, 1877 . . 18 
 
 Wales v. Wales, 28th November, 1888, 16 R. 164 . . . .102 
 
 Walker v. Braidword (1797), Hume, 512 . . . . .113 
 
 Walker v. Park, 29th February, 1888, 15 R. 477 . . . . 102 
 
 Walker v. Renton, llth March, 1825, 3 S. 650, N.E. 455 . . 126, 128 
 
 Walker v. Wishart, 7th July, 1825, 4 S. 148 . . . . 154 
 
 Walkers' Trustees v. Haldane, 28th February, 1902, 39 S.L.R. 409, 134, 141 
 
 Walker's Trustees v. Learmonth & Co., 17th November, 1824, 3 Shaw, 202 111 
 Wallace v. Brown (1808), M. Appendix, Personal and Real, No. 4 . . 116 
 
 Wallace t;. Fisher & Watt, 9 M. 75 (1870) 10 
 
 Walton Brothers v. The Magistrates of Glasgow, 20th July, 1876, 3 R. 1130 154 
 Warrens v. Marwick, 13th June, 1835, 13 S. 944 . . . . 122 
 
 Watoon v. Waddell, 2 App. Cas. ...... 79 
 
 Watt v. Burgess' Trustees, 19th March, 1891, 18 R. 767 . . . 119 
 
 Welli t?. Bamswell 4 Creswell's Repts., 457 .... 87 
 
 Westwood v. Secretary of State for India, 16th January, 1863, 7 Law 
 
 Times Rep., N.S., 736 . . . . . . . 54 
 
 Whipham v. Everett (1900), Times, 22nd March, 1900 ... 17 
 
 White ( 1881), 8 R. 375 79 
 
 Whitty v. Lord Dillon, 2 F. and F. 67 . . . . .23 
 
 Wilkinson v. Clements, L.R. 8 Ch. 96 . . . . . 52 
 
 Williams v. Fitzmaurice, 3 H. and N. 844 . . . . . 44, 52 
 
 Wilmot v. Smith, 3 0. and P. 453 . . . . . .37 
 
 Wilsons v. Waddell, 1st December, 1876, 4 RH.L. 29 . .68 
 
 Wolski v. M'Intyre, 10th January, 1866, 1 S.L.R 100 . . . 83 
 
 Wylie & Locbhead v. M'Elroy (1873), 1 R 41 .28 
 
 YOONO v. DKWAB, 17th November, 1814, F.C. . . . .162 
 
 Young v. Hill, 5th March, 1902, 39 S.L.R. 415 . . .98 
 
 Young & Co. v. Mayor, &c., of Royal Leamington Spa (8 App. Cas. 517) . 2 
 
 Young v. Smith (1880), Hudson, Vol. II., p. 100 . . . . 27 
 
 ZETLAND v. HISLOP, 12th June, 1872, 9 R., H.L. 40 . . 141, 146
 
 LAW AFFECTING 
 
 BUILDING OPERATIONS AND ARCHITECTS' 
 AND BUILDERS' CONTRACTS. 
 
 CHAPTER I. 
 
 THE ARCHITECT AND SURVEYOR THEIR 
 APPOINTMENT, DUTIES, &G. 
 
 THE APPOINTMENT OF ARCHITECTS. 
 
 THE rules of law applicable to the appointment of ordinary- 
 agents or factors apply to architects. 
 
 Accordingly, an effective appointment cannot be made by 
 persons suffering from legal incapacity, such as idiots, 
 lunatics, and pupils (Reid v. Duff, 1839, 1 D. 400 ; Lindsay 
 v. Watson, 1843, 5 D. 1194 ; Rankine v. Rankine, 1825, 
 4 S. 127 (N.E. 128)). Where the services of an architect 
 are required on behalf of such persons, it is essential that the 
 appointment be made by their guardians. 
 
 A minor pubes may alone if he has no curators, or with 
 their consent if he has curators, appoint an architect (Bell's 
 Pr. 2088). 
 
 A married woman may incur obligations relative to her 
 separate estate, but not to the effect of binding her person 
 or her husband (Bell's Pr. 1612). An appointment, there-
 
 2 LA W AFFECTING BUILDING OPERATIONS. 
 
 fore, of an architect by a married woman should be with the 
 consent of her husband. Where, however, a married woman 
 is judicially separated from her husband, his consent is not 
 required. 
 
 The appointment of architects need not be in writing, but 
 it would frequently prevent misunderstanding and dissatis- 
 faction if the extent of the work and terms of employment 
 were embodied at the outset either in correspondence or in a 
 short agreement. It is well to expressly state what the 
 architect is employed to do, whether merely to prepare plans 
 or also to superintend the erection of the building ; the limit 
 of cost ; within what period the work must be completed ; 
 who is to be the owner of the plans, and the architect's 
 remuneration. In the general case it may be chiefly in the 
 interests of the employer to have these points explicitly set 
 forth. 
 
 In certain cases, however, the architect may find it advan- 
 tageous to have the terms of his employment stated in 
 writing. This should probably always be done where the 
 employment is by a corporation or a limited liability com- 
 pany. It was held that an architect could not recover fees 
 in respect that the contract was not under seal, where an 
 urban Authority verbally directed their surveyor to employ 
 an architect to prepare plans for offices, which was done, and 
 the Authority advertised for tenders for building the offices 
 in accordance therewith, but when these were sent in, it was 
 found that the plans were on a too expensive scale, and the 
 intended offices were not erected. This was the decision 
 although the offices were necessary for the purposes of the 
 defendants, and the plans were necessary for their erection 
 (Hunt and Wimbledon Local Board, 3 C.P.D. 208 ; 47 L.J., 
 C.P.D. 540 ; on appeal L.R. 4 C.P.D. 48 ; 48 L.J., C.P.D. 
 207. Approved in Young <fe Co. v. Mayor, &c., of Royal 
 Leamington Spa (8 App. Cas. 517 ; 52 L.J., Q.B. 713 ; 49 
 L.T. 1 ; 31 W.R 925)).
 
 THE ARCHITECT AND SURVEYOR. 
 
 In contracting with such a company it is important to 
 make sure that the contemplated operations are within the 
 scope of the objects of the company as set forth in its 
 memorandum of association. A contractor dealing with the 
 directors of a company is held to have had constructive notice 
 of the memorandum and articles of association, and he cannot 
 plead ignorance of their terms (Royal British, Bank v. Tur- 
 quand, 5 E. and B. 248 ; 6 E. and B. 327, Ex. Ch. ; 
 Balfour v. Ernest, 1859, 5 C.B., N.S. 601). 
 
 It is likewise desirable to be satisfied that any require- 
 ments of the articles of association as to the execution of 
 contracts are properly given effect to. 
 
 Unless these points are attended to circumstances may 
 evolve in which it would be difficult and expensive, if not 
 impossible, for the architect to recover remuneration for 
 services bond fide rendered. This is especially important 
 in the event of disputes arising, or of the company going 
 into liquidation. 
 
 ARCHITECTS CONTRACTS PERSONAL. 
 
 The employer is entitled to rely on the personal qualifica- 
 tion and skill of the architect he employs. Consequently, 
 as a rule the architect cannot delegate his powers to another 
 architect (Per Williams, J., in Hemming v. Hale, 7 C.B., 
 N.S. 498; Coles v. Trecothick, 9 Ves. 236, 251, 252), 
 though he may, of course, employ his subordinate where 
 that can be done with safety. An architect in large business 
 cannot be expected individually to attend to all the details 
 of the work intrusted to him. He must, however, remain 
 the responsible party. He is not even entitled to put 
 implicit trust in a Clerk of Works. If by doing so he passes 
 inferior work, he may be liable to his employer (Lee v. 
 Bateman, Q.B.D., 1893, Times, 31st October). If the 
 architect should fail, by death or permanent disability, the
 
 4 LAW AFFECTING BUILDING OPERATIONS. 
 
 contract falls (Stubbs v. Holyhead Railway Co., L.R. 2 Ex. 
 311 ; 36 L.J., Ex. 166, 1867). His representatives are not 
 entitled to put forward a substitute. The case is, of course, 
 different where a firm of architects is employed. In that event, 
 the death of one out of two or more partners of the firm would 
 not terminate the contract unless it were conclusively shown 
 that the employer by contract relied, and was entitled to rely, 
 exclusively on the qualifications and skill of the deceased 
 partner. Even in the case where two men not partners 
 an architect and an engineer, were employed to superintend 
 the construction of cable tramways, they to receive five per 
 cent, on the cost of the works, it was held that it was not a 
 contract of joint employment, and that so long as the work 
 was efficiently done, it could be competently executed by 
 either of the associated parties. E, the engineer, was a 
 specialist in the construction of cable tramways. He pre- 
 pared various plans and drawings, but in consequence of the 
 work not being proceeded with at once, he went abroad and 
 took no further part in the construction of the line, and the 
 work was subsequently completed by B, the architect, in 
 conjunction with another engineer. B and E, the original 
 parties, were held entitled to the agreed-on remuneration 
 (Beattie and Another v. Edinburgh Tramways Co., 1891, 
 28 S.L.R. 763). 
 
 Hudson, Vol. i. p. 39, says that by the death of the 
 employer (building owner) the contract is terminated, but 
 his reasons are not conclusive. He says : "The contract to 
 employ an architect is certainly one as to personal service, 
 and an agent's authority is revoked by death of the prin- 
 cipal ; " but although it is true that an architect is invested 
 with the powers of a general agent for his employer, it is 
 none the less true that the employer cannot terminate his 
 employment at pleasure without paying damages for breach 
 of contract. It is possible to have an agreement or contract 
 with an architect to complete a job. Such a contract would
 
 THE ARCHITECT AND SURVEYOR. 
 
 hold good against the employer's representatives after his 
 (the employer's) death just as effectively as a contract with 
 a builder. It is quite a different case from the death of the 
 architect, because then it becomes impossible to render the 
 personal services which formed an essential part of contract. 
 
 The death of an architect and consequent termination of 
 the contract does not in the general case involve forfeiture 
 of remuneration for work actually done up to date of the 
 death. This is the case where payments would in ordinary 
 course be made by instalments as the work progressed. If, 
 however, the architect agreed to finish a piece of work by a 
 definite date and for a fixed slump sum, and his death pre- 
 vented implement, the representatives would have no legal 
 right to any fees (Stubbs v. Holyhead Railway Co., L.R. 
 2 Ex. 311 ; 36 L.J., Ex. 166, 1867). Note See Tracey v. 
 M'Cabe, 1873, 39 L.R., Ir. 21, and Grove v. Johnston, 1889, 
 24 L.R., Ir. 352. But if payment for the work is divisible, 
 then such a sum as has become due at the date of death is 
 recoverable from the employer (Stubbs v. Holyhead Railway 
 Co., supra}. 
 
 THE AUTHORITY AND POWERS OF ARCHITECTS. 
 
 Where an architect is employed to superintend the erec- 
 tion of buildings he becomes the general agent of the 
 employer for all purposes within the contract connected 
 with the erection of the buildings, and is presumed to have 
 authority and powers such as are usual for architects to 
 exercise in connection with work of the sort. Such 
 authority and powers may, however, be limited or extended 
 as the case may be, by the terms of any special arrangement 
 effected either in writing or orally between the parties. A 
 builder (contractor) is entitled to assume that the architect 
 is clothed with all usual power and authority to act on 
 behalf of his principal. Where, however, by agreement with
 
 6 LAW AFFECTING BUILDING OPERATIONS. 
 
 or known to the builder, the architect's powers are limited, 
 the builder must be careful not to act on his instructions 
 beyond the limits (Kimberley v. Dick, 1871, L.R. 13 Eq. 
 1, 17 ; Byles, J., in Parkes v. Prescott, L.R. 4 Ex. 182). 
 The architect as general agent has the full authority due to 
 his position, and the employer is bound by his acts within 
 that authority, notwithstanding special instructions restrict- 
 ing that authority which are not known to the builder 
 (Kimberley v. Dick, supra). 
 
 Where the architect has instructions to obtain tenders 
 there is an implied power to employ a quantity surveyor, 
 whose charges are generally paid by the successful com- 
 petitor (among the contractors) (North v. Bassett, L.R., 
 1892, 1 Q.B.D. 33:3 ; 66 L.T..N.S. 189; Mellor v. Britten 
 (Times, 27th June, 1900)). Where, however, no tender is 
 accepted the building owner would be liable for the surveyor's 
 fees (Moon v. Guardians of Witney Union, 3 Bing., N.C. 
 814, 1837 ; Taylor v. Hall, 4 Irish L.R., C.L. 467, 1869). 
 
 The terms of a contract of employment are to be given 
 full force and effect, and custom must give way where it 
 conflicts, but custom remains in force so far as not incon- 
 sistent with these terms. Accordingly the extent of the 
 architect's powers and authority must be gathered from the 
 terms of contract, and also from custom so far as not incon- 
 sistent with these terms. But the express terms of employ- 
 ment must not be extended. An instruction to prepare draw- 
 ings does not necessarily infer a right to obtain tenders (Spratt 
 v. Doi*nford, 1862, Times, 1st December, p. 11 and App. B.) ; 
 an instruction to obtain tenders does not imply power to accept 
 them, and so on. Such an instruction, however, implies 
 authority to employ a quantity surveyor (infra, p. 18). The 
 terms of the architect's authority may, however, be so compre- 
 hensive as to embrace power to enter into a contract on behalf 
 of the employer for the building of a house (Hall v. Holt, 2 
 Vern. 322 ; 3 P. Wms. 223 ; S.C. DucJiess of Marlborough v.
 
 THE ARCHITECT AND SURVEYOR. 
 
 Strong, 5 Vin. Ab. 533 ; 2 Eq. Ca. Ab. 19, pi. 11 ; 1 Brow., 
 P.O. 175). The architect, in order to keep himself safe, 
 should proceed in the usual manner to survey the site and 
 prepare the plans. When the plans have been approved of 
 he should take instructions for the employment of a surveyor 
 to prepare schedules, take out quantities, &c. ; and for the 
 obtaining of tenders. When the tenders are received he 
 should submit them for approval of the employer, and when 
 the respective contracts have been set he should follow the 
 course set out in the contracts, or the usual course in the 
 absence of any direction to the contrary regarding the site, 
 the overlooking of the work, certifying, &c. (Richardson v. 
 Anderson, 1 Camp. 43 n. ; Johnson v. Kershaw, L.R. 2 Ex. 
 82 ; Ireland v. Livingston, L.R. 2 Q.B. 99 ; ibid. 5 Q.B. 
 516; ibid. 5 H.L. 395). 
 
 The architect has no implied power to 
 
 1. Warrant to the builder that plans are correct, and that 
 
 the work can be executed according to them (Thorn 
 v. Mayor of London, 1876, 1 App. Gas. 120). 
 
 2. To order the builder to perform as extras work 
 
 omitted from the plans, even though it be indis- 
 pensably necessary to complete the builder's con- 
 tract (Sharpe v. San Paulo Railway Company, 
 1873, L.R. 8 Ch. 597). 
 
 3. To order as an extra, work necessary to render im- 
 
 practicable plans practicable (Thar sis Sulphur and 
 Copper Company v. M'Elroy, 1878, 5 R. 161; 5 
 R. (H.L.) 171 L.R. ; 6 R. 1119). 
 
 4. To give instructions or directions except within the 
 
 limits of contract (Sharpe v. San Paulo Railway 
 
 Company, supra). 
 
 It is one of the main duties of an architect to see that 
 contracts with builders are fulfilled in a proper and complete 
 manner. He has no implied power to vary or waive the 
 terms of a contract, and where he. does so without authority
 
 8 LAW AFFECTING BUILDING OPERATIONS. 
 
 he and not the building owner will be liable (Sharpe v. San 
 Paulo Railway Company, supra ; Pattinson v. Luckley, 
 L.R. 10 Ex. 330 ; 44 L.J., Ex. 180; 33 L.T. 360). But 
 where there is ambiguity in the contract if the architect acts 
 honestly and is merely guilty of error in construction of the 
 contract, he is not liable to his employer (Ireland v. Living- 
 ston, 1871, L.R. 5 H.L. 395 ; 41 L.J., Q.B. 201). 
 
 The architect requires to be very careful in the matter of 
 granting certificates for payments to contractors (see post, 
 p. 55). 
 
 If he exceeds his authority by certifying more than the 
 proportion specified in the contract, the employer will not be 
 compelled to pay, while the architect may be subjected in an 
 action of damages at the employer's instance for negligence 
 if the employer in good faith paid in excess in terms of the 
 certificate (Crabbe v. Brimsley, 1888, 5 Times L.R. 14). 
 
 If a contract between contractor and building owner gives 
 power to the surveyor or architect to order extra work, this 
 cannot in general be construed as conferring authority on the 
 architect or surveyor to materially alter the plan ; it merely 
 gives authority to make alterations in details (Rex v. Peto, 1 
 Younge & Jerviss, 37, 1826). Of course the language used 
 may be sufficiently strong to confer a power to order material 
 alterations. 
 
 If an architect employed to prepare plans and specifica- 
 tions for a house and to procure a builder to erect it, takes 
 out the quantities and represents to a builder that they are 
 correct, and the builder thereupon makes a tender which is 
 accepted, the builder cannot upon these facts alone recover 
 more than the contract price from the employer, although it 
 turns out that the quantities are wrong and the builder has 
 expended upon the building a much larger amount of material 
 than he contemplated (Scrivener v. Punk, L.R. 1 C.P. 715). 
 It was held there that the employer had not warranted the 
 accuracy of the quantities.
 
 THE ARCHITECT AND SURVEYOR. 
 
 If an architect falsely represents to another that he has 
 the authority of his employer to do some act, and that 
 person, acting on the faith of that representation, is thereby 
 injured, he is entitled to damages from the architect to the 
 extent of the loss occasioned by so acting (Randell v. Trimen, 
 18 C.B. 786, 1856). In that case, the principle of which 
 was approved in Gotten v. Wright, 7 E. and B. 301 ; 8 E. 
 and B. 647, 1857, the architect ordered stones for a church, 
 representing that he had authority from his principal so to 
 do, which was false. 
 
 QUALIFICATIONS AND DUTIES OF ARCHITECTS. 
 
 When an architect fails to give satisfaction in connection 
 with work entrusted to him, the occasion arises for deter- 
 mining whether he is sufficiently qualified. The rules of law 
 affecting the work of skilled or professional persons will then 
 be found to apply to architects. 
 
 An architect, by undertaking work, will be held as war- 
 ranting his possession of what knowledge and skill are reason- 
 ably necessary for its performance (Harmer v. Cornelius, 5 
 C.B., N.S. 236 ; 28 L.J., C.P. 85 ; Duncan v. Blundell, 3 
 Stark 6, cited 5 M. and P. 548. But he is not required to 
 have skill or knowledge in the highest degree, nor is he liable 
 for errors of judgment or for honestly acting on an erroneous 
 construction of an ambiguous contract (Ireland v. Living- 
 ston, 1871, L.R. 5 H.L. 395 ; 41 L.J., Q.B. 201). His 
 work must also be performed with reasonable care and 
 diligence (Bell's Pr., 8th ed, 153, 154, and cases there cited). 
 
 Lord Chancellor Cottenham, in Frame v. Campbell, 14 S. 
 914, 1836, said: "Professional men possessed of a reason- 
 able portion of information and skill, according to the duties 
 they undertake to perform, and exercising what they possess 
 with reasonable care and diligence in the affairs of the em- 
 ployers, certainly ought not to be held liable for errors in
 
 io LAW AFFECTING BUILDING OPERATIONS. 
 
 judgment." . . . "Every case, therefore, must depend on its 
 own peculiar circumstances, and where an injury has been 
 sustained which could not have arisen except from the want 
 of such reasonable information and skill, or the absence 
 of such reasonable care and diligence, the law holds the 
 attorney liable." That was a case relating to a law 
 agent, but the principles enunciated apply equally to 
 architects. 
 
 That more than an ordinary degree of skill, knowledge and 
 diligence is not required is evident from the opinion of Lord 
 Brougham. " It is of the very essence of this action that 
 there should be negligence of a crass description, which we 
 call crassa negligentia ; that there should be gross ignorance ; 
 that the man who has undertaken to perform the duty of 
 an attorney, of a surgeon, of an apothecary (as the case may 
 be) should have undertaken to discharge a duty profession- 
 ally, for which he was very ill qualified, or if not ill qualified 
 to discharge it, which he had so negligently discharged as to 
 damnify his employer or deprive him of the benefit which 
 he had a right to expect from the service " (Purves v. 
 Landell, 17 S.J. 308 ; 12 Ch. and Ferr. 91, 98, 1845 ; 
 Pitt v. Yalden, 4 Bur. 2060, 1767; Baikie v. Chandless, 
 3 Camp. 17, 1811 ; Pollock v. Wilkie, 1856, 18 D. 1311 ; 
 Urquhart v. Gregor, 19 D. 853, 1857; Wallace v. Fisher 
 & Watt, 9 M. 75, 1870 ; Hunt v. Wimbledon Local Board, 
 1878, L.R. 4 C.P.D. 48 ; Jamieson v. Simon, 12th July, 
 1899, 36 S.L.R. 883; see Bell's Pr., 8th ed., 153). The 
 architect is also responsible for those whom he may employ 
 under him (Lord North's case, Dy. 161; Mackersy v. Ramsays, 
 9 C. and F. 818). 
 
 An architect, even when he undertakes gratuitously to 
 perform any act within the scope of his business, apondet 
 peritiam, and is responsible for want of skill (Bell's Pr. 
 218).
 
 THE ARCHITECT AND SURVEYOR. II 
 
 REMUNERATION OF ARCHITECTS. 
 
 By the Royal Institute of British Architects' Schedule, 
 " The usual remuneration for an architect's services, ' except 
 as hereinafter mentioned,' is a commission of 5 per cent, on 
 the total cost of works executed under his directions. Such 
 total cost is to be valued as though executed by a builder with 
 new materials. This commission is for the necessary pre- 
 liminary conferences and sketches, approximate estimate 
 when required, the necessary general and detailed drawings 
 and specifications, one set of tracings, duplicate specification, 
 general superintendence of the works, and examining and 
 passing the accounts, exclusive of measuring and making out 
 extras and omissions " (see Appendix I.). 
 
 By the act of employing an architect there is an implied 
 obligation in the absence of a stipulation to the contrary 
 to pay him the usual fees (Landless v. Wilson, 1880, 8 R. 
 289). This is the rule which applies to employment generally. 
 
 There are, of course, cases in which no remuneration can 
 be claimed : 
 
 1. When the architect undertakes but fails to prepare 
 such plans as shall meet with the employer's approval (Moffat 
 v. Diclcson, 13 C.B. 543 ; 22 L.J., C.P. 265, 1853). 
 
 2. When from obvious want of skill or serious errors the 
 architect's work proves valueless, that is to say, of no use for 
 the purpose intended (Bayley, J., in Duncan v. Blundell, 3 
 Stark 6, cited 5 M. and P. 548). Suppose, for example, 
 that the architect was instructed to prepare plans for a build- 
 ing one of the floors of which, he was informed, was intended 
 to carry heavy machinery of a special weight, if it were found 
 that the floor, after erection in accordance with the plans, was 
 insufficient for its purpose, the architect would not only have 
 to do without fees, but he might also be subjected in damages. 
 
 If architect or surveyor gives his employer a grossly 
 incorrect estimate of cost, and thereby leads him into
 
 12 LAW AFFECTING BUILDING OPERATIONS. 
 
 unnecessary expense, he is not entitled to be paid for his 
 plans, &c. (Moneypenny v. Hartland, 2 C. and P. 378). 
 
 In works of considerable size and attended with special 
 difficulty the architect is generally allowed to alter his plan 
 in some details as the work proceeds. This does not involve 
 any forfeiture of fees. 
 
 3. Where he fails to implement an express and essential 
 condition of contract that the work shall be done within a 
 specified time, or, in the absence of such condition, within a 
 reasonable time. It would probably be difficult to refuse 
 remuneration on the ground that the work was not done within 
 a reasonable time unless it could be shown that the employer 
 had actually made application to the architect and given him 
 reasonable notice (Stevens v. Taylor, 2 F. and F. 419). 
 
 4. In the case of a public competition, unsuccessful com- 
 petitors frequently get no remuneration for their trouble. 
 
 5. It is not supposed that many architects will undertake 
 work on condition that they will only be remunerated on the 
 occurrence of events which may or may not occur. It is, 
 however, conceivable that, with a view to future advantage, 
 an architect might be willing to prepare plans for a superior 
 who contemplates feuing part of his estate on condition that he 
 would only expect remuneration if and when the ground was 
 actually feued and building operations begun (Mo/at v. Laurie, 
 15 C.B. 583 ; 24 L.J., C.P. 56, 1855). In such a case it is as 
 well to stipulate that the superior shall do nothing himself, 
 such as selling the estate, which would render the occurrence 
 of the event impossible ; such an obligation would obviously 
 not subsist against the purchaser. The case of Landless v. 
 Wilson, 1880, 8 R. 289, is one somewhat in point. An 
 architect prepared detailed plans for covering a piece of 
 ground with buildings to be erected by the proprietor. The 
 buildings were not proceeded with, but the proprietor used 
 the plans to his advantage in dealing with a purchaser of 
 the ground. In an action by the architect for payment of
 
 THE ARCHITECT AND SURVEYOR. 13 
 
 his account the original proprietor denied liability, on the 
 ground that the plans had been furnished upon the footing of 
 their being a competition. The Court held that, assuming the 
 fact as stated by the defender, it lay upon him to prove that 
 the employment was gratuitous, which he had failed to do, 
 and decree was given accordingly. 
 
 An architect sued, inter alia, for charges for preparing \ 
 plans. The defence was that they were to be paid for only 
 if they were used for the proposed buildings, and they had 
 not been so used. As it was proved that the defender, though 
 he had not erected the buildings, had shown the plans to an 
 intending purchaser, to whom he sold the ground at a large 
 profit, and that the sale had been induced by the pursuer's 
 skilful manipulation of the ground, the Sheriff held that 
 the architect was, notwithstanding the agreement, entitled to 
 some payment on the principle of quantum meruit (Landless 
 v. Wilson, 1880, 24 Journal of Jurisprudence, 275). 
 
 The same principle was recognised, but with the opposite 
 effect, in Boucher & Cousland v. Rev. A. Russell and others, 
 Minister and Managers of Kinning Park Free Church, which 
 was decided in the Sheriff-Court of Lanarkshire in December, 
 1882 (Guthrie's "Sheriff-Court Cases," 2nd Series, p. 114). 
 There an architect sued for a sum as quantum meruit. He 
 had, as architect, built the defenders' church without a tower, 
 and some years later had, in meetings with them, shown them 
 the plans as originally prepared by him with the tower. He 
 claimed remuneration on the ground that they had taken the 
 benefit of his professional skill. The Sheriff held that, in the 
 circumstances, the defenders in their interviews did not consult 
 him, but merely negotiated with the view of employing him 
 or another, and that although they had had possession for a 
 night of his plans, it did not appear that they had taken 
 advantage of them. There was no allegation of fraud. The 
 defenders were assoilzied. 
 
 From the vague and informal manner in which architects
 
 14 LAW AFFECTING BUILDING OPERATIONS. 
 
 are frequently employed, it is not easy at all times to say 
 whether the employer is liable to the architect in damages 
 where he decides not to proceed with the buildings in whole 
 or in *part. If the employment be expressly limited to the 
 preparation of plans, it is clear that the employer is not 
 bound to pay for more than that work, unless and until he 
 instruccs the architect to proceed with the erection. It is 
 all a matter of contract. 
 
 It is very doubtful if our Courts would infer an obligation 
 to pay the architect for loss of profit where the buildings 
 are not proceeded with. The architect would, of course, be 
 entitled to fees for the work actually done by him drawing 
 plans, specifications, &c. but before he can claim more, the 
 building contract must have been entered into (Vrickett v. 
 Badger, 1856, 1 C.B., N.S. 296 ; 3 Jur. N.S. 66), part of 
 the work must have been begun, or there must have been a 
 clear contract between the employer and the architect that 
 the former was to build and the latter was to act as architect. 
 
 The case of Wm. Crouch, C.E., v. Glasgow & South- 
 Western Railway Co., which was before the Sheriff-Court of 
 Lanarkshire, 20th July, 1881 (Guthrie's "Sheriff-Court Cases," 
 2nd Series, p. 109), has some importance at this juncture. 
 
 Mr. Crouch was employed by defenders (the Railway 
 Company) to prepare plans for the College Station in High 
 Street, Glasgow ; and afterwards, the plans having been 
 approved by the directors, to act as the company's engineer 
 in the construction of the station. The arrangement is 
 referred to in the following letter from the pursuer to the 
 defenders ; 
 
 4th November, 1 874. 
 
 Sir JAMES LUMSDEN. 
 MY DEAR SIR, 
 
 College Station. 
 Referring to our conversation as to my remuneration for
 
 THE ARCHITECT AND SURVEYOR. 15 
 
 the College Station work, I understand the arrangement to 
 be as follows : 
 
 I receive 3^ per cent, on the cost of construction of the 
 station works and appurtenances, including permanent way- 
 laying (but not permanent way materials), for which remun- 
 eration I am to furnish all plans, general and detail drawings, 
 specifications, and bills of quantities that are from time to 
 time required, to set out the work, provide proper inspection 
 and supervision, attend all meetings of directors and others 
 in reference to the work (in Glasgow), and arrange all the 
 contractor's accounts, including the final settlement. 
 I am, 
 
 Yours faithfully, 
 
 (Sgd.) WILLIAM CROUCH. 
 
 The Sheriff-Substitute found that the remuneration was 
 fixed upon the footing that the pursuer was to be employed 
 in completing the whole of the station works and appurten- 
 ances then in contemplation, according to plans approved 
 by the directors, and that as the defenders had delayed to 
 proceed with the construction of part of the works, &c., and 
 had repudiated further liability to the pursuer, they were 
 liable in damages for breach of contract. 
 
 The Sheriff-Substitute, in the course of a lengthy note to 
 his interlocutor, said : " The ground which the defenders take 
 up is quite an intelligible one, namely, that if an engineer or 
 architect is employed to plan and superintend the execution 
 of a particular work, that employment does not infer an 
 absolute obligation on the part of the employer to go on 
 with the work till completion in order that the engineer or 
 architect may earn his commission, and that he takes the 
 chance of the work being only partially performed if it is 
 one which admits of partial execution. 
 
 " To a certain point this is undoubtedly true, for no one 
 would contend that an owner of ground is bound specifically
 
 1 6 LAW AFFECTING BUILDING OPERATIONS. 
 
 to build a house because he has engaged an architect to plan 
 it and superintend its erection, or a railway company to 
 complete one hundred miles of railway because its engineer 
 has been ordered to make a plan of it. But it is not a 
 legitimate result of this sound position that the architect or 
 engineer is to receive no payment for the labour and skill he 
 has exerted under his employer's instructions. To the extent 
 of that labour and skill, in quantum, meruit, he must be 
 paid. Further, when it has been distinctly a term of the 
 contract, as I think it was here, that the employment should 
 include a certain amount of work paid by the piece or com- 
 mission, it is clearly fair that the pursuer should not only be 
 paid for what he has done but also for the loss of the profit 
 which he would have made." This is clear from such cases 
 as Inchbald v. Neilgherry Coffee Co., 17 C.B., N.S. 733 ; 34 
 L.J., C.P. 15, where Willes, J., remarks : " A party who enters 
 into a contract is bound to perform it, not in the sense of a 
 merely literal performance of it, but so as to permit the 
 other party to have the full benefit which it was intended he 
 should have." (See also Addison on " Contracts," p. 662 (7th 
 ed.), and pp. 674-76, 681, 1054. See Landless v. Wilson, 
 1880, 24 Journal of Jurisprudence, 275.) 
 
 If an employer says before the plans are prepared that the 
 cost must not exceed a certain sum, and the estimate exceeds 
 that sum, the employer is entitled to refuse to build, and the 
 architect has no claim for the full 3 per cent, for the plans ; 
 all he is entitled to is fair charges for the work actually done 
 on the plans, drawings, and specifications. This charge is 
 not on the basis of a commission (Farthing v. Tompkins, 
 1893, 9 Times L.R. 566; Burr v. Ridout, reported in 
 Times of 22nd February, 1893). 
 
 The Royal Institute of British Architects' schedule of 
 charges bears : " If the architect shall have drawn out 
 the approved design, with plans, elevations, and specifi- 
 cation, the charge is 2^ per cent, upon the estimated
 
 THE ARCHITECT AND SURVEYOR. 17 
 
 cost. If he should have procured tenders in accordance with 
 the instruction of his employer, the charge is one-half per 
 cent, in addition " (Appendix I.). 
 
 It must not be supposed that in the absence of express 
 agreement architects would in all cases be entitled to make 
 such charges. On the contrary, the English Courts are dis- 
 posed to take the facts into consideration and to determine 
 what is reasonable remuneration (Farthing v. Tompkins, 
 supra). But the charges in the schedule, though not legally 
 binding on a building owner unless he has expressly under- 
 taken to pay according to them, are evidence of the reason- 
 able nature of an architect's charges, if the latter are in 
 accordance with the schedule (Whipham v. Everett, 1900, 
 Times, 22nd March, 1900; Koscoe's "Digest of Building 
 Cases," p. 171). 
 
 Architects are entitled in the general case to payments on 
 account as the work proceeds. 
 
 In cases where plans are made use of in connection with 
 litigation, no allowance is made for the plans lodged in 
 process or prepared for the use of counsel unless by order of 
 the Court or with their sanction, prepared by mutual arrange- 
 ment of parties or proved and put in at the trial or proof 
 (Dolan v. Anderson, 1855, S.L.R. 774). Other cases 
 bearing on the allowance of expense of plans are Hunt v. 
 Rutherford, 1855, 17 D. 305; Brisbane v. Lang, 1846, 7 
 D. 1221 ; Elder v. Groall, 20th June, 1849, 11 D. 
 1187. 
 
 In Fannett <fe Co. v. Hannay, 31st January, 1894, 1 R. 
 440, the Court held that the preparation of machinery 
 models was necessary for the action, and that the unsuccess- 
 ful party was liable for the cost, and was not entitled to 
 claim them even for payment of a price which would yield a 
 fair profit reason, this would involve a discovery of secrets 
 of pursuers' trade. 
 
 In the same case a charge for tracings and copies was
 
 1 8 LAW RELATING TO BUILDING OPERATIONS. 
 
 111, 6s. The auditor only allowed 31, 10s., as being 
 sufficient for such plans as he considered really necessary. 
 
 APPOINTMENT, DUTIES AND REMUNERATION OF 
 SURVEYOR. 
 
 Generally the architect should consult and obtain the 
 authority of his employer for appointing a quantity surveyor 
 whose duties are to take out the measurements and quantities 
 from the plans and prepare a schedule of the quantities and 
 measurements for use by intending contractors in making 
 their offers. 
 
 In many cases, however, the architect would be held to 
 have implied power to appoint a quantity surveyor. This is 
 specially the case where the architect is instructed to procure 
 tenders. In Black v. Cornelius, 24th January, 1879, 6 R. 
 581, it was held that an architect employed to prepare plans 
 for a building had implied authority to employ a surveyor to 
 measure the plans and issue schedules for the use of trades- 
 men, and that the surveyor, if not otherwise paid, has a good 
 claim against the architect's employer. (See also Waghorn 
 v. Wimbledon Local Board, Times, 4th June, 1877.) 
 
 In large works the architect has power to employ a 
 surveyor to measure up, and the surveyor's fees are payable 
 by the building owner. 
 
 If the architect be properly qualified, he may measure up 
 himself (Beattie v. Oilroy, 1882, 10 Rettie, 226). 
 
 It is sometimes the case that the building owner and the 
 contractor agree to accept the measurements of a particular 
 surveyor. In one case the contract stipulated that the work 
 should be measured when finished, and priced at the scheduled 
 rates, or in accordance therewith, the contractor to pay half 
 of the expenses of the measurements and schedule. In giving 
 judgment in an action for the price, Lord Deas held that it 
 was quite proper for sworn measurers to send skilled assistants 
 to measure for them, the former adopting the results reached
 
 THE ARCHITECT AND SURVEYOR, 19 
 
 by the latter (Kirkwood v. Morrison, 1877, Rettie, 79, 82). 
 In such cases, however, the sworn measurer is responsible for 
 his servants' errors. 
 
 The surveyor's fees generally run from 1J to 2| per cent., 
 according to the nature of the work. 
 
 In William G. Rattray v. Andrew Yuille, defender, Sheriff- 
 Court of Lanarkshire, 26th March, 1878 (Guthrie's "Sheriff- 
 Court Decisions," 2nd Series, p. ,107), a measurer (surveyor) 
 prepared and issued to tradesmen measurements for a theatre, 
 having agreed to perform the measurer's work at the proposed 
 building for l per cent, on the finished cost. The building 
 was, for various reasons, not proceeded with. Held, in conform- 
 ity with usage of trade and on evidence quantum meruit, that 
 the measurer was not bound to wait till the building was 
 completed, but was entitled to payment of half of the 
 stipulated percentage on the estimated cost. The measurer 
 had prepared and issued to tradesmen measurements from 
 the architect's plans, schedules, and estimates. It had been 
 agreed between him and the defender that his remuneration 
 should be at the rate of "1^ per cent, on the finished cost " 
 (estimated at 30,000). The Sheriff-Substitute held that 
 the pursuer had abundantly proved both that what he asks 
 (half the whole stipulated percentage calculated on the esti- 
 mated cost) is very moderately charged, and that it is in 
 accordance with the usage of trade that measurers who have 
 prepared and issued schedules for buildings which are not 
 erected get half of the usual charge as on the finished cost. 
 
 On appeal, the Sheriff-Principal, for the reasons assigned 
 by the Sheriff-Substitute, adhered. 
 
 In a building contract where an account for extras and 
 jobbing is presented by the contractor after the work is done, 
 it is in the interest of the employer, and not of the contractor, 
 that the aid of a surveyor is called in to take the measure- 
 ments ; and though, according to the usual practice, the 
 surveyor's fee is included in the contractor's account, this is
 
 20 LA W RELATING TO BUILDING OPERATIONS, 
 
 only for the sake of convenience, and, without special employ- 
 ment, no action for payment of the surveyor's fees will lie 
 against the contractor at the instance of the surveyor (Beattie 
 v. Gttroy, 24th November, 1882, 10 R. 226). 
 
 In an English case (North v. Bassett, L.R., 1892, 1 Q.B.D. 
 333; 66 L.T., N.S. 189), it was decided that the usage of 
 the building trade that a builder, when tender for work to be 
 done is accepted, is liable to pay the quantity surveyor the 
 amount reasonably due to him for taking the quantities by 
 the order of the architect, is reasonable and valid, and entitles 
 the surveyor to receive the amount from the builder. This 
 case was followed in Mellor v. Britten (Times, 27th June, 
 1900). 
 
 In the case where the architect, in the exercise of his 
 implied authority, appoints a surveyor to measure the plans 
 and issue schedules to tradesmen, the surveyor has a good 
 claim for his fees against the architect's employer, unless he 
 is paid otherwise (Black v. Cornelius, 24th January, 1879, 
 6 R. 581 ; Moon v. The Guardians of Witney Union, 3 
 Bing. N.C. 814, 1837 ; Taylor v. Hall, 4 Irish L.R., C.L. 467 
 1869). In these cases it is always a matter for the pursuer 
 to prove that by custom the architect has implied power to 
 employ a surveyor. 
 
 An architect was employed in connection with a projected 
 building at an inclusive charge for plans, specifications, 
 and supervision of works. It was held, that this did not 
 include the cost of quantity surveying (Restell v. Nye, 
 23rd January, 1900, Q.B. Div. (Matthew, J.) 16, Times 
 L.R. 154). 
 
 The duties of surveyor, whether in connection with taking 
 out the quantities or measuring up the work, are of a very 
 onerous kind. Any considerable error might subject the 
 surveyor in heavy damages to his employer, because such an 
 error might involve the payment of an excessive sum to the 
 contractor.
 
 THE ARCHITECT AND SURVEYOR. 21 
 
 In Priestley v. Stone, 4 Times Law Reports, 730, 1880, 
 it was held that a quantity surveyor makes no representation 
 that his quantities are correct, so as to afford ground for an 
 action for false representation by contractors who suffer loss 
 in consequence of the inaccuracy of the quantities. 
 
 A dispute regarding the accuracy of the measurements of 
 his work, obtained by the contractor for the plumber work 
 after the building has been completed, does not fall under 
 the stipulation that " Should any difference arise between the 
 proprietor and any of the contractors in regard to the true 
 meaning of the plans, drawings or specifications, or the 
 manner in which the work is to be executed, or any matter 
 arising thereout or connected therewith, the same is hereby 
 submitted to the determination of A B, &c." It was held 
 that the clause was intended to apply only to disputes arising 
 during the execution of the contract (Beattie v. Macgregor, 
 5th July, 1883, 10 R. 1094). 
 
 A similar decision was arrived at in a case where the 
 clause of reference related to " any dispute or difference of 
 opinion connected with this contract or the execution of 
 the work." It was held, that a dispute as to the accuracy of 
 the measurements of the completed work is not " a dispute 
 or difference of opinion connected with this contract or the 
 execution of the work " within the true meaning of the clause 
 of reference (Kirk-wood v. Morrison, 6th November, 1877, 
 5 R. 79).
 
 CHAPTER II. 
 THE EXECUTION OF THE WORK. 
 
 THE SITE, FOUNDATIONS, CONDITIONS AFFECTING 
 THE SITE, &c. 
 
 IT is no part of an architect's business to inquire into the 
 general question of whether his employer has a valid title 
 to the ground on which he is instructed to operate. 
 
 It is desirable, however, that he should see the title, or at 
 all events get particular information from the employer or 
 his solicitor as to the extent and boundaries of the ground, 
 and the conditions to which effect must be given in 
 erecting buildings thereon. 
 
 It may be urged, further, that he ought to inquire 
 whether the ground is subject to any restriction or servitude, 
 such as a right of way, water, light, &c., or whether there 
 is any reservation of minerals or liability for surface or other 
 
 Undoubtedly the architect must constantly keep in view 
 questions of common property, or common interest, and 
 rights of light, air, and support. 
 
 The architect must be familiar with Acts of Parliament, 
 bye-laws, and regulations affecting the erection of buildings, 
 open spaces, &c., and the requirements and procedure of 
 the Dean of Guild Court. Otherwise he might prepare 
 plans which would be rejected by the Court, or he might 
 expose his employer to damages, or even to the necessity of 
 pulling down his buildings after erection (Hopkins v. 
 22
 
 THE EXECUTION OF THE WORK. 23 
 
 Southwick Local Board, 1890, 59 L.J., Q.B. 250. See 
 " Dean of Guild Court," p. 95). 
 
 EXAMINATION OF THE SITE. 
 
 Having become informed of the conditions affecting the site, 
 the next step for the architect is to examine the site. This 
 would appear to be an almost indispensable preliminary to 
 the preparation of plans, and certainly it is expedient as a 
 precautionary measure. Should the building suffer from a 
 bad foundation, and it be the case that the architect did not 
 examine the site and ascertain the nature of the subsoil, &c., 
 he might readily be subjected in liability for damages 
 (Moneypenny v. Hartland, 1826, 2 C. and P. 378 ; 
 Whitty v. Lord Dillon, 2 F. and F. 67). 
 
 If the work be that of adding to the height of existing 
 walls, such as the addition of a storey, it is the architect's 
 duty to sound the old walls and satisfy himself that they 
 are capable of carrying the addition. 
 
 PREPARATION OF PLANS. 
 
 In the preparation of plans, the instructions of the 
 employer must be carried out so far as compatible with his 
 rights, and the statutes affecting buildings. The architect 
 is almost invariably allowed a very wide if not an unlimited 
 discretion as to architectural details. In practice, however, 
 it is very common for the architect to prepare rough sketch 
 plans, and to submit them for approval or alteration to 
 his employer. 
 
 It must be borne in mind, however, that the architect 
 will remain liable to his employer for defects in the plans 
 defects of an important character even though the 
 employer has approved of the plans (Smith v. Barton, 
 1886, 15 L.T. 294). It is no answer to say that the 
 architect did not superintend the execution of the plans, or
 
 24 LAW RELATING TO BUILDING OPERATIONS. 
 
 that they have passed the Dean of Guild Court. If, 
 however, after the consequences have been explained, the 
 employer persists and causes the architect to perform 
 unskilful and defective operations, the architect would not 
 be liable to the employer. In that case, the employer 
 really assumes the full responsibility (Jones v. Just, 1868, 
 L.R 3 Q.B. 202 ; Hall v. Burke, 1886, 3 Times L.R. 165). 
 Generally, where the operations are more expensive in con- 
 sequence of negligence or defective planning of the architect, 
 he is liable in damages (Money penny v. Hartland, 1828, 
 2 C. and P. 378). 
 
 While the architect is so liable to his employer, it has 
 been decided by the English Courts that the architect by 
 preparing plans does not warrant to the contractor their 
 feasibility, or that they can be completed within the 
 specified time. If the plans should be found unworkable, 
 the contractor has no remedy against employer or architect, 
 unless of course he obtained an express warranty (" Roscoe's 
 Digest," 4th ed., 58, 59). 
 
 The architect must prepare the necessary plans for the 
 Dean of Guild Court, and they must conform to the 
 requirements of the statutes regarding ventilation, &c. 
 (Pitman, &c., v. Burnett's Trustees, 1882, 9 R. 444). He 
 must also supply the contractor with proper working plans 
 and specifications. If there be failure to do this within the 
 specified time, or within a reasonable time if no time has 
 been specified, he would not be entitled to remuneration 
 (Burton v. Griffiths, 11 M. and W. 817), and the con- 
 tractor might be warranted in throwing up the contract 
 and claiming damages for which the architect would be 
 responsible to his employer (M'Alpine v. Lanarkshire and 
 Ayrshire Railway Coy., 26th November, 1889, 17 R 113 ; 
 Kingdom v. Cox, 1848, 17 L.J., C.P. 155). The contractor 
 must first have applied for the plans (Stevens v. Taylor, 
 1860, 2 F. and F. 419).
 
 THE EXECUTION OF THE WORK. 25 
 
 A party who had contracted with a builder for the erection 
 of a theatre and other buildings failed to supply proper plans 
 for the execution of the work, in consequence of which the 
 builder could not make progress. The Court of Session 
 held that the builder was entitled to damages against his 
 employer, who had improperly declared the contract at an 
 end (Duncanson v. Bayles, 3rd December, 1869, 7 S.L.R. 
 139. See also M' Alpine v. Lanarkshire and Ayrshire 
 Railway Company, supra). 
 
 Where by interlocutor of the Court party ordained to 
 rebuild certain buildings which had been destroyed by fire, 
 said building to be duly proceeded with to the satisfaction of 
 John Dick Peddie, architect, Edinburgh, and to be completed 
 to his satisfaction within two years, &c., it is no part of the 
 architect's duty to approve of the plans (Marshall v. Gal- 
 lander and Trossachs Hydropathic Coy. and Others, 12th 
 March, 1897, 34 S.L.R. 530). 
 
 OWNERSHIP OF PLANS. 
 
 The question of the ownership of plans does not appear to 
 have been very fully dealt with anywhere, although Hudson 
 says that upon payment of the balance of his fees the 
 architect must deliver up his plans, unless it has been 
 stipulated that they are not to be the property of his 
 employer. He refers to the case of Ebdy v. M'Gowan 
 (Times, 7th July, 1870, p. 11), reported in his 2nd vol., 
 p. 7. In that case, however, the defendant had employed 
 the plaintiff (an architect) to prepare plans and get tenders 
 for a vicarage. The payment was to be 5 per cent, on 
 money expended if the vicarage was completed ; if tenders 
 obtained and work not commenced, 3 per cent, on the 
 estimated cost. The plans were prepared, but defendant 
 changed his mind and declined to proceed, and wrote to the 
 plaintiff offering to pay and asking for his plans. Plaintiff
 
 26 LAW RELATING TO BUILDING OPERATIONS. 
 
 declined to give up his plans, but sued for payment, and set 
 up a custom amongst architects to retain their plans if the 
 work was not proceeded with. The Court held that such a 
 custom, even if proved, would be unreasonable, and that 
 defendant need not pay for the plans unless he got them. 
 
 The rules of the Institute of British Architects formerly 
 bore that " In respect of the ownership of drawings and 
 specifications, it has hitherto been the general custom for 
 the architect to be paid for their use only, these documents 
 remaining his property." In recent issues of these rules the 
 above section has been entirely omitted (see " Roscoe's 
 Digest," 4th ed., p. 38). 
 
 It does not appear that the question has been decisively 
 settled by any Scotch decision, but in Wm. G. Lindsay, 
 Liquidator of the Oban Hills Hydropathic Sanitorium (Ltd. ) 
 v. J. Ford Mackenzie (Sheriff-Court of Lanarkshire, 21st 
 April, 1883, Guthrie's "Select Sheriff-Court Cases," 2nd 
 Series, p. 498), the Sheriff-Substitute, in the course of a long 
 note to his decision, said : 
 
 " It is not necessary in this action to deal with the ques- 
 tion hi whom is the property of the building plans when the 
 building is finished and the architect's whole charges have 
 been paid. That question does not arise here, because 
 neither of these events has occurred. I shall only say that 
 it is difficult to accept the defender's views, that the plans 
 remain the absolute property of the architect, and that the 
 owner, on any of the occasions on which he may require to 
 consult the plans of his property, must have recourse to his 
 architect, and probably pay him for liberty to consult the 
 plans, even after an interval of many years. There may be an 
 inveterate usage which makes this the law, but it has not been 
 proved, and I am not prepared without further consideration to 
 affirm the proposition upon principles apart from usage. If such 
 right exists, it is desirable that the public should be made aware 
 of it, and should provide for it in contracts with architects."
 
 THE EXECUTION OF THE WORK. 27 
 
 On the whole, the dictum of Hudson seems to be sound, 
 and, therefore, if architects wish to have right to retain the 
 plans after the building has been completed and their charges 
 have been paid, they would require to make an express 
 stipulation to that effect (see also Emden, 3rd ed., p. 43). 
 
 RETENTION OF PLANS. 
 
 In the same action it was decided that when a building is 
 stopped in the course of erection by the bankruptcy of the 
 proprietor, the architect has a right of retention of the plans, 
 &c., and is not bound to part with them to the trustee or 
 liquidator, in order that he may exhibit them to intending 
 purchasers, unless caution be found for payment of his fees. 
 
 PREPARATION OF SCHEDULES AND ESTIMATES. 
 
 Plans having been completed and passed by the Dean of 
 Guild Court, the next step is to have the schedules prepared 
 and quantities taken out. Sometimes this is done by the 
 architect himself, but in important works it is usual to 
 employ a quantity surveyor. 
 
 Where the architect has instruction to obtain tenders there 
 is an implied power to employ a quantity surveyor, whose 
 charges are generally paid by the successful competitor 
 (among the contractors). Where, however, no tender is 
 accepted, the building owner would be liable for the sur- 
 veyor's fees (Young v. Smith, 1880, Hudson, Vol. ii. p. 100, 
 and North v. Bassett, 1892, 1 Q.B. 333). 
 
 The Royal Institute of British Architects, in their schedule 
 for professional practice and charges of architects, 1872 
 (revised 1898), say, "When an architect takes out and supplies 
 builders with quantities on which to form estimates for execut- 
 ing his designs, he should do so with the concurrence of his 
 client, and it is desirable that the architect should be paid by
 
 28 LAW RELATING TO BUILDING OPERATIONS. 
 
 him rather than by the builder, the cost of such quantities 
 not being included in the commission of 5 per cent." 
 
 In a building contract where an account for extras and 
 jobbings is presented by the contractor after the work is 
 done, it is in the interest of the employer and not of the 
 contractor that the aid of a surveyor is called in to take the 
 measurements, and though, according to the usual practice, 
 the surveyor's fee is included in the contractor's account, this 
 is only for the sake of convenience, and without special 
 employment no action for payment of the surveyor's fees will 
 lie against the contractor at the instance of the surveyor 
 (Beattie v. Gilroy, 24th November, 1882, 10 R 226). 
 
 TENDERS. 
 
 In the general case the architect has implied power to 
 obtain tenders (Black v. Cornelius, 24th January, 1879, 6 
 R. 581), but this hi no way binds the employer to accept 
 any of the offers. 
 
 Although it is usual in advertisements and other invita- 
 tions for tenders to state that the lowest or any tender may 
 not be accepted, it is not necessary to do so (Spencer v. 
 Harding, 39 L.J., C.P. 332 ; L.R. 5 C.P. 561). An architect 
 is entitled, upon submitting offers which are unacceptable, to 
 get others if he does so within the time limit, or, if time is 
 not limited, then within a reasonable time (Borrovjman v. 
 Free, 1878, 4 Q.B.D. 500). 
 
 In order to be binding, the acceptance must meet the 
 offer ; in other words, the acceptance must be unqualified. 
 In the event of any material qualification being inserted, the 
 contract remains open till the offerer assents to that quali- 
 fication (Johnstone v. Clark, 1855, 18 D. 70 ; Jack v. 
 Roberta & Gibson, 1865, 3 Macph. 554 ; Erskine v. 
 Glendinning, 1871, 9 Macph. 656 ; Wylie & Lochhead 
 v. M'Elroy, 1873, 1 R. 41).
 
 THE EXECUTION OF THE WORK. 29 
 
 There is, however, one qualification which it is usual and 
 generally desirable to insist on, viz. : that the builder or 
 offerer shall enter into a contract in a prescribed form, or in 
 a form to be mutually approved of. If this be not stipulated 
 for, the builder could refuse to enter into such a contract ; 
 he could insist on going on under the missives, assuming 
 that they embody a complete contract, and in the event of 
 any dispute it would be for the Courts to decide between the 
 parties. In deciding, the Courts would have regard to usual 
 practice in connection with operations of the nature con- 
 tracted for ; they would give no effect to special conditions 
 which the employer or architect had contemplated but had 
 failed to embody in the missives. 
 
 Where the acceptance contains a qualification the offerer 
 must expressly assent to it, or where the acceptance contains 
 such a condition as " subject to signing a contract," the con- 
 dition must be purified before the contract is concluded ; 
 until then either party is entitled to resile (Kingston-on- 
 Hull v. Fetch, 1854, 10 Ex. 611 ; 24 L.J., Ex. 23). In 
 that case a corporation advertised for tenders ; sealed tenders 
 were to be sent to the clerk to the corporation, and it was 
 stated that " all contractors would have to sign a written 
 contract after acceptance of the tender." A tender was 
 accepted, but the defendant declined to carry it out ; held 
 that there was no binding contract. Where, however, it is 
 merely stated in an acceptance that the contract will be 
 ready for signature in a few days, that is not held as impart- 
 ing a new condition. It is merely incorporating the contract 
 in a formal instrument. It is possible the instrument 
 might contain terms not specially mentioned in the tender 
 by the defendant and in the letter from the plaintiff's 
 architect, for instance, as to the payment of the contract 
 price by instalments, or as to what part of the work was to 
 be first commenced ; but the defendant might have success- 
 fully objected to the introduction of such terms, and the
 
 30 LA W RELATING TO BUILDING OPERATIONS. 
 
 work would have been proceeded with upon the terms con- 
 tained in the tender and in the letter (Lewis v. Brass, 1877, 
 L.R., 3 Q.B.D. 667). The acceptance completes the con- 
 tract if it be despatched before receipt of a retractation of 
 the offer (Thomson v. James, 1855, 18 D. 1). It is the 
 despatch of the acceptance by the usual or intended method 
 of transmission that concludes the contract, even though it 
 should never reach the offerer (Higgins & Son v. Dunlop, 
 1847, 9 D. 1407 ; 6 Bell's App. 195). 
 
 An offer ought to be accepted within a reasonable time. 
 What is reasonable is always a question of circumstances, 
 and the Courts do not accept the rules or views of a Society 
 of Architects on such a matter. In a recent case (Murray 
 v. Rennie & Angus, 18th June, 1897, 24 B. 965) a builder 
 attempted to hold that he was not bound by his offer, which 
 was accepted within eleven days of its date, because he argued 
 that in terms of the conditions of tendering of the Aberdeen 
 architects, the architects had agreed among themselves to 
 intimate within seven days to builders whether their offers 
 were accepted. The Court held the offer was accepted in 
 sufficient time. 
 
 A person who invites tenders for work does not implicitly 
 warrant the correctness of the plans or specifications 
 according to which the work is to be done (Thorn v, The 
 Mayor and Corporation of London, L.R, 1 App. Cas. 
 120; 47 L.J., Ex. (H. of L.) 487, 1876). The same 
 principle was applied to surveyor's quantities in Scriv- 
 ener v. Pask, L.B. 1 C.P. 715; 18 C.B., N.S. 785, 
 1865. 
 
 Contractors having been asked to tender for certain build- 
 ing operations, sent a letter headed " Estimate," and the 
 proprietor wrote that he accepted their " Offer." The Court 
 held that a binding contract had been entered into (Croshaw 
 v. Pritchard & Renwick, Q.B. Div. (Bigham, J.), 20th 
 November, 1899).
 
 THE EXECUTION OF THE WORK. 31 
 
 THE ARCHITECT'S SUPERINTENDENCE OF THE 
 WORKS, &c. 
 
 We have seen that before his plans are prepared it is 
 expedient for the architect to inspect the site. 
 
 It is now necessary for him to see that the foundations 
 are properly laid, and from that point onwards to the com- 
 pletion of the work he requires to take a general oversight. 
 He is paid for superintendence, and he must discharge that 
 duty in no perfunctory way. Even the employment of a 
 competent clerk of works will not exonerate him if there be 
 discovered defects in either material or workmanship which 
 he could and should have seen (Saunders v. JBroadstairs 
 Local Board, 1890, reported in Hudson, Yol. ii. p. 64 ; 
 and Lee v. Lord JBateman, Q.B.D., 1893, Times, 31st 
 October). 
 
 The architect who fails to discover defects which should 
 have been patent to a skilful person will be liable in damages 
 (Trent v. Number Coy., ex parte Cambrian Steam Packet 
 Coy., 1868, L.R. 6 Eq. 396). 
 
 The Scotch Courts have rarely decided questions of this 
 description, but a recent case is very instructive (Jameson v. 
 Simon, 12th July, 1899, 36 S.L.R. 883). 
 
 An architect was employed upon the usual terms, and 
 without any special bargain between him and his employer, 
 to plan and supervise the erection of a small villa. He 
 visited the work while it was in progress about once a week. 
 The bottoming which formed the substructure of a cement 
 floor upon the ground floor of the house was constructed of 
 improper materials, and not according to specification, and, in 
 consequence, dry-rot broke out in the woodwork after the 
 villa was finished. The architect had not seen the bottoming, 
 as he had not visited the work while it was being put in, and 
 on the occasion of his first visit thereafter it was covered up 
 with cement, which had by that time been laid. The archi-
 
 32 LA W RELATING TO BUILDING OPERATIONS. 
 
 tect had instructed the plasterer to proceed with the laying 
 of the cement without taking any steps to satisfy himself 
 that the bottoming consisted of proper materials. He gave 
 the mason and plasterer, who were responsible for the 
 bottoming, certificates for that part of the work. In an 
 action of damages against the architect by the employer for 
 the expense and inconvenience caused by the dry-rot, evidence 
 of architects was led to the effect that an architect only con- 
 tracted to afford general and not special and detailed super- 
 vision, and that if he visited the work about once a fortnight 
 he had done all that was incumbent upon him, the employer 
 being bound to take his chance of any scamping that occurred 
 which the architect did not and could not see on his occa- 
 sional visits. Held, that the architect was liable, on the 
 ground that, in the circumstances, he had not sufficiently 
 fulfilled the duty of supervision. 
 
 Lord Kyllachy, before whom the case was tried, stated that 
 he did not hold it proved that the defender warned or 
 informed the pursuer or her agent that to secure adequate 
 supervision they must have a clerk of works, and that he, 
 the architect, could only undertake to visit the building once 
 a week or once a fortnight. His Lordship noted, however, 
 the fact that in such small works the employment of a clerk 
 of works is unusual, but then went on to add that, as the 
 architect received the usual 5 per cent, commission, which 
 includes a certain proportion for supervision, and as he, 
 like other architects, undertook to grant certificates to the 
 contractors upon which they should be paid, and by these 
 certificates he certified, if not expressly, by the plainest 
 implication, that the work done had been done according 
 to contract, prima facie, therefore, he must at least be held 
 to warrant that in so far as he could ascertain, by reasonable 
 care and skill, there had been no scamping of the work or 
 serious deviation from the plans and specifications. " He 
 was bound to supervise, and hi doing so he was, I think,
 
 THE EXECUTION OF THE WORK. 33 
 
 bound to use reasonable care and skill, the burden being 
 upon him to show that with respect to any disconformity or 
 default it was such as could not be discovered by reasonable 
 care and skill." 
 
 Five or six prominent architects gave evidence to the 
 effect that they did not consider it incumbent upon the 
 architect to examine the bottoming specially before cement 
 was laid on top of it. On the other hand, two architects 
 gave evidence to the contrary. 
 
 The case was appealed to the Second Division of the Court 
 of Session, who affirmed the decision of Lord Kyllachy, and 
 for substantially the same reasons as those on which he 
 proceeded. 
 
 The Lord Justice-Clerk, in the course of his remarks, 
 said : "As regards so substantial and important a matter 
 as the bottoming of a cement floor of considerable area, such 
 as this is shown by the plans to have been, I cannot hold 
 that the architect is not chargeable with negligence if he 
 fails, before the bottoming is hid from view by the cement, 
 to make sure that unsuitable rubbish of a kind that will rot 
 when covered up with wet cement has not been thrown hi in 
 quantities as bottoming contrary to the specifications. It is 
 contended that the architect cannot be constantly at the 
 work, and this is obviously true. But he, or someone repre- 
 senting him, should undoubtedly see to the principal parts of 
 the work before they are hid from view, and, if need be, I 
 think he should require a contractor to give notice before an 
 operation is to be done which will prevent his so inspecting 
 an important part of the work as to be able to give his certi- 
 ficate upon knowledge, and not on assumption, as to how 
 work hidden from view had been done." 
 
 Lord Trayner said : " Admittedly the duty of the defender 
 was to give reasonable supervision, and I think that means 
 such supervision as would enable him to certify that the 
 work had been executed according to contract, which he had
 
 34 LAW AFFECTING BUILDING OPERATIONS. 
 
 to certify before the tradesmen could get payment under 
 their contracts." 
 
 The general result of that decision appears to be that an 
 architect will be responsible if he certifies for payment work 
 which is found materially defective or disconform to plans 
 and specifications, unless he can show that it was impossible 
 for him, by the exercise of reasonable care and skill, to 
 discover the defects. He is not expected to examine into 
 every detail of the work or to be constantly on the ground. 
 It is obvious, therefore, that scamping might occur and be 
 hidden from view, and in some cases it would be absurd to 
 hold the architect responsible therefor. Probably a point 
 was made against the architect in the case from the fact that 
 there was a pretty strong presumption that he should have 
 looked at the work of the one tradesman before instructing 
 the other tradesman to proceed and cover up that work. 
 From this it might be inferred that architects should, for 
 their own safety, make a practice of examining the work of 
 each tradesman as it is finished, or as any important depart- 
 ure falls to be made in the operations. 
 
 It is important to note that the judges practically agreed 
 that the architect would not be liable for all defects. For 
 example, Lord Kyllachy says : " In no case can the 
 architect be bound to that minute supervision which is only 
 possible to a person continually on the ground." 
 
 The Lord Justice-Clerk said : " There may, of course, 
 be many things which the architect cannot be expected to 
 observe while they are being done minute matters that 
 nothing but daily or even hourly watching could keep a 
 check upon." 
 
 Lord Moncreiff said : " No doubt the architect is paid a 
 commission of 2^ per cent, for supervision, but in return for 
 that remuneration he cannot be expected to be constantly 
 present, and even if he were to visit the work every day, 
 scamping might go on when his back was turned, for which
 
 THE EXECUTION OF THE WORK. 35 
 
 it would be unreasonable to hold him responsible. ... I do 
 not wish to be understood as meaning that an architect is 
 to be held responsible for all defective work which may be 
 covered up during his absence. Not even a clerk of works 
 could be expected to detect everything of that kind. My 
 opinion proceeds on the ground that when one contractor 
 had to follow another, and when the work done was about to 
 be covered up so that it could not thereafter be inspected, 
 the architect should, under the duty of supervision which he 
 had undertaken, have ascertained either by personal inspec- 
 tion, or through an assistant, whether the bottoming had 
 been done according to specification, and that in failing to 
 do so he did not use reasonable care in the discharge of his 
 duty." 
 
 These views are in accord with the decision in Clemence 
 v. Clarke, reported in Roscoe's " Building Cases," 4th ed., p. 
 137, where the question related to a certificate granted by 
 an architect who had not personally gone into every detail. 
 The certificate was as follows : "I hereby certify that J 
 is entitled to recover the sum of 585 to balance account of 
 Works, as certified by the measuring surveyor to be the 
 final amount due thereon," and the certificate was held quite 
 good. Even a sworn measurer is entitled to have the 
 details of the work carried out by his assistants (Kirkwood 
 v. Morrison, 1877, supra, p. 21). 
 
 It must not be supposed that even though a competent 
 clerk of works had been appointed, this would have sufficed 
 to exonerate the architect, because a clerk of works is 
 appointed for the benefit of the employer, and not of the 
 architect, who, notwithstanding the appointment of a clerk 
 of works, must continue to give the general supervision for 
 which remuneration is included in the commission paid to 
 him. 
 
 Where a house is badly built in consequence of the joint 
 neglect of architect and contractor, it is competent to sue
 
 36 LAW AFFECTING BUILDING OPERATIONS. 
 
 the architect alone for damages, even though the contract 
 price has been paid to the contractor (Newman v. Fowler, 
 1874, 37 N.J. Law (8 Vr.), 89). 
 
 BUILDING MATERIALS. 
 
 The architect has the duty to see that the materials used 
 are of the description and quality specified. 
 
 There was a provision in a building contract that lime 
 should be mixed up with " sharp fresh- water sand." The 
 contractors used what is known in the trade as " shivers " 
 sand, or sand made by grinding down stone chips. It was 
 decided that the contractors were wrong (Parochial Board 
 of Greenhill v. Coghill Ja Low, 5th March, 1878, 5 E. 732). 
 
 At a quarry, two kinds of rock were sold, known as 
 " clean " and " black " rock. The two kinds when first 
 quarried were indistinguishable to the ordinary eye, but on 
 exposure to the weather the " black " rock became dis- 
 coloured. It was therefore unsuitable for the fronts of 
 houses, but was otherwise good stone, and was sold at the 
 same price as the other. A builder in an order for a 
 quantity of stone (being nearly one-half of what he required 
 for a villa he was building) specified for " clean " rock. In 
 subsequent orders for the same villa he made no such 
 stipulation. Part of the stone supplied under the subsequent 
 orders was black, and was built into the front of the house, 
 where it became discoloured. The builder knew of the two 
 qualities of stone, and the quarry owners knew that all 
 the orders were meant for the same house. Held that under 
 the later orders it was not a condition that clean rock only 
 should be supplied (Straiton Oil Co. v. Sanderson, 14th 
 June, 1882, 9 R. 929). 
 
 If the builder in completing a contract for a stipulated 
 price, use materials of a better kind than those contracted 
 for, he is not at liberty on that account alone to charge more
 
 THE EXECUTION OF THE WORK. 37 
 
 than the stipulated price, nor can he require the materials 
 worked into the building to be returned because the 
 employer will not pay the increased price on account of the 
 better materials (Wilmot v. Smith, 3 C. and P. 453). 
 
 Where subsequently to a building contract, the employer 
 agreed to supply part of the materials, it was held he was 
 entitled to deduct the value of the materials from the 
 contract price (Newton v. Forster, 12 M. and W. 772 ; 
 Allinson v. Davies, Peake's " Add. Cas.," 82 ; Grainger v. 
 Raybould, 9 C. and P. 229). 
 
 If the contractor should undertake to supply and build 
 with stone from a particular quarry, he will not be allowed 
 to answer that he could only get that stone at double 
 the price he estimated the price having increased to that 
 extent in the interval (Moor v. Pater son, &c., 16th 
 December, 1881, 9 R. 337). 
 
 When a person has contracted to deliver stones, ironwork, 
 and the like, in fact any sort of goods, which are not part of 
 his own stock in trade, and are known not to be, and has 
 taken due care in placing his order for these goods with 
 a manufacturer, he will not be responsible for any delay 
 in the delivery which may be caused by unforeseen circum- 
 stances, such as strikes, or sickness among workmen 
 (Taylors v. Maclellans, 21st October, 1891, 19 R. 10). 
 This was a case in which a firm of merchants contracted to 
 supply iron work of certain buildings at prices which showed 
 that they were to be got abroad. Delivery was to be " at 
 the job at such times as may be required by the masons." 
 The ordinary and reasonable time was six weeks, but though 
 several weeks longer were taken, no damages were due in 
 respect the delay was proved to be due to strikes and heat 
 of the weather, which had been so great as to produce 
 sickness among the workmen in Belgium, where the order 
 was placed.
 
 /'' . 
 
 " (' ' ' -. . '*. 
 
 CHAPTER III. 
 EXTRAS. 
 
 THE builder cannot receive payment for extra work, or even 
 for better materials used, if he had not the authority of the 
 employer therefor. But the authority will be implied if the 
 employer saw or knew of the work or materials in time to 
 object and stop the work, without injury to himself, and not 
 under circumstances to justify his belief that no charge was 
 intended, and did not object, but received and held the 
 benefits of the same. In such circumstances, if he received 
 from the builder an estimate of the cost of such extra work 
 and then ordered it, the builder must be bound by that 
 estimate. If, however, the changes were such that the 
 employer need not infer that they involved any additional 
 expense, and he was so informed, an express assent to them 
 does not imply a promise to pay for them, because it is fair 
 to suppose that he believed they were done under the con- 
 tract, and assented to only on those terms (Lovelock v. King, 
 1 Mood and Rob. 60). If the changes necessarily imply an 
 increased price, and he expressly authorises, or silently but with 
 full knowledge assents to them, he is then bound to pay for 
 them. The architect may render himself personally liable for 
 the value of extra work if he falsely, or even under a bona fide 
 belief, without having such power, represents to the builder 
 that he has authority to order such work (Elkingtan v. 
 Hilrter, 1892, 2 Ch. 452; 61 L.J., Ch. 514; 66 L.T. 764). 
 The question frequently arises whether an employer is 
 bound to pay according to the usual rate of charging for 
 38
 
 EXTRAS. 39 
 
 work which is extra, with no reference to the contract, or 
 whether he must pay only according to the rates per con- 
 tract (Parsons on "Contracts," 6th ed., Vol. ii. p. 58). A 
 contractor raised an action against his employers for payment 
 of work done by him not falling under the specifications 
 referred to in the contract, and averred " numerous and 
 extensive alterations made in the design and character and 
 the materials for and construction of the work." ..." They 
 were not of the nature of a mere alteration or addition or 
 modification of the specified works such as ordinarily occurs 
 in the carrying out of such contracts, but many of them were 
 independent works, or modes of construction of works, and 
 formed the subject of specific bargain between the pursuer on 
 the one hand, and A, as representing the defenders, on the 
 other." He also averred that the alterations in some parts 
 of the undertaking " amounted to an abandonment of the 
 original specification, and the substituting altogether different 
 work." By the contract power was reserved to the engineer 
 " to make such alterations, additions, or modifications as may 
 be considered necessary, and such alterations, additions, and 
 modifications shall not in any way invalidate the contract, 
 but on the contrary shall be deemed a part thereof" ; and it 
 was further provided that any dispute arising " as to the 
 true nature, sufficiency, time, or extent of the work intended 
 to be performed, or as to the works having been duly and 
 properly completed, or as to any matter, claim, or obligation 
 whatever arising out of or in connection with the works, 
 shall be referred to the amicable decision, final sentence, and 
 decreet arbitral of A, the engineer of the works, whom fail- 
 ing, of B." The Court held (1) that the pursuer had not 
 averred sufficiently specifically that the work done was out- 
 with the provisions of the contract ; and (2) that the claim 
 for payment fell under the clause of reference (Mackay v. 
 Parochial Board of Barry, 22nd June, 1883, 10 R. 1046). 
 It is plain that the object of this action was to get pay-
 
 40 ' ' LAW AFFECTING BUILDING OPERATIONS. 
 
 ment for the alleged new work on a different footing from 
 that under the contract, because if the work is outside the 
 contract the terms of the contract and condition as to 
 forfeiture, valuation, and certificates of architect do not apply 
 to it, the price to be paid for that work being fair value in 
 the opinion of a jury and not of the architect (Russell v. 
 Sa da Bandeira, 1862, 13 C.B., N.S. 149 ; Addison on 
 "Contracts," 9th ed., p. 811 ; Emden, p. 107-8). 
 
 It depends very greatly on the terms of the contract 
 whether certain work is outwith it or not. According to 
 Lord Chancellor Cairns (Thorn v. Mayor of London, 1876, 
 1 App. Cas. 120, at p. 127 " Work outside the contract"), 
 " If the additional or varied work is so peculiar, so unex- 
 pected, and so different from what any plan reckoned or 
 calculated upon, it may not be within the contract at all, 
 and the contractor could either refuse to go on, or claim to 
 be paid on a quantum meruit." 
 
 Where there is a clause in the contract to the effect that 
 not only work specifically referred to, but "work contracted 
 for and connected therewith," it is more difficult to claim 
 additions as outwith the contract (Goodyear v. Mayor, &c., 
 of Weymouth, 1865, 35 L.J., C.P. 12). 
 
 If extras are ordered after completion of the contract they 
 are outside the contract (Russell v. Sa da Bandeira, 1862, 
 13 C.B., N.S. 149). 
 
 Akin to the case of additional work not under the contract 
 is the case of work which has been the subject of contract, 
 but which came to be executed under conditions so changed 
 and special, and such as were not contemplated, as to render 
 the conditions of the contract inapplicable. In such a case 
 the contractor may treat the contract at an end, and recover 
 upon a quantum meruit (Thornton v. Place, 1 Mood and Rob. 
 219 ; Fletcher v. Gillespie, 3 Bing. 637 ; Bush v. Trustees 
 of the Port and Town of Whitefiaven, Q.B.D., 26th June, 
 1888 ; Hudson, Vol. ii. p. 121.) That case was decided to a
 
 EXTRAS. 41 
 
 large extent on the principle laid down in Jackson v. The 
 Union Marine Insurance Company, 8 Law Reports Com- 
 mon Pleas, p. 581, "where a contract is made with reference 
 to certain anticipated circumstances, and where, without any 
 default of either party, it becomes wholly inapplicable to, or 
 impossible of application to any such circumstances, it ceases 
 to have any application ; it cannot be applied to other cir- 
 cumstances which could not have been in the contemplation 
 of the parties when the contract was made." 
 
 The case of Bush related to a contract for work to be done 
 within four months from 12th July. Lord Coleridge, at 
 advising, says : "A general order was given to do the whole, 
 and it has been suggested and not denied that it was im- 
 portant for the reasonable completion of this contract that 
 the whole site should be put into the hands of the contractor 
 at once. As a matter of fact, part of the site of the con- 
 tracted works was not given until some time in October. It 
 was, therefore, in the first place, a contract to be completed 
 within four months from the twelfth of July what may be 
 called a summer contract. It was turned into a winter 
 contract into a contract when wages were different, pro- 
 bably, or may have been ; when days were short instead of 
 long ; when weather was bad instead of good ; when rivers 
 which had to be dealt with, and had to be crossed by the 
 pipes, were full or empty ; and when, in fact, I will not say 
 every circumstance, but a great many most important circum- 
 stances, under which the contract was to be executed had 
 wholly changed from those which, it is reasonable to suppose, 
 were in the contemplation of both parties when the contract 
 was entered into." The jury found that the conditions of 
 the contract were so completely changed, in consequence of 
 the inability of the employer to hand over the sites of the 
 work as required, as to make the special conditions of the 
 contract inapplicable, and the Court decided accordingly. 
 
 A case similar in many respects is Mackay & Son v. Leven
 
 42 LAW AFFECTING BUILDING OPERATIONS. 
 
 Police Commissioners, 20th July, 1893, 20 R. 1093. The 
 decision, however, was to the opposite effect. 
 
 Similarly, " If a man contracts to work by a certain plan, 
 and that plan is so entirely abandoned that it is impossible to 
 trace the contract, and to what part of it the work shall be 
 applied." In such a case the contractors shall be permitted 
 to charge for the whole work done by measure and value, as 
 if no contract at all had been made (Pepper v. Burland, 
 1792, 1 Peake, N.P. 139; Robson v. Godfrey, 1816, 1 
 Stark, N.P. 275 ; Holt (N.P.) 236, 238). The first of these 
 cases also decided that where a builder agrees to erect a 
 building for a particular sum of money, and additions are made, 
 he is bound by the contract, as far as it can be traced, and 
 is entitled to such on a quantum mei^uit for the excess 
 only. 
 
 In Jamieson v. M'Innes, 29th October, 1887, 15 R. 17, 
 a builder, by letter appended to a schedule, offered to do the 
 mason work of a proposed tenement " agreeably to plans 
 thereof now shown, and to the extent of this schedule, for the 
 sum of 286, 10s. 8d." The schedule to which the letter 
 was annexed gave the estimated quantities of work required, 
 and the offerer inserted the rate at which he proposed to do 
 each item, adding a calculation of the cost of each item at 
 that rate, and a summation at the end of the total cost, 
 being the sum in the offer. Full power was reserved to the 
 proprietor to alter the quantity of work required, and there 
 was also this stipulation appended to the schedule : "The 
 work is to be measured when finished, and charged at 
 schedule rates, or others corresponding thereto, as also in 
 proportion to the slump sum in this letter of offer." In 
 point of fact the offerer made a miscalculation of about 30 
 in bringing out the cost of one item. The Court held that 
 the contract was a contract according to the schedule rates, 
 and that the offerer was not barred by his error from claiming 
 the full sum brought out at the rates.
 
 EXTRAS. 43 
 
 Tenders having been invited for the erection of a building 
 upon plans and a specification and conditions of contract, and 
 a bill of quantities attached to the specification, a builder 
 sent in a tender, together with a schedule of prices for deter- 
 mining the amount to be allowed in respect of deviations 
 from the original plans, and this was accepted. A contract 
 was entered into, not mentioning the bill of quantities, but 
 referring to the schedule of prices as the prices upon which 
 the contract was based, the work to be executed in accord- 
 ance with the plans and specification for a slump sum. The 
 quantities in the bill of quantities turned out to be materially 
 insufficient, and a usage in the building trade was found to 
 the effect that where a bill of quantities was furnished, a 
 person making a tender was entitled to assume the correct- 
 ness of the quantities, and if they proved to be wrong, the 
 price rose or fell accordingly. Held, that the bill of quan- 
 tities was merely an estimate, and that the builder was not 
 entitled to more than the fixed slump sum ; and that, as the 
 custom contradicted the contract, it could not be relied on 
 (Ford & Co. v. Bemrose & Sons, Ld. , Court of Appeal, Collins, 
 M.R., Homer and Mathew, L.JJ., 18th March, 1902, 10 
 S.L.T. 170). 
 
 An architect has no power, without express authority, to 
 order extras, and if he does so without authority, the con- 
 tractor can have no claim for the extras from the employer, 
 though he may have a claim against the architect (Dobson v. 
 Hudson, 1 C.B., N.S. 659 ; 26 L.J., C.R 153). Even where 
 the architect has express power to order extras by a general 
 clause, the extras must be such as are contemplated by the 
 contract. Of course the architect may have authority even 
 by oral instructions, or the employer may assent to his 
 actions. 
 
 Where there is an entire contract i.e., a con tract to erect 
 a certain building for a specified price, the contractor cannot 
 claim as extras, work which is indispensably necessary for the
 
 44 LAW AFFECTING BUILDING OPERATIONS. 
 
 completion of the building. Even where details indispensable 
 for the completion of the work, and which parties must have 
 intended to include, are omitted from the specification, the 
 builder cannot claim for such articles as extras. In one case 
 a contractor was found not entitled to claim for flooring as 
 an extra (Williams v. Fitzmaurice, 3 H. and N. 844). 
 
 " It is necessary to call special attention to the fact that 
 works executed by the builder, but not specifically described 
 in the specifications or shown in the drawings, are not neces- 
 sarily extras, because it is the deep-rooted conviction of 
 architects, engineers and builders (as gathered from the 
 evidence in decided cases), that these are extras, and that 
 the practice of making quantities (which are the descriptions 
 in great detail of the materials and labour required in carry- 
 ing out the works shown on the drawings and described in 
 the specifications) a part of the contract is an unsafe 
 practice owing to the possibility of omitting items which 
 they wrongly think must necessarily become extras to the 
 contract" (Hudson, p. 345; Kemp v. Rose, 1858, 1 Giff. 
 258). 
 
 If the architect with power to certify extras should certify 
 as extras what are not in fact extras, the employer will be 
 liable, but he may have relief against the architect. 
 
 An architect has no implied authority to assess the 
 damages due to the builder for a breach of contract by the 
 employer, under his power to give a final certificate (M* Alpine 
 v. LanarlcsJdre and Ayrshire Railway Company, 1889, 
 17 11. 113 ; Mackay v. Leven Police Commissioners, 1893, 
 20 R 1093). 
 
 A contract for the construction of an extensive range 
 of iron buildings for a slump sum, contained a clause that 
 no alterations or additions should be made without a written 
 order from the employers' engineer, and no allegation by the 
 contractors of knowledge, or of acquiescence in such 
 alterations or additions on the part of the employers, " their
 
 EXTRAS. 45 
 
 engineers, or inspectors, shall be accepted or available as 
 equivalent to the certificate of the engineer, or as in any 
 way superseding the necessity of such certificate as the 
 sole warrant for such alterations and additions." The Lord 
 Ordinary, who allowed a proof " before answer," held that the 
 pursuers had entirely failed to prove their contention that 
 the defenders had dispensed with the strict observance of 
 the contract regarding the obtaining of a written order, and 
 the rendering of weekly bills for extras ; and therefore he 
 decided that no charges for extras could be allowed unless 
 instructed by the written order of the defenders' engineer, or 
 by their own admission. The case having been appealed, 
 the Second Division adhered (M'Elroy & Sons v. Tharsis 
 Sulphur & Copper Company, 17 th November, 1877, 5 R. 161). 
 The Lord Justice- Clerk who gave the leading opinion, said : 
 " The first point which we have to consider, is the demand 
 made by the contractors for certain extra work which 
 amounts to a considerable sum. It is said by the pursuers, 
 that the defenders' engineer or their clerk of works had 
 authorised, or at least acquiesced in, alterations and 
 additions, sometimes indeed suggested them, and they plead 
 that the defenders are not in good faith in taking advantage 
 of the pursuers' work without paying for it. I am unable to- 
 entertain this plea, nor, in the conflicting proof on this 
 subject, is there any sufficient case made out to substantiate 
 it. The contract seems to have been made on the footing 
 of meeting any such case. It may be a hardship to a 
 contractor to have his capital taken without remuneration, 
 but his remedy is easy. He knows that he must follow 
 exactly the terms of the contract, otherwise that will be 
 the result. ... I think we would be doing very wrong if 
 we held out any inducement to contractors to violate 
 the spirit as well as the letter of their contracts. The 
 meaning of this contract is, that the employers were not to- 
 be at the mercy of the contractors as regards alterations and
 
 46 LAW AFFECTING BUILDING OPERATIONS. 
 
 additions. They were entitled to make these stipulations, 
 and the contractors consented to them. I do not say that 
 there is not some colour in the assertion that the defenders' 
 clerk of works ought to have warned the pursuers more 
 distinctly as to some of these extras, but there is nothing 
 proved which comes up to such a case as Hill v. South 
 Staffordshire Railway Company, 1865, 11 Jurist, N.S. 
 192, in which the Court held that the Railway Company 
 were in bad faith." Lord Ormidale, who concurred, said : 
 ..." The practice in building and painting contracts is, 
 I fear, somewhat loose, and I hope this case will operate as a 
 check to such a practice, and show that when such questions 
 as the present come before us, we will adhere to the 
 specifications of the contract made by the parties them- 
 selves." 
 
 This case was appealed to the House of Lords, especially 
 regarding the clause in the contract which provided that 
 the employers should not be bound to pay for any metal 
 in excess of the weight specified. Soon after commencing 
 the work, the contractors represented to the employers' 
 engineer that it was impossible to cast certain girders of the 
 specified length without increasing the specified weights. 
 After some remonstrances on the part of the engineer, the 
 contractors were allowed either tacitly or expressly to put up 
 girders of considerably heavier weight than what was 
 specified, and the actual weights were entered in the 
 engineer's certificates granted from time to time in terms of 
 the contract for interim payment or advances to the 
 contractors. In an action at the instance of the contractors 
 against the employers, in which the former claimed payment, 
 inter alia, for the extra weight of girders, the House of 
 Lords held (rev. judgment of Second Division ; 17th 
 November, 1877, 5 R. 161) that as the increased weight 
 was entirely for the convenience of the contractors, clear and 
 unequivocal evidence was required to establish an agreement
 
 EXTRAS. 47 
 
 on the part of the employers to pay for the extra weight ; 
 that such evidence was not afforded either by the parole 
 testimony adduced by the contractors, assuming pa^frole 
 testimony to be competent, or by the engineer's certificates, 
 which were merely statements of the actual amount of 
 metal brought on the ground, to enable the employers 
 to judge whether they were in safety to make advances to 
 the contractors, and accordingly the contractors had failed 
 to establish any foundation for their claim" (Tharsis 
 Sulphur & Copper Co. v. M'Elroy & Sons, 4th June, 1878, 
 5 R (H.L.) 171). 
 
 The Lord Chancellor, who delivered the leading opinion, 
 said : . . . " The contract was one which obliged the respon- 
 dents to execute the work which was contracted for, and if 
 in the execution of the work the castings which were to be 
 supplied the castings, for example, for the girders 
 occasioned any difficulty in the work, if the girders had 
 to be of a length different from what was specified, that was 
 a risk which the contractors took, and they were obliged to 
 execute the work with the necessary alterations in the size 
 of the castings. . . . They were obliged to execute the work ; 
 and as I understand the contract, they were obliged to 
 execute it with the girders. If they could not cast the 
 girders of the scantling, that is to say of the exact thickness 
 mentioned in the contract, so much the worse for them. 
 They ought to have known that when they undertook to 
 execute the work in that form." 
 
 Observations (in Pollock v. Wilkie, 17th July, 1856, 18 
 D. 1311) which are important with reference to the 
 purposes served by scales and measurements "Now for the 
 purpose of doing that (providing for payment for extra 
 work according to weights and measurements agreed to 
 regarding the other work), where there is a slump sum 
 put down, as there is here, for the whole, it is absolutely 
 necessary that there should be a scale of rates according to
 
 48 LAW AFFECTING BUILDING OPERATIONS. 
 
 weights and measurements, to show how extra work is to 
 be paid for. But there is a further purpose for where it 
 is requisite. It is very common, and in this case it exists, 
 that although the contractors are not to be paid in advance, 
 yet they are not to be kept out of their money until the 
 whole work is done, and therefore it is generally provided 
 that as the work goes on they shall be paid proportionate 
 sums according to the contract more or less according to 
 the work actually done. And for that purpose a survey 
 must be made, and it is necessary that you should have 
 a scale of rates according to weights and measurements, 
 that they may know upon what sum they are to be paid. 
 ... It would be requisite to have the rates therein stated 
 in that way, in order that they might make out the sum for 
 which the certificate was to be given, and show that so much 
 work was actually done, and consequently that so much 
 money might be paid in advance." 
 
 He further expressed the view that the employer is not 
 to be held as warranting the practicability of the operations 
 according to specification. It is for the contractors " to look 
 into it for themselves." 
 
 " When, as in this case, the contractor says, ' we cannot 
 do the work as we have promised to do it, unless you 
 permit us to make it thicker than we undertook to make 
 it,' and the engineer on behalf of the employer says, ' I 
 will not object to your making it thicker if you cannot do it 
 otherwise,' I think there is nothing in that to certify that 
 there was to be any payment for the extra thickness." 
 And he held that the certificates by the engineer were 
 " made out with a view to regulating the advances, and 
 showing how much should be paid on account, not at all as 
 showing how much was to be paid ultimately upon the 
 final account and reckoning."
 
 CHAPTER IV. 
 
 PAYMENT OF PRICE, ARCHITECTS' CERTI- 
 FICATES, AND DESTRUCTION OF WORK 
 BEFORE PAYMENT. 
 
 PAYMENT OF THE CONTRACT PRICE. 
 
 THE builder's obligation is to perform the work in the manner 
 and within the period agreed on, and in the absence of 
 a specific agreement he must perform the work in a 
 good and workmanlike manner, and within a reasonable 
 time. On the other hand, the employer must pay the 
 agreed on price, or where there is no agreed on price, 
 he must pay what is fair and reasonable for the work done. 
 The law generally implies an obligation on the employer to 
 pay reasonable compensation for services rendered, unless it 
 appears that the services were to be gratuitous (Addison's 
 " Law of Contracts," 9th ed., 795 ; Parsons on " Contracts," 
 6th ed., Vol. ii. p. 55 Failure of builder to perform work 
 according to specification). See Peddie v. Henderson, 
 1st July, 1869, 6 S.L.R. 608, regarding contractor's liability 
 for bad work, &c. 
 
 The triennial prescription applies to builder's contracts 
 which are not in writing. Where not in writing, they can 
 only after the lapse of three years be proved by the writ or 
 oath of the debtor (Gordon v. Ford & Son, 5th June, 1902, 
 10 S.L. Times, 121). 
 
 In England, if a builder undertakes what is called " an 
 entire contract " i.e., a contract to complete a certain piece of 
 work for a slump sum, and fails to implement the contract in 
 4 49
 
 50 LAW AFFECTING BUILDING OPERATIONS. 
 
 its entirety, the employer may escape liability for the price, 
 even though he should derive substantial benefit from the 
 work done (Addison's " Law of Contracts," 9th ed., p. 803 ; 
 Parsons on "Contracts," 6th ed., Vol. ii. p. 57; Hudson, 
 172). In Scotland our Courts take a more equitable view. 
 If the work in fact benefits the employer, he is bound 
 to pay for it in so far as he is benefited. The employer may 
 employ other workmen or contractors to finish the work, 
 and he may use the tools and materials on the ground for 
 the purpose, but the original contractor will have an 
 equitable claim for the value of the materials and hire of the 
 tools (Kerr v. Dundee Gas Co., 1861, 23 D. 343). In 
 Ramsay v. Brand, 20th July, 1898, 35 S.L.R. 927, the 
 Lord President aptly stated the law on this subject. He 
 said : "No man can claim the sum stipulated to be paid 
 on the completion of certain specified work unless he has 
 performed that work modo et forma, and this applies to 
 building contracts just as much as to other contracts. The 
 parties may, if they please, and very often do, agree to 
 vary the contract, but we have nothing of that kind here. 
 The builder has no right either to disregard the specification 
 altogether or to modify it, as by supplying one material in 
 place of another ; and neither in the case of total departure 
 nor in the case of partial deviation from the specification, 
 will it avail to prove that what has been done is as good 
 as what was promised. Accordingly, the rule is that if the 
 builder chooses to depart from the contract he loses his right 
 to sue for the contract price. But further, losing his right 
 to sue for the contract price he does not acquire right to sue 
 for quantum meruit, the other party never having agreed to 
 pay according to its value for work which ex hypothesi he 
 never ordered. 
 
 " In the application of this rule it suffers a modification 
 which in no way invades the principle. A building contract 
 by specification necessarily includes minute particulars, and
 
 PAYMENT OF PRICE, ETC. 
 
 the law is not so pedantic as to deny action for the contract 
 price on account of any and every omission or deviation. It 
 gives effect to the principle by deducting from the contract 
 price whatever sum is required to complete the work in exact 
 compliance with the contract. 
 
 " The question whether in any given case the deviations are 
 of such materiality as to fall within the general rule, or are 
 of such detail as to fall within the modification of the rule, 
 is necessarily one of degree and circumstance. If the devia- 
 tions are material and substantial, then the mere fact that 
 the house is built would not prevent the proprietor of the 
 ground from rejecting it and calling on the contractor to 
 remove it, and he might do so if not barred by conduct from 
 insisting in his right. If this right were so insisted in, then 
 the contractor would, of course, have right to the materials, 
 but he would have no right to payment. If, on the other 
 hand, the proprietor made the best of it and let the house 
 stay, the only claim which the contractor could have would 
 be a claim of recompense ; and this, be it observed, would 
 be not for quantum meruit the builder, but for quantum 
 lucratus est the proprietor. Accordingly, when contractors 
 do not stick to their contracts, they not only unmoor them- 
 selves from their contract rights, but they drift into much 
 less certain and much less definite claims." 
 
 Where the contract provides that the builder is to be paid 
 for his work and labour, and the materials supplied by 
 measure and value, or according to the customary rate of 
 remuneration, he is entitled, in the absence of anything to 
 show a contrary intention, to demand payment from time 
 to time as the work proceeds (Addison on "Contracts," 
 9th ed., p. 803 ; Appleby v. Myres, 1867, L.R 2 C.P. 651, 
 660). 
 
 If the work has been imperfectly or unskilfully done, or 
 not according to contract, the employer is not bound to 
 accept it, and is entitled to damages, assuming he has not
 
 52 LAW AFFECTING BUILDING OPERATIONS. 
 
 acquiesced. He cannot, however, take the benefit without 
 paying therefor, as above explained. 
 
 Every builder who contracts for the building of a house 
 impliedly undertakes to furnish everything reasonably neces- 
 sary for its completion, even though omitted from specifica- 
 tion ( Williams v. Fitzmaurice, 3 H. and N. 844 ; M'Elroy 
 v. Tharsis Coy., 1887, 5 R. 161 ; rev., 1878, ib. H.L. 
 171). 
 
 When a contract has been entered into for building a 
 house for a certain sum payable on completion of the build- 
 ing, in accordance with certain plans and specifications, it is 
 not essential to the maintenance of an action that there be 
 exact performance in every particular. If the contract has 
 been substantially fulfilled, the plaintiff is entitled to main- 
 tain an action upon it, the defendant being entitled to such 
 a deduction of the contract price as will enable him to finish 
 the work in complete accordance with the contract (Lucas v. 
 Godwin, 3 Bing. N.C. 744 ; 3 So. 509 ; Wilkinson v. 
 Clements, L.R. 8 ; Ch. 96 ; 42 L.J., Ch. 38 ; Addison on 
 " Contracts," 9th ed., p. 807 ; Thornton v. Place, 1 Mood 
 and Rob. 218; Ramsay v. Brand, 20th July, 1898, 35 
 S.L.R. 927). 
 
 A builder or contractor may sue his employer for damages 
 for preventing the completion of the work, as, for example, 
 by failing to supply plans, &c. (Roberts v. Bury Improvement 
 Commissioners, L.R. 5 C.P. 310 ; 39 L.J., C.P. 129, 1870 ; 
 Lawson v. The Wallasey Local Board, L.R 11 Q.B.D. 229 ; 
 52 L.J., C.L. 302, 1883). 
 
 The price is occasionally subject to deduction by the 
 amount of penalties exigible from the builder. The 
 employer may have a claim of damages for non-implement, 
 and if damages for delay be fixed for a certain sum for the 
 period during which the work is unfinished, that will be 
 held as pactional damages, and not penalty subject to 
 modification, unless the sum be exorbitant and unconscion-
 
 PAYMENT OF PRICE, ETC. 53 
 
 able (Bell's Pr., 8th ed., 149 ; Fletcher v. Dyke, 2 Term 
 Rep., 32, 1787 ; Law v. Local Board of Redditch, L.K, 
 1892, 1 Q.B. 127). Penalties payable for failure in respect 
 of the original contract may be set against claims for extras 
 (Ducksworih v. Alison, 1 M. and W. 412, 1836). 
 
 A clause in a building contract stipulated for payment of 
 a fixed sum as liquidate penalty for each week that might 
 elapse after the date fixed by the contract for their com- 
 pletion, cannot be enforced when any part of the delay has been 
 caused by the fault of his employer, his only remedy being 
 in that case an ac.tion of 'damages at common law. The 
 pursuers undertook by contract to complete the erection of 
 a range of iron buildings by 9th September, 1873, while they 
 were not completed till the end of March, 1874. The 
 Lord Ordinary said that " to a very considerable extent this 
 delay was attributable not to the pursuers but to the 
 defenders. I think it is proved that a great portion of the 
 castings were ready, and on the ground, long before the 
 defenders were ready to receive them, and after the work 
 fairly began the pursuers seem to have been retarded partly 
 by the ground not having been filled up, partly by their 
 being ordered to move about from one part of the work to 
 another, leaving portions of the work half finished, and 
 involving the removal of apparatus, and also to no incon- 
 siderable extent by the introduction of additional works. 
 Indeed it is clearly proved that the calcining house, which 
 was a large and important part of the work, was not placed 
 in the possession of the pursuers for the execution of their 
 contract work upon that building until the middle of 
 September, 1873. The defenders therefore cannot be 
 allowed to claim penalties to the full extent, in respect 
 of the pursuers not completing the works within the 
 specified time, seeing that they did not enable the pursuers to 
 begin this important part of the work until after the year 
 contemplated by the contract had expired." Taking
 
 54 LA W AFFECTING BUILDING OPERATIONS. 
 
 however the circumstances into consideration, he held that 
 the work ought to have been finished by the end of 
 December, 1873, and ordained the pursuers to pay the 
 stipulated penalty of 50 a week for delay during January, 
 February, and March, 1874. 
 
 The Second Division, to whom an appeal was taken, 
 reversed this decision (M'Elroy & Sons v. Tharsis Sulphur 
 & Copper Company, 17th November, 1877, 5 R. 161). 
 The Lord Justice-Clerk, who delivered the leading opinion, 
 said : " I am of opinion that the penalty clause can only be 
 enforced when the person in right of the contract, the 
 employer, has done all that was incumbent on him to fulfil 
 his part of the agreement, and cannot be enforced when the 
 terms of the contract have been transgressed by him," 
 the question of damages at common law remaining (Holme 
 v. Ouppy, 1838, 3 Meeson and Welsby, 387, see Baron 
 Parke's opinion ; Russell v. Da Bandeira, November, 1862, 
 13 Scott's C.B., N.S. 149; 32 C.P. 310; Weatwood v. 
 Secretary of State for India, 16th January, 1863, 7 Law 
 Times Rep. N.S. 736 ; Addison on "Contracts," 10th ed., pp. 
 670 and 777). 
 
 When a builder undertakes to complete a work in a given 
 time, and such completion is prevented by some act of the 
 employer, the builder is not liable in penalties (Dodd v. 
 Churton, L.R., 1897, 1 Q.B. 562 ; 66 L.J., Q.B.D. 477). 
 When, however, extras are ordered, such order does not put 
 an end to an obligation on the builder to pay a penalty for 
 every day after the specified time, it merely entitles the builder 
 to a deduction in respect of the days necessarily occupied 
 in the execution of the additional work (Legge v. Harlock, 
 12 Q.B. 1015, 1848). In the case where extra work and 
 original work are mixed up, the employer is barred from 
 suing for penalties for failure to complete within the time 
 originally fixed (ThomhiU v. Neats, 8 C.B., N.S., 831, 
 1860).
 
 PAYMENT OF PRICE, ETC. 55 
 
 When a builder undertakes to complete a certain work by 
 a specified time, and also alterations and additions subject to 
 the original conditions, and that the period for completing 
 the alterations and extras shall not exceed the period first 
 named, he is bound to complete within the time first stated, 
 and even if this be impossible, he is liable in the penalties 
 stipulated, or in damages for failure (Jones v. St. John's 
 College, L.R. 6 Q.B. 115 ; 40 L.J., Q.B. 80, 1870). 
 
 ARCHITECTS' CERTIFICATES. 
 
 Building contracts usually contain a clause to the effect 
 that the work is to be done to the satisfaction of the employer 
 or the architect or inspector. 
 
 If this clause be absent, the contractor nevertheless requires 
 to do the work in a tradesmanlike manner. 
 
 Where the clause is present, the right it confers must be 
 exercised in a reasonable and not in an arbitrary or capri- 
 cious way. In other words, if the work be so executed that 
 most impartial people would say it was satisfactory, the 
 clause would not justify the employer in taking a contrary 
 view. The whole facts and circumstances require considera- 
 tion in each case. 
 
 It is, of course, possible to so frame the clause that the 
 contractor could have no remedy if the employer said the 
 work had not been done to his satisfaction. A clause of 
 that objectionable character is not general, although it is some- 
 times provided that if the work does not proceed as rapidly 
 and satisfactorily as the employer requires, he should have 
 power to enter thereupon, and employ tradesmen to do the 
 work and charge the contractor with the sum paid in excess 
 of the contract price. In such a case it has been held, that 
 the employer is entitled, with or without reason, to act on 
 the clause, so long as he is acting under a bond fide sense of 
 dissatisfaction.
 
 56 LAW AFFECTING BUILDING OPERATIONS. 
 
 In some cases it is provided that payment shall be made 
 within a specified time after the architect has certified the 
 work. This would not entitle the architect to delay to issue 
 a certificate unreasonably long. In fact, he ought to certify 
 as soon as the work has been finished. 
 
 A stipulation in a contract that an architect shall make a 
 certificate in regard to works to be executed by a builder is 
 
 I 
 
 irrevocable without the consent of both parties (Mills v. 
 Bayley, 2 H. and C. 36 ; 32 L.J., Ex. 179, 1863). 
 
 When a person undertakes to execute an entire work for 
 a specified sum, he can recover nothing till the whole work 
 is completed, unless he can show that it is incomplete through 
 the employer's fault, or unless there is something to justify 
 the conclusion that the parties have entered into a fresh 
 contract (Appleby v. Myers, L R. 2 C.P. 651 ; 36 L.J., C.P. 
 331, 1867; Emden, 3rd ed., p. 60 ; Ramsay v. Brand, 
 20th July, 1898, 35 S.L.R. 927). 
 
 Payment is generally made by instalments in conformity 
 with certificates by the architect. The certificates granted 
 while the work is going on are described as " progress certi- 
 ficates." They form the authority or warrant for advances 
 by the employer to the builder on account of his contract. 
 As a rule the certificates are generally for an amount con- 
 siderably within the sum actually expended by the con- 
 tractor on materials and labour. These certificates are really 
 provisional (Tharsis Sulphur & Copper Co. v. M'Elroy & Sons, 
 L.R. 3 App. Ca. 1045, per Lord Cairns), and are subject to 
 adjustment at the end of the contract when the final certifi- 
 cate falls to be granted. The final certificate generally bears 
 that the work has been completed to the architect's satisfac- 
 tion, and authorises the payment to the builder of the balance 
 due to him under the contract. 
 
 A proviso in a contract that all extras shall be paid for at 
 a price to be fixed by the architect makes the decision of 
 the architect conclusive as to the price, and as to the work
 
 PA YMENT OF PRICE, ETC. 57 
 
 being extras, although there be no clause in the contract 
 which in so many words gives him authority to determine 
 what are extras (Richards v. May, L.R. 10 Q.B.D. 400 ; 52 
 L.J., C.L. 272, 1883). 
 
 If the architect certify an excessive sum, and that sum be 
 paid to the contractor, the employer is entitled to sue the 
 architect for repetition of the excess over the proper 
 amount. 
 
 When a certificate has been given, the architect cannot 
 vary or alter it (Jones v. Jones, 17 L.J., Q.B. 170). 
 
 If by the terms of a contract payment is only to be made of 
 such sums as shall from time to time be certified in writing by 
 the architect, then until the architect grants his certificate no 
 claim can be vindicated by the contractor (Scott v. Liverpool 
 Corporation, 35 L.J., C.L. 230 ; Morgan v. Birnie, 9 Bing. 
 672, 1833 ; Milner v. Field, 5 Ex. 829 ; 20 L.J., Ex. 68 ; 
 Sharpe v. San Paulo Railway Company, L.R. 8 Ch. App. 
 597, 1873). This is where the granting of the certificate is 
 a condition precedent to payment. In such a case the con- 
 tractor is greatly at the mercy of the architect, and it is 
 very difficult to get the Courts to interfere. 
 
 The certificate of an architect is final and conclusive as 
 between builder and building owner, even if such certificate 
 has been given without reasonable care, apart from fraud 
 (Stevenson v. Watson, L.R. 46 P.D. 148 ; 48 L.J., C.P.D. 318, 
 1879 ; Rogers v. James, 1891, 8 Times L.R. 67; Chapman 
 v. Edinburgh Prison Board, 16th July, 1844, 6 D. 1288). 
 
 If the architect should decide that the work has not been 
 done to his satisfaction, and refuse to certify, no claim can 
 be made for the work done. Carelessness or negligence in 
 certifying would not justify an action by builder against 
 architect (Ludbrook v. Barrett, 46 L.J., C.P.D. 798 ; 36 
 L.T., N.S. 616, 1877; Restett v. Nye, 23rd January, 1900, 
 Q.B. Div. (Matthew, J.) ). 
 
 When it is stipulated that a written order by architect
 
 58 LAW AFFECTING BUILDING OPERATIONS. 
 
 must be given for extra work, and no stich order is given ; 
 yet if the architect at the end of the engagement makes a 
 certificate allowing such extra work, it is conclusive and final, 
 unless his acting has been fraudulent (Goodyear v. Mayor of 
 Weymouth, 35 L.J., C.P. 12, 1865 ; Connor v. Belfast Water 
 Commissioners, 5 Ir. Rep., C.L. 55, 1863). 
 
 If the certificate is not by express terms of contract 
 required to be in writing, the architect's approbation may be 
 by word of mouth (Roberts v. Watkins, 32 L.J., C.P. 291 ; 14 
 C.B., N.S. 592). But if payment is only to be made on a 
 certificate by the architect that the work has been done in a 
 satisfactory manner, a letter from the architect enclosing the 
 builder's account checked by him is not sufficient (Morgan v. 
 Birnie, 6 Bing. 672, 1833). The certificate may be quite 
 valid without any statement being made in it of the amount 
 that may be due to the builder, unless the contract requires 
 the amount to be stated (Pashby v. The Mayor and Corpora- 
 tion of Birmingham, 18C.B. 2, 1856). 
 
 If an architect's certificate is wrongfully or fraudulently 
 withheld, the Court will give relief not only against the 
 party (employer), but also against the architect ; and any 
 stipulation in the contract placing the architect in the posi- 
 tion of an arbiter between employer and workman, and 
 purporting to exclude the Court's jurisdiction, will be of 
 no effect in such circumstances (Scott v. Liverpool Corpora- 
 tion, 25 L.J., Ch. 227). Action for wrongfully withhold- 
 ing the certificate may be maintained both against architect 
 and employer, if it can be proved that the builder has 
 fulfilled his contracts and done all things necessary to be 
 done by him to entitle him to the certificate, and that 
 the architect had full knowledge thereof, and nevertheless 
 neglected to certify in collusion with the employer (Milner 
 v. Field, 5 Exch. 829 ; 20 L.J., Ex. 68 ; Scott v. Liverpool 
 Corporation, 25 L.J., Ch. 230 ; Ludbrooke v. Barrett, 46 
 L.J., C.P.D. 798, 1877 ; 36 L.T., N.S. 616 ; Batterbury v.
 
 PA YMENT OF PRICE, ETC. 59 
 
 Vyse, 2 Hurl, and C. 42, 1863 ; 32 L.J., Ex. 177). If the 
 parties to a contract stipulate that the certificate of an 
 architect shall not be set aside on any ground or on any 
 charge of fraud or collusion, then even if fraud on the part 
 of the architect is proved, the certificate is good (Tullis v. 
 Jaeson, L.R, 1892, 3 Ch. 441). 
 
 When the plaintiff undertakes to perform work to the 
 satisfaction of defendants' surveyor, payment to be made 
 only on the certificate of such surveyor, if the defender and 
 surveyor collude to withhold the giving of the certificate the 
 defendants cannot shelter themselves by means of such mis- 
 conduct (Erie, C.J., Clarke v. Watson, 34 L.J., C.R 148). But 
 a declaration against the defendant that his surveyor wrong- 
 fully neglected and refused to give his certificate, discloses 
 no cause for action, for that would be to substitute the 
 opinion of a jury to a certificate of the surveyor, which it 
 was the object of the contract to prevent (Clarice v. Watson, 
 supra). 
 
 It has been suggested that it is doubtful in cases where 
 the certificate of a named architect is a condition precedent 
 to payment, and there is no provision for appointing another, 
 whether, if the architect dies without certifying, the builder 
 or contractor can recover a penny of the money he would 
 have been entitled to in the certificate. This, however, is 
 entirely out of the question, and is not warranted by the 
 decisions. The Court will step in where an architect is 
 absolutely incapacitated to perform his duties, much more 
 will they step in where the architect is dead. 
 
 In Pawley v. Turnbull, 3 Giff. 70, a builder filed a bill 
 against the employer and architect, as co-defendants, alleging 
 unfair conduct on the part of the architect (whose decision 
 by the contract was to be final), and averring that he, the 
 builder, had executed the works in a proper and workmanlike 
 manner, and according to the plans and specifications ; but 
 that the architect had only granted certificates to a certain
 
 60 LA IV AFFECTING BUILDING OPERATIONS. 
 
 amount under the contract price, and had ousted him and 
 finished the buildings. The Court issued a decree as 
 follows : " It appearing from the evidence that the de- 
 fendant Hay (the architect) acted improperly and unfairly 
 in the exercise of the powers conferred upon him in the con- 
 tract, declare that the plaintiff is entitled to recover from the 
 defendant Turnbull the full amount of 2590 for the con- 
 tract price, and 190 for extra work." The builder was freed 
 of liability for penalties, the architect's decision was declared 
 not binding, and the defendants were found liable in costs. 
 
 Where work is contracted to be done at the sight of the 
 employer's inspector, and he neglects his duty, and the work 
 when finished is disconform to contract, though the con- 
 tractor may be disentitled to recover, the employer is barred 
 from insisting in specific implement or damages by reason of 
 the neglect of his representatives (Muldoon v. Pringle et e 
 contra, 9th June, 1882, 9 K 915; cf. Ayr Road Trustees 
 v. Adanis, 14th December, 1883, 11 R 326). 
 
 See Lord Deas in Pedie v. Henderson, 1st July, 1869, 
 6 S.L.R. 608, for observations as to the liability of a con- 
 tractor for work which is bad and not conform to contract, 
 where it is passed by the inspector of works. 
 
 A building contractor was held liable for damage in con- 
 sequence of the subsidence of a gable, his employer having 
 appointed an inspector, and the inspector having approved of 
 the work done and the manner of performing it, and it being 
 shown further that the foundations, for which the contractor 
 was not responsible, were at fault (Macbean v. Napier, 21st 
 December, 1870, 8 S.L.R. 250). 
 
 The architect, to whose satisfaction the work is to be done 
 according to specification, cannot approve of work disconform 
 to the specification, for without special permission he has no 
 authority to dispense with performance of the express terms 
 of the contract (Ramsay & Son v. Brand, 20th July, 1898, 
 35 S.L.R 927).
 
 PA YMENT OF PRICE, ETC. 61 
 
 Where by the contract between the employer and the 
 builder the architect has to determine the sum due to 
 the builder, and such architect has given to the employer 
 an undertaking that the work shall not cost exceeding a, 
 certain sum, the architect does not in the eye of the law 
 possess the unbiassed mind which will enable his decision to- 
 be just and conclusive, and the builder may make a claim for 
 a sum over and above that allowed by the architect (Kemp 
 v. Rose, 1 Giffard, 258 ; 27 L.J., Ch. 264, 1858. On appeal 
 3 De. G. & J. 354 ; 28 L.J., Ch. 230. Confirmed in 1871 
 by Kimberley v. Dick, L.R. 13 Ex. 1 ; 41 L.J., Ch. 38). 
 
 An architect may make his certificate from the measure- 
 ments of a competent surveyor, but he is not entitled to 
 delegate the whole of his duty ; that would void his certi- 
 ficate (Clemence v. Clarke, 1880, Roscoe's "Digest of Build- 
 ing Cases," 151). 
 
 DESTRUCTION OF WORK BEFORE PAYMENT. 
 
 This is generally subject of express contract. But where 
 there is no express stipulation, the loss will fall on the 
 builder, unless he has already been paid, or the work has 
 been taken off his hands (Bell's Pr. 139 ; Emden, 3rd ed., 
 p. 67). 
 
 A contractor undertook to build the entire brickwork of a 
 house at certain rates. Before the work was completed a 
 brick gable, forming a portion of it, was blown down during 
 a violent gale of wind. Held, that it having been proved 
 that the work having been executed according to contract, 
 the loss fell upon the owner of the house, and that the con- 
 tractor was entitled to recover from him the value of the 
 work destroyed (M'Intyre v. Glow, 8th January, 1875, 2 
 R. 278). 
 
 If a carpenter undertakes to roof a barn, and employs 
 defective materials, or does his work so negligently and
 
 62 LAW AFFECTING BUILDING OPERATIONS. 
 
 unskilfully that the thatch sinks and lets in the wet, he is 
 liable for the injury to the building so occasioned (Boston v. 
 Butter, 7 East 479 ; Moneypenny v. Hartland, 2 C. and 
 P. 378). 
 
 Where a carpenter undertook to build a booth for a race- 
 course, and the booth fell down in the middle of the races 
 from bad materials and bad workmanship, the carpenter was 
 held responsible for the damage (Broom v. Davis, 7 East 
 480, n (a); Francis v. Cockrell, L.R. 5 Q.B. 501 ; 39 L.J., 
 Q.B. 291). 
 
 A contractor agreed for a fixed price to rebuild part of a 
 bridge belonging to a body of road trustees. When the 
 work was nearly completed, a surfaceman in the employment 
 of the trustees, being apprehensive of danger from a flood 
 if the wooden centres and supports under the arch were 
 not removed, with the consent of one of the contractor's 
 workmen, but without the knowledge of the contractor, 
 removed them prematurely, with the result that the bridge 
 fell down. The contractor was held entitled to payment for 
 the work executed, in respect that it was done conform to 
 contract, and that he was not responsible for the accident 
 (Richardson v. Dumfriesshire Road Trustees, 27th May, 
 1890, 17 R. 805). 
 
 The degree of skill and diligence which is required from 
 the workman rises in proportion to the value, the delicacy, 
 and beauty of the work, and the fragility and brittleness of 
 the materials. Where a builder contracted to rebuild the 
 front of a house, and did so out of the perpendicular, so that 
 it was in danger of falling, and required to be taken down, 
 the builder could not have an action in respect of such 
 defective work (Farnsworth v. Garrard, 1 Camp. 38; Denew 
 v. Daverell, 3 Camp. 451). 
 
 When a building is so negligently constructed as to be 
 dangerous and unfit for use, the employer may require the 
 builder to take down and remove it ; if the builder neglects
 
 PAYMENT OF PRICE, ETC. 63 
 
 to do so, and refuses to fulfil his part of the contract, the 
 employer may give him notice to remove his materials from 
 off the land, and may retain payment of any portion of the 
 price of the work. If he reclaims the materials, and makes 
 use of them, he will be bound to pay their fair value, but if 
 the materials are altogether valueless, or the employer has 
 suffered from the breach of contract on the part of the work- 
 man more damage and injury than they are worth, he is not 
 bound to pay anything (Tindal, C.J., Hill v. Heatherstone- 
 haugh, 5 M. and P. 544, 548 ; Farnsworth v. Garrard, 
 1 Camp. 38).
 
 CHAPTER V. 
 DAMAGE TO PROPERTY. 
 
 LIABILITY OF CONTRACTOR FOR DAMAGE 
 TO PROPERTY. 
 
 THE contractor will be liable for damage caused to the 
 property of others than his employer through his operations, 
 where there is culpa on his part, but the contractor may 
 also be liable in the same way for damage to his employer's 
 property. 
 
 Generally it is the duty of the contractor to carry out his 
 contract in a proper and tradesmanlike manner, and in 
 doing so, to neglect no usual and necessary precaution to 
 avoid causing injury. 
 
 Unlike the employer (the owner), the contractor can plead, 
 even in the case of operations on a tenement owned in flats 
 by different parties, that the injuries where not due to his 
 culpa. 
 
 Where there is culpa, the lapse of a considerable time may 
 not bar a claim of damages e.g., a plumber was held liable 
 to relieve the employer from damages caused by defective 
 work four years previously (M'Intyre v. Gallacher, 6th 
 November, 1883, 11 R. 64). 
 
 On the other hand, where work nearly finished falls down 
 through no fault of the contractor, he is entitled to get his 
 contract price (Richardson, 17 R. 805). This was a case 
 in which a contractor agreed for a fixed price to rebuild 
 part of a bridge belonging to road trustees. When the work 
 
 was nearly completed, a surfaceman in the trustees employ - 
 64
 
 DAMAGE TO PROPERTY. 65 
 
 ment being apprehensive of danger from a flood, if the 
 wooden centres and supports under the arch were not 
 removed, with the consent of one of the contractor's work- 
 men, but without the knowledge of the contractor, removed 
 them prematurely, with the result that the bridge fell down. 
 In an action by the contractor against the trustees for the 
 contract price, under deduction of the estimated cost of work 
 not executed, it was held that the pursuer was entitled to 
 payment for the sum sued for, the work having been 
 executed according to contract, and the accident not having 
 been caused by any fault on his part. 
 
 A contractor undertook to build the entire brickwork of 
 a house at certain rates. Before the work was completed, 
 a brick gable forming a portion of it was blown down during 
 a violent gale of wind. The Court held that it having been 
 proved that the work had been executed according to 
 contract, the loss fell upon the owner of the house, and that 
 the contractor was entitled to recover from him the price of 
 the work destroyed. Lord Deas dissented on the grounds 
 
 (1) that the contractor had not proved that the work had 
 been executed conform to contract, and that the accident 
 might not have been caused by a deviation therefrom, and 
 
 (2) that even if it had been found that there was no fault 
 on the part of the contractor, the risk lay with him 
 (M'Intyre v. Clow, 8th January, 1875, 2 K 278). In that 
 case opinions were expressed to the effect that the onus lay 
 on the contractor, in the first place, to show that the work 
 was conform to contract. Lord Deas strongly dissented, 
 holding that till the completion of the work the risk was with 
 the contractor. It is important to note that it is no answer 
 to a claim of damages that it is impossible in the nature of 
 the case to fulfil the contract. If the contractor, in fact, 
 undertakes to do what is impossible, he must bear the 
 consequences. 
 
 If a contractor should undertake to supply and build with 
 5
 
 66 LAW AFFECTING BUILDING OPERATIONS. 
 
 stone from a particular quarry, he will not be allowed to 
 answer that he could only get that stone at double the price 
 he estimated, the price having increased to that extent in 
 the interval (Moor, <fcc., v. Paterson, <&c,, 16th December, 
 1881, 9 R. 337). 
 
 Where there is no stipulated time for implement of 
 contract, it is incompetent to plead that the claim for the 
 contract price has been extinguished by a claim of damages 
 for failure to implement the contract within reasonable time 
 (Macbride v. Hamilton & Son, llth June, 1875, 2 R. 775). 
 A clause in a building contract stipulating for a fixed sum as 
 liquidate penalty for each week that might elapse after the 
 date of the completion of the works fixed by the contract, 
 until their actual completion, cannot be enforced when any 
 part of the delay has been caused by the fault of the 
 employer, his only remedy being in that event an action of 
 damages at common law (M'Elroy & Sons v. Thar sis Sul- 
 phur & Copper Company, 17th November, 1887, 5 R. 161). 
 
 Where a tenant claimed damages against his landlord for 
 injury caused to wine by flow of water into his cellar from a 
 pipe in other premises of the proprietor, the proprietor, while 
 denying liability, instantly raised an action of relief against 
 the engineer, in respect that his negligent carrying out of the 
 work caused the influx of water, it was held that the action 
 was premature, and observed that it is time enough to raise 
 an action of relief when liability is either admitted or 
 established (Duncan's Trustees v. A. <& P. Steven, 1st June, 
 1897, S.L.R. 657). 
 
 In an action by a contractor for the balance of the 
 contract price, the employer pleaded that he was entitled, 
 in terms of the contract, to a deduction from the contract 
 price of 2 per day for each day the work had remained 
 unfinished after the date stipulated. Held that, in the 
 circumstances, the various stipulations as to time being 
 inconsistent with the work being completed on the date
 
 DAMAGE TO PROPERTY. 67 
 
 fixed, the claim as to liquidate damages could not be 
 enforced (Robertson v. Driver's Trustees, 2nd March, 1881, 
 8 R. 555). 
 
 A contract for the making of drains to the depth of 3^ 
 feet, contained a stipulation that the work should be done to 
 the satisfaction of an inspector to be appointed by the 
 employer. The inspector failed to inspect the work, but 
 gave certificates that it had been duly executed, upon the 
 faith of which the employer paid various instalments of the 
 price. The employer subsequently ascertained that the 
 drains fell far short of the stipulated depth. In an action 
 by the employer for implement or damages, held that he 
 was not entitled to decree in respect that the work had pro- 
 ceeded at the sight of his representative without objection 
 (Muldoon v. Pringle, 9th June, 1882, 9 R. 915). 
 
 The opinions in the case of Pollock v. Wilkie, 17th July, 
 1856, 18 D. 1311, are particularly instructive regarding the 
 liability of contractors for damage caused by their operations. 
 A builder was employed to excavate the foundation and 
 underfoot the walls of a house in Edinburgh, under the 
 supervision of an architect. In executing the work some 
 of the neighbouring houses were injured. The builder's 
 employer settled with the proprietor of the injured property 
 for the damage. In an action of relief at his instance 
 against the builder, held (affg. judgment of Sheriff of Edin- 
 burgh) that the work being proved to have been unskilfully 
 and recklessly performed, and the damage to the neighbour- 
 ing property having resulted from it, the builder was liable 
 in relief. 
 
 The Sheriff-Substitute, before whom the case was first 
 taken, held that the causes of the damage were the use of 
 improper materials, the small extent in breadth to which the 
 underfooting was carried, and the removal of too much earth 
 from beneath the walls at a time. 
 
 The Lord Justice-Clerk at advising said : " The defence is
 
 68 LAW AFFECTING BUILDING OPERATIONS. 
 
 a curious one, not that the work was not unskilfully per- 
 formed, but that the pursuer saw it done, and did not turn 
 the defender off. But this man was a builder and agreed to 
 do the work. We cannot listen to such pleas." This 
 applies to the plea that the work was executed under the 
 superintendence of the pursuer's architect and clerk of 
 works, one or other of whom was present during the whole 
 operations. 
 
 LIABILITY OF OWNER FOR DAMAGE TO PROPERTY. 
 
 There may be damage with no right of redress, dartinum 
 absque injuria (Andrew v. Henderson and Another, 10th 
 March, 1873, 11 Macph. H.L. 13 ; Wilsons v. Waddett, 1st 
 December, 1876, 4 R.H.L. 29). 
 
 The presumption in law being in favour of a proprietor 
 having the full use of his property, it is necessary in the 
 general case to prove culpa or negligence in order to found 
 a claim of damages for injury to the property of another 
 (Guthrie Smith on "Damages," 2nd ed., p. 198). Opera- 
 tions on buildings, whether in original construction or sub- 
 sequently, do not give rise to a claim of damages even where 
 injury has resulted, unless the operations were negligently 
 carried out and the injury was the result (Laurent v. Lord 
 Advocate, 1869, 7 Macph. 607; M'Bride, 21 R. 620; 
 Harris, 8 R. 613). 
 
 The mere fact that there has been injury does not warrant 
 a presumption of negligence, which requires to be proved 
 (Campbell v. Kennedy, 1864, 3 Macph. 121 ; Mackintosh v. 
 Scott, 1st February, 1859, 21 D. 363). 
 
 The onus lies on the pursuer to aver and prove culpa to 
 show specifically wherein the operations were defective, and 
 that the injury resulted therefrom. 
 
 The degree of care necessary is such as a prudent man 
 would observe in his own affairs, and which a prudent and 
 conscientious man would observe as to the interests of his.
 
 DAMAGE TO PROPERTY. 69 
 
 neighbours (Nisbett v. Dixon, 22nd February, 1851, 13 D. 
 776 ; Rankin v. Dixon & Company, 19th March, 1847, 9 
 D. 1048). 
 
 It is clear that there must be inseparable from building 
 operations a certain amount of annoyance and perhaps injury 
 to the neighbouring proprietor and his tenants. The opera- 
 tions cannot be carried on without a good deal of noise, and 
 very frequently quantities of dust find their way into pre- 
 mises houses and shops in the vicinity. Now while it 
 would not be permissible to disturb the sleep of one's neigh- 
 bours by such noises throughout the night, no objection can 
 be taken where the usual working hours are adhered to. 
 Where an employer caused a contractor to work by night at 
 extensive operations on the ground floor of a building, the 
 upper storeys of which were occupied by the pursuer as an 
 hotel, it was held that the employer was liable in damages 
 for injury to the business of the hotel by the nocturnal 
 operations (Miller v. Renton, 1885, 13 R. 309). Nor can a 
 claim be made for damage by dust so long as the operations 
 are carried out in the ordinary way, and without omitting to 
 exercise reasonable skill and care. However lawful and 
 proper the operations may be in themselves, they must be 
 carried out in such a manner as will avoid unnecessary 
 damage to neighbours (Cameron v. Fraser, 1881, 9 R. 26). 
 " This," said Lord Young, " may be taken to be a safe 
 principle of law, that when a party executes operations on 
 a property, however lawful and reasonable these operations 
 may be, he must take care in conducting them to do as 
 little damage as possible to his neighbour. I should have 
 been disposed to think that he must make good by repara- 
 tion any special damage caused to another by his operations." 
 In Hughes v. Percival, L.R. 8 App. Gas. 443, Lord Fitzgerald 
 said : " He is not in the actual position of being liable for 
 injury, no matter how occasioned ; but he must be vigilant 
 and careful, for he is liable for injury to his neighbour
 
 70 LAW AFFECTING BUILDING OPERATIONS. 
 
 caused by any want of prudence or precaution, even though 
 it may be culpa levissima." The circumstances in each 
 case will be taken into consideration, because the degree of 
 care necessary in one instance would not suffice in another. 
 For example, if the work were of a specially delicate and 
 difficult nature, and such as might be expected from its 
 nature to be apt to cause injury to an adjacent property, it 
 is reasonable in such a case to require that greater precau- 
 tions will be taken to avoid injury than where the operations 
 are simple and easy (Laurent v. Lord Advocate, supra). 
 However infirm the adjacent property may be, its owner 
 will be entitled to reparation for damage sustained through 
 negligence in the operations, because it has been held that 
 " a man has no right to accelerate the fall of his neighbour's 
 house" (Dodd v. Holme, 1 A. and E. 493; The Edinburgh 
 Railway Access and Property Co. (Ltd.) v. John Ritchie & 
 Co., 20th November, 1902, 10 S.L.T. 432. This decision 
 has been reversed). 
 
 In an English case the defender pulled down a house and 
 erected a house adjoining to that belonging to the pursuer. 
 It was averred that the defender acted so carelessly in 
 digging and clearing the ground for the foundation, and 
 in underpinning, removing a part of and shoring up and 
 doing other works to the party wall and connected there- 
 with, that the party wall and all walls, floor, &c., of the 
 pursuer's house sunk, cracked, &c., and the house was 
 damaged and lessened in value. It was found that the 
 carelessness and negligence of the defender in and about 
 the underpinning of the party wall consisted in under- 
 pinning the wall partially and not the whole, and that the 
 pursuer's property thereby sustained damage. The Court 
 held that the defender had no right to underpin the party 
 wall, and was liable for the injury resulting from this mode 
 of dealing with it (Bradfee v. Chinto hospital, 1842, 4 
 M. and G., R. 1714X
 
 DAMAGE TO PROPERTY, r - 71 
 
 A proprietor was held liable for damage sustained by his 
 neighbour in consequence of operations on his own property. 
 The pursuer and defender were adjacent proprietors, each of 
 a house and garden in Glasgow. The defender having dug 
 up an old wall situated within his own march, and contiguous 
 to pursuer's house, caused injury to it by digging lower than 
 the foundations. Defender was held liable in damages 
 (Robertson v. Hamilton Trustees, 1825, 4 S. 6 ; Brown v. 
 Windsor, 1 Cr. and J. 20). 
 
 While in special circumstances more exact diligence and 
 an extra degree of care and attention are required, it must 
 not be supposed that everything possible must be done to 
 avoid injury. Some regard must be had to what is reason- 
 able. So long as the precautions taken are such as, accord- 
 ing to practice, are generally found sufficient, it is thought 
 there would be no ground for a claim of damages. It may 
 be that practical men will differ as to what is sufficient in a 
 particular case, but the Court is likely to take the sensible 
 view, that unless there is something very exceptional in the 
 circumstances, if the operations have been carried out in the 
 manner usual with work of the sort, damages are not due. 
 To hold that there should be liability for injury caused 
 through the omission to do something unusual and altogether 
 exceptional, would be to impose an altogether unreasonable 
 and undue restraint on the freedom of action of the pro- 
 prietor in relation to his property. 
 
 A proprietor was not to be prevented from heightening 
 and increasing the weight of his boundary wall, where he 
 thereby caused a sit which injured his neighbour's wall. It 
 was held that the proprietor was only exercising his right of 
 property in a proper way, and that the injury was bound 
 to follow from the nature of the neighbour's foundations 
 (M'Intosh v. Scott, supra; Murray v. Johnston, 1834, 13 S. 
 119). 
 
 A mutual gable may be heightened by one of the pro-
 
 72 LA W AFFECTING BUILDING OPERA TIONS. 
 
 prietors who wishes to erect a higher building than that 
 erected by his neighbour. Suppose, on the other hand, the 
 gable is built of the usual depth, and with the usual founda- 
 tions, but without being deep enough for a sunk storey ; in 
 such case can the adjoining owner erect a building and 
 excavate for a sunk storey against the gable ? In Murray 
 v. Johnston, 13 S. 119, that question was answered in the 
 negative, on the ground that the neighbour should have 
 given the original builder notice when the gable was being 
 built of his desire to have the foundations more deeply built, 
 and that the operations would necessarily have the effect of 
 damaging and probably of destroying the neighbour's house. 
 It is thought that it would be quite possible to overcome the 
 objections by leaving a considerable band of earth unexca- 
 vated, and building a retaining wall up against it, thus 
 curtailing slightly the size of the sunk storey. The Court 
 require to be satisfied that what is proposed can be done 
 with perfect safety. 
 
 Sheriff Guthrie Smith on " Damages," p. 206, refers to two 
 cases Callander v. Eddinyton, 4 Mur. 108, 111; and 
 Douglas v. Monteith, 4 Mur. 130 and appears to conclude 
 therefrom that damage presumes culpa, on the ground that 
 the damage shows the operations to have been improper. 
 This may be correct in the particular circumstances to which 
 these cases applied, but as a principle in law, apart from the 
 law of tenement, it does not appear to be sound ; it is quite 
 possible for damage to arise without culpa. These cases 
 were explained in M'Intosh v. Scott, 1859, 21 D. 363, 
 which Professor Rankine refers to as the only authoritative 
 Scotch decision on the point. That decision makes it clear 
 that if the operations are carried out in a skilful and reason- 
 ably careful manner, no action will lie. 
 
 In Misses Gray v. James Greig, 18th June, 1825, 4 S. 
 105, Greig applied for authority from the Dean of Guild 
 Court to make certain alterations on his property, consisting
 
 DAMAGE TO PROPERTY. 73 
 
 of the sunk and street flats, in order to convert same into 
 shops. He proposed to convert two windows into doors by 
 lengthening them in the usual way, and by widening them 
 three inches and a half on each side. The Court allowed 
 the operations to proceed, on the statement of men of skill 
 that they could be done with perfect safety, and without 
 reasonable apprehension of danger. 
 
 No duty lies on a proprietor proposing to effect operations 
 to give notice of them to his neighbour. So it has been 
 decided in England (Dodd v. Holme, 1 A. and E. 493) ; 
 but this is not so very important in this country, because 
 Dean of Guild Court procedure requires a copy of any 
 petition for authority to carry on building operations to be 
 served on neighbouring owners. 
 
 If, apart from the law of tenement, a party contracts with 
 competent tradesmen to build or effect other operations, no 
 liability will attach to him for damages done by the trades- 
 men, unless the hazardous nature of the work involves risk 
 of injury to adjacent property, or it be shown that he knew 
 and acquiesced in the improper proceedings which caused the 
 injury. The relation of master and servant does not subsist 
 between employer and contractor in that case, and it is no 
 part of the employer's duty to see that the contractor is duly 
 carrying out the contract (Daniel v. Met. Railway, L.R. 
 5 H.L. 45). If, however, the wrong-doer is a contractor, 
 who is subject to the control of his employer, the latter is 
 responsible. ... If the contractor be independent, and may 
 do as he pleases as regards the execution of the work, he is 
 to be viewed as the principal, and alone is liable (per L.J.C. 
 Moncreiff in Stephen v. Thurso Commissioners, 1876, 3 R. 
 535, 540 ; Taylor v. Greenhalgh, L.R. 9 Q.B. 487 ; Pendle- 
 bury v. Greenhalgh, 1875, L.R. 1 Q.B.D. 36 ; Kittle v. 
 Lovett, 1885, L.R. 16 Q.B.D. 605). 
 
 Where an employer has no control over the contractor's 
 workmen, he may subject himself in liability if he personally
 
 74 LAW AFFECTING BUILDING OPERATIONS, 
 
 interferes with or directs, or even passively assents to, their 
 acts (Buyers v. Gray, 1845, 1 C.B. 578). 
 
 It is sometimes difficult to ascertain whether a party is 
 really an independent contractor, or only a subordinate 
 acting under the orders of the proprietor (Nisbet v. Dickson 
 & Co., 8th July, 1852, 14 D. 973 ; M'Lean v. Russell, 
 M'Nee & Co., 9th March, 1850, 12 D. 887). 
 
 But in cases where the work is necessarily attended with 
 risk to adjacent property, the employer will be liable, and he 
 cannot free himself of liability by binding the contractor to 
 take effectual precautions to prevent injury. No one is 
 entitled to employ another to perform an act which he 
 knows or ought to know to be dangerous, except on the 
 condition that he accepts the risk. The proprietor is bound 
 in a question with the party injured to see that the contract 
 is performed, and is therefore liable, as much as the con- 
 tractor, to repair any damage that may be done (Bower v. 
 Peate, L.R. 1 Q.B.D. 321 ; Dalton v. Angus, 1881, L.R. 6 
 App. Gas. 740, 791 ; Rankin v. Lixon, 1857, 9 D. 1048). 
 
 Pulling down a gable, digging out foundations, and 
 rebuilding are operations necessarily attended with risk of 
 injury to the property of neighbours, unless precautions are 
 taken, and a proprietor would be liable in reparation for 
 injury arising from such operations, though he bound a con- 
 tractor to do all that was necessary to support the neigh- 
 bour's house (Bower v. Peate, 1876, L.R. 1 Q.B.D. 321). 
 In such cases culpa is implied against the proprietor. 
 
 If an employer engages a contractor to do that which the 
 employer has no right to do, the employer will be liable in 
 damages for injury resulting to neighbours (Bower v. Peate, 
 L.R. 1 Q.B.D. 321). A company having employed a con- 
 tractor to open a street and lay down gas pipes, for doing 
 which the company had no statutory authority, were held 
 liable for damage caused by the contractor in carrying out his 
 contract (Ellis v. Sheffield Gas Company, 2 E. and B. 767).
 
 DAMAGE TO PROPERTY. 75 
 
 There may be liability on the employer without any 
 on the contractor, and vice versa. If the contractor carries 
 out his contract properly, and in strict accordance with 
 arrangement with the employer, he would not be liable for 
 damage arising, but the employer might be liable if he could 
 have easily avoided the injury by due care (Baird v. Addle, 
 1854, 16 D. 400). 
 
 A proprietor of a house within burgh contracted with 
 builders to make certain repairs on it. The builder sub- 
 contracted with a plasterer to do the plaster work. A heap 
 of lime was laid upon the street by the plasterer, without 
 any fence or protection, by which a coach was upset and the 
 driver killed. Held that the liability rested not with the 
 proprietor or builder, but with sub-contractor alone (M'Lean 
 v. Russell, Macnee & Co., 9th March, 1850, 12 D. 159). 
 In that case Lord MacKenzie said : " It is perfectly vain to 
 say that such blame can attach to a man who employs 
 responsible tradesmen to execute harmless repairs on his 
 house, or on these persons contracting with another to do 
 part of the work. . . . The case of damage done to a 
 neighbouring tenant is inapplicable, because that generally 
 arises from dangerous operations which are culpable, unless 
 precautions are taken to secure the neighbourhood from 
 damage. Lord Fullerton said the question whether pro- 
 prietor and principal contractor were liable (as well as 
 sub-contractor) must depend on whether the operation was 
 in the least degree hazardous. If it were so, the employer 
 might be liable, although he had devolved the actual 
 execution of the operation on a contractor." Liability of 
 owner for damage to adjoining property by insufficient 
 condition of property (Cleghorn v. Taylor and Others, 27th 
 February, 1856, 18 D. 664). 
 
 A chimney can, owing to insufficient workmanship in 
 putting it up, fell seventeen days afterwards. Fragments 
 fell through skylight of adjoining china shop, and did con-
 
 76 LAW AFFECTING BUILDING OPERATIONS. 
 
 siderable damage to the stock. Held that the proprietors of 
 the property from which the can fell, and not the master 
 workman whose servants had put it up, were liable to the 
 neighbour for the injury caused by the accident. 
 
 In that case the Lord Justice-Clerk said : " Is the pro- 
 prietor liable for the damage caused by his property being in 
 an insecure and insufficient state ? On that point I enter- 
 tain no doubt whatever. Responsibility attaches to every 
 proprietor in such circumstances ; it is a necessary burden 
 which he undertakes, and is specially applicable to urban 
 property, where the risk of damage to the adjoining property 
 is often so peculiarly imminent. 
 
 " That proposition was not in the abstract disputed. For 
 enforcing such responsibility it is not necessary to make out 
 that the proprietor wilfully caused or knowingly allowed his 
 property to be put or to remain in an insecure and insufficient 
 state." 
 
 If a ruinous tenement falls and injures a neighbour, the 
 proprietor who allows his property to become so dangerous is 
 liable for his failure to keep it in a safe state. That rule is 
 enforced in Scotland, where there is no bad intention or 
 special culpa on the part of the proprietor. 
 
 Lord Wood said : " In all cases cited of work done upon 
 the property of the principal, in which the principal has 
 been relieved of liability, the fact of there having been a 
 regular contract, written or verbal, for the performance of 
 the work appears to have been established ; and also (1st) 
 that the work was of some continuance ; and (2nd) that 
 the injury done, for which damage was claimed, was caused 
 by the wrongous act of the contractor during the progress 
 of the work, and while as yet the subject, so far as the work 
 was concerned may be, should have been in the possession of 
 the contractor and his servants, in order to its being carried 
 on and completed and under his independent control." 
 
 Lord Cowan said : " The facts being ascertained that the
 
 DAMAGE TO PROPERTY. 77 
 
 erection has fallen from inherent defect in original formation, 
 or from its ruinous condition through want of repairs or 
 otherwise, the proprietor must indemnify the party suffering 
 from its fall. No matter although the proprietor may be 
 ignorant of the inherent defect, he must be responsible for 
 the consequence of its insecure condition " (Pollock v. Wilkie* 
 17th July, 1856, 18 D. 1311). 
 
 When we come to deal with the operations on tenements 
 in flats belonging to different owners, we find a totally 
 different state of matters, brought about by the existence of 
 rights of common interest and common property. 
 
 Where a tenement requires to be rebuilt, the general rule 
 is that the operation must be so carried out as not to inter- 
 fere prejudicially with the rights of common property or 
 common interest of the respective owners as they previously 
 existed ; in fact there must be re-instatement as exactly as 
 the circumstances will permit. 
 
 Probably the most frequent operations nowadays are 
 those by which the street or main door flat of a tenement is. 
 converted into shops (Gray v. Greig, 18th June, 1825, 4 S. 
 104 ; Murray v. Guttan, 10th March, 1825, 3 S. 639). 
 There is no special difficulty in such case where the whole 
 tenement belongs to one proprietor and there is nothing in 
 the titles to bar his operations. Where, however, several of 
 the flats are held by other owners, the case is entirely 
 different, and in consideration of the common rights, their 
 proprietors are entitled to stop any operations which are of 
 such a nature as would almost inevitably involve injury to 
 these rights. On the other hand, where the operations are 
 carried out. the operator must make good all damage caused ; 
 it is no answer in such a case to show that every reasonable 
 precaution was taken, and that the operations were conducted 
 in a thoroughly good and tradesmanlike way. That would 
 just involve the conclusion that the injury was unavoidable, 
 and in such a case the operations ought not to have been
 
 78 LAW AFFECTING BUILDING OPERATIONS. 
 
 undertaken (Laurent v. Lord Advocate, supra; Chalmers, 
 1876, 3 R. 464 ; Rylands, 1864, 3 H. and C. 774, 1868 ; 
 L.R. 3 H.L. 330 ; Cleghorn, 1856, 18 D. 664). 
 
 In several cases the Court has prohibited the operations 
 where they were calculated to injure the rights of the other 
 proprietors interested (Johnston v. White, 18th May, 1877, 
 4 R. 723; Taylor v. Dunlop, 1st November, 1872, 11 
 Macph. 25 ; Dennistoun v. Bell, 10th March, 1824, 2 S. 
 784). In the last case the Court remitted to the architect 
 "to consider the nature of the alterations proposed, and to 
 report whether any and what degree of risk may be incurred 
 to the upper tenement by carrying the same into effect." 
 The architect having reported that the alterations might be 
 carried into effect, due caution being used, without damage 
 to the property above, the Court allowed the work to be 
 proceeded with. Other cases on the same point are Gray v. 
 Qreig and Murray v. Gullan, supra ; Brown v. Boyd, 1 3th 
 July, 1841, 3 D. 1205; Pirnie v. M' Ritchie, 5th June, 
 1819, F.C. 
 
 In almost all these cases the Court will be satisfied if the 
 Dean of Guild passes the plans, and is of opinion that they 
 can be carried out without risk of danger to the other parts 
 of the tenement. It is to say the least imprudent and 
 unsafe to attempt such work without the Dean of Guild's 
 sanction. 
 
 It is frequently matter of difficulty to determine how 
 much the upper parts of the tenement have suffered by 
 operations on the lower ; and occasionally old cracks are 
 -counted as new. In order to overcome such a difficulty, the 
 prudent course is adopted by some architects and contractors 
 of having careful photographs and notes taken, so as to 
 afford evidence of the state of the property before the 
 operations were begun. 
 
 It has been decided that a proprietor is not to be prevented 
 from effecting drainage improvements by the fact that they
 
 DAMAGE TO PROPERTY. 79 
 
 will cause some damage by discharge of water on the lower 
 lands (Murdoch, 1887, 8 R. 855); but the method calculated 
 to cause the least injury must be chosen (Armitstead, 1888, 
 15 R. 814). 
 
 A mineral owner is entitled to work his minerals though 
 the enjoyment of his neighbour is thereby lessened. An 
 upper coal owner is under no obligation to a lower proprietor 
 to work his coal in any particular way so as to prevent the 
 natural percolation of the water which is one of the 
 incidents of mining (Watson v. Waddell, 2 App. Gas.), but if 
 the owner chooses to create hazard by the erection of an 
 opus manufactum, or by using his property in other than 
 the ordinary way, as by raising the level so as to increase 
 the flow of water on the adjoining land, or otherwise cause 
 substantial injury, an action will be maintainable (Herdman, 
 1878, L.R 3 C.P.D. 168, 174 ; Skotts Iron Company, 1882, 
 9 R. (H.L.) 78). He will be liable if through want of precau- 
 tion he withdraws support from a surface owner to the 
 injury of buildings (Hamilton, 1867, 5 Macph. 1086 ; 
 Buchanan, 1873, 11 Macph. (H.L.) 13 ; Bald, 1854, 16 D. 
 870). If a man for his own purposes builds a dam across a 
 river, he must make it of sufficient strength to resist floods ; 
 if he fails to do so, and damage results to his neighbour, he 
 will be liable, even though the flood were an extraordinary 
 one (Kerr v. Earl of Orkney, 20 D. 298). The surface 
 owner must not overburden with buildings the land so as 
 to interfere with rights already acquired in the minerals 
 underneath (Hamilton, 5 Macph. 1086; White, 1881, 8 R. 
 375). On the other hand, the mineral owner is not entitled 
 to restrain the surface owner from increasing the weight to 
 be supported by feuing out the ground for the erection of 
 houses, or using it to the best advantage (Dunlop's Trustees 
 v. Corbet, 20th June, 1809, F.G).
 
 CHAPTER VI. 
 
 ARBITRATION RELATING TO BUILDING 
 CONTRACTS. 
 
 IN most building contracts there is a clause of submission of 
 disputes to arbitration, and architects are frequently placed 
 in the position of arbiters under such contracts, and also 
 under submission relating to claims for damage to property, 
 &c. Accordingly in a work like the present it may be useful 
 to deal shortly with the law of arbitration. 
 
 Contracts of submission must be in writing, unless the 
 subject in dispute is of very small importance or value 
 (Hume, 7th February, 1671, M. 8402 ; Frazer, 24th June, 
 1743, M. 8476 ; Otto, 1871, 9 Macph. 660 ; Ferrie, 1824, 3 
 S. 113). This merely means that writing must pass between 
 the parties, and that the contract to decide the question in 
 dispute by referring it to arbitration must be in writing. It 
 is not essential that there be a formal contract of submission. 
 It may be in a joint letter or separate missives. An opinion 
 of counsel, though neither holograph nor tested, is binding 
 upon the parties who have agreed to submit a question to 
 him as referee (Frazer, 1850, 17 Bell's App. 171). 
 
 Agents or architects entering into a submission on behalf 
 of their client become personally liable for implement of the 
 award should the client repudiate (Livingstone, 23rd Feb- 
 ruary, 1830, 8 Shaw, 504). Factors loco tutoris, curators 
 bonie, and trustees, unless the contrary is stated in the 
 deed appointing them, have power to submit to arbitra- 
 tion. 
 
 80
 
 ARBITRA TION RELA TING TO B UILDING CONTRA CTS. 8 1 
 
 THE SUBJECT OF REFERENCE. 
 
 This must be made clear and beyond doubt, because it is ob- 
 vious that no arbiter can properly decide a question unless it is 
 so stated that there can be no room for mistake about it. No per- 
 son is justified in accepting office under an ambiguous reference. 
 
 Where there is a general reference of all disputes between 
 the parties, it has been said that it is not free from doubt if 
 that would include disputes with reference to heritage, but 
 that can scarcely be the case where the only disputes between 
 the parties relate to heritage. Where, however, there is a 
 special clause relating to a particular dispute, and following 
 it a general clause embracing all other disputed points 
 between the parties, it is thought that if the special clause does 
 not relate to heritage, the general one would certainly not do so. 
 
 It is a frequent subject of contention and litigation 
 whether a particular dispute falls under the reference clause 
 or not. Numerous decisions bear on this question, and a 
 few of them may now be cited. 
 
 A builder whose offer to execute certain work had been 
 accepted, " subject to your signing . . . the conditions of con- 
 tract in the usual way," about two months after the date of the 
 letters of offer and acceptance, and after part of the work had 
 been done, signed certain general conditions relating to the con- 
 tract, by one of which all disputes were referred to the other 
 party to the contract. He admitted he had an opportunity 
 of considering the conditions, but said he had only glanced 
 through them, and did not notice the clause of reference, and 
 that if he had noticed it he would not have agreed to it. 
 Held that he was bound by the conditions containing the 
 clause of reference (Buchan v. Melville, 28th February, 
 1902, 39 S.L.R. 398). 
 
 Disputes as to the accuracy of the measurements of com- 
 pleted building work taken by the measurers who prepared 
 the schedules, held not a dispute or difference of opinion 
 6
 
 B2 LA W AFFECTING BUILDING OPERATIONS. 
 
 " connected with this contract or the execution of the work " 
 within the true meaning of the clause of reference. 
 
 The clause was as follows : " Should any dispute or 
 difference of opinion arise betwixt the contracting parties 
 connected with this contract or the execution of the work, 
 the same shall be and are hereby referred to B (the architect 
 under the contract), whose decision shall be final " (Kirkwood 
 v. Morrison, 6th November, 1877, 5 R. 79). 
 
 The same result was arrived at by the Court in Beattie v. 
 Macgregor, 5th July, 1883, 10 R 1094, where a building 
 contract contained the stipulation, " should any difference 
 arise between the proprietor and any contractor in regard to 
 the true meaning of the plans, drawings, or specifications, or 
 the manner in which the work has to be executed, or any 
 matter arising thereout or connected therewith, the same is 
 hereby submitted to the determination of W H B (the pro- 
 prietor's architect), whose decision shall be final." The 
 dispute was about the accuracy of measurements of plumber 
 work obtained by the contractor for the work after the 
 building had been completed. 
 
 Where contractors, instead of using " sharp fresh water 
 sand," made use of what is known in the trade as " shivers " 
 sand, the employers objected, and referred the questions to 
 the arbiters to whose decision by the contract any dispute or 
 difference of opinion as to the true intent and meaning of 
 the contract was referred. The Court held that there could 
 be no dispute as to the meaning of the words " sharp fresh 
 water sand," and that the employers had mistaken their 
 remedy in applying to the arbiter (Parochial Board of 
 Oreenhill v. CoghUl & Son, 5th March, 1878, 5 R. 732). 
 
 Question whether claim for extra work occasioned by 
 extensive alteration in plans, &c., fell under clause of 
 reference ; held that it did (Mackay v. Parochial Board of 
 Barry, 22nd June, 1883, 10 R. 1046). 
 
 The clause of arbitration in a contract, for the con-
 
 ARBITRATION RELATING TO BUILDING CONTRACTS. 83 
 
 struction of water works provided " in the event of 
 any dispute or difference arising between ' the parties ' 
 in relation to the execution, construction, or completion 
 of the said whole works contracted for, or any part of 
 them, or any part or portion thereof, or as to the quality 
 or quantity of the work or materials thereof, or as to the 
 settling of accounts, or as to any points or matter whatever 
 in regard to the works, or as to the contract, the true intent, 
 meaning, or effect thereof, or of the plans, drawings, 
 specifications, and conditions, the same shall be submitted 
 and referred to arbiters named." Held that the reference of 
 disputes "as to the contract, or as to the true intent, 
 meaning, or effect thereof," did not give the arbiter jurisdic- 
 tion to determine all questions arising upon the construction 
 of the contract, but only such questions as required to be 
 determined in order to enable him to explicate his jurisdic- 
 tion under the earlier portion of the clause of reference, and 
 consequently that a question as to the date at which the 
 contractors were entitled to enter upon the lands had not 
 been referred (Mackay & Son v. Leven Police Commissioners, 
 20th July, 1893, 20 R. 1093). 
 
 An action was raised for the contract price of a building. 
 The defence was that the building had not been finished 
 according to plan, and that damages were therefore due by the 
 pursuer. Held that the questions raised by the pursuer did 
 not fall under a clause of reference in the building contract, 
 which submitted " all disputes and differences " to the 
 architect of the building (Wolski v. M'Intyre, 10th January, 
 1866, 1 S.L.R 100). 
 
 ARBITERS. 
 
 An arbiter is not disqualified by having an interest in the 
 subject of reference, so long as the fact is known to both 
 parties and existed previous to entering into the submission. 
 If his interest should have supervened at a date subsequent
 
 84 LA W AFFECTING BUILDING OPERATIONS. 
 
 to the entering into the submission, he would be disqualified 
 from going on (Mackenzie, 19th December, 1828, S. 215 ; 
 Tennant, 16th June, 1836, 14 S. 999). Of course to have 
 any effect the interest must be substantial. A reference to 
 an architect being one of the parties of all disputes having 
 relation to and arising out of the contract is legal, and 
 must receive effect, provided that the other party, when 
 agreeing to the reference, was aware of the proposed arbiter's 
 interest (Buchan v. Melville, 28th February, 1902, 39 S.L.R. 
 398). In that case it was also held that the arbiter was 
 not disqualified by having lodged defences, and led and 
 given evidence as defender in an action against him at the 
 instance of the builder, the other party. 
 
 Where an architect who is nominated arbiter in case 
 of disputes arising out of a building contract, had been 
 examined by one of the parties as a witness in questions 
 arising out of the matter, that was held sufficient to dis- 
 qualify him from acting as arbiter (Dickson, 8 Macph. 566, 
 17th February, 1870). In that case the architect was not, 
 as in Buchan v. Melville, one of the parties. 
 
 In a contract for the execution of water works for a local 
 authority, the engineer of the local authority was appointed 
 arbiter. During the progress of the works he made a 
 report to the local authority, complaining in strong terms on 
 specific grounds of the execution of the works by the con- 
 tractor ; held that he was not thereby disqualified from acting 
 as arbiter (Scott v. Carluke Local Authority, 1st February, 
 1879, 6 R. 616). 
 
 An arbiter under a similar contract, who was also engineer 
 upon the works, had in his latter capacity during the 
 execution of the works complained of some of the con- 
 tractor's materials as disconform to contract, and had also 
 measured the work and brought out as due to the contractor 
 for extra work a sum far below what he claimed. In an 
 action by the contractor against his employers for payment
 
 ARBITRATION RELATING TO BUILDING CONTRACTS. 85 
 
 for extra work, the defenders pleaded that the action was 
 excluded by the clause of reference in the contract, and the 
 contractor that the arbiter was disqualified. Held that the 
 arbiter was not disqualified either by his office or actings 
 (Mackay v. Parochial Board of Barry, 22nd June, 1883, 
 10 R. 1046). 
 
 An arbiter is not disqualified simply by acting as pro- 
 fessional adviser to one party against the other in a different 
 matter (Addie & Sons v. Henderson & Dimmack, 24th 
 October, 1879, 7 R. 79). 
 
 The arbitration clause in a contract for making a railway 
 provided that the arbiter should not be disqualified from 
 acting by being or becoming consulting engineer to the 
 railway company. Held that he was not barred from acting 
 by the fact that he had revised the specifications and 
 schedules upon which the work which formed the subject 
 of the arbitration was performed (Adams v. Great North of 
 Scotland Railway Company, 21st June, 1889, 16 R. 843). 
 
 A purchaser of building materials belonging to A, at a 
 sale by auction lodged with the auctioneers, in terms of the 
 condition of sale, 30, as security that he would remove the 
 materials from his ground by a certain date. In an action 
 by the purchaser against the firm of auctioneers for repeti- 
 tion of the deposit, the auctioneers lodged defences in which 
 they averred that the purchaser had failed to implement the 
 condition, and further pleaded that the action was excluded 
 by a clause in the condition of sale which referred all dis- 
 putes to the determination of J L, one of the partners of the 
 defenders' firm. Held that the defenders' firm having taken 
 upon themselves the defence of the action, J L was dis- 
 qualified by interest from acting as arbiter (M'Dougall v. Laird 
 & Son, 16th November, 1894, 22 R. 71). 
 
 Observations as to propriety of having the architect as 
 arbiter in a clause of reference in a building contract (Dickson 
 v. Grant, 17th February, 1870, 8 Macph. 566, 42 J. 264).
 
 86 LAW AFFECTING BUILDING OPERATIONS. 
 
 A contract for joiner work contained a clause referring all 
 disputes which might arise to the architect as arbiter. In 
 the course of an action raised by the contractor concluding 
 for the reduction of the clause of reference and for payment, 
 the architect was examined as a witness for the defenders in 
 regard to certain of the matters in dispute. Held, that this 
 disqualified the architect from acting as arbiter (Dickson 
 v. Grant, supra). 
 
 Any objection to the competency of an arbiter, or to his con- 
 duct in the arbitration, or to the competency or propriety of 
 the proceedings, must be timeously stated, otherwise it will be 
 rejected (Johnston, 1817, 5 Drew, 1855 ; 2 Macqueen, 1). 
 
 REMUNERATION OF ARBITERS. 
 
 The office of arbiter being an honorary one, an arbiter has 
 no legal claim to be remunerated for his services, apart from 
 stipulation with the parties (Henderson v. Paul, 16th March, 
 1867, 5 Macph. 628 ; Bell on " Arbitration," 312). 
 
 The stipulation for remuneration must be before accepting 
 office under the reference (Paterson, 19th February, 1819, 
 F.C. ; Kennedy, 20th January, 1819, F.C.). 
 
 Any attempt to bargain for remuneration after accepting 
 office is viewed with strong disapproval, and might readily be 
 accepted by the Court as a ground for reducing any award 
 subsequently made. The Court reduced an award on the 
 ground of corruption, because the arbiters refused to give out 
 their award until they got payment of the fee demanded by 
 them, which one party refused but the other party agreed 
 to give (Fraser, 26th May, 1838, 16 S. 1055). 
 
 If there had been a distinct agreement, even though 
 verbal, before accepting office, the arbiter's award will not be 
 reduced on the ground of corruption for merely insisting on 
 the agreement being reduced to writing (Fraser, 5th July, 
 1834, 12 S. 887). 
 
 It is not right for the arbiter to fix the amount of his own
 
 ARBITRATION RELATING TO BUILDING CONTRACTS. 87 
 
 fee and decern for it, even where there is express agreement 
 to allow him remuneration. 
 
 In the case of a judicial reference, the arbiter is really an 
 officer of the Court, and as such he is entitled to remunera- 
 tion apart from stipulation (Edinburgh Oil Gas Company, 
 6th February, 1835, 13 S. 413; Dummond, llth March, 
 1835, 13 S. 684). 
 
 In an arbitration under The Lands Clauses Consolidation 
 (Scotland) Act, 1845, the Court held that the arbiters 
 were entitled to reasonable remuneration, and the Judges 
 expressed the opinion that the general rule that arbiters 
 are not entitled to remuneration cannot be accepted so 
 absolutely in the present day as formerly (Murray v. North 
 British Railway Co., 26th January, 1900, 37 S.L.R 370). 
 
 OVERSMAN. 
 
 It is proper and usual either to nominate the oversman in 
 the submission or to give the arbiters power to appoint one. 
 Where this was not done the reference fell to the ground in 
 a case in which the arbiters differed in opinion, and the parties 
 did not consent to a nomination (Merry v. Cunninghame, 
 1860, 22 D. 1148 ; affd. 1863, 1 Macph., H.L. 14). But this 
 was all changed by the Arbitration (Scotland) Act, 1894, 
 which provides (sec. 4) " that unless the agreement to refer 
 shall otherwise provide, arbiters shall have power to name 
 an oversman, on whom the reference shall be devolved in the 
 event of their differing in opinion." Should the arbiters fail 
 to agree in the nomination of an oversman, the Court may, 
 on the application of any party to the agreement, appoint an 
 oversman. When left to arbiters, the oversman must be the 
 deliberate and intelligent selection of both arbiters. Tossing 
 up as to which of two persons was to be oversman, held bad 
 (Wells v. Barnswell and Cresswell's Repts., 457 ; Neil, 16 
 East's Repts. 51). Where, however, two good men were named, 
 it was held to be no disqualification that they drew lots
 
 88 LAW AFFECTING BUILDING OPERATIONS. 
 
 which was to be taken. The oversman only acts if and 
 when called upon to do so in consequence of difference 
 between the arbiters, then a Minute of Devolution is generally 
 granted in his favour. He does not merely act as an umpire, 
 he becomes really sole arbiter in the reference in so far as the 
 matters therein submitted have not been disposed of, and the 
 award proceeds from him. 
 
 DUTIES OF ARBITERS. 
 
 The arbiters' first duty is to accept office by writing a 
 Minute of Acceptance on the submission. They next proceed 
 to appoint a clerk to the reference, assuming the subject in 
 dispute to be of sufficient importance. It has been held that 
 in a reference under the Lands Clauses Consolidation Act, 
 1845, in which the arbiters awarded no compensation, the 
 claimant was, under section 32 of the Statute, bound to pay 
 one-half of the account of the clerk to the reference (Glasgow 
 Corporation Waterworks Commissioners v. Jar dine Henry 
 (O.H.), 3rd February, 1866, 1 S.L.R. 137). 
 
 Further, it has been held (1), that the remuneration of the 
 clerk was earned whether or not the award was issued before 
 the death of the referee ; and (2) that though an award may 
 remain in the hands of the clerk, it may yet be a delivered 
 award, and parties cannot deprive the clerk of a right to his 
 fees by delaying to take up the award (Jackson v. Galloway, 
 20th December, 1867, 5 S.L.R. 130). 
 
 When power to award expenses has not been expressly 
 conferred upon an arbiter, it has been held that he has, by 
 implication, such a right (Ferrier, 1843, 15 D. 456, 1845 ; 
 4 Bell's App, 161). 
 
 The arbiter has no power, however, to assess damages, 
 unless he is empowered to do so expressly (Mackay, 1893, 
 20 R. 1093, and cases there cited). 
 
 The arbiters should appoint an oversman before beginning 
 to act otherwise under the reference.
 
 ARBITRA TION RE LA TING TO B UILDING CONTRA CTS. 89 
 
 PROCEDURE. 
 
 Unless the subject matter of reference be special, it is 
 usual for one of the parties to lodge his claims, and for the 
 other party to lodge his answers thereto. Thereupon the 
 arbiter will generally give parties an opportunity of debating 
 the matter before him, and he may also hear evidence. He 
 is not bound to hear evidence, unless that be necessary for 
 informing him fully regarding the facts (Mackenzie v. Hill, 
 2nd June, 1868, 5 S.L.R. 578). In all that he does he must 
 act impartially. If he hears evidence from one party, he 
 must also hear it from the other (Sharp, 24th February, 
 1815, 3 Dow's App. 102 ; Mitchell, 7th June, 1848, 10 
 D. 1297). 
 
 The arbiter has a pretty wide discretion as to the pro- 
 cedure in the reference, but is not generally safe to depart 
 from usual practice. An arbiter is not bound in all cases 
 to receive evidence, whether it will have any effect on his 
 mind or not (Johnston, 1817, 5 Dow, 247, 164). It is 
 essential, however, that he take reasonable means, by hear- 
 ing parties, or getting them to lead evidence, or otherwise, 
 so as to be thoroughly informed before issuing an award. 
 
 An arbiter is entitled, if he considers it necessary for his 
 own proper information, to require and obtain assistance 
 from a man of skill, such as an architect, an engineer, or a 
 valuator, or to consult counsel, and the parties are liable for 
 the expense (Caledonian Railway Company, 1860, 3 
 Macqueen, 808). 
 
 A person who is selected as arbiter on account of his 
 knowledge and skill in the particular subject submitted 
 to him, is not bound to hear evidence of others of skill 
 (Macdonald, 8th December, 1843, 6 D. 186). For example, 
 in a case where the value of a piece of land was in dispute, 
 the arbiter who was an expert in the matter refused to hear 
 evidence as to the value, and the Court held he was entitled 
 to do so.
 
 90 LAW AFFECTING BUILDING OPERATIONS. 
 
 Where certain witnesses whose evidence is required refuse 
 to act as witnesses, the arbiters, or both or either of the 
 parties, may apply by petition to the Sheriff for authority to 
 compel their attendance, and authority may be got in the 
 same way for compelling the production of documents. 
 
 The arbiters or umpire in statutory railway arbitrations 
 are empowered, without the necessity of applying to the 
 Court, to grant diligence for the recovery of documents, and 
 for the citation of witnesses (22 & 23 Viet. c. 59, Decem- 
 ber 18). 
 
 Should a witness when under examination refuse to 
 answer a question or to produce a document in his posses- 
 sion, it is necessary to present a petition to the Court setting 
 forth the circumstances, and praying the Court to ordain the 
 witness to answer the question or produce the document, as 
 the case may be. The Court, in case where the party assigns 
 good grounds for refusal, will not force his compliance. 
 
 The Court on application will appoint commissioners to 
 examine witnesses resident in England, and grant warrant to 
 cite witnesses and havers to appear before the commissioners. 
 
 THE ENDURANCE OF THE SUBMISSION. 
 Where, as is usual, the term of endurance is left blank, it 
 has been construed to limit the submission to year and 
 day from its date (Earl of Dunmore, 1829, 7 S. 595 ; Bell 
 on " Arbitration," 179, Note 3). If arbiters are expressly 
 given power to prorogate, each prorogation lasts for year and 
 day (Gowan8, 3rd February, 1859, 21 D. 403). The 
 prorogation need not be probative, nor on a stamped paper. 
 The prorogation by the arbiter to be effectual must be 
 dated prior to the lapse of the year, but the parties of 
 consent may prorogate the submission even after the sub- 
 mission has lapsed (Paul, 5 Macph. 613 ; Paterson, 7 S. 
 616). A written prorogation in such case is not essential 
 (Fleming, 7th July, 1827, 5 S. 906).
 
 ARBITRA TION RELA TING TO B UILDING CONTRA CTS. 91 
 
 When there is no blank, and where the submission is 
 entirely silent on duration, the submission would subsist for 
 forty years (Fleming, 7th July, 1827, 5 S. 906). 
 
 An ancillary submission i.e., a submission incorporated 
 as part of a contract, lasts as long as that contract (Halket, 
 16th December, 1826, 5 S. 154). It does not lapse on the 
 death of any of the parties (Montgomery, 23rd June, 1848, 
 10 D. 1387). 
 
 The raising of an action of reduction of a submission 
 does not avoid a decreet arbitral being pronounced during 
 the dependence of the process (Abbot, 1854, 3 S. 4). 
 
 NOTES OF FINDINGS. 
 
 Although it is the usual, and generally the proper, practice 
 for arbiters to issue notes of their proposed findings, and 
 hear parties on them, they are not under any legal obliga- 
 tion to do so (M'Kerrol, 23rd May, 1826, 2 Wilson and 
 Shaw, 244 ; M< Arthur, 20th February, 1836, 14 S. 549 ; 
 Baxter, 1836, 14 S. 549; M'Callum, 1826, 2 W. and S. 
 344). 
 
 THE AWARD. 
 
 The award must be within scope of the submission it 
 must not travel beyond the question submitted, and must 
 not award a larger amount than the submission warrants. 
 Where the sum is exceeded the Court may set aside the 
 award to the extent of the excess, but this can obviously be 
 done only where the excess is readily separable e.g., where 
 a certain sum was found due under the submission, an 
 additional sum was found due for something not embraced 
 under the submission, the award would be set aside as 
 regards the latter. Otherwise the whole award will be set 
 aside (Kidd, 19th June, 1810, F.C. ; Napier, 1844, 7 D. 
 166). 
 
 Only where arbiters have express or implied power to
 
 92 LAW AFFECTING BUILDING OPERATIONS. 
 
 issue interim awards will their decisions have effect where 
 they do not exhaust the whole submission. 
 
 Where no power to grant interim awards, and the arbiters 
 do not agree, they must devolve the whole reference to 
 oversman. 
 
 Where there are two or more arbiters, all must agree on 
 the decision, unless in case where a majority are expressly 
 given power. 
 
 The decree-arbitral must be signed and delivered before 
 the arbiters are functua offidi. 
 
 The arbiters have power to recal, alter, or cancel the 
 award, even though it has been formally executed and 
 signed, provided it has not been issued to the parties nor 
 put upon record, and that the submission still subsists. 
 
 Delivery to the clerk is not always enough, but delivery 
 to him with instructions to deliver, or with authority to 
 intimate to parties that he holds it delivered, is enough. 
 
 After the submission has expired, no decree-arbitral can 
 be issued, even though the arbiter has coine to his decision 
 and issued notes of his proposed findings prior to the expiry 
 (Lang, 1855, Macqueen, 93). 
 
 REDUCTION OF AWARD. 
 
 Awards may be set aside on account of: 
 
 1. Bribery, corruption, or falsehood. 
 
 It used to be thought that " corruption had a very wide 
 signification, and comprehended any failure of duty or 
 culpable neglect on the part of the arbiter, apart from an 
 error of judgment." This delusion has, however, been 
 exploded by Adams, 1890, 18 R. 1 and L. 1, where it was 
 held that " corruption," as a ground of reduction, must be 
 given its ordinary sense and meaning and no other. The 
 error has evidently arisen from the idea that no other ground 
 of reduction except bribery, corruption, or falsehood would 
 be listened to, because the articles of regulations concerning
 
 ARBITRATION RELATING TO BUILDING CONTRACTS. 93 
 
 the Session, dated 29th April, 1695, provided "that for the 
 cutting off of groundless and expensive pleas and processes 
 in time coming, the Lords of Session sustain no reduction of 
 any decree-arbitral, &c., upon any cause or reason whatsoever 
 unless that of corruption, bribery, or falsehood " to be alleged 
 against the arbiters. That may have been a quite reasonable 
 enough inference, but it is not warranted by legal practice, 
 for the Courts have reduced awards on other grounds, which 
 were thought to involve a sort of constructive corruption, but 
 which the Court hold sufficient without confusing or associat- 
 ing them with corruption or any other quality. 
 
 2. Ultra vires going beyond the scope of the submission, 
 or exceeding the arbiter's powers (Alexander, 1869, 7 M. 
 492). 
 
 A contracted with B by written offer and verbal acceptance 
 to build him an oven and bakehouse for 27. The offer 
 referred to a specification which embraced only the mason 
 and brick work, the proportion of the 27 to be paid for 
 the other work being matter of oral arrangement. Disputes 
 having arisen between them with reference to the execution 
 of the mason and brick work, they referred all disputes aris- 
 ing out of their contract, " as constituted by specification and 
 offer," to an arbiter, who pronounced an award adjudging B 
 to pay to A 22 as the amount due for the mason and brick 
 work, but not including carpenter and slater work. A 
 brought a reduction of the award, on the ground that it 
 was ultra vires, and did not exhaust the reference, but the 
 reasons for the reduction were repelled and the defender 
 assoilzied (Grant v. Squair, 16th December, 1868, 41 J. 151). 
 
 3. Violating any of the conditions expressed in the sub- 
 mission or the essential principles of justice and even-handed 
 dealing which all submissions imply (Adams, supra ; Pawley 
 v. Turnbull, 1861, 3 Giff. 70). If the architect's conduct 
 be not of that "discreet, impartial, and fair description which 
 it ought to have been," his decision may be upset. This
 
 94 LAW AFFECTING BUILDING OPERATIONS. 
 
 was affirmed on appeal. Examples : hearing evidence from 
 one party and refusing to hear it from the other party 
 (Mitchell, 1848, 10 D. 1297); excluding important and 
 necessary evidence (Cameron, 25th July, 1868, 6 Macph. 279). 
 
 4. Bad faith of parties submitting (Maule, 9th April, 1816, 
 4 Dow's App. 363). 
 
 It is not a good ground of reduction that the arbiter is 
 wrong in fact or in law, or that he has committed an error 
 in judgment, nor is it a good ground of reduction that an 
 excessive amount has been awarded, unless there is something 
 in the submission to put a limit on the sum. Nor is it good 
 ground of reduction that new matter or evidence has come 
 to the knowledge of a party, even though that new matter 
 would clearly have effected the arbiter's decision (Sharp, 
 17th May, 1813, 6 Dow's Apps. 223). 
 
 The Court will remedy a simple arithmetical calculation, 
 but they will not interfere where it is averred that the 
 arbiter applied a wrong principle in making his calculation 
 that is, merely an error of judgment.
 
 CHAPTER VII. 
 THE DEAN OF GUILD COURT. 
 
 GENERAL. 
 
 THE jurisdiction of the Dean of Guild Court is privative ; 
 where it exists the Sheriff is excluded. Parties raised an 
 action of neighbourhood before the Sheriff, who dealt with 
 the case. The Court of Session held, that as the case was 
 one of neighbourhood within burgh, the Dean of Guild had 
 exclusive jurisdiction (Magistrates v. Sheriff of Stirling, 21st 
 July, 1752, M. 7584). But in a burgh where there is 
 both a Bailie Court and a Dean of Guild Court, it is com- 
 petent for the Bailie Court to entertain an application as to 
 rebuilding a party wall which had been taken down by one 
 of two adjoining proprietors within the burgh (Milne v. Mel- 
 ville, 27th November, 1841, 4 D. 111). 
 
 Where the Magistrates are parties to the cause, the Sheriff, 
 and not the Dean of Guild, is the proper judge (Earl of 
 Kintore v. Lyon, 27th February, 1802, 13 F.C. 53 ; M. 7673 ; 
 Crawford v. Magistrates of Paisley, 10th March, 1870, 
 8 M. 693). In counties it is obvious that there is not so 
 great need for the rigorous enforcement of regulations for 
 passing plans of proposed buildings as in populous places. 
 Proprietors can generally erect buildings in any manner they 
 choose. It is desirable, however, to have this altered in the 
 public interest. There exist some regulations as to the cubic 
 contents and ventilation of stables and byres ; but surely it 
 is even more important to insist on reasonable conditions in 
 the erection of servants' cottages. Any powers affecting the 
 
 95
 
 96 LA W AFFECTING BUILDING OPERATIONS. 
 
 erection of buildings or the demolition of old and ruinous 
 buildings in counties are vested in the Sheriffs. 
 
 In police burghs the Commissioners of Police have certain 
 powers conferred on them by Statute. 
 
 In royal burghs the Dean of Guild has the requisite powers 
 either at common law or by Statute. 
 
 At common law the authority of the Dean of Guild must 
 be obtained before any building in a town is erected, demol- 
 ished or structurally altered (Hunter v. Ponton, 22nd De- 
 cember, 1821 ; Dunlop v. Dean, 12th November, 1824 ; 
 Eglinton v. M'Jannet, 30th October, 1890). 
 
 The Dean of Guild has no common law right to prevent a 
 proprietor building up to his boundary (Smellie v. Struihers, 
 1803, M. 7588 ; Dougall v. Hutcheson, 19th January, 1827, 
 5 S. 224 (N.E. 208) ; Michies Trustees v. Grant, 8th Nov- 
 ember, 1872, 11 Macph. 51), or to interfere in the case of 
 internal alterations or additions to a building not involving 
 structural change or danger to the lieges (Somerville v. 
 Macgregor, 7th November, 1889 ; Donaldson v. Pattison, 
 14th November, 1834, 13 S. 27; Speed v. Phillip, 16th 
 March, 1883, 10 R. 795 ; Gourlay v. Lang, 4th June, 1887). 
 But his approval must be got to plans of buildings even 
 where it is proposed to erect them exclusively on, and a con- 
 siderable distance within, the outside boundaries of the peti- 
 tioner's land (Eglinton Chemical Coy. v. M'Jannet, 30th 
 October, 1890, 18 R. 34). He can only interpose where 
 the operations are prospective or have been recently per- 
 formed (Graham v. Greig, 6th December, 1838, 1 D. 
 171). 
 
 It might be thought that where there is statutory power 
 given for the execution of certain works, such as a tunnel in 
 a city, the Dean of Guild's sanction would not be necessary, 
 but it is not so. In fact, the Dean of Guild will not give 
 place to anyone except under the express language of an Act 
 of Parliament (E. & G. Ply. Co. v. Dymock, 27th November,
 
 THE DEAN OF GUILD COURT. 97 
 
 1847, 10 D. 158; Johnston v. Edinburgh Gas Light Co., 
 27th March, 1885, 12 R. 974). 
 
 NUISANCE. 
 
 Formerly the Dean of Guild had, but he has not now, a 
 pretty extensive jurisdiction in questions of nuisance. He 
 may still, however, refuse to grant warrant where the pur- 
 posed trade proposed to be carried on is an illegal one, 
 " ticketed by law a nuisance," and he is entitled to decline to 
 grant warrant where it is clear that the plans involve an 
 infringement of the provisions of any Act of Parliament, such 
 as the Public Health Act. But he has no right to refuse 
 warrant merely because, in his opinion, the purpose to which 
 it was proposed to put a building was likely to create a 
 nuisance for example, a cow byre in a certain situation 
 (Manson v. Forrest, 14th June, 1887, 14 R. 802 ; Kirkwood's 
 Trs. v. Leith & Brenner, 20th December, 1888, 16 R. 255). 
 
 Undoubtedly it is his business to see that buildings are 
 erected which will be properly ventilated, and have all neces- 
 sary modern sanitary appliances. 
 
 The Court of Session refused to interfere with the Dean of 
 Guild's decision refusing warrant where water-closets were 
 not shown next the outside walls (Mitchell v. Dean of Guild 
 of Edinburgh, 18th March, 1885, 12 R. 844). 
 
 When the Dean of Guild of a burgh, who was a profes- 
 sional architect, had repelled objections to certain proposed 
 buildings on a back area, to the effect that they would 
 obstruct the lights of the upper flats of the same tenement, 
 the Court held, that the question having been determined by 
 the Dean of Guild, a practical architect, no further inquiry 
 was, in the circumstances, necessary (Russell v. Cowpar, 24th 
 February, 1882, 9 R. 660). 
 
 Ex-Dean of Guild Miller, in his " Handbook " on Dean 
 of Guild Court Procedure, p. 50, says that the Court 
 must be fully informed of the purpose for which it is 
 7
 
 98 LAW AFFECTING BUILDING OPERATIONS. 
 
 proposed to erect or alter a property, to enable them 
 to judge of " the stability, strength, safety and general 
 sufficiency of the building for the use or purpose proposed." 
 This is, no doubt, true, but the Dean of Guild cannot refuse 
 to grant warrant merely because it is contended that the 
 petitioner is not entitled to use the building for the purpose 
 stated (assuming the purpose not " ticketed " a nuisance). 
 In one case the controversy was whether a building proposed 
 to be erected on back ground behind a house was an " office 
 necessary for additional convenience." The Court of Session 
 held, that the warrant must be granted, as the Dean of Guild 
 had no jurisdiction to inquire as to the use of buildings, or 
 to regulate it, if the structure was unobjectionable (Golville 
 v. Garrick, 19th July, 1883, 10 R. 1241). But a room pro- 
 posed to be used as a box-room was properly objected to by 
 the Dean of Guild, because, being capable of being used as a 
 habitable room, " it failed to comply with the provisions of sees. 
 172 and 173 of the Burgh Police (Scotland) Act, 1892, 
 with reference to habitable rooms " (Young v. Hill, 5th March, 
 1902, 39 S.L.R. 415). 
 
 The Court of Session refused to interfere with an order by 
 the Dean of Guild Court to take down an unsecure building 
 on the ground of public safety (M'Kellar v. Swan & Johnston, 
 13th July, 1872, 9 S.L.R. 620). 
 
 Owner not liable for expenses incurred in defending un- 
 successful action for interdict by tenant against contractor 
 employed by Procurator-Fiscal to remove building under 
 warrant of Dean of Guild Court (Armour v. Somerville, 
 13th June, 1902, 10 S.L. Times, 138). 
 
 THE EDINBURGH DEAN OF GUILD COURT. 
 Statutory Provisions and Decisions relating thereto. 
 
 It is scarcely necessary to remark that it is absolutely 
 necessary for an architect in practice in Edinburgh to be
 
 THE DEAN OF GUILD COURT. 99 
 
 familiar with the principal public and local acts of Parlia- 
 ment and building rules affecting the erection of buildings in 
 Edinburgh, because he must give effect to them in preparing 
 his plans. The principal clauses relate to the making of 
 streets, the erection of buildings, the height of buildings, the 
 height of rooms hi dwelling-houses, ventilation, excavations, 
 open spaces, window lights, &c, 
 
 It is not necessary here to recite the various clauses. 
 They are generally given reasonable interpretation in the 
 Dean of Guild Court. There is one point, however, to which 
 it is of some importance to give prominence. It is generally 
 supposed that the open space for ventilation and light of 
 houses (as required by the Edinburgh Municipal and Police 
 Amendment Act, 1891, sec. 50, amended by the Edinburgh 
 Improvement, &c., Amendment Act, 1803, sec. 34 (7), 
 must be in the rear of the houses. This is no doubt 
 the general practice, but it does not appear to be binding 
 in law. The statute merely requires that every new house, 
 &c., shall in the rear thereof, or directly attached thereto, 
 and pertaining to and used exclusively in connection with 
 such new house, &c. Now it is clear, from this, that the 
 open space need not be in the rear, or even at the side 
 of the house, in order to be directly attached thereto. It 
 would meet the clause if the space were even in the front. 
 
 Under the Edinburgh Municipal and Police Amendment 
 Act, 1891, sees. 49 and 50, on a petition being presented to 
 the Dean of Guild Court for the alteration of the structure 
 of any existing building, " the Dean of Guild may decline 
 to grant warrant until the Court is satisfied that the plans 
 provide suitably for ... light, ventilation, and other 
 sanitary requirements." In a petition for warrant to build a 
 room over an existing lobby, the burgh engineer reported 
 that " This place is already sufficiently built on, having 
 regard to the light and ventilation of existing buildings." 
 No objections were made to the sufficiency of light and
 
 ioo LAW AFFECTING BUILDING OPERATIONS. 
 
 ventilation in the proposed addition. The Dean of Guild 
 refused the prayer of the petition. Held that the provisions 
 of the section, as regards light and ventilation, and other 
 sanitary requirements, applied only to the proposed additions, 
 and not to existing buildings, and that accordingly the judg- 
 ment of the Dean of Guild fell to be recalled, and the warrant 
 granted (Lord Saltoun and Others, Petrs., 19th March, 1897, 
 34 S.L.R. 560). 
 
 The same point was dealt with in the same way with refer- 
 ence to the Burgh Police Act, 1892, sec. 167, in Macgregor 
 v. Magistrates of Leith, 18th June, 1897, 34 S.L.R. 707. 
 
 In Brown v. Young, 21st February, 1900, S.L. Times 
 Reports, p. 458, Brown presented a petition to Dean of 
 Guild Court at Paisley, asking warrant to add one storey to 
 existing back building. The plan showed that the dwelling- 
 houses were to be single room ones. Space equal to three 
 fourths of the area of the proposed building was provided 
 both in front and behind, as required by section 170 of the 
 Burgh Police (Scotland) Act. The Dean of Guild Court 
 refused the lining, on the ground that from the character of 
 the houses proposed to be erected it was impossible that the 
 provisions of section 170 could be properly complied with. 
 Held on appeal that the Dean of Guild had exceeded his 
 powers in taking into consideration the character of the 
 proposed houses, so long as the plans exhibited complied 
 with the provisions of the statute. 
 
 A Dean of Guild warrant is required for merely forming a 
 hatchway by cutting joists of the floor (Duke v. Somerville, 
 June, 1902, 10 S.L. Times, 5th July, 1902, p. 116). 
 
 EXTENT OF JURISDICTION OF DEAN OF GUILD IN 
 QUESTIONS RELATING TO HERITAGE. 
 
 Where a competition arises as to the ownership of herit- 
 able property, or where it is necessary to settle some other 
 question as to the right or title to land, or other heritable
 
 THE DEAN OF GUILD COURT. 101 
 
 property, the Dean of Guild sists procedure in his Court, to 
 enable parties if so advised to have the question settled in 
 the competent Court (Neilson & Farquhar v. Donald, 22nd 
 February, 1750, M. 7584). 
 
 A party pleading want of jurisdiction in the Dean of 
 Guild Court, on the ground that the question raised is one 
 of right to heritable property, must set forth upon record an 
 ex facie good title to the subjects (Pitman v. Burnett's 
 Trustees, 7th July, 1881, 8 R. 914; Johnstons v. Murray, 
 5 March, 1862, 24 D. 709 ; Smellie v. Thomson, 9th July, 
 1868, 6 Macph. 1024). 
 
 Of course the Dean of Guild may proceed where he con- 
 siders that the question, though raised, is not pertinent to the 
 proceedings before him, or if he is satisfied that the title of 
 the petitioner clearly embraces the subjects, while the title of 
 the respondent relates to something else. If neither peti- 
 tioner nor respondent sets forth on record an ex facie good 
 title to a disputed subject, no question of heritable title is 
 raised, and the Dean of Guild may proceed. In that case 
 there is no de facto competition. 
 
 It is well recognised that the Dean of Guild is entitled to 
 decide possessory questions ; and it is an almost necessary 
 part of his business to judge of the validity of, and give effect 
 to, conditions in titles relating to seeming uniformity of 
 building, &c. 
 
 The Court of Session held (affirming the judgment of the 
 Dean of Guild Court) that a petition for authority to make 
 alterations on subjects possessed by the petitioner for seven 
 years, upon a title capable of comprehending them, the 
 alterations not involving a change in the character of the 
 possession, an objection and defence by an adjoining pro- 
 prietor that the petitioner was not the true owner of the 
 subjects, could not be entertained in the petition process 
 (Fall's Trustees v. Scottish Provident Association, 9th 
 January, 1867, 3 S.L.R. 155).
 
 102 LAW AFFECTING BUILDING OPERATIONS. 
 
 If a petitioner produces an ex facie unrestricted and 
 unambiguous title, the Court are not entitled to entertain 
 objections founded on an alleged right to have restrictions 
 imported from the objector's title (Walker v. Park, 29th 
 February, 1888, 15 R 477), but where the question is 
 between liferenter and fiar, or between wife with disposition 
 in her favour and her husband claiming his jus mariti, the 
 objections must be taken into account and the proceedings 
 sisted (Wales v. Wales, 28th November, 1888, 16 R. 164). 
 The Dean of Guild is bound to take the title as he finds it. 
 According to the Lord Justice-Clerk in that case, " It is 
 settled, that while from the very nature of the jurisdiction 
 of the Dean of Guild Court many questions may be raised 
 incidental to the immediate object of proceedings before that 
 Court, a competition between heritable rights, or burdens 
 on heritable rights, or variations from the feudal title on 
 which the rights stand, until they are set aside, are matters 
 entirely beyond the competency of the Dean of Guild 
 Court."
 
 CHAPTER VIII. 
 THE LAW OF THE TENEMENT. 
 
 FROM the community of property in connection with the 
 ownership by several proprietors of the same tenement, there 
 has been evolved what is known as the law of the tenement. 
 The main rules of that law centre round two rights which 
 are covered by the terms " common property " and " common 
 interest." These rights exist side by side in every case 
 where part of a property is owned by one individual and the 
 other part by one or more individuals. The same person 
 may have a right of common property in part of a wall or 
 gable, and a right of common interest in another part. It is 
 sometimes difficult to decide under which category to class a 
 particular right. 
 
 In many decisions it is made clear that the Courts view 
 questions affecting the law of tenement as special (see Lord 
 Young in M'Arly v. French, 10 R. 578, 1883). This is 
 most distinctly marked in questions about gables in 
 tenements. 
 
 The extent of the owners' powers in relation to operations 
 on the property at any particular point is greatly dependent 
 on the question whether the part of the property proposed 
 to be operated upon is merely subject to a right of common 
 interest in another person, or is held in common property. 
 
 In the former case the proprietor can operate as he 
 pleases, so long as he does not injure or materially prejudice 
 the rights of the other proprietor, who in virtue of his 
 common interest could object to injurious operations. In 
 
 103
 
 104 LAW AFFECTING BUILDING OPERATIONS. 
 
 the latter case it is incompetent to perform operations with- 
 out the consent of all the common proprietors. It should 
 be explained, however, that no exception can generally be 
 taken to operations which are consistent with the purpose of 
 the part of the property, such as a mutual gable, and of 
 course each proprietor can freely make use of the subject in 
 accordance with its purpose without consulting the other. 
 A more detailed elucidation of these rights will follow. 
 
 In order to enable us to arrive at a clearer understanding 
 of the nature and extent of mutual rights and obligations in 
 connection with tenement property, let us suppose we are 
 dealing with a three storey tenement, belonging the ground 
 flat to A, the first flat to B, and the top flat to C. Let it 
 be assumed further that there is a similar tenement built 
 against each of the gables, which are mutual. What are the 
 rights or obligations of A, B, and C respectively ? 
 
 Take the case of A first. He has not only a certain right 
 of property, but also and accessory to it he has rights of 
 common interest. 
 
 He has clearly a right of common interest in the whole 
 tenement and its site, with front and back ground effeiring 
 thereto, and also in the roof. This right carries with it no 
 positive power to effect any sort of operations. In virtue of 
 it, however, objection may be taken to any operations by the 
 other proprietors which would materially interfere with the 
 full and free exercise of A's right of property in that part of 
 the tenement owned by him (Barclay v. M'Ewen, 21st May, 
 1880, 7 R. 792). It entitles him, for example, to insist on 
 the roof being kept up. 
 
 His right of property, which is of course subject to a right 
 of common interest in the other owners, extends to (1) the 
 solum, with front and back ground effeiring thereto (assum- 
 ing there is nothing in the titles to the contrary) (Rankine, 
 p. 517, and Barclay v. M'Ewen, aupra). He can use these 
 in any way he thinks proper, by excavating cellars, erecting
 
 THE LA W OF THE TENEMENT. 105 
 
 saloon, &c., so long as he does not weaken the fabric or 
 foundations, or prejudice the right or prospect of the other 
 owners. Of course he must get the authority of the Dean 
 of Guild. It would probably not be permissible to build on 
 the back or front ground higher up than the centre of the 
 joists, because to do so would doubtless interfere with the 
 light or prospect of the upper proprietors, who have a 
 common interest to object. It is to be noted, however, 
 that very generally nowadays the titles expressly bear that 
 the solum, &c., are held in common by all the proprietors of 
 the tenement, to the effect that no operations can be carried 
 out thereon without mutual consent. (2) The front and 
 back walls of the property from the foundations up to the 
 centre of the joists (Dickson v. Morton, 23rd November, 
 1824, 3 S. 310 (N.E.) 220; M'Arly v. French's Trustees, 
 8th February, 1883, 10 R. 574 ; Alexander v. Butchart, 
 24th November, 1875, 3 Rettie, 156 (shop sign on panels 
 above centre of joists) ; Murray v. Mackenzie, 1812 Hume, 
 520). He can operate on them in any way, so long as he 
 does not endanger the fabric or otherwise prejudice the 
 rights of the other proprietors ; on the other hand, he has 
 the obligation to maintain for the support of the other flats. 
 (3) The floor and the space between the walls of that part of 
 the tenement of which he is the owner. This entitles him 
 to perform such operations as putting up or taking down 
 internal partitions, &c., so far as that can be done without 
 affecting the stability of the property as a whole. 
 
 RIGHT OF COMMON PROPERTY. 
 
 Subject to a right of common interest in the other proprie- 
 tors, he has a right of common property or something very 
 similar to it in mutual gables from the foundations up to the 
 centre of the joists. Professor Rankine points out, p. 504, 
 that of the two leading rules relating to common property
 
 106 LAW AFFECTING BUILDING OPERATIONS. 
 
 generally, that of compulsory division is altogether inapplic- 
 able, as being inconsistent with the nature of the subject, 
 and that of the veto applies only to such operations as are 
 incompatible with the ordinary purposes of a gable wall, or 
 such as will be injurious to the wall by establishing a lawful 
 use in an unwarrantable way. "Were it not, therefore," he 
 proceeds to say, " for the uniformly accepted view of our 
 judges that a common gable is common property, it might 
 be more consistent with principle to regard it as held by 
 each in several ownership as to one half of its width across, 
 with cross rights of common interest over the other 
 half." 
 
 This right will entitle any of the joint proprietors to have 
 the fullest use of the mutual gable for the purpose for which 
 it is intended, but it will not permit any interference or 
 operations which would injure the fabric. It would entitle 
 one proprietor to open a fire place and vent where he had 
 none on his side of the gable, but it would not permit the 
 making of wall presses without consent of the co-owner 
 (Lamont v. Gumming, llth June, 1875, 2 R. 784), and 
 notwithstanding such consent, upper proprietors not con- 
 senters would be entitled to object if they could show 
 that the gable would be materially weakened as a sup- 
 port. 
 
 It entitles to heighten a gable for the purpose of building 
 a higher tenement next to it so long as the operation can be 
 done without inflicting injury (Lamont v. Gumming, supra). 
 
 Take, now, the case of B, the proprietor of the first flat 
 
 His rights, &c., are precisely the same mutatis mutandis 
 as those of A, with the exception that his right in the solum, 
 &c., is limited to one of common interest. 
 
 Finally, take the case of C, the proprietor of the top 
 flat. 
 
 His rights are similar to those of B, with this exception, 
 that he has the ownership of the roof.
 
 THE LAW OF THE TENEMENT. 107 
 
 When the upper flat is owned by more than one proprietor, 
 it has been held that each is owner of that part of the roof 
 which is directly over his house. 
 
 This subject, being one of much importance, will now be 
 treated in greater detail under various heads, viz. : 
 
 1. The solum and front and back ground effeiring 
 
 thereto. 
 
 2. The foundations and front and back walls. 
 
 3. The floor and ceiling and space between the walls. 
 
 4. Mutual gables. 
 
 5. The roof. 
 
 6. Common passages and stairs. 
 
 7. Mutual walls other than gables. 
 
 l. THE SOLUM AND FRONT AND BACK GROUND 
 EFFEIRING THERETO. 
 
 As we have already seen, where there is nothing to the 
 contrary in the titles, the owner of the ground flat is the 
 owner of the solum, &c., entitling him to perform thereon 
 such operations as do not prejudice his neighbour's rights 
 (Johnston v. White, 18th May, 1877, 4 R. 723; M'Arly 
 v. French's Trs., 8th February, 1883, 10 R 574). 
 
 If there be more than one owner of the lowest floor, 
 each holds the property in so much of the solum as 
 is covered by his floor, and so much of the other ground 
 as lies ex adverse thereof, failing any express boundary 
 in the titles (Rankine, p. 512). Where, however, the 
 whole proprietors in the tenement are expressly given a 
 right of common property in the solum, it appears that 
 the owner of the ground flat is entitled to perform opera- 
 tions of a trifling nature on the solum without asking 
 anybody's consent. He cannot, however, interfere seriously 
 with it, as, for example, excavating for cellars (Turner 
 v. Hamilton, 21st February, 1890, 17 R. 501). 
 
 It requires very explicit language in order to override the
 
 io8 LAW AFFECTING BUILDING OPERATIONS. 
 
 ordinary presumption that the solum belongs to the owner of 
 the ground flat. In Johnston v. White, 18th May, 1877, 4 
 R 721, the presumption was held operative, at least as 
 regards the front area, notwithstanding the fact that the 
 owner of ground flat had expressly a " right, in common with 
 the other proprietors of the tenement of which the subjects 
 hereby disponed form part," to the solum of the ground on 
 which the same was built. This was interpreted by reference 
 to a conveyance of the upper flats to another person, and of 
 a previous date in which the subjects included " a right, in 
 common with the other proprietors, to the area on which the 
 same stands." In that case Lord Deas seemed inclined to 
 the view that the proposal to cover the front area with build- 
 ings might be objected to by the other proprietors in virtue 
 of their right of common interest, on the ground that the 
 operations would diminish the value of their properties. He 
 thought, however, that this plea would probably be weakened 
 to greater or less extent if the proposed projection of the 
 lower floor were built of sufficient strength to permit of the 
 upper proprietors making use of it for projecting their 
 respective properties likewise. This would appear to suggest 
 that the upper proprietors would have a right to use the 
 projection for support ; but it seems to be decided by the 
 case of Arrol v. Inches, <fcc., 27th January, 1887, 14 R. 395, 
 that he is not entitled to do so. In the latter case, however, 
 the proprietors of the upper storeys had no right to the area. 
 As it has been decided that injury to amenity is not a good 
 objection (Barclay v. M'Ewen, 21st May, 1880, 7 R. 792; 
 Calder v. Merchant Co. of Edinburgh, 20th February, 1886, 
 13 R. 623), it seems clear that the plea of diminished value 
 would not be entertained unless it were very substantial. 
 
 There was a very important case (Urquhart v. Melville, 
 22nd December, 1853, 16 D. 307) in which it was held 
 competent for an upper proprietor to make a projection a 
 bow window from his front wall over what was at one time
 
 THE LAW OF THE TENEMENT. 109 
 
 area, but the lower part of which had been built upon by the 
 proprietor of the ground flat up to the ceiling of his flat. 
 In that case the proprietor of the ground flat was undoubtedly 
 owner of the solum and back area, but the Court evidently 
 took the view that it would, in the circumstances, be absurd 
 to hold that his right was a coelo usque ad centrum. 
 
 2. THE FOUNDATIONS AND FRONT AND BACK 
 
 "WALLS. 
 
 Unless there be an express stipulation in the titles to the 
 contrary, the ownership of the front and back walls, from and 
 including their foundations up to the centre of the joists, is 
 in the proprietor of the ground flat, subject only to a right 
 of common interest in the other proprietors of the tenement, 
 which entitles them to insist on the foundations and walls 
 being kept in sufficient repair for their support. On the 
 other hand, the foundations which carry mutual gables are, 
 like the gables themselves, held in common property, subject 
 to cross rights of common interest in the other proprietors 
 of the tenements concerned to have the foundations and 
 gables kept in repair at the expense of the common owners 
 (Erskine's Inst., Book 11, 9, 7). 
 
 In dealing with the natural right of support of land to 
 land, a proprietor may be liable in damages for excavating in 
 his own property so as to remove the support to his neigh- 
 bour's land. Robertson v. Hamilton Trs., 12th May, 1825, 
 4 S. 6, is a case in point. There damages were awarded 
 against Hamilton's Trustees, who dug up an old wall situated 
 within his own property and contiguous to Robertson's house, 
 which was injured because Hamilton's operations went deeper 
 than Robertson's foundation. In that case, however, the de- 
 cision was partly dependent on the fact that the operations 
 had not been carried out with the authority of the Dean of 
 Guild. In general the Court will not award damages against 
 a proprietor where the operations are carried out entirely
 
 no LAW AFFECTING BUILDING OPERATIONS. 
 
 within his own boundary, with the sanction of the Dean of 
 Guild, and where it was done with reasonable care and skill. 
 This is, of course, where there is no question between different 
 proprietors of the same tenement. 
 
 There is a case of careless and unskilful work in Brown v. 
 Windsor, 1880, 1 Cr. and J. 20. In 1803 the plaintiff's 
 house was by permission built against the pine end wall of 
 the defendant's wall. In 1829 the defendant made an ex- 
 cavation in a careless and unskilful manner on his own land, 
 near to the pine end wall, which was weakened thereby. 
 Thus the plaintiff's house was injured. It was held that 
 there was good ground of an action for damages. 
 
 Although the mutual gable and foundations thereof are 
 held in common property, as between the owners on either 
 side, it is not thought that either of the common owners 
 would be entitled to object to the other excavating for the 
 making of cellars, unless he could allege damage of a kind 
 which could not be adequately prevented by ordinary 
 methods, such as underpinning. His position in this 
 respect would be almost identical with that of proprietors, 
 who have merely a right of common interest. In short, 
 the principles applicable to mutual gables, apply to mutual 
 foundations (Rankine, p. 504). 
 
 With reference to front and back walls, subject to a right 
 of common interest in the other proprietors of the tenement, 
 these, so far as effeiring to each flat or house therein, belong 
 in property to the owner of such flat or house, who has also 
 & right of common interest in the other parts of the walls. 
 The rights of, and the obligations on, the owner have already 
 been sufficiently explained. 
 
 As regards the question of right to erect signboards, or 
 paint signs, and project cornices on tenements, the right, 
 apart from express agreement or possession for the prescrip- 
 tion period, is not allowed beyond the limits of the property, 
 .and where the sign is proposed between two flats belonging to
 
 THE LAW OF THE TENEMENT. in 
 
 different owners, it is not allowed higher than the centre of 
 the joists between the flats (Alexander v. Butchart, 24th 
 November, 1875, 3 R. 166; J. Buchanan v. Mrs. Car- 
 michael, 1823, 2 S. 460). 
 
 M'Arly v. French's Trustees, 8th February, 1883, 20 
 S.LR. 371, and Moody v. Steggles, 24th June, 1879, L.R., 
 Ch.D. xii., p. 261, are cases of prescriptive possession. 
 
 Pocock v. Gelham, 27th June, 1883, 1 C. and E. 104, is 
 a case of express agreement. 
 
 In Walkers Trustees v. Learmonth & Co., 17th Novem- 
 ber, 1824, 3 Shaw, 202, it was held that a party having 
 a servitude, or reserved right of entry, was entitled to put 
 his sign on the wall of the passage. 
 
 In Dickson v. Morton, 23rd November, 1824, 3 S. 310, 
 Morton was ordained to remove his name in cast iron letters, 
 on a stone belt, or coursing line, of about a foot in breadth, 
 which ran along the front of the building, in respect that it 
 came down beyond the centre of the joists, which was 
 held to be the boundary line dividing the properties of the 
 parties. 
 
 In Miln v. Mudie, 12th June, 1820, 6 S. 967, and 
 Hazle v. Turner and Others, 22nd May, 1840, 2 D. 886, 
 proprietors were held entitled to prevent their neighbours 
 from projecting any cornices or ornamental buildings across 
 the centre line of their mutual gables. 
 
 Where two properties are built against each other, but 
 there is a projecting cornice on one, the cornice does not 
 form the boundary between the properties (M'Laren v. 
 Houston, 22nd June, 1884, 31 S.L.R. 764). 
 
 In cases where it is proposed to convert a ground flat into 
 shops, it is not enough to say that the ground flat owner can go 
 up to the centre of the joists, because the joists are common 
 property, and according to Lord Kincairney, in Glen v. 
 Milne <k Bruce, 29th May, 1895, he is not entitled to deal 
 with the joists, or to remove or alter them.
 
 112 LAW AFFECTING BUILDING OPERATIONS. 
 
 3. THE FLOOR AND CEILING, AND THE SPACE 
 BETWEEN THE WALLS. 
 
 Professor Rankine and Mr. Irons both say that the floor 
 and ceiling between an upper and lower house are common 
 property, on the same principles as apply to mutual gables, 
 but this is not free from doubt, and there is no judicial 
 authority on the point. Suppose, for example, that a fire in 
 the upper house were to burn the floor, without, however, 
 harming the joists, is it at all likely that the lower proprietor 
 or the Insurance Companjr insuring his house would con- 
 tribute to the cost of restoring the floor in the house above ? 
 It seems more correct to limit the right of common property 
 to the joists, leaving to the upper proprietor to look to the 
 laying down of his floor, and to the lower proprietor to look 
 to the ceiling of his house. This is consistent with the 
 practice regarding common gables. Lord President Inglis, in 
 Lamont v. Gumming, llth June, 1875, 2 R. 764, points 
 out that the neighbouring proprietor, when he comes to use 
 the gable, " must drive in hooks for the purpose of support- 
 ing the wood work of the lathing." Now though the gable 
 be mutual, the lathing is not. Why then should floor and 
 ceiling be considered mutual, merely because they are on 
 either side of the joists ? 
 
 Professor Rankine says the parties holding property on 
 each side of a floor and ceiling have a right of common pro- 
 perty, enabling them to prevent each other from performing 
 any operations on them, or making any use of them incom- 
 patible with, or other than such as are, the ordinary uses and 
 operations to which they are subject, without requiring to 
 prove danger or anything more than that they do not con- 
 sent (p. 522). As already indicated, this doctrine is not 
 free from doubt. Rather I prefer to have it, that the right 
 of common property is limited to the joists, and that the 
 floor and ceiling are held in property by the respective
 
 THE LAW OF THE TENEMENT. 113 
 
 parties, subject to a right of common interest in the other 
 which would entitle him to prevent any operations to his 
 prejudice. 
 
 Neither party is entitled to cut away part of the joists 
 (Walker v. Braidwood, 1797, Hume, 512), or to remove 
 bearing partition walls (Gray v. Greig, 18th June, 1825, 
 4 S. 104, N.E. 105). 
 
 In virtue of his right of property in the internal space of 
 his property, he is entitled to remove ordinary partitions and 
 to erect others or not as he may choose. 
 
 In the case of the owner of the ground or street flat, his 
 right of property in the floor of his house is absolute. The 
 other proprietors do not appear to have any interest to object 
 to any sort of operations on it unless they can prove damage. 
 
 Where the solum belongs to the owner of the ground flat, 
 he can operate on it in any way he likes, so long as he does 
 not injure or peril the foundations or stability of the fabric. 
 
 4. MUTUAL, GABLES. 
 
 (1.) Their character and purpose. Mutual gables have 
 their origin in considerations of convenience and economy 
 affecting co-terminus owners of property. Where one wall 
 is sufficient to serve the purposes of both proprietors, these 
 considerations have prevailed. 
 
 The nature of a mutual gable may best be gathered by 
 looking at it as a substitute for two separate gables. If we 
 take away the question of light for there can be no windows 
 in a mutual gable the chief purpose of a gable is to form an 
 end wall or enclosure for the house of which it is part. The 
 subsidiary purposes include (1) carrying the roof ; (2) receiv- 
 ing joists for flooring ; (3) affording space for fire-places and 
 vents, and frequently presses. A mutual gable, then, is 
 generally required to serve such purposes as these to the 
 houses on either side (Lamont v. Gumming, llth June, 1875, 
 2 R. 786, per Lord Deas).
 
 114 LA W AFFECTING BUILDING OPERATIONS. 
 
 (2.) Building mutual gables. In consideration of the 
 mutual advantages it is usual for a person building to erect 
 one-half the thickness of the gable on his own ground and 
 the other half on his neighbour's ground. This rule is based 
 on express or implied contract express, where, as is com- 
 monly the case, the feu contract or feu charter makes pro- 
 vision for it ; implied, where a lot of ground has been sold or 
 feued expressly for building a continuous row of houses, or 
 where the intention to build a continuous row may reason- 
 ably be inferred from a feuing plan or other circumstances 
 (Lamont v. Gumming, supra). 
 
 Where there is no express or implied contract, it is not 
 allowable to place any part of the gable on neighbouring 
 ground (per Lord Gifford in Jack v. Begg, 26th October, 
 1875, 3 R. 35). Generally there is no room for such an 
 implied contract in rural districts. 
 
 The gable when built ought to be sufficient for both pro- 
 prietors, and if, when the second proprietor intends to use 
 the gable, he finds deficiencies of a glaring kind, he is entitled 
 to have them supplied (Lwrnont v. Gumming, supra). 
 
 (3.) Alterations and repairs. It is not at all clear whether 
 mutual gables are common property or whether each is owner 
 of half with a common interest in the other half. In several 
 decisions (Rodger v. Russell, 10th June, 1873, 11 M. 673, 
 &c.) the judges have expressly characterised the right as one 
 of common property, subject to certain limitations obvious 
 from the nature of the case. On the other hand, Mr. Irons 
 expresses an opinion that the right is one of ownership of 
 one-half each and common interest in the other half. The 
 point is more matter of academic interest than of practical 
 importance, because the principles applicable to the case are 
 sufficiently well defined and recognised. One is, however, in- 
 clined to lean strongly to the view of the judges, and for this 
 reason, that if each proprietor has a right of property in half the 
 gable next him, he would be entitled to perform any sort of
 
 THE LAW OF THE TENEMENT. 115 
 
 operation on it so long as he did not hurt his neighbour ; 
 whereas it has always been held that he is not entitled to use 
 it for any purpose inimical to its character as a mutual gable. 
 And further, if the right be not common, each would merely 
 have to look to the maintenance of his own half, whereas it 
 has always been held that the thing is to be treated as a 
 whole, and the cost borne equally. A break on one side 
 would involve mutual expense. In fact, it seems to be 
 impossible to apply strict legal principles to the solum in 
 the case where half the thickness of the gable is built on 
 adjoining ground. There it has been held that the builder 
 has a real right to claim one-half the cost of the gable as soon 
 as the neighbour makes use of the gable. Mr. Irons argues 
 that the solum carries the half gable to the neighbour subject 
 to the burden. The Court, however, seems to hold that the 
 solum has become common property along with the gable 
 built on it. Although it be not in accordance with strict 
 legal principles, the Court's view appears to fit the case best, 
 because it is necessary to look at the matter in a special light 
 in respect that it is impossible to apply ordinary principles 
 to mutual gables which are unique in many respects. The 
 ordinary principles of common property are inapplicable, and 
 the principle of absolute property in one-half the thickness is 
 also inapplicable. Necessity, therefore, requires the middle 
 course, which the Court has adopted, of applying common 
 sense and equity, with the result that common gables may 
 be said to be subject to a law of their own a limited right 
 of common property in favour of the properties on either 
 side. Each proprietor can operate on his own side so long 
 as he does nothing inconsistent with the character and 
 purpose of the gable, and does not injure his neighbour. 
 Each must contribute equally to the maintenance and repair 
 of the gable. The solum is generally the ruling subject, 
 but on that principle, the builder could not go beyond 
 his own boundary. The gable, therefore, in the special
 
 Ii6 LAW AFFECTING BUILDING OPERATIONS. 
 
 circumstances takes the leading position, and gives its com- 
 mon character to the solum, which by contract, expressed or 
 implied, has been dedicated to the mutual purpose. This is the 
 view expressed in Wallace v. Brown, 1808, M. Appendix, 
 Personal and Real, No. 4, where the Court held that the 
 ground on which the mutual gable stood was common, 
 mutual, and indivisible, that there was therefore no room 
 for the maxim used, incedificatum cedit solo, &c. The 
 necessary limitation on the gable must equally apply to the 
 solum, and therefore the solum is mutual like the gable. 
 There is, of course, the further peculiarity that until the 
 neighbour uses the gable he has no obligation regarding it. 
 His right is as it were temporarily suspended (Lamont v. 
 Gumming, llth June, 1875, 2 R. 784, per Lord Pres. 
 Inglis ; Russell v. Rodger, 11 Macph. 673). 
 
 The right to the mutual gable being then one of limited 
 common property, the rules applicable thereto appear to be 
 that 
 
 1. Necessary repairs must be carried out at mutual 
 expense, and either proprietor can compel the execution of 
 such repairs. 2. No alterations can be made on the gable 
 without mutual consent, unless (1) they be hi consonance 
 with the purpose of the gable, and (2) they are not calcu- 
 lated to injuriously affect the gable. The respective owners 
 on either side of the gable can object on both or either of 
 those grounds. Owners above and below who have merely a 
 right of common interest can only object on the latter 
 ground. The question of what operations are in consonance 
 with the purpose of the gable may be one of some difficulty, 
 but generally speaking no important alterations will be 
 allowed unless of mutual consent after both sides of a gable 
 have been completed and made full use of for a period of 
 time because there would then be an inference that the 
 purposes of the mutual contract had been defined. This 
 would not prevent simple operations, such as changing the
 
 THE LAW OF THE TENEMENT. 117 
 
 position of an interior wall running into the gable, altering or 
 enlarging a fireplace, inserting the end of a joist in a thick part, 
 &c. It would, however, prevent such operations as making wall 
 presses. It is competent, however, after the lapse of any 
 period, for one proprietor to heighten the gable for building 
 purposes, so long as the part already built is capable of 
 carrying the additional height. The addition is not neces- 
 sarily built only on one half the thickness. It may be of the 
 full width of the gable. Lord Deas, commenting on a proposal 
 to heighten a gable, said : " Nor do I by any means say that 
 the gable may be raised to whatever height the strength of it 
 will bear, however unusual or invidious that height may be. 
 On the contrary, I think there must always be judicial con- 
 trol in this respect, as well as in other respects, so that 
 nothing may be done but what is fair and reasonable " 
 (Lament v. Gumming, llth June, 1875, 2 R. 786). This 
 seems an equitable result, because it gives the second builder 
 right to go beyond his own boundary to the extent of one 
 half the thickness of the gable equally with the first builder. 
 On the same principle the first builder would be liable for 
 half the cost of the additional height if and when he should 
 use it. 
 
 From the foregoing it seems obvious that there is safety 
 in always getting the authority of the Dean of Guild to such 
 operations. 
 
 (4.) The Ownership and Cost of Mutual Gables. At 
 common law, and apart from stipulation, the builder of a 
 property with a mutual gable has the sole property of the 
 gable to this extent, that he is entitled to prevent the 
 adjacent feuar making any use of it till he pays one half of 
 the cost, and on the other hand the adjacent feuar is bound 
 to pay one half of the cost the moment he makes use of the 
 gable (Law v. Monteith, 30th November, 1855, 18 D. 125). 
 It makes no difference though both building stances belonged 
 to the same person where the first purchaser acquired from
 
 n8 LAW AFFECTING BUILDING OPERATIONS. 
 
 him one stance with tenement erected thereon. The second 
 purchaser, on making use of the gable, must pay half its 
 cost (Glasgow Royal Infirmary v. Wylie, 1887, 4. R. 404). 
 
 In Ness v. Ferries, 13th February, 1825, 4 S. 7, the 
 defender averred that by the practice of Edinburgh mutual 
 gables were paid for to the extent of the mutual possession, 
 but the case was decided in the terms of an arrangement, 
 and therefore the question of practice was not taken into 
 consideration. That was the case where one feuar built a 
 house of four storeys, and demanded from his neighbouring 
 feuar half the cost of the gable. The neighbour pleaded 
 that he was only liable up to the extent of the height of his 
 own building, three storeys. The Court held the contrary. 
 
 A conveyance of a building stance with houses erected 
 thereon carries with it, unless expressly reserved, the whole 
 gable, with right to obtain one half the cost from adjacent 
 owner when he uses it (Berkeley v. Baird, 16th February, 
 1895, 32 S.L.R. 281). It is thought this would also apply 
 to boundary or division walls. 
 
 The character and extent of use requisite to incur liability 
 is a question of fact. It was held that the erection of a 
 large wooden shed, the roof of which rested entirely on 
 pillars, and only impinged on the gable of the adjoining 
 house by a rhone running along the front of the house, did 
 not involve liability for half the cost of the gable. 
 
 Nothing short of payment or express discharge of the 
 claims will extinguish it, except in the most exceptional 
 circumstances e.g., if a person allows his neighbour to build 
 against and make use of the gable, and after the lapse of 
 some time allows the neighbour's property to pass into the 
 hands of a singular successor. Lord Shand has expressed 
 the view that in such circumstances a claim against the 
 singular successor might be excluded on the theory of 
 presumed discharge. The whole circumstances require to 
 be considered, and the question would be whether the
 
 THE LAW OF THE TENEMENT. 119 
 
 creditor had by his own actings and acquiescence barred 
 the claim (Rodger v. Russell, 1873, 11 Macph. 673; Law 
 v. Monteith, 1855, 18 D. 131). 
 
 5. THE ROOF. 
 
 As we have already seen, the roof, in the absence of 
 stipulation in the titles to the contrary, belongs in property 
 to the owner or owners of the topmost flat, with a burden on 
 him to maintain it as a covering for the whole tenement. 
 The lower proprietors have a common interest to insist on 
 this being done. 
 
 Where there are more proprietors than one of the upper 
 flat, each has the property in the roof so far as it is 
 immediately over his house, and the obligation for upkeep is 
 apportioned accordingly. 
 
 It is an interesting question whether the owner of the top 
 flat or garret can heighten his flat by taking off the roof, 
 building the walls higher, &c. 
 
 The Court seems to hold that it is not within his power to 
 do this, though it is quite competent for him to convert a 
 garret, the space between his house and the roof, into 
 habitable rooms (Taylor v. Dunlop, 1st November, 1872, 11 
 Macph. 25). The theory is that each proprietor in a tene- 
 ment receives only a stratum of space occupied by his flat, 
 and as the lower owners cannot heighten neither can the 
 topmost heritor. Accordingly permission to convert an attic 
 storey into a square storey was refused (Watt v. Burgess' 
 Trustees, 19th March, 1891, 18 R. 767). 
 
 If the whole tenement belongs to one proprietor, he could 
 of course heighten the top flat, or put on an extra flat if he 
 thought fit, so long as he was not prohibited from doing so 
 by the titles, and obtained the sanction of the Dean of Guild 
 Court. 
 
 Of course in no case of common property must the opera-
 
 120 LAW AFFECTING BUILDING OPERATIONS. 
 
 tions be injurious to the fabric, or increase the burden of 
 support, because in such cases the lower proprietors, in virtue 
 of their right of common interest, would be entitled to object 
 to such operations. 
 
 In referring to the case of Sharp v. Robertson, 1800, 
 Morison, App. Property, No. 3, and Cuddle v. M'Kechnie, 
 1804, Hume, 516, Professor Rankine, p. 586, says, " It does 
 not follow that the Court in the above cases of Sharp and 
 Caddie were wrong in demanding the consent of the inferior 
 heritors ; but the ratio would be that the uppermost heritor 
 had only the ownership of the space actually enclosed within 
 the boundaries of his dwelling, and of these boundaries them- 
 selves, in common or in severalty, according as they separated 
 the dwelling from neighbouring subjects or had no such 
 office," &c. 
 
 6. COMMON PASSAGES AND STAIRS. 
 
 In general, and where there is no contrary stipulation, 
 these belong hi common property to all the proprietors who 
 use or are entitled to use them. No one is entitled to 
 execute any operations on them, or interfere with them 
 so as to prevent their full and free use by all interested. 
 Obviously this would not prevent reasonable operations, 
 which are usual or necessary for the proper use of the 
 passages and stairs as means of access. All the proprietors 
 concerned must consent to other operations (Anderson v. 
 Dalrymple, 20th June, 1799, M. 12831 ; Reid v. Nicol, 
 16th November, 1799, M., App. Property, No. 1). 
 
 Apart from stipulations, the cost of necessary repairs, 
 cleaning, and pointing, &c., will be borne mutually, but 
 the respective obligations of the common proprietors are 
 frequently set forth in the titles. 
 
 The decisions of importance regarding common passages 
 and stairs, chiefly relate to proposals by one or other of the
 
 THE LAW OF THE TENEMENT. 121 
 
 proprietors to make some opening for door or window in one 
 of the walls. The main question in such cases is whether 
 the objecting party has a right of common property, or 
 merely a right of common interest in the wall. In the 
 former case, he can prevent any operations ; his right of veto 
 is inherent in his right of common property (Graham v. 
 Greig, 6th December, 1838, 1 D. 171). In the latter case 
 he requires to show that he will be prejudiced by the 
 operations. 
 
 A case of the latter sort, which is probably less usual, 
 would arise where the common passages and stairs were 
 expressly conveyed to all the proprietors except one, who 
 was merely given a right of access and egress a mere 
 servitude. There he would only have a right of common 
 interest, and consequently he could not prevent operations 
 by the other proprietors, unless he were able to show that 
 his right of access and egress would be materially interfered 
 with. So too where two adjacent tenements have passage 
 and stair in common, the passage and stair being wholly 
 within one of the tenements, and running alongside of the 
 mutual gable, it was held that the wall between the passage 
 and the houses in that tenement was not common property, 
 and that the proprietor of one of these houses was entitled 
 to make a door in the wall, and that the proprietor in the 
 adjacent house on the other side of the mutual gable had 
 not proved that he was prejudiced in any way (Ritchie v. 
 Purdie, 21st June, 1833, 11 S. 771). That case evidently 
 proceeded on the theory that the rights of property were 
 divided by the common gable, and that the proprietors of 
 the tenement through which the passage and stair did not 
 pass, had only a right of passage, and therefore only a right 
 of common interest in the passage and stair. 
 
 In Sandys v. Innes, 15th February, 1823, 2 S. 221, the 
 question was raised, but not decided, whether the attic stair 
 could be replaced by a prolongation of the common stair.
 
 122 LAW AFFECTING BUILDING OPERATIONS. 
 
 It is difficult to see how this could be done without consent 
 of all the proprietors interested. Although the point was not 
 decided, the Court granted interdict against the operation. 
 
 It may be difficult to see that the proprietor of the first 
 flat has any right to object .to the proprietor of the top flat 
 knocking out a window in the wall between his house and 
 the staircase. On the principle of common property, the 
 first flat proprietor can so object, but it is suggested that the 
 Court may some day take the common sense view, and ignore 
 the principle where the operations are innocuous, and there 
 is clearly no interest to object to them. 
 
 7. MUTUAL WALLS OTHER THAN GABLES. 
 
 This relates to such as division and garden walls. They 
 are held in common property, and cannot be lowered or 
 heightened or operated on in any prejudicial way, or used for 
 any purpose different from that for which they were built 
 (Jack v. Begg, et e contra, 26th October, 1876, 3 R. 35), 
 without consent of all the parties interested. In the absence 
 of contrary agreement, the expense of rebuilding or necessary 
 repairs falls to be borne by the several parties mutually 
 (LockJiart v. Stevenright, 1758, M. 10488 ; Bell's Pr. 1075). 
 
 Unless by agreement, such walls cannot, like mutual gables, 
 be built to any extent on the ground belonging to a neigh- 
 bour. 
 
 A proposal by one proprietor to heighten at his own 
 expense a mutual division wall was prohibited in Warrens 
 v. Marwick, 13th June, 1835, 13 S. 944, and Dow & 
 Gordon v. Harvey, 9th November, 1869, 8 Macph. 118.
 
 CHAPTER IX. 
 BUILDING CONDITIONS AND RESTRICTIONS. 
 
 THESE conditions and restrictions are of various kinds, and 
 they have a great variety of objects. A very common 
 condition of a feu is that by which the vassal is taken 
 bound to erect certain buildings of a specified description 
 and value. The primary object there is to secure the feu- 
 duty, but the amenity of the district is often preserved at 
 the same time by prohibiting the erection of any buildings 
 except of a particular class and according to a plan, &c., to 
 be approved of by the superior or his architect. 
 
 In order to make such conditions effective against singular 
 successors (such as purchasers), they must appear in the 
 titles, and be recorded in the Register of Sasines. They are 
 distinguished from servitudes in this, that servitudes do not 
 require to appear upon the record. 
 
 The leading case bearing on this subject is Tailors of 
 Aberdeen v. Coutts, 20th December, 1834, 13 S. 226; 2 
 Sh. and M'L. 609 ; and 1 Rob. App. 296. There the 
 House of Lords decided that " to constitute a real burden or 
 condition, either in feudal or burghal rights, which is effectual 
 against singular successors (1) words must be used in the 
 conveyance which clearly express, or plainly imply, that the 
 subject itself is to be affected, and not the granter and his 
 heirs alone : (2) these words must be inserted in the Sasine 
 which follows on the conveyance, and of consequence appear 
 on the record ; (3) the burden must not be contrary to law or 
 inconsistent with the nature of this species of property ; 
 
 123
 
 124 LAW AFFECTING BUILDING OPERATIONS. 
 
 (4) it must not be useless or vexatious ; (5) it must not be 
 contrary to public policy, for example by tending to impede 
 the commerce of land, or create a monopoly ; (6) the superior 
 or the party in whose favour it is conceived must have an 
 interest to enforce it ; and (7) if it consists in the payment 
 of a sum of money, the amount of the sum must be distinctly 
 specified." 
 
 An important point of that decision is, that no special or 
 technical form of expression is required to create a condition 
 or restriction binding on singular successors ; it is not even 
 necessary to use the words " real burden," so long as the 
 words used clearly express or plainly imply that the property 
 is to be burdened. 
 
 Restrictions on the use of property which are not recog- 
 nised servitudes must enter the record to be effectual against 
 singular successors (per Lord Ardmillan in Banks & Company 
 v. Walker, 5th June, 1874, 1 R. 986), and they must be 
 constituted in a deed which can properly be recorded and is 
 not merely a personal agreement (Campbell's Trustees v. 
 Corporation of Glasgow, 20th March, 1902, 39 S.L.R. 
 461). 
 
 How far burdens can be imposed on property by means 
 of plans forms the subject of many interesting decisions. 
 Lord President MacNeill, in Barr v. Robertson, 12th July, 
 1854, 16 D. 1049, said : "In construing a feu contract, the 
 safe and proper course is to import into it the plan only in 
 so far and for such purposes as it is specially mentioned in 
 the feu contract, and not to import it further except by 
 necessary inference." Lord Rutherford in the same case 
 said : " We must not only have it (the plan) referred to, but 
 imported into the contract." Where a plan is incorporated 
 as part of a written contract, it is incompetent to prove by 
 parol evidence that a modification was agreed to verbally 
 (Burrell & Son v. Russell & Company, 26th March, 1900, 
 37 S.L.R. 641).
 
 BUILDING CONDITIONS AND RESTRICTIONS. 125. 
 
 While the mere drawing of a plan on a deed would have 
 no effect unless it were expressly imported into the deed, it 
 has been held that a plan endorsed on a charter and signed 
 by the superior was sufficient, without being referred to in 
 the charter, to entitle the vassal to prevent the superior 
 putting up buildings on one of the proposed streets marked 
 on the plan. This decision was no doubt reached to some 
 extent by necessary inference, because the feu was described 
 in the charter as bounded on three sides by A, B, and C 
 streets, with free ish and entry by all roads or streets made 
 and to be made for the use of the feuars, and the vassal was. 
 taken bound to pay a proportion of the cost of making the 
 streets. The judges drew a clear distinction between " a 
 feuing plan " and a special plan made for the purpose of the 
 feu charter. It may be inferred, therefore, that a very 
 slight reference to the latter would suffice, while it would 
 not suffice with the former (Crawford v. Field, 15th October, 
 1874, 2 K 20). 
 
 The mere exhibition of a feuing plan does not bind the 
 superior to adhere to it, unless it is expressly referred to 
 in the titles (Heriot's Hospital v. Gibson, 1809, in note to 
 18 F.C., reversed 1814, 2 Dow, 301). A simple reference 
 in the titles is not even enough ; it must be made plain that 
 the plan is incorporated as part of the contract, &c. (Bell's. 
 Pr., 8th ed.), otherwise the Courts would be apt to hold that 
 the plan was only to have effect for identifying the subjects. 
 or ascertaining their extent (Barr v. Robertson, 1854, 16 D. 
 1049 ; Carson v. Miller, 1863, 1 Macph. 604 ; Croall v. 
 Magistrates of Edinburgh, 1870, 9 Macph. 323). 
 
 All that can be said, therefore, is that with a very few 
 exceptions the Court has followed the rule that in order to 
 make restrictions by a plan binding on singular successors, 
 the plan must be expressly incorporated in and made part of 
 the contract between the parties (Heriot's Hospital v. Gibson, 
 1809, supra; Croall v. Magistrates of Edinburgh, supra),.
 
 126 LAW AFFECTING BUILDING OPERATIONS. 
 
 .and where the restrictions are not recognised servitudes they 
 must enter the record to be binding against singular suc- 
 cessors. 
 
 Even where a plan is sufficiently referred to and expressly 
 incorporated as part of the contract, it will only have effect 
 to the extent and for the purpose mentioned in the deed, and 
 although the Court may allow reasonable inference to be 
 drawn as to the extent intended, this is limited to " neces- 
 sary inference." The plan of feu for a house showed open 
 or garden ground behind, extending back to a meuse lane. 
 A neighbouring proprietor, founding on the evident intention 
 as shown by the plan, attempted to prevent the feuar from 
 converting stables, with sleeping rooms (with fireplaces) for 
 servants above, which originally stood in the back area, into 
 a kitchen and a billiard room with accesses thereto. The 
 Court held that the feuar was entitled to do what he 
 proposed, and to connect the kitchen and billiard room with 
 the club-house by a passage not higher than the division 
 wall of the areas (Gordon v. Marjoribanks, llth March, 
 1814, 6 Note to 18 F.C. 25 (affd. 1818, 6 Dow, 87 ; 6 Pat. 
 351). In that case, as well as in several other cases of a 
 similar kind, the Court acted on the principle that the plan 
 was merely referred to for identification of the feu, and that 
 if more is intended this must be explicitly stated or neces- 
 sarily implied (Walker v. Renton, llth March, 1825, 3 S. 
 650, N.E. 455). In consequence there may be plans show- 
 ing streets or showing buildings in certain positions, and 
 while the reference to the plan may be sufficient for the 
 purpose of identifying the feu, it may be entirely inadequate 
 either to bind the superior or the vassal to adhere to the 
 details as to streets and sites of buildings indicated on the 
 plans. Of course the case would be quite different if the 
 reference expressly bore that the vassal was to build only 
 where shown on the plan, or that no buildings or only 
 buildings of a particular kind were to be erected on a certain
 
 BUILDING CONDITIONS AND RESTRICTIONS. 127 
 
 part of the ground as shown on the plan (Barr v. Robertson, 
 supra). 
 
 Where two pieces of land held by different persons were 
 acquired from the same author, and each piece was described 
 in the titles as bounded by the " central line of a proposed 
 street," which was delineated on a plan, a copy of which 
 was endorsed in the conveyance to one of the parties, it was 
 held that there was no obligation upon either party not to 
 build up to the verge of his property the central line of 
 the proposed street and that to constitute such an obliga- 
 tion would require an express condition inserted in the titles 
 of both (Free St. Mark's v. Taylor's Trustees, 26th January, 
 1869, 7 Macph. 415). From this decision it will be seen 
 how unwilling the Court is to read into a contract any con- 
 dition by inference from the plan. Here it would seem it 
 was intended there should be a street made, but nevertheless 
 the Court held that each vassal could build up to his boundary, 
 evidently on the principle that it is not necessary to infer 
 that the parties had absolutely bound themselves to build 
 only as indicated on the plan, and that, if it had been so 
 intended, they would or at least should have stated this in 
 express language in the contract. 
 
 In one case where a building stance in Charlotte Square, 
 Edinburgh, was sold by public roup, and the articles of roup 
 contained a condition that the purchaser should build there- 
 on according to a particular elevation, the house was built 
 conform to the plan, but it was held that a singular successor 
 was not bound by the condition, but was entitled to make 
 alterations on the elevations of his house, in respect that the 
 condition had not been made real by recording (Groall v. 
 Magistrates of Edinburgh, supra}. This it will be observed 
 was not a case of known servitude, hence the necessity for 
 recording. 
 
 The plan of the New Town of Edinburgh, which was 
 referred to in feu charters, expressly provided " that meuse
 
 128 LAW AFFECTING BUILDING OPERATIONS. 
 
 lanes should be appropriated solely for the purpose of build- 
 ing stables, coach-houses, and other offices." This did not 
 prevent the building of (1) a fireplace and vent in a stable 
 in the meuse lane oft' Young Street, Edinburgh, but the Court 
 required that the chimney be raised to such height as would 
 obviate nuisance from smoke (Laing v. Muirhead, 7th 
 December, 1822, 2 S. 73) ; (2) a workshop, without 
 chimneys, and of dimensions not greater than an ordinary 
 coach-house and stable (Stewart v. Burk, 9th December, 
 1820, F.C.). 
 
 Where back ground is expressly declared to be applicable 
 to no other purpose than for stables and other office-houses, 
 to be built according to a given elevation, and under certain 
 restrictions as to height, held that vassal holding two feus 
 could use one feu for stables, and the other for a coach- 
 house, that he was not entitled to convert the upper storey 
 on one of the feus into a dwelling-house independent of and 
 not accessory (like a groom's loft) to the stables, and that the 
 separate entrance and windows constructed with that view, 
 and also an opening for the supply of hay, all being devia- 
 tions from the plan, must be blocked up (Skinner v. Dicy, 
 5th December, 1855, 18 D. 158). Where a feu charter has 
 annexed to it a plan of the feu, showing part of the ground 
 marked as to be occupied by houses, and part as open or 
 garden ground, it does not operate to prevent the erection of 
 buildings on the open ground, unless there is an express 
 condition to that effect in the charter ("Walker v. Renton, 
 llth March, 1825, 3 S. 650, N.E. 455). This case was 
 however decided mainly on the ground that Walker or his 
 author had built on his own back ground, and was therefore 
 barred, personali exceptione. 
 
 The presumption is that a person is entitled to build up 
 to the limits of his boundary, and where a property is 
 described as " bounded by," something such as a wall or 
 ditch, no part of the boundary is included in the conveyance.
 
 BUILDING CONDITIONS AND RESTRICTIONS. 129 
 
 There is an exception where a river or stream forms the 
 boundary. There the property extends to the medium, 
 filum. Where a road or river is, as matter of fact though 
 not expressly by conveyance, the separation between two 
 properties, the presumption is that the middle line of each is 
 the boundary. A boundary " by a street " is exclusive of 
 the street itself, and the proprietor of the feu can only build 
 up to the line separating the feu from the pavement. Even 
 if he had cellars under the pavement, no part of the street 
 would be held to belong to him (Rankine, p. 102, and cases 
 there cited). Two adjoining areas of ground were acquired 
 under separate titles from a common author. By the con- 
 veyance the common boundary was described as " the central 
 line of a proposed street," which was delineated on a plan 
 endorsed on one of the conveyances. One of the parties 
 having proposed to build on the solum of the proposed 
 street up to the middle, but on his own side, the other party 
 attempted to prevent this being done, but the Court held he 
 was entitled to build. The presumption being towards 
 freedom, the Court refused to import a restriction by infer- 
 ence from the plan. They said that if such a restriction was 
 intended, it should have appeared in express language in the 
 titles of both parties. A majority held that the restriction 
 might have been enforced by the superior, but by him alone 
 (Johnston v. M'Ritchie, loth March, 1893, 20 R. 539). 
 
 A different result was reached in Fowler v. Commercial 
 Bank, 9th June, 1831, 9 S. 705, where a proprietor whose 
 ground was bounded on one side by a public road, feued out 
 building stances shown upon a plan, which showed the road 
 widened in such manner as to cut off twenty feet from the 
 ground to be feued. The feu charters of all the stances 
 referred to the plan, and described the stances as " repre- 
 sented thereon," and a right was given to all the feuars in 
 the open ground and streets represented on the plan. There 
 it was held by the Court that whether the superior objected 
 9
 
 130 LAW AFFECTING BUILDING OPERATIONS. 
 
 or not, any of the feuars was entitled to object to buildings 
 being brought forward over the ground thrown into the 
 street. 
 
 A case similar in some respects to Johnston v. M'Ritchie, 
 supra, was that of Heriot's Hospital v. Gibson, 1809, note 
 F.C. 25 ; rev. 1814, 2 Dow, 301. The feuar contended that 
 he had taken his feu on the faith of a plan exhibited, and 
 which implied the demolition of an old tenement in York 
 Place. The Court held that in the absence of an express 
 obligation in the charter, the plan could not be founded on 
 as constituting a real burden or restriction. 
 
 Where a plan annexed to a feu charter shows the ground 
 feued divided into building stances, the plan has no more 
 effect, in the absence of express stipulation to the contrary, 
 than if it merely showed the outside boundaries of the feu as 
 a whole. This is on the principle that plans will be held as 
 incorporated to no greater extent than they are expressly. 
 
 In Naismyth v. Cairndu/, 21st June, 1876, 3 R 863, a 
 feu contract provided that the buildings to be erected should 
 consist of cottages with suitable offices, which cottages should 
 not exceed four in number, and should be built on the sites 
 shown on the plan, and should front the north, and should each 
 of them be in size and accommodation, as well as architectural 
 character, at least equal to either of the two cottages which 
 have already been erected. It was held in a question 
 between superior and vassal, that the vassal was not to 
 be held strictly to the precise limits of the building sites. 
 This appears to be quite reasonable, in view of the fact that 
 the vassal was entitled to erect any number of cottages not 
 exceeding four. 
 
 PARTICULAR PLAN OR ELEVATION. 
 
 A building stance in Charlotte Square, Edinburgh, was 
 sold under articles of roup, which contained a condition that
 
 BUILDING CONDITIONS AND RESTRICTIONS. 13! 
 
 the purchaser should build a house according to a particular 
 elevation. The house was built accordingly. It was held 
 that a singular successor could make what alteration he 
 chose on the elevation, because the feu charter contained no 
 reference to the obligation (Croall v. Magistrates of Edin- 
 burgh, 20th December, 1870, 9 Macph. 323). 
 
 In marked contrast with that case is that of Sutherland 
 v. Barbour, 17th November, 1887, 15 R 63). There the 
 feuar was expressly barred by his charter from making any 
 deviation from or alteration of a plan of the tenement, signed 
 as relative to the deed, and power was expressly given to the 
 other feuars to prevent this being done. The tenement was 
 erected in 1826. In 1827 the feuar proposed to bring 
 forward the tenement over the front area. The plan was 
 lost. The Court held that as it was to be presumed that 
 the existing buildings had been erected in conformity with 
 the plan, the onus lay on the vassal to show that his pro- 
 posed alterations were not disconform to it. The distinction 
 between this case and Croall v. Magistrates of Edinburgh is 
 obvious. In that case there was no obligation in the charter 
 to abide by the plan. 
 
 Where conterminous proprietors entered into an agree- 
 ment to feu their properties for building purposes according 
 to a particular plan, and on certain conditions as to style 
 and mode of building, and also to make the observance of 
 these conditions binding on their disponees, one of them 
 granted a feu charter by which the vassals were taken bound 
 to observe the conditions in the agreement to which reference 
 was expressly made. A purchaser from one of the vassals 
 took out a charter of confirmation in which reference was 
 made to the agreement, and by which he was taken bound 
 to adhere to the conditions. The Court's decision was 
 (1) that the superior was entitled to oppose an alteration 
 although he had no direct patrimonial interest, the whole 
 property having been feued out, and although slight and
 
 132 LAW AFFECTING BUILDING OPERATIONS. 
 
 unopposed alterations had been permitted on the buildings 
 on many other feus ; (2) that two adjoining feuars were also 
 entitled to object, though one of them had altered the 
 buildings on his feu ; (3) that the magistrates of the city, 
 one of the parties to the agreement, were entitled to oppose 
 the alterations, the petition to the Dean of Guild having 
 prayed for an order for intimation to the City Chamberlain ; 
 and (4) that the vassal was not entitled to make alterations 
 in contravention of the conditions referred to in his charter 
 (Magistrates of Edinburgh v. Macfarlane, 2nd December, 
 1857, 20 D. 156). This decision might more strictly have 
 been dealt with under the heading servitudes, because it 
 seems that only on the principles applicable to the constitu- 
 tion of a negative servitude is it defensible. In contra- 
 distinction, a building restriction to be binding on singular 
 successors must appear in a duly recorded deed. It is not 
 sufficient to refer to the conditions or restrictions in another 
 deed which has not been recorded. 
 
 In Skinner v. Dicy, 5th December, 1855, 18 D. 158, 
 ground was feued under articles of roup binding the parties 
 to adhere to certain plans. The feu charters expressly bore 
 that the back ground of each stance was to be used only for 
 the erection of stables, coach-houses, washing-houses, and 
 other office-houses. One of the feuars, who held two stances, 
 erected on one a stable and loft above, and on the other 
 a coach-house and rooms above fitted up as a dwelling- 
 house, with windows and a door giving separate access to the 
 dwelling-house. The Court held that what had been done 
 was not objectionable, except that the feuar was not entitled 
 to erect a building, part of which might be used as a 
 dwelling-house, having separate access, and capable of being 
 occupied separately from the rest of the subjects, and that 
 he was not entitled to strike out a door or window in the 
 end of the house for putting in hay or fodder into the loft, 
 where the plan showed a dead wall.
 
 BUILDING CONDITIONS AND RESTRICTIONS. 133 
 
 A cottage Sciennes Hill Cottage was purchased in 
 1896, and the purchaser proposed to pull down the cottage 
 and erect a four-storey tenement on the site and garden 
 ground. The Church of Scotland, as superiors, objected, 
 basing their right to do so on the following clause in the feu 
 charter : 
 
 " And further it is hereby specially declared that the 
 elevation and plans and the buildings hereafter to be erected 
 in the said piece of ground or part thereof by the said (names 
 of vassals) and their foresaids, shall be first submitted to us 
 and our foresaids, or those acting for us, for their or our 
 approval, before any such buildings shall be allowed to be 
 erected, and no deviation therefrom shall be allowed in the 
 erection thereof without our consent or the consent of those 
 acting for us, and all buildings so put up without our approval 
 shall be removed in the most summary way possible at the 
 expense of the party so making them : And also that the said 
 (vassals) and their foresaids ' shall be bound to build and 
 maintain upon the piece of ground before disponed a house 
 of not less value than 250 sterling." 
 
 There is also a clause prohibiting the erection of certain 
 kinds of buildings, such as a cow-house, a pig-house, brewery, 
 distillery, &c., but there was no express prohibition of tene- 
 ments. 
 
 Mr. William Chree, advocate, gave the following opinion 
 on the question : 
 
 " The memorialist, as owner of the ground in question, is 
 entitled to erect on it whatever buildings he pleases save in 
 so far as his natural liberty may have been restricted by 
 conditions in the feu charter. Moreover, the bias of the 
 law is to presume in favour of the freedom of ownership, 
 and the rule thence arising is that restrictions on the uses 
 of property must be subjected to a strict construction 
 (Rankine on ' Land Ownership,' p. 420, and cases there 
 cited).
 
 134 LAW AFFECTING BUILDING OPERATIONS. 
 
 " Now in the present case there is certainly no express 
 restriction against erecting a tenement, and, while I am not 
 aware of any decision precisely in point, I do not think that 
 the superiors are entitled to insist on such a restriction 
 under cover of the clause quoted in the memorial, requiring 
 the vassal to obtain their approval for the elevation and 
 plans of buildings to be erected on the ground. That clause 
 does not in my opinion entitle the superiors arbitrarily to 
 reject any plans submitted to them, merely because they 
 disapprove of the kind of buildings shown on the plans, not 
 being buildings of the class prohibited by the other clause 
 quoted in the memorial (Cowan v. Magistrates of Edinburgh, 
 14 R. 682). I am therefore of opinion that the memorialist 
 is entitled to carry out his proposed operations." 
 
 This opinion seems to be fairly given effect to in the 
 recent case of Walker's Trustees v. Haldane, 28th February, 
 1902, 39 S.L.R. 409. There there was a provision that 
 " the coach-houses and stables to be erected by the vassal 
 on the stable ground," should be in strict conformity with 
 " the plans and elevations signed ... as relative hereto and 
 not otherwise." No coach-houses or stables were in fact 
 erected. The vassal proposed to erect an addition to his 
 dwelling-house on the stable ground. Held, in respect that 
 the vassal was not taken bound to erect stables, or expressly 
 prohibited from erecting any buildings except stables on the 
 stable ground, the erection of the proposed buildings was not 
 a contravention of the charter. 
 
 VILLAS. 
 
 With the growth of cities and towns the tendency has 
 naturally been for the tenements to push the villa residences 
 farther out towards the suburbs. In consequence there are 
 frequent cases in which the question at issue is whether the 
 vassal is entitled to demolish a villa, and replace it with 
 flatted houses or tenements.
 
 BUILDING CONDITIONS AND RESTRICTIONS. 135 
 
 A vassal was held entitled to take out the internal stair of 
 a villa, close the communication between the upper and 
 lower flats, and build an outside stair for access to the upper 
 flat, thus converting the cottage into two separate houses, 
 where he was bound by his charter to erect on his feu two 
 detached dwelling-houses or villas of a certain value, according 
 to plans to be submitted to and approved of by the superior 
 (Moir's Trustees v. M'Ewan, 15th July, 1880, 7 R. 1141). 
 
 Where the feu contract of four building lots prohibited 
 the feuar from erecting or maintaining on the four lots any 
 other building than one villa on each lot, and provided that 
 " each of the said villa dwelling-houses shall be detached 
 from the others, and shall be self-contained, and occupied by 
 one tenant only, it was held lawful to alter the villas by 
 erecting an outside stair for the upper floors, and cutting 
 communication between them and the lower. The Court's 
 decision following Buchanan v. Marr, 7th June, 1883, 10 
 R. 936, was that the proposed alteration did not preclude 
 the villa being occupied by a single family (Millar v. Gar- 
 michael, 19th July, 1888, 15 R. 991). 
 
 All the feuars in a street held off a common superior 
 under titles containing a restriction that " the houses to be 
 built shall all be single or self-contained lodgings." One of 
 the feuars proposed, and was held entitled, to convert his 
 house into business offices. During the preceding thirty 
 years a large number of the houses in the street, including 
 two in the immediate neighbourhood, had been converted 
 without objections. The Court held that the right to object 
 had been lost by abandonment (Fraser v. Downie, 22nd 
 June, 1877, 4 R. 942). It is a point of considerable import- 
 ance that all the vassals held under the same superior. 
 
 BUILDING ON FRONT PLOT OR AREAS. 
 A person holding a property described in his titles as 
 " All and Whole a shop and dwelling-house, together with a
 
 136 LA W AFFECTING BUILDING OPERATIONS. 
 
 cellar in the front area . . . together also with a right in 
 common with the other proprietors of the tenement to the 
 solum of the piece of ground upon which the foresaid shop 
 and dwelling-house are built," was held not entitled to bring 
 forward his property over the front area to the line of the 
 street, in respect that he was not proprietor of the area. 
 Certain other cellars in the area belonged to the upper pro- 
 prietors (Dennistoun v. Thomson, 22nd November, 1872, 
 11 M. 121). 
 
 The case of Sutherland v. Barbour, supra, involved a 
 proposal of a similar nature to build over the area. 
 
 In contradistinction to the foregoing, there is the case of 
 Johnston v. White, 18th May, 1877, 4 R. 723. The pro- 
 prietor of a dwelling-house of four storeys, one of which was 
 a sunk flat with front area, converted the street flat into 
 a shop, and the two flats above into separate dwelling- 
 houses. He sold the upper flats to one person, giving " right 
 in common with the other proprietors in the area on which 
 the same stands." He thereafter sold to another person the 
 street and area flats " with right in common with the other 
 proprietors of the tenements, to the solum of the ground on 
 which the same is built." It was held that the area in front 
 of the shop belonged to the proprietor of the shop, and that 
 the upper proprietor had only a right of common interest in 
 the area, and could not prevent buildings being erected 
 thereon, except on the ground of injury to his property. 
 
 The distinction between this case and Dennistoun v. 
 Thomson is obvious. In the former case the upper pro- 
 prietors had cellars in the area, and it would have interfered 
 with their rights of access thereto, if buildings had been 
 allowed over the area. 
 
 In Glasgow City and District Union Railway Company 
 v. M'Brayne, 31st March, 1883, 10 R. 894, it was decided 
 that where a property is described as bounded by a street, 
 and the proprietor of the street flat has brought forward his
 
 BUILDING CONDITIONS AND RESTRICTIONS. 137 
 
 property over the area, the proprietor of the upper flats is 
 entitled to project his frontage in like manner. The case 
 did not decide that the projection could be rested on the 
 under proprietor's building. That was not proposed. Lord 
 Rutherford Clark said in that case " there are here two pro- 
 prietors, the one proprietor of the lower tenement, and the 
 other proprietor of the upper tenement. The proprietor of 
 the upper tenement proposed to make certain operations on 
 his own property, the result of which is said to be a projec- 
 tion into the air which bounds his property. Now I use 
 these words emphatically, that these operations are in suo of 
 the proprietor of the upper tenement. He does not propose 
 to touch any wall forming common property. In such a 
 case the owner cannot do anything without the consent of 
 the other ; but here there is nothing to prevent the party 
 making operations in suo on what is his own property. The 
 proprietor of the under tenement had made various pro- 
 jections, and may do so still more. The upper proprietor 
 has similar rights, and the question has also been looked to 
 in cases of this nature, whether there is any danger to be 
 apprehended from the proposed operations. The upper pro- 
 prietor cannot do anything to increase the risk, or impose a 
 greater servitude or burden on the lower proprietor, or do 
 anything which shall cause him injury. But if there is no 
 injury to be apprehended, I do not see why a superior 
 heritor is in a worse position as regards the inferior heritor, 
 than the inferior heritor is in regard to the superior heritor. 
 The wall is not exactly common property here, although it 
 might be used under certain regulations with reference to 
 the common interest of all the parties in the tenement. But 
 here it is said that the proprietor of the solum, because 
 it projects some feet beyond the line of the wall (front wall 
 of tenement) is therefore proprietor a codo usque ad centrum 
 to this extent, that the upper proprietor cannot project nor 
 extend one hairsbreadth beyond the wall. That appears to
 
 138 LAW AFFECTING BUILDING OPERATIONS. 
 
 me to be absurd. A reasonable view of the matter must be 
 taken. You shall not make overhanging balconies, or do 
 anything to cause a serious obstruction or inconvenience to 
 the lower tenement. But if you use your own property in a 
 way that no injury results from it, no one has any title to 
 object." 
 
 In Gellatly v. Arrol, 13th March, 1863, 1 Macph. 592, 
 an upper proprietor who had expressly " no right to the 
 area," was not entitled to build upon a projection placed in 
 the area by the proprietor of the ground and area flats. 
 
 By feu contract dated 1824 the vassal bound himself to 
 erect dwelling-houses fronting Smith's Place, Leith Walk, 
 agreeable to plan and elevation signed as relative to the 
 contract, and it was provided that the dwelling-houses 
 should be so placed as that they should not encroach upon 
 said street (Smith's Place) to a greater extent than the 
 houses on the opposite side of the street (which houses had 
 front plots), that is to say, " that the houses should be so 
 placed that a house which had been built at the end of the 
 street (a cut de sac, and which looked down the street 
 towards Leith Walk at the other end), should stand pre- 
 cisely in the centre of the said street called Smith's Place. 
 Further, it was provided that the elevation should be agree- 
 able to said plan. There was also an obligation to make 
 and uphold foot pavement, and to erect an iron railing in 
 front similar to the one on the opposite side of the street. 
 
 Dwelling-houses having been built in accordance with the 
 foregoing, a purchaser of a tenement of houses at the corner 
 of Smith's Place and Leith Walk, which had attached to it a 
 plot which extended from Leith Walk back into Smith's 
 Place the full depth of the tenement, proposed to erect a 
 shop on that plot. Doubts having arisen as to their right 
 to do so, the opinion of Mr. Asher, K.C., and Mr. Edwin 
 Adam, advocate, was obtained as follows : 
 
 " While the memorialist's title discloses an obligation
 
 BUILDING CONDITIONS AND RESTRICTIONS. 139 
 
 incumbent on the vassal, to build certain houses on the 
 ground feued within a stipulated period of time, no prohibi- 
 tion is expressed against building on the plot of land inter- 
 vening between the houses so built and the pavement of 
 Smith's Place. 
 
 " The provision against encroaching upon the street, that 
 the house at the end should always stand in the centre of 
 the street, may have been meant to form such a prohibition, 
 but that provision is of ambiguous interpretation, and does 
 not expressly or by necessary implication prohibit building 
 on the plot in question. The rule of law is that all such 
 restrictions are to be strictly interpreted in favour of the 
 freedom of the vassal (Cowan v. Magistrates of Edinburgh, 
 19th March, 1887, 14 R 682). We are therefore of opinion 
 that the memorialist is entitled to build as he proposes on 
 the plot in question." 
 
 ERECTIONS IN BACK GROUND AND BACK AREAS. 
 
 The plan of the New Town of Edinburgh declared " that 
 ineuse lanes shall be appropriated solely for the purpose of 
 building stables, coach-houses, or other offices." It was held 
 that this did not prevent the erection on the back area of a 
 workshop, without chimneys, and of dimensions not greater 
 than an ordinary coach-house and stable (Stewart v. Burk, 
 9th December, 1820, F.C.), and that it was permissible to 
 erect a fireplace and vent in the stables, so long as the vent 
 was carried high enough to prevent a nuisance (Laing v. 
 Muirhead, 7th December, 1822, 2 S. 73). 
 
 In a disposition of certain subjects made in 1886, they 
 were described as consisting of first, a tenement of four 
 storeys, " with the cellars and outhouses attached and 
 belonging to the said tenements . . . and the area of 
 ground on which the said tenement, cellars, and outhouses 
 stand ; " and secondly, " the vacant ground situated to the 
 north of the said area of ground, which vacant ground is at
 
 140 LAW AFFECTING BUILDING OPERATIONS. 
 
 present occupied as a back green." By the disposition the 
 disponee was prohibited from building " on the vacant 
 ground or back green nearer to the north face of the wall 
 forming the south boundary of said vacant ground or back 
 green than ten feet" a wall built within the limit was 
 ordered to be taken down, although it was proved that, at 
 the time the charter was granted, part of the ground was 
 occupied by two small buildings (Lawson v. WilJde, 4th 
 March, 1897, 34 S.L.R. 455). 
 
 HEIGHT OF BUILDINGS. 
 
 It was held that a feuar was entitled to make attics in a 
 roof of ordinary pitch above three square storeys, and to 
 throw out storm windows, notwithstanding that by the title 
 the houses to be erected on the ground were not to consist 
 of more than three square storeys in height (M'Ewan v. 
 Stewart, 10th March, 1880, 7 R. 682) ; but a blocking 
 course of five feet in height was not allowed in a similar case, 
 though the object was to make garrets (Campbell v. Allan, 
 18th December, 1855, 18 D. 267 ; Cochran v. Paterson, 
 7th February, 1882, 9 R. 634). 
 
 A prohibition " that the roofs of any buildings on the 
 back area of the houses shall not be higher than the 
 joists of the parlour floor," does not permit of erections of a 
 height equal to that of the level of the beams of the roof of 
 the parlour storey (Greenhill v. Forrester, 26th November, 
 1824, 3 S. 325, N.E. 231). 
 
 A feu charter granted in 1825 of ground on which a 
 dwelling-house was built in Edinburgh, with " back ground " 
 and " stable ground " behind, contained a provision that the 
 vassal was to have liberty " to erect buildings on the back 
 ground, provided they do not exceed the height of one foot 
 above the level of the dining-room floor." Held that the 
 expression " dining-room floor " meant, not as maintained by 
 the vassal, the dining-room flat, but the floor of the dining-
 
 BUILDING CONDITIONS AND RESTRICTIONS. 141 
 
 room (Walkers Trustees v. Haldane, 28th February, 1902, 
 39 S.L.R. 409). 
 
 RESTRICTIONS ON USE. 
 
 A prohibition in a feu charter against allowing "any 
 public houses or tavern to be kept upon the feu," struck 
 at an inn or hotel containing sleeping apartments for the 
 accommodation of travellers, or a hydropathic establishment, 
 even though the latter was not licensed for the sale of 
 liquors (Swing v. Campbell, 23rd November, 1877, 5 R. 
 230). 
 
 In Zetland v. Hislop, 12th June, 1872, 9 R, H.L. 40, it was 
 held that a restriction against selling or retailing any kind of 
 malt or spirituous liquors, or keeping victualling or eating 
 houses, unless with the written consent of the superior, was 
 valid, but that the right to enforce it might be lost by long 
 acquiescence. In Turner v. Hamilton, 21st February > 
 1890, 17 R. 495, it was held that one feuar could not 
 found on an obligation in another feuar's title to the effect 
 that houses were not to be used as shops or taverns, or for 
 the sale therein of spirituous liquors, without the written 
 consent of the superior. This restriction appeared in the 
 title of the common author of both feuars, but in respect it 
 could be dispensed with by the superior, it was held that 
 there could be no mutuality of rights among the feuars in 
 the matter. 
 
 Where a vassal was prohibited from allowing any ale- 
 houses or public-houses to be erected on his feu, it was held 
 that this extended to an hotel or inn, and that proof of the 
 superior's consent to waive the stipulation was limited to 
 writ or oath (Scott v. Cairns, 18th December, 1830, 9 Shaw, 
 246). 
 
 A feuar was perpetually restrained from dealing in mer- 
 chandise, or following the occupation of any trade whether 
 foreign or inland, in wholesale or retail of goods, or vivers of
 
 142 LAW AFFECTING BUILDING OPERATIONS. 
 
 any sort or denomination, and from baking and brewing for 
 sale, and from the occupation of any kind of handicraft." 
 The superior inserted a similar clause into all the feu con- 
 tracts of the neighbouring streets, and particularly of Charles 
 Street, notwithstanding the lower flat of the houses in that 
 street had, without objection, been made into shops. The 
 vassal was held entitled to erect on his back court a large 
 tenement of houses and shops facing Charles Street, in respect 
 that the superior had not qualified an interest to object, and 
 was barred personali exceptione (Brown v. Burns, 14th May, 
 1823, 2 S. 298, N.E. 261). 
 
 A restriction that houses to be built should be " used as 
 private dwelling-houses only in all time coming" struck 
 against use as a young ladies' school for about twelve 
 boarders and fifty day scholars (Swing v. Hastie, 12th 
 January, 1878, 5 R. 439). 
 
 A feu charter contained a clause thus : " That the said lot 
 of ground is feued out only for the erection of dwelling- 
 houses and offices in connection therewith, with this excep- 
 tion only, that there may be a shop fronting Morningside 
 Road, &c." Held, that more than one shop could not be 
 allowed (Hill v. Millar, 17th March, 1900, S.L. Times Rep. 
 460). In Lindley, M.R. Rigby and Vaughan Williams, 
 L.JJ., Court of Appeal, 16th February, 1900, it was held 
 that a clause in the title of a plot of ground restricting the 
 owner from building more than " one house " upon it. did not 
 prevent him from building a block of flats. 
 
 A feu charter contained a clause restricting the vassal 
 from converting " the said dwelling-house hereby disponed 
 into a shop or shops, or warerooms for the sale of goods or 
 merchandise of any description, but that they shall be bound 
 to use the same as a dwelling-house only." Other charters 
 by the superiors contained the same restrictions. A feuar 
 raised an action to have it declared that the restrictions had 
 been departed from and no longer existed, on the ground
 
 BUILDING CONDITIONS AND RESTRICTIONS. 143 
 
 that the superior and co-feuars had acquiesced in the contra- 
 vention of them, &c. It was proved that the premises pos- 
 sessed by him had been, for thirteen years, occupied without 
 objection as writing chambers, and, subsequently by his 
 author for twelve years as a shop for sale of millinery and 
 costumes, but that in the latter case there had been constant 
 objections raised by co-feuars, and that the superior had 
 authorised them to use his name for taking legal proceedings. 
 Held (1) that the pursuer had not proved acquiescence of 
 the restrictions as to use ; and (2) that the abandonment of 
 certain building restrictions did not imply abandonment of 
 all, and that the defenders had not thereby lost the right to 
 object to contravention of, the conditions, which were not 
 ejusdem generis with those acquiesced in (Johnston v. 
 Walker's Trustees, 10th July, 1893, 34 S.L.R 791). 
 
 Notwithstanding restriction " that meuse lanes shall be 
 appropriated solely for the purpose of building stables, coach- 
 houses and other offices," held competent to convert coach- 
 house and stable, with sleeping-rooms for servants above, in 
 which there was a fireplace, into baths, a kitchen and billiard - 
 room, and to connect them with a clubhouse by a passage 
 running between them, the passage to be not higher than 
 the division wall of the areas (Gordon v. Marjoribanks, 
 llth March, 1814, note to 18 F.C. 25; affd. 1818, 6 Dow, 
 87 ; 6 Pat. 351). 
 
 MAINTAINING SEWER. 
 
 An obligation to maintain a sewer does not involve liability 
 for expense of forming the sewer (Stewart v. Meikle, 27th 
 January, 1874, 1 R 408). 
 
 STREETS PROPOSED TO BE MADE AND ISH AND 
 
 ENTRY. 
 
 Where feued ground was described as bounded by certain 
 streets shown on a plan drawn on the back of the feu contract
 
 144 LAW AFFECTING BUILDING OPERATIONS. 
 
 and signed as relative thereto, but not referred to therein, 
 the vassal being expressly given free ish and entry by all 
 roads or streets made or to be made for the use of the feuars, 
 and he being taken bound to pay a proportionate share of 
 the cost of making the streets, it was held, in a question 
 between him and the superior, that he was entitled to free ish 
 and entry by the ground upon which the proposed streets 
 were to be formed, and the superior was not at liberty to 
 erect wooden buildings thereon (Crawford v. Field, 15th 
 October, 1874, 2 R 20). 
 
 In contrast, there is a case where a feuing plan showed 
 building stances and proposed streets. Certain of the stances 
 having been feued, were described as bounded by certain 
 streets or otherwise, as shown on the feuing plan, which were 
 not signed with reference to the contract. There it was held 
 that the vassal was not bound to form the streets shown on 
 the plan, the reference in the contract to the plan being 
 merely for identification of the lots. 
 
 In another case the same principle was given effect to 
 where there was statutory power to a railway company to 
 build a station (Barr v. Robertson, 12th July, 1854, 16 D. 
 1049). 
 
 In Forbes v. Commercial Bank, 9th June, 1831, 9 S. 705, 
 it was held that one vassal was entitled to prevent another 
 vassal from bringing forward his property over ground thrown 
 into a street to widen it, where the feus were granted with 
 reference to a plan which showed the street widened by 
 20 feet, all the feuars being given a pro indiviso right to 
 the open ground and streets indicated on the plan. 
 
 Where a superior has feued out ground conform to a plan 
 showing certain streets, the plan being referred to in the 
 charters, it was held that a strip of ground 15 feet broad, 
 which had been allocated as part of the street on the plan, 
 could not be built upon (Henderson v. Nimmo, 20th May, 
 1840, 2 D. 869).
 
 BUILDING CONDITIONS AND RESTRICTIONS. 145 
 
 An obligation on a vassal to make a " sufficient road " 
 along the boundary of his feu does not import an obligation 
 to construct embankments and retaining walls in order to 
 make the gradients more easy, and improve the access to 
 other feus given off some years later (Gumming v. Brown, 
 2nd February, 1859, 21 D. 752). 
 
 Where a feu was described as " bounded on the north by 
 a road of 18 feet in breadth, laid off and formed by me, 
 running westward from the foresaid turnpike road across my 
 7 roods of land aforesaid," access to the road being reserved 
 to all the feuars who were taken bound to maintain it at 
 their common expense, it was held that the feuar's right was 
 not limited to the road as actually formed at that date, but 
 gave a right of access across the whole 7 roods (Fimister 
 v. Milne, 24th May, 1860, 22 D. 1100). 
 
 Where each feuar was bound by his feu contract to leave 
 vacant space for the completion of a proposed street, it was 
 held that the superior could not consent to relieve one of the 
 feuars of that obligation, as all the feuars had a common 
 interest in the proposed street (Glasgow Jute Company v. 
 Carrick, 5th November, 1869, 8 Macph. 93). 
 
 An opposite result was reached in Carson v. Miller, 13th 
 March, 1863, 1 Macph. 604, but there there was only one vassal 
 who was taken bound to maintain the intended street, and 
 there was nothing to show that the other feuars had a right 
 of common interest. The superior was therefore held 
 entitled to discharge the obligation. 
 
 THE RIGHT OF THE SUPERIOR TO ENFORCE 
 RESTRICTIONS. 
 
 In certain circumstances it is an important point whether 
 
 the question is between the original parties to the contract 
 
 or between singular successors to them. In the former case 
 
 there is no need to consider whether the deed containing the 
 
 10
 
 146 LAW AFFECTING BUILDING OPERATIONS. 
 
 restrictions has been recorded ; in the latter case recording is 
 generally essential except with reference to negative servi- 
 tudes. This distinction is based on the fact that the original 
 contracting parties must be aware of the terms of the con- 
 tract entered into between themselves, while singular succes- 
 sors to them are entitled to rely that the public records shall 
 give notice of all important burdens or restrictions affecting 
 the property. 
 
 There is the further distinction between the right of the 
 superior and that of the vassal to insist on the enforcement 
 of restrictions, that the superior's right rests on contract, 
 while the vassal's right to insist on enforcement against other 
 vassals is more of the nature of a proper servitude. 
 
 Arising out of this distinction we have another, namely, 
 that although the superior requires like the vassal to have a 
 legitimate interest to enforce restrictions, the onus lies upon 
 the vassal who is pleading a release from the contract, to 
 allege and prove that, owing to some change of circumstances, 
 any legitimate interest which the superior may originally have 
 had in maintaining the restriction has ceased to exist. The 
 vassal in consenting to be bound by the restriction conceded 
 the interest of the superior, hence the necessity for proving 
 change (Zetland v. Hislop, 18th March, 1881, 8 R. 67 o; 
 rev. 9 R, H.L. 40; 7 App. Cas. 427 ; and Campbell v. Clydes- 
 dale Banking Co., 19th June, 1868, 6 Macph. 943). On 
 the other hand, the vassal insisting on fulfilment against other 
 vassals, can only do so in so far as he qualifies an interest, 
 which he has the onus of proving (Hislop v. M'Ritchie's 
 Trustees, 23rd June, 1881, 8 RILL. 95). 
 
 This case of Hislop v. M'Ritchie's Trustees is very import- 
 ant, as affecting the question whether a person, not a party 
 to the deed constituting the restrictions, is entitled to enforce 
 implement of them. This was the case of a vassal (one of 
 several holding of the same superiors) who bound himself 
 and his heirs and successors, in a feu contract, " not to erect any
 
 BUILDING CONDITIONS AND RESTRICTIONS. 147 
 
 other buildings upon the said piece of ground except the tene- 
 ment of houses and walls of enclosure already erected thereon, 
 and if he or they shall build any offices on the back ground, 
 which they are to be at liberty to do, the same shall not 
 exceed twelve feet in height in the side walls." Hislop, who 
 was a singular successor in the feu, proceeded to build over a 
 portion of a plot of ground in front of his office. Another of 
 the feuars (MacRitchie's Trustees), who, by the feu right under 
 which they held, were prohibited from erecting, on their feu 
 any other buildings except necessary offices, raised, with 
 the consent and concurrence of the common superiors, a 
 suspension and interdict against Hislop's operations. The 
 House of Lords, reversing the decision of the Second Division, 
 held (1) that the fact that there are several feuars of adjoin- 
 ing plots of building ground in the same street, holding from 
 a common superior, does not, by itself, entitle any one of the 
 feuars to insist on the observance of restrictions in the feu 
 rights of another ; (2) that to entitle one of such feuars so to 
 insist, there must be some mutuality and community of rights 
 and obligations otherwise established between them ; (3) that 
 such mutuality and community of rights and obligations can 
 be established (a) by express stipulation in the respective 
 contracts with the superior, or (6) by reasonable implication 
 from some reference in the contracts to a common plan or 
 scheme of building, or (c) by mutual agreement between the 
 feuars themselves, and (4) that where the principal to an 
 action had no right or title whatever, the consent and con- 
 currence of the party to whom alone such right or title be- 
 longed, did not cure the defect of title in the principal party 
 to the action. Lord Watson, who delivered the leading 
 opinion in that case, in referring to several decisions in which 
 vassals were held to have an implied right to insist on enforce- 
 ment of restrictions, said that " all these cases fell under one or 
 other of two categories, namely : (1) Where the superior 
 feus out his land in separate lots for the erection of houses, in
 
 148 LAW AFFECTING BUILDING OPERATIONS. 
 
 streets, or squares, upon a uniform plan; or (2) where the 
 superior feus out a considerable area with a view to its being 
 sub-divided and built upon, without prescribing any definite 
 plan, but imposing certain general restrictions which the 
 feuars are taken bound to insert in all sub-feus, or dispositions 
 to be granted by them." 
 
 THE RIGHT OF THE SUPERIOR TO ENFORCE 
 RESTRICTIONS AFTER BREAKING THEM HIMSELF. 
 
 An important case affecting this question is that of Colder 
 v. Merchant Company of Edinburgh, 26th February, 1886, 
 13 R. 623. There four stances were originally feued out 
 under condition that the feuar should erect dwelling-houses 
 in conformity with a plan subscribed as relative to the charter 
 and that he should not alter the appearance of the buildings, 
 in all time coming. The restrictions were appointed to be 
 inserted in all future conveyances of the subjects. The feuar 
 built on three only of the stances. He conveyed the fourth 
 to the superiors under the same restrictions. They again 
 feued it out under totally different restrictions, and buildings 
 were erected accordingly. Thereafter the owner of a house on 
 one of the three stances proposed to convert his ground flat 
 into shops, and was held entitled to do so, because (1) The 
 superiors having abandoned the common feuing plan, had no 
 title to enforce the restrictions ; (2) in respect the original 
 restrictions were not now in the titles of all the lands 
 originally feued out, but had been abandoned in regard to one 
 stance, the co-feuars had no right to enforce them ; (3) that 
 the co-feuars had no title to object to the operations on the 
 ground of common interest, in respect that they were entirely 
 in suo, and that it was not alleged that they would affect the 
 safety of the tenement of the upper floor, or interfere pre- 
 judicially with the objector's light or air, and that the fact of 
 injury to the amenity of their subjects was not sufficient 
 to give them a title to object.
 
 BUILDING CONDITIONS AND RESTRICTIONS. 149 
 
 Where a proprietor feued a piece of ground to form a 
 street, inserting in all the feu contracts the same conditions 
 regulating the height and style of the houses to be built, it 
 was held, after a number of the feuars had contravened the 
 conditions without objection on the part of the superior, that 
 he was not entitled to enforce the conditions against a single 
 feuar (Campbell v. Clydesdale Banking Co., 19th June, 
 1868, 6 Macph. 943). 
 
 In Dalrymple v. Herdman, 5th June, 1878, 5 R. 847, it 
 was held that a superior could not discharge any one feuar 
 from the conditions and restrictions of the feu contract without 
 consent of the rest. That is the case where there are several 
 vassals holding under common restrictions, which each has an 
 interest to have enforced. 
 
 Of course the result would be quite different where, as in 
 Turner v. Hamilton, supra, the superior received express 
 power to consent to an infringement of the restrictions. 
 
 In Blackwood and Others v. Bell, 30th May, 1825, 4 S. 
 26, it was held that certain restrictions not to sub-feu or feu 
 for buildings a piece of land were for the benefit of the 
 superior alone, and that the other vassals could not interfere. 
 The same was held in Johnston v. M ( Ritchie, loth March, 
 1893, 20 R. 539. 
 
 A restriction against building anything but dwelling-houses 
 similar in style and quality to others already erected does not 
 require that the same number of rooms shall be in the new 
 houses as in the old. One room more or less would not 
 involve an infringement.
 
 CHAPTER X. 
 SERVITUDES. 
 
 " REAL or predial servitudes, or servitudes simply, are certain 
 conventional rights known to the law in virtue of which the 
 owner, as such, of one tenement possesses certain privileges as 
 against the owner, as such, of a neighbouring tenement ; or alter- 
 ing the standpoint, they are certain conventional real burdens 
 known to the law, in virtue of which the latter owner is 
 subjected to certain restraints in favour of the former. The 
 first mentioned tenement is termed the dominant, the other 
 the servient tenement ; and their owners are called, for short- 
 ness, the dominant and servient owner respectively " (Rankine, 
 p. 362). 
 
 Servitudes properly constituted are effectual against singular 
 successors in the servient tenement, and available to singular 
 successors in the dominant, though not followed by infeftment ; 
 and it has therefore been held essential that the burden should 
 be limited to such uses or restraints as are well established 
 and defined, leaving others as mere personal agreements. 
 What shall be deemed servitudes of a regular and definite 
 kind is a secondary question, as to which the only description 
 that can be given generally seems to be, that it shall be such 
 a use or restraint as by law or custom is known to be likely 
 and incident to the property in question, and to which the 
 attention of a prudent purchaser will in the circumstances 
 .naturally be called (Bell's Pr., 8th ed., p. 625). 
 
 An attempt was made to establish a servitude, founding on 
 an agreement not to build on a piece of land, but as the land 
 150
 
 SERVITUDES. 151 
 
 was not conveyed, and there was no dominant tenement, the 
 attempt failed (Campbell's Trustees v. Corporation of Glas- 
 gow, 20th March, 1902, 39 S.L.R. 461). 
 
 Restrictions in the use of property which are not recognised 
 servitudes must enter the record to be effectual against 
 singular successors (per Lord Ardmillan in Banks & Co. v. 
 Walker, 5th June, 1874, 1 R 986). 
 
 The only proper servitudes recognised in Scotland are real 
 or predial, and these are divided into positive and negative. 
 
 Negative servitudes, which admit of no possession on the 
 part of the dominant owner, and work no apparent change on 
 the servient tenement, belong to certain well-known categories, 
 the number of which is not likely to be augmented. They 
 are an anomaly in the law (Cowan v. Stewart, 24th May, 
 1872, 10 Macph. 735 ; and St. Mark's Free Church v. 
 Taylor, 20th January, 1869, 7 Macph. 415), and the law 
 takes care that the anomaly shall not be enhanced. But posi- 
 tive servitudes are usually apparent on inspection, and always 
 require possession or sasine, so that there is little danger 
 of surprise to an ordinarily wary purchaser (Rankine, p. 325). 
 
 Servitudes being restraints on freedom, or on the exercise 
 of the rights of property, must be exercised in the manner 
 least disadvantageous to the servient tenement, consistently 
 with full enjoyment (Ross v. Cuthbertson, 3rd March, 1854, 
 16 D. 732; Clark & Sons, 1898, 25 R. 919; Rattray, 
 
 1868, 5 S.L.R. 219 ; Oliver v. Robertson, 10th November, 
 
 1869, 8 Macph. 137). 
 
 Accordingly if the dominant owner has a servitude right of 
 way, the servient owner can conveniently make also use of the 
 road. So if there be a prohibition against building more 
 than one storey in height, still the chimney may be carried 
 up to the top of a three or four storey tenement adjoining 
 (Banks v. Walker, supra}. 
 
 The extent of the servitude must in general be regulated 
 by the uses proper to the dominant tenement (Leslie v.
 
 152 LAW AFFECTING BUILDING OPERATIONS. 
 
 Gumming, 1793, M. 14,542). In other words, the dominant 
 owner must have an interest directly arising in connection 
 with his property to enforce the servitude he must be in a 
 position to get some benefit from the servitude (Boswell v. 
 Inglis, 9th March, 1848, 10 D. 888; affd. 6 B. Ap. 427; 
 Gould v. M'Corquodale, 1869, 8 Macph. 165; Russell v. 
 Cowpar, 1882, 9 R. 660 ; Boswell v. Magistrates of Edin- 
 burgh, 1881, 8 R. 986; M' Gibbon v. Rankin, 1871, 9 
 Macph. 423). He cannot increase the burden (Robertson v. 
 Scouller, 1825, 1 F.C. 126 , 29th Jan., 1829, 7 S. 344 ; 
 Magistrates of Dunbar v. Sawers, 1829, 7 S. 672. 
 
 The object of a servitude is either to suffer something to be 
 done by another, or to refrain from doing something, and 
 never consists in doing anything (Mackenzie's " Roman Law," 
 4th ed., 183; Erskine, 11, 9, 1). The owner of a wall 
 subject to the servitude of support is not bound to maintain 
 the wall unless he comes under the obligation in virtue of the 
 law of common interest, but he may make such repairs and 
 alterations as will lighten the burden, so long as he does 
 not thereby prejudicially affect the dominant owner's right 
 (Ferguson, 12th November, 1816, F.C.; Dennistoun, 1824, 
 2 S. 784 ; Gray, 1825, 4 S. 104; Pirnie v. M 1 Ritchie, 5th 
 June, 1819, F.C. ; Bell's Pr. 934). On the other hand, the 
 dominant owner is entitled to reasonable facilities for effecting 
 repairs, &c., in order to preserve and exercise the servitude 
 right (Stevenson, 1867, 3 S.L.R. 184; Bell's Pr. 985). 
 
 Negative servitudes can only be constituted by express grant 
 or agreement. According to Professor Rankine, the grant or 
 agreement must be in writing, holograph or tested. He adds : 
 "One case (Mutrie, 26th June, 1810, F.C.) which allowed a 
 servitude of right to be constituted by a missive, neither holo- 
 graph nor tested, while there was unity of possession, and 
 another (Johnstone v. Aitken, 10th June, 1829, 7 S. 732), 
 in which, in respect of peculiar circumstances, a proof before 
 answer was allowed, although no writing at all was produced,
 
 SERVITUDES 153 
 
 must be rejected, as transgressing a leading rule in heritable 
 conveyancing, and as not justified by late cases of implied 
 grant." Although Bell, in his "Principles," p. 631, says that 
 negative servitudes can be constituted only by grant, and that 
 the deed must be authentic and binding, and must be in such 
 terms as unequivocally to create a permanent burden or re- 
 straint on the proprietor of the servient tenement, he never- 
 theless says : 
 
 " A negative servitude may be established by a building 
 plan, or by articles of roup, or by necessary implication from 
 the terms or restrictions in the terms of the titles of neighbour- 
 ing feuars, or even by implied grant." 
 
 It is scarcely free from doubt that such servitudes cannot 
 be constituted by plan alone, although it may be done 
 by distinct reference, in a valid writing, to a building 
 plan (Lord Young in Johnstone v. M'Ritchie, 1893, 
 20 R. 539 ; Rankine, 409, &c.). It cannot be inferred 
 from the terms of a feu contract and the plan rela- 
 tive thereto (King, 1896, 24 R. 81), and in the general 
 case it is incompetent to constitute them by implied grant 
 (Cochrane v. Ewart, I860, 22 D. 358 ; affd. 1861, 4 Macq. 
 117, overruling Preston's Trustees v. Preston, 1844, 22 D. 
 366; Groall v. Magistrates of Edinburgh, 20th December, 
 1870, 9 Macph. 323, &c.). Only upon the severance of two 
 tenements, which were previously possessed together, is the 
 principle of implied grant admitted to constitute a servitude. 
 The principle is that a proprietor is entitled to claim such 
 accessories and incidents, as ways and passages, as are necessary 
 for the reasonable enjoyment of his property (2 Stair, 7, sec. 
 10 ; 2 Erskine, 6, sec. 4, 9). 
 
 But if it be allowed that negative servitudes may be consti- 
 tuted by implied grant, why may there not be implication 
 sufficient from a building plan ? The answer is that the cases 
 of implied grant must have about them the condition of 
 necessity. Although Professor Rankine says that this mode
 
 154 LAW AFFECTING BUILDING OPERATIONS. 
 
 of constitution has been authoritatively held to form no part 
 of the law of England or Scotland (Cochrane v. Ewart, 13th 
 January, 1860, 22 D. 358 ; affd. 4 Macq. 117), he yet pro- 
 ceeds to say : " A grant of a servitude is in both countries 
 implied only in two cases, both of which arise in similar cir- 
 cumstances. The circumstances are, that the owner of two 
 neighbouring tenements conveys away one while retaining 
 the other, or conveys or bequeaths both to different grantees. 
 And the two cases are (1) that a servitude over one of the 
 tenements is absolutely necessary to the enjoyment of the 
 other ; and (2) that such a servitude is necessary for the con- 
 venient and comfortable enjoyment of the latter. 
 
 Although Bell appears erroneously to contend for the general 
 admission of servitudes by implied grant, he recognises the 
 same principles as Professor Rankine. He says : " When an 
 owner conveys part of his tenement as it has been possessed 
 by himself, all uses and easements, over the portion retained, 
 which are necessary to the reasonable and comfortable enjoy- 
 ment of the part granted, and have been, and are, at the time 
 of the grant used by the owner of the whole for the benefit of 
 the part granted, pass to the grantee, although not mentioned. 
 When the severance occurs by simultaneous conveyances to 
 different parties, the presumption is in favour of the constitu- 
 tion into a servitude of a benefit enjoyed in the manner 
 above stated during the unity of possession, at least where the 
 two grantees have notice of the two transactions" (Bell's Pr., 
 p. 630). Gow's Trustees v. M'Alls, 28th May, 1875, 2 K. 
 729 ; and Walton Brothers v. The Magistrates of Glasgow, 
 20th July, 1876, 3 R. 1130, illustrate this principle. Both 
 cases have reference to rights of way or servitudes over separate 
 properties which at one time were owned by the same indi- 
 vidual. In Gow's Trustees v. M'Alls it was decided that there 
 was a right of way established, and the ground of the decision, 
 in the words of the Lord Justice-Clerk (Moncreiff), was that 
 a right of way over the one property was necessary for the
 
 SERVITUDES. 155 
 
 convenient and comfortable enjoyment of the other. In the 
 other case the opinion was expressed that when two properties 
 standing on separate titles, and one having a servitude of 
 passage over the other, are united in the person of one pro- 
 prietor, the servitude is not in all circumstances extinguished 
 confusione to the effect of making it necessary to constitute the 
 servitude de novo where the proprietor alienates the original 
 dominant tenement. In Heron v. Gray, 27th November, 
 1880, 8 R. 155, the disponee of part of a property, which had 
 been divided was held to have an implied servitude of light 
 and air over part of the remainder, and a declaration, in 
 a subsequent conveyance of the latter, that there was no right 
 of servitude could not override the implied servitude. In 
 Inglis v. Clark, 1901, 39 S.L.R. 195, it was indicated that 
 the decision in Heron v. Gray was reached on the special 
 law of tenement, and is not applicable to the general case. 
 
 Where different floors or storeys in the same tenement are 
 disponed to various purchasers, there is an implied servitude 
 on the proprietor of the ground flat not to build on the back 
 area so as to injure the light of the flats above (Heron v. Gray, 
 supra). 
 
 It is of importance to observe that in Dundas v. Blair, 
 1886, 13 R. 759, and also in Metcalf v. Purdon, 31st 
 January, 1902, 39 S.L.R. 378, the Court decided against 
 the view that a servitude can be constituted by implied grant. 
 Lord President Inglis remarked, in the former case, that 
 Heron's case was decided on the law of tenement, not of 
 servitude. In Metcalf s case Lord President Balfour expressed 
 the same view. In Dundas it was laid down that a negative 
 servitude can only be constituted by writing, and, so far, it 
 supports the view of Rankine. It is said that, with the 
 exception of Heron, all the cases in which implied grant 
 has been admitted were cases of positive servitude (Green's 
 Encyclopaedia, vol. xi. p. 281). . 
 
 An open space surrounded by houses built by one man,
 
 156 LA W AFFECTING BUILDING OPERATIONS. 
 
 with pend, through one of the houses, giving access to the open 
 space held that as the pend was necessary for the proper 
 enjoyment of some of the subjects, it must be allowed to con- 
 tinue, although there was nothing said in the titles as to right 
 of access by the pend (The Union Heritable Securities Co. 
 Limited v. Mathie, 3rd March, 1886, 13 R 670). 
 
 But " though two purchasers bought houses from the same 
 owner, neither of them was found astricted not to build as high 
 as he pleased, albeit to the prejudice of the light and view of 
 the other " (Hope's " Servitudes " ; Somervil v. Somervil, M. 
 12,769). 
 
 Summarising, the following are the leading rules applicable 
 to servitudes : 
 
 (1.) They are real rights or real burdens in that they affect 
 heritable property. 
 
 (2.) They are peculiar among real rights and burdens in 
 that they do not require to be recorded. 
 
 (3.) In respect that they do not require recording, and that 
 in consequence intending purchasers cannot know of their 
 existence from the records, the law does not acknowledge any 
 servitudes except such as are of categories well known to the law. 
 
 (4.) There must be two tenements owned by different 
 proprietors, and it must be possible for the dominant tene- 
 ment to derive some benefit from the servitude (Erskine, 11, 
 9, 33 ; Patrick, 1867, 5 Macph. 683). 
 
 (5.) The presumption is in favour of giving the servient 
 owner the fullest use of his property consistently with the 
 right of servitude. 
 
 (6.) They can only be constitute by grant from the 
 servient owner in general the grant must be in writing, 
 holograph or tested, and must be clear and unambiguous ; but 
 in certain circumstances they may, under the law of tenement, 
 be established by implied grant. 
 
 (7.) They cannot be acquired by prescription. 
 
 (8.) They are not alienable or transferable apart from
 
 SERVITUDES. 157 
 
 the property (Mackenzie's "Roman Law," 4th ed., 183 ; note 
 Murray, 8th December, 1808, F.C.). 
 
 SOME WELL-KNOWN SERVITUDES AND NATURAL 
 
 RIGHTS. 
 
 Support of Land to Land. 
 
 This is properly a natural right. The owner or feuar of 
 land has a natural right incident to the ownership to such 
 support for his land from the adjacent and subjacent soil as 
 shall be sufficient to retain it in its natural state. This is 
 entirely apart from contract it is implied from the nature of 
 the subject. It may operate to prevent the adjacent owner 
 from excavating to the verge of his property. If he should do 
 so, and damage result to his neighbour's land, he will be 
 liable in damage, even though he prove that the operations 
 were carried out with every reasonable precaution. If a 
 person withdraws the natural support, he must supply suffi- 
 cient artificial support, and anyone withdrawing the natural 
 or artificial support does so at his peril (Balds v. Alloa Goal 
 Co., 30th May, 1854, 16 D. 870). The same rule applies 
 to the owner of minerals. The owner of the surface is 
 entitled to support from the soil and minerals beneath, and if 
 these should be removed, and damage be caused to him, he is 
 entitled to compensation. The principle does not entitle one 
 party to say to his neighbour he must not operate on or 
 excavate soil close to his boundary, unless where it is quite 
 obvious that this cannot be done without inflicting material 
 damage to the land, or to drains, or trees, &c. (M.R. Jessel, 
 in Birmingham v. Allen, 6 Ch. Div. 284, per Selborne, L.Ch., 
 in Andrew v. Buchanan, 11 Macph. H.L. 16). It confers 
 no right of action when no appreciable damage had been 
 sustained. 
 
 Support of Land to Land encumbered with Buildings. 
 This is not a natural right, but an acquired one.
 
 158 LAW AFFECTING BUILDING OPERATIONS, 
 
 According to eminent opinion, you may acquire in Scotland 
 a servitude or right of support for buildings by prescription 
 (Rankine, p. 435). The usual method is, however, by express 
 grant, or, under the law of tenement, by implied grant. In the 
 former case (express grant) there is no difficulty ; in the latter 
 case it is necessary to trace the two properties back to unity of 
 ownership. Then the two cases in which an implied right 
 may exist are (1) if the surface of one of the subjects, in 
 oases of lateral support, or in the case of subjacent support, if 
 the surface above the minerals severed, be already loaded with 
 buildings ; or (2) if the surface be feued out or retained for 
 the purpose, expressly mentioned or plainly implied, of being 
 covered with such buildings. 
 
 Support of Buildings to Buildings. 
 
 Apart from questions of mutual gables and common interest, 
 the same rule applies here, except that it is doubtful if the 
 right can be acquired by prescription. It may be acquired 
 by express grant, or, under the law of tenement, by implied 
 grant. 
 
 Light, Air, and Prospect. 
 
 How far can one proprietor build on his property when the 
 operation interferes with the prospect or light of his neigh- 
 bours ? The answer is, he can do so to any extent he pleases, 
 unless there be some express written prohibition in favour of 
 the neighbours in the titles. The right cannot be acquired by 
 prescription, or even by implied grant (Inglis v. Clark, 7th 
 December, 1901, 39 S.L.R. 193). Though a proprietor 
 should have built his house ever so low, or should not have 
 built at all upon his grounds for forty years together, he is 
 presumed to have acted for his own convenience and profit ; 
 and therefore cannot be barred from afterwards building a 
 house on his property, or raising it to what height he pleases, 
 unless he be tied down by his own consent (Erskine, 236 ;
 
 SERVITUDES. 159 
 
 Walker v. Wishart, 7th July, 1825, 4 S. 148 ; Morris v. 
 M'Kean, 19th February, 1830, 8 S. 564). An owner of a 
 garden may enclose it with a high wall which darkens the 
 windows of a contiguous dwelling-house (Dunlop v. Robertson, 
 1st December, 1803 ; Hume, 515 ; Glassford v.Astley, 12th 
 May, 1808, M., App. Prop. No. 7). 
 
 In Dundas v. Blair, 12th March, 1886, 13 R 759, it was 
 held that a proprietor of a feu bounded by a passage which 
 formed part of an adjoining feu, but by which there was no 
 right of access given, and no stipulation in the titles of either 
 party that it should remain as a passage, was not entitled to 
 prevent the adjoining feuar from building on the ground, 
 which was described as the passage in question, to the pre- 
 judice of his lights, as his claim was really for a right of 
 servitude, and that could only be conferred by express grant. 
 It could not be constituted by prescriptive use for any length 
 of time. 
 
 There are two classes of servitude of light and prospect. 
 By the first, the servient owner is put under restriction that 
 he shall not, within his property, or within a specified part 
 of it, erect buildings or plant at all, or above a specified 
 height, to the prejudice of the dominant owner's light or pro- 
 spect ; by the second, the servient owner is restricted from 
 striking out windows in his own wall, so as to interfere with 
 the privacy of his neighbour's property. It has been pointed 
 out that there is no example of a dispute having arisen in 
 connection with the latter class, and that it is simply a ready 
 means of accomplishing what the dominant owner might have 
 accomplished by building a high wall within his own ground 
 (Kankine, 356). 
 
 There have been many cases in connection with the former 
 class. In one case, Ogilvie v. Donaldson, 1678, M. 14,534, 
 a party had what was defined as " a tolerance for a servitude 
 of light." The Court held that this did not imply liberty to 
 have open windows, and that the servient owner might build
 
 160 LAW AFFECTING BUILDING OPERATIONS. 
 
 anything he pleased, and to what height he pleased, before 
 these windows, at an ell's distance, whereby the light would 
 be free. 
 
 A shed consisting of a flat roof supported on cast iron 
 pillars, was held to be a " building," so as to be a contraven- 
 tion of a servitude against the erection of buildings on a 
 certain area contained in a feu charter (Magistrates of Edin- 
 burgh v. Brown, 17th January, 1833, 11 S. 255); but, on the 
 other hand, where a proprietor when disponing part of his 
 property, barred himself " from erecting at any time hereafter 
 any other building on any other part of the foresaid steading 
 of ground than those at present thereon," it was held that, 
 as the object was to preserve access and light to the tenement 
 conveyed, the disponer was not barred from making an under- 
 ground passage under the unbuilt-on ground (Malloch v. Gray, 
 31st May, 1872, 10 Macph. 774). 
 
 A party who acquired right to the solum of a lane which 
 previous feuars had used both for light and passage, and which 
 rights were expressly reserved to them, was prevented from 
 building over the lane, although his operations would not have 
 interfered with the freedom of the passage (Argyleshire Com- 
 missioners of Supply v. Campbell, 10th July, 1885, 12 R. 
 1255). In Bennett v. Playfair, 24th January, 1877, 4 R. 
 321, one of two feuars who had a right of access by a lane, 
 proposed to convert it into a covered passage, so far as 
 opposite his own ground, by building over it ; the other feuars 
 had merely a right of access to their properties by the lane. 
 He was prevented from doing what he proposed. 
 
 In Boawett v. Inglis, 9th March, 1848, 10 D. 888 ; aff. 
 March, 1849, 6 Bell App. 427 ; 21 Jur. 388, a property was 
 conveyed to Brough under the restriction and servitude, in 
 favour of Meason, (not mentioning him and assignees) that 
 Brough and his heirs and assignees should not erect on the 
 back area any buildings other than stables and coach-houses, in 
 a certain line, and of a certain height, and it was held that the
 
 SERVITUDES. 161 
 
 servitude was not personal to Meason, but was attached to the 
 property ; that it was not relevant to aver that the servitude 
 had not been repeated in the titles of the servient house, and 
 that although one of the coach-houses had been used as a 
 painter's shop, this was not relevant to discharge the servitude 
 quoad it, so as to allow the house to be built in a manner at 
 variance with the servitude. The same principle was acted 
 on, as regards holding heirs liable though the heirs were not 
 mentioned, in Banks v. Walker, 5th June, 1874, 1 R. 981. 
 
 In M'Neill v. Mackenzie, 5th February, 1870, 8 Macph. 
 520, a clause in the titles of all the proprietors of property in 
 Hill Street, Edinburgh, prohibited the altering of roofs and 
 chimney heads of their houses, so as to disfigure the street, or 
 to be an annoyance or offensive to the neighbouring proprie- 
 tors, and one of the proprietors was found entitled to raise one 
 of the sides of the roof of his house to a considerable height 
 above its former straight slope, to erect three dormer windows 
 on the roof so raised, the windows extending in height nearly 
 to the height of the ridge of the roof. Although Mr. Rhind, 
 architect, to whom the matter was remitted, reported that 
 the light of the room in the ground floor would be to some 
 extent affected, the Court allowed the operations to proceed. 
 They held that so far as the restriction affected a matter of 
 taste, it might and should be ignored, and that it would only 
 receive effect where material damage to light could clearly be 
 proved. They did not think this could be done to a sufficient 
 extent. 
 
 Where a feuar erected buildings according to plans approved 
 of by the superior, and with a window looking into a lane, the 
 feuar was held entitled to interdict a subsequent feuar of the 
 solum of the lane from converting part of the lane into which 
 the window opened into a covered pend, by building a tene- 
 ment over it (Argyleshire Commissioners of Supply v. 
 Campbell, 12 R,. 1255). 
 
 It is competent for the proprietor of a street and sunk flat 
 11
 
 162 LAW AFFECTING BUILDING OPERATIONS. 
 
 in a tenement to build a saloon the height of the street floor, 
 terminating in a building at the back facing the meuse lane, 
 and rising to a height of nineteen feet nine inches at the ridge 
 of the roof, and eight feet nine inches at the wall head above 
 the level of the top of his street floor. In that case the pro- 
 prietor had unrestricted right to the back area, and as no 
 diminution of light and air of the flats above was involved, 
 the operations were allowed (Boswell v. Magistrates of Edin- 
 burgh, 19th July, 1881, 8 R. 986). 
 
 In Morris v. M'Kean, 19th February, 1830, 8 S. 564, it 
 was decided that a proprietor who, in building a house next to 
 another's close, wrote to the proprietor of the close agreeing to 
 have the windows towards the close made so as not to open, 
 had not a servitude of light, although he had enjoyed the 
 privilege for more than forty years. In another case, the 
 period of privilege was one hundred years, with the same result 
 (Dundas v. Blair, 12th March, 1886, 13 R. 759). 
 
 It was held competent, in Deas v. Magistrates of Edinburgh, 
 10th April, 1772, 2 Paton's App. Gas. p. 259, to refer to 
 the original feuing plan of the New Town of Edinburgh, and 
 the preceding resolutions of the Magistrates to the effect that 
 those who took feus in Princes Street should have perpetual 
 right over Princes Street gardens, and that no building would 
 ever be erected thereon. There the plan was not incorporated 
 in the charter, which was itself silent as to laying out of the 
 gardens. The feuars were held entitled to prevent the Magis- 
 trates building on the ground. 
 
 A similar decision was reached in Young v. Dewar, 17th 
 November, 1814, F.C. ; Schulze v. Campbell, 29th November, 
 1815, F.C., where it was held that a servitude altius non 
 tollendi or ne luminibus officiendi, was constituted by a build- 
 ing plan which was held out to all persons purchasing ground 
 for building as the general plan of the town. No mention of 
 the servitude or of the plan appeared in the titles. 
 
 Mr. Irons, p. 134, says it is difficult to differentiate between
 
 SERVITUDES. 163 
 
 that case and the case of Hcriot's Hospital v. Gibson, 1809, 
 note to F.C. 25 ; rev. 1814, 2 Dow, 301, but in Gibson's case, 
 as Mr. Irons mentions, the contention was that the feu was 
 taken on the faith of a plan which implied the demolition of 
 an old tenement which then disfigured York Place. It is 
 clear, however, that a servitude has never been heard of as 
 being constituted by implication in such circumstances ; and 
 further, the plan in the former case was a general plan. 
 
 Where a plan is drawn on the contract and signed as relative 
 thereto, it has been held binding to this extent, that the 
 superior was not entitled to erect wooden buildings on the 
 site of a street shown thereon. The charter expressly bore 
 that the vassal was to have free ish and entry by all the 
 streets made, or to be made, for the use of the feuars ; and the 
 vassal was to pay a part of the cost of making the streets, 
 three of which had been formed at the date of the charter 
 (Crawford v. Field, 15th October, 1874, 2 R. 20). The 
 opposite of this case is Barr v. Robertson, 12th July, 1854, 
 16 D. 1049. There the feuing plan, on which various build- 
 ing stances and proposed streets were shown, was not signed 
 with reference to the contract, which, however, described the 
 feus as bounded by certain streets, &c., as shown on the feuing 
 plan. It was held that the reference to the plan was merely 
 for identification of the lots. 
 
 While the title bears that the wall bounding a property is 
 not to be built above a certain height, this does not prohibit 
 building any height within the wall (Ross v. Cuthbertson, 3rd 
 March, 1854, 16 D. 732). A servitude or restriction that 
 the vassal shall erect no building whatever on a certain part 
 of his feu, forbids the construction of cellars beneath that part 
 (Magistrates of Edinburgh v. Paton, 3rd March, 1858, 20 D. 
 731). If, however, it had been expressly for the purpose of 
 preserving the lights of an adjacent house, buildings would be 
 allowed which did not interfere with the light (Craig v. Gould, 
 9th November, 1861, 24 D. 20).
 
 164 LAW AFFECTING BUILDING OPERATIONS. 
 
 In Banks v. Walker, 5th June, 1874, 1 R. 981, there was 
 a servitude against erecting a small building on back ground 
 higher than the height of one storey. It was held, however, not 
 inconsistent with the servitude to build a chimney up the full 
 height of the tenement. The servitude was constituted by 
 contract, which was not recorded. 
 
 In a feu-charter the vassal was bound under servitude not to 
 erect any building whatever nearer to a certain church than 25 
 feet from the extremity of the church, any buildings to be erected 
 by him to the north of said 25 feet to consist of not more than 
 a ground storey and two storeys above. It was held that this 
 was contravened by erecting an open shed within the 25 feet, 
 although no injury to the church by light or otherwise was 
 alleged (Magistrates of Edinburgh v. Brown, 17th January, 
 1833, 11 S. 255). 
 
 In Muirhead v. Glasgow and Highland Society, 15th 
 January, 1864, 2 Macph. 420, it was decided that a singular 
 successor who purchased a dominant tenement in the know- 
 ledge of the existence of certain buildings (which had been 
 erected in contravention of the servitude, and with the 
 knowledge and acquiescence of the owner of the dominant 
 tenement), was not entitled to insist on having the buildings 
 removed. 
 
 Where, by a feu-contract, dated 1774, the vassal was ex- 
 pressly prevented from building higher than two storeys, &c., 
 it was held that as this clause did not appear in any other 
 person's titles, the right to enforce was in the superior alone 
 (Currie and Another v. Notman, 25th January, 1900, S.L. 
 Times, 345). 
 
 In Q. Munro v. J. Jervey, 1821, 1 Shaw, 154, the pro- 
 prietor of a street flat in 1774 carried a chimney in a hori- 
 zontal line immediately under the windows of the flat above, 
 and then perpendicularly to the roof, forming an aperture at 
 the angle to clean the horizontal part which was filled up by 
 a movable stone ; and the aperture was never challenged till
 
 SERVITUDES. 165 
 
 1819. Held, that the proprietor of the flat above was barred 
 by acquiescence from objecting to it. 
 
 Eavesdrop or Stillicide. 
 
 This is a positive servitude which may be acquired by 
 express grant, by acquiescence, or by prescription (Stirling 
 v. Finlayson, 1752, M. 14,526). And it may be lost by 
 express renunciation, by disuse, or by acquiescence. It confers 
 a right to drop the water from the roof beyond the boundary 
 of the owner's property on to that of his neighbour. Of 
 course the extent of use cannot be increased. The servient 
 owner can do nothing to prejudice the right of servitude. 
 
 Where there are two eavesdrops, the space of 18 inches 
 must be left between the buildings, 9 inches being sufficient 
 where there is only one eavesdrop. 
 
 [APPENDIX.
 
 APPENDIX. 
 
 i. 
 
 THE PROFESSIONAL PRACTICE AS TO THE 
 CHARGES OF ARCHITECTS. 
 
 Schedule sanctioned by the Royal Institute of British Architects, 
 confirmed at a General Conference of Architects of the United 
 Kingdom, 1872, and revised by the Royal Institute, 1898. 
 
 1. The usual remuneration for an architect's services, except as Services covered 
 
 , . , , . . ..,.,, , , by commission, 
 
 hereinafter mentioned, is a commission of 5 per cent, on the total which is usually 
 cost of works executed under his directions. Such total cost is to 5 per cent ' 
 be valued as though executed by a builder with new materials. 
 This commission is for the necessary preliminary conferences and 
 sketches, approximate estimate when required (such, for instance, 
 as may be obtained by cubing out the contents), the necessary 
 general and detailed drawings and specifications, one set of trac- 
 ings, duplicate specification, general superintendence of works, and 
 examining and passing the accounts, exclusive of measuring and 
 making out extras and omissions. 
 
 2. This commission does not include the payment for services charges for 
 rendered in connection with negotiations relating to the site or incindedl^tbe 
 premises, or in supplying drawings to ground or other landlords, ^mission. 
 or in surveying the site or premises and taking levels, making 
 surveys and plans of buildings to be altered, making arrangements 
 
 in respect of party-walls and rights of light, or for drawings for and 
 correspondence with local and other authorities, or for services 
 consequent on the failure of builders to carry out the works, or for 
 services in connection with litigation or arbitration, or in the 
 measurement and valuation of extras and omissions. For such 
 services additional charges proportionate to the trouble involved 
 
 167
 
 1 68 
 
 APPENDIX. 
 
 Circumstances 
 justifying a 
 higher rate of 
 percentage. 
 
 Repetition in 
 some i 
 
 Charge for plans 
 
 tenders are 
 obtained ; also 
 for abandoned 
 work. 
 
 Charge for 
 material altera- 
 tion of design, 
 by time. 
 
 Architect entitled 
 to payment* on 
 
 account. 
 
 The niual charge 
 per day. 
 
 and time spent are made. The clerk of the works should be 
 appointed by the architect, his salary being paid by the client. 
 
 3. In all works of less cost than 1000, and in works requiring 
 designs for furniture and fittings of buildings, or for their decoration 
 with painting, mosaics, sculptxire, stained glass, or other like works, 
 and in cases of alterations and additions to buildings, 5 per cent, 
 is not remunerative, and the architect's charge is regulated by 
 special circumstances and conditions. 
 
 4. When several distinct buildings, being repetitions of one 
 design, are erected at the same time from a single specification and 
 one set of drawings and under one contract, the usual commission 
 is charged on the cost of one such building, and a modified arrange- 
 ment made in respect of the others ; but this arrangement does not 
 apply to the reduplication of parts in one building undertaking, in 
 which case the full commission is charged on the total cost. 
 
 5. If the architect should have drawn out the approved design, 
 with plans, elevations, sections, and specification, the charge is 
 2| per cent, upon the estimated cost. If he should have procured 
 tenders in accordance with the instruction of his employer, the 
 charge is | per cent, in addition. Two and a half per cent, 
 is charged upon any works originally included in the contract or 
 tender, but subsequently omitted in execution. These charges are 
 exclusive of the charge for taking out quantities. Preliminary 
 sketches and interviews, where the drawings are not further pro- 
 ceeded with, are charged for according to the trouble involved and 
 time expended. 
 
 6. Should the client, having approved the design and after the 
 contract drawings have been prepared, require material alterations 
 to be made, whether before or after the contract has been entered 
 into, an extra charge is made in proportion to the time occupied in 
 such alterations. 
 
 7. The architect is entitled during the progress of the works to 
 payment by instalments on account at the rate of 5 per cent, on the 
 amount of the certificates when granted, or, alternatively, on the 
 signing of the contract, to half the commission on the amount 
 thereof, and the remainder by instalments during their progress. 
 
 8. The charge per day depends upon an architect's professional 
 position, the minimum charge being three guineas. 
 
 9. The charge for taking a plan of an estate, laying it out, and 
 arranging for building upon it, is regulated by the time, skill, and 
 trouble involved.
 
 APPENDIX. 
 
 169 
 
 10. For setting out on an estate the position of the proposed road Estates (mt.). 
 or roads, taking levels, and preparing drawings for roads and sewers, 
 applying for the sanction of local authorities, and supplying all 
 necessary tracings for this purpose, the charge is 2 per cent, on the 
 estimated cost. For subsequently preparing working drawings and 
 specifications of roads and sewers, obtaining tenders, supplying one 
 
 copy of drawings and specification to the contractor, superintending 
 works, examining and passing accounts (exclusive of measuring and 
 valuing extras and omissions), the charge is 4 per cent, on the cost 
 of the works executed, in addition to the 2 per cent, previously 
 mentioned. 
 
 11. For letting the several plots in ordinary cases the charge is a 
 sum not exceeding a whole year's ground rent, but in respect of plots 
 of great value a special arrangement must be made. 
 
 12. For approving plans submitted by the lessee, and for inspecting 
 the buildings during their progress, so far as may be necessary to 
 ensure the conditions being fulfilled, and certifying for lease, the 
 charge is a percentage not exceeding 1^ per cent, up to .5000, and 
 above that by special arrangement. 
 
 13. For valuing freehold, copyhold, or leasehold property the Valuations, 
 charge is : 
 
 On 1000 . .1 per cent. 
 Thence to 10,000 . . \ 
 
 Above 10,000 . . ^ on residue. 
 In valuations for mortgage, if an advance is not made, one-third of 
 the above scale. The minimum fee is three guineas. 
 
 14. For valuing and negotiating the settlement of claims under 
 the Lands Clauses Consolidation Act or other A cts for the compulsory 
 acquisition of property, the charge is on Ryde's Scale, as follows : 
 
 On Amount of Settlement, whether by Verdict, Award, or otherwise. 
 
 Amount 
 
 Gs. 
 
 Amount 
 
 GP. 
 
 Amount 
 
 Gs. 
 
 Amount 
 
 Gs. 
 
 Amount 
 
 Gs. 
 
 Amount 
 
 Gs. 
 
 
 
 
 
 
 
 & 
 
 
 
 
 
 
 
 
 
 
 
 100 
 
 6 
 
 ; 1200 
 
 19 
 
 3200 
 
 29 
 
 5200 
 
 39 
 
 7200 
 
 49 
 
 9,200 
 
 59 
 
 200 
 
 7 
 
 1400 
 
 20 
 
 3400 
 
 30 
 
 5400 
 
 40 
 
 7400 
 
 50 
 
 9,400 
 
 60 
 
 300 
 
 9 
 
 1600 
 
 21 
 
 3600 
 
 31 
 
 5600 
 
 41 
 
 7600 
 
 51 
 
 9,600 
 
 61 
 
 400 
 
 11 
 
 1800 
 
 22 
 
 3800 
 
 32 
 
 5800 
 
 42 
 
 7800 
 
 52 
 
 9,800 
 
 62 
 
 500 
 
 13 
 
 2000 
 
 23 
 
 4000 
 
 33 
 
 6000 
 
 43 
 
 8000 
 
 53 
 
 10,000 
 
 63 
 
 600 
 
 14 
 
 2200 
 
 24 
 
 4200 
 
 34 
 
 6200 
 
 44 
 
 8200 
 
 54 
 
 11,000 
 
 68 
 
 700 
 
 15 
 
 2400 
 
 25 
 
 4400 
 
 35 
 
 6400 
 
 45 
 
 8400 
 
 55 
 
 12,000 
 
 73 
 
 800 
 
 16 
 
 2600 
 
 26 
 
 4600 
 
 36 
 
 6600 
 
 46 
 
 8600 
 
 56 
 
 14,000 
 
 83 
 
 900 
 
 17 
 
 2800 
 
 27 
 
 4800 
 
 37 
 
 6800 
 
 47 
 
 8800 
 
 57 
 
 16,000 
 
 93 
 
 1000 
 
 18 
 
 3000 
 
 28 
 
 5000 
 
 38 
 
 7000 
 
 48 
 
 9000 
 
 58 
 
 18,000 
 
 103 
 
 
 
 
 
 
 
 
 
 
 
 20,000 
 
 113 
 
 Beyond this Half-a-Guinea per cent.
 
 170 
 
 APPENDIX. 
 
 The above scale is exclusive of attendances on juries or umpires, or 
 at arbitrations, and also of expenses and preparation of plans. 
 
 Dilapidations. 15. For estimating dilapidations and furnishing or checking a 
 schedule of same, the charge is 5 per cent, on the estimate, but in no 
 case less than two guineas. For services in connection with settle- 
 ment of claim by arbitration or otherwise, extra charges are made, 
 under Clause 8. 
 
 Sanitary reports. 16. For inspecting, reporting, and advising on the sanitary con- 
 dition of premises, the charge must depend on the nature and extent 
 of the services rendered. 
 
 Travelling 
 expenses. 
 
 Quantities. 
 
 17. In all cases travelling and other out-of-pocket expenses are 
 paid by the client in addition to the fees. If the work is at such a 
 distance as to lead to an exceptional expenditure of time in travel- 
 ling, an additional charge may be made under Clause 8. 
 
 18. When an architect takes out and supplies to builders quanti- 
 ties on which to form estimates for executing his designs, he should 
 do so with the concurrence of his client, and it is desirable that the 
 architect should be paid by him rather than by the builder, the cost 
 of such quantities not being included in the commission of 5 per 
 cent. 
 
 II. 
 
 Stamp 
 tobe 
 
 Itfrf. 
 
 ( Pill in short 
 particulars of 
 proposed work.] 
 
 BUILDING CONTRACT. 
 
 The General Conditions annexed being those agreed in 1870 between 
 tJie Royal Institute of British Architects and the Builders 1 Society, 
 but corrected as necessary in the references to Acts of Parliament 
 and Authorities passed or constituted since that date.* 
 
 ARTICLES OP AGREEMENT made the day of 190 
 
 BETWEEN of in the County of 
 
 (hereinafter and in the General Conditions hereinafter mentioned 
 called " the Employer ") of the one part and of 
 
 in the County of (hereinafter and in the said General 
 
 Conditions called " the Contractor ") of the other part WHEREAS the 
 employer is desirous of * 
 
 * This Form of Agreement and Conditions for Building Contracts can be 
 obtained at the Institute of Builders, 31 and 32 Bedford Street, Strand, 
 London, W.C.
 
 APPENDIX. 171 
 
 and has caused drawings and a specification describing the work 
 required to be done to be prepared by of Architect 
 
 and such drawings numbered 1 to inclusive and the specifica- 
 
 tion marked A have been signed by or on behalf of the parties 
 hereto. 
 
 AND WHEREAS the contractor has proposed to execute the works 
 shown upon the said drawings and included in the said specification 
 upon and subject to the General Conditions hereunto annexed (here- 
 inafter called the said General Conditions) for the sum of 
 
 Now IT is HEREBY AGREED by and between the parties hereto as 
 follows : 
 
 1. In consideration of the sum of to be paid to the con- 
 
 tractor in the manner and at the respective times provided by 
 the said General Conditions the contractor will upon and 
 subject to such General Conditions execute and complete the 
 work shown upon the said drawings and described in the said 
 specification in all respects in accordance with the provisions 
 and stipulations therein and in the said General Conditions 
 contained. 
 
 2. The employer will pay to the contractor the said sum of 
 
 or such other sum as shall become payable under these presents 
 at the respective times and in the manner specified by the 
 said General Conditions. 
 
 3. The term " the Architect " used in the said General Con- 
 
 ditions shall mean the said or in the event of his 
 
 death or ceasing to be the architect for the purpose of 
 these presents such other architect as shall in writing be 
 nominated for that purpose by the employer not being 
 a person to whom the contractor may reasonably object 
 Provided nevertheless that no person so nominated as afore- 
 said shall be entitled to disregard or overrule any decision 
 approval or direction given or expressed by any person 
 previously holding the position of architect under this Agree- 
 ment. 
 
 4. The said General Conditions hereto annexed shall be read and 
 
 construed as forming part of this Agreement and the parties 
 hereto will respectively abide by and submit themselves to 
 the Conditions and stipulations and perform the Agree- 
 ments on their parts respectively in such conditions con- 
 tained.
 
 172 
 
 APPENDIX. 
 
 As WITNESS the hands of the parties the day and year first above 
 written. 
 
 Signed by the said 
 
 iit the presence of 
 
 Signed by the said 
 
 in the presence of 
 
 GENERAL CONDITIONS. 
 
 1. The contractors are to provide everything of every sort and 
 kind which may be necessary and requisite for the due and proper 
 execution of the several works included in the contract according to 
 the true intent and meaning of the drawings and specification taken 
 together, which are to be signed by the architect and the contractors, 
 whether the same may or may not be particularly described in the 
 specification or shown on the di-awings, provided that the same are 
 reasonably and obviously to be inferred therefrom, and in case of 
 any discrepancy between the drawings and the specification, the 
 architect is to decide which shall be followed. 
 
 2. The contractors are to conform in all respects to the provisions 
 and regulations of the Metropolis Local Management Act and the 
 London Building Act, 1894, and to any statutory amendments 
 thereto respectively, and to the regulations and bye-laws of the 
 London County Council or of the County or District Council in 
 whose area or district the site of the works is situated, and of the 
 Local Authorities, and they are to give all notices required by the 
 said Acts or regulations or bye-laws to be given to any local authori- 
 ties, and to pay all fees payable under any of the said Acts or
 
 APPENDIX. 173 
 
 regulations or bye-laws to any such authorities, or to any public 
 officer in respect of the works. 
 
 3. The contractors are to set out the whole of the works, and 
 during the progress of the works to amend, on the requisition of the 
 architect, any errors which may arise therein, and upon request are 
 to provide the necessary appliances, or furnish the necessary vouchers 
 to prove that the several materials are such as are described. The 
 contractors are to provide all plant, labour, and materials, which 
 may be necessary and reqiiisite for the works ; all materials and 
 workmanship being the best of their respective kinds ; and the con- 
 tractors are to leave the works in all respects clean and perfect at 
 the completion thereof. 
 
 4. Complete copies of the drawings and specification signed by 
 the architect are to be furnished by him or by the measuring sur- 
 veyor to the contractors for their own use, and the same or copies 
 thereof are to be kept on the buildings in charge of a competent 
 foreman, who is to be constantly kept on the ground by the con- 
 tractors, and to whom instructions can be given by the architect. 
 The contractors are not to sublet the works, or any part thereof, 
 without the consent in writing of the architect. 
 
 5. The architect is to have at all times access to the works, which 
 are to be entirely under his control. He may require the contractors 
 to dismiss any person in the contractors' employ upon the works who 
 may be incompetent or misconduct himself, and the contractors are 
 forthwith to comply with such requirement. 
 
 6. The contractors are not to vary or deviate from the drawings 
 or specification, or execute any extra work of any kind whatsoever, 
 unless the same be required to comply with any of the provisions of 
 any of the Acts of Parliament, regulations or bye-laws hereinbefore 
 mentioned, or referred to, or unless upon the authority of the archi- 
 tect, to be sufficiently shown by any order in writing, or by any plan 
 or drawing expressly given and signed or initialed by him as an extra 
 or variation, or by any subsequent written approval signed or initialed 
 by him. In cases of day woi'k, all vouchers for the same are to be de- 
 livered to the architect or clerk of the works, at latest during the week 
 following that in which the work may have been done, and only such 
 day work is to be allowed for, as such, as may have been authorised 
 by the architect to be so done, unless the work cannot from its char- 
 acter be properly measured and valued. 
 
 7. Any authority given by the architect for any alteration or
 
 174 APPENDIX, 
 
 addition in or to the works is not to vitiate the contract, but all 
 additions, omissions or variations, made in carrying out the works 
 for which a price may not have been previously agreed upon, are to 
 be measured and valued, and certified for by the architect, and added 
 to or deducted from the amount of the contract, as the case may be, 
 according to the schedule of prices annexed, or where the same may 
 not apply at fair measure and value. 
 
 8. All work and materials brought aud left upon the ground by 
 the contractors, or by their order, for the purpose of forming part of 
 the works, are to be considered to be the property of the employer, 
 when payment shall have been made of the amount of any certificate 
 in which the value thereof shall be included, and in such case the 
 same are not to be removed or taken away by the contractors, or any 
 other person, without the special license and consent of the architect ; 
 but the employer is not to be in any way answerable for any loss or 
 damage which may happen to, or in respect of, any such work or 
 materials either by the same being lost or stolen, or injured by 
 weather or otherwise. 
 
 9. The architect is to have full power to require the removal from 
 the premises of all materials which in his opinion are not in accord- 
 ance with the specification, and in case of default, the employer is to 
 be at liberty to employ other persons to remove the same without 
 being answerable or accountable for any loss or damage that may 
 arise or happen to such materials ; and the architect is also to have 
 full power to require other proper materials to be substituted ; and 
 in case of default, the employer may cause the same to be supplied, 
 and all costs which may attend such removal and substitution are to 
 be borne by the contractors. 
 
 10. Should any of the works be, in the opinion of the architect, 
 executed with improper materials or defective workmanship, the 
 contractors are, when required by the architect, during the progress 
 of the work, forthwith to re-execute the same, and to substitute 
 proper materials and workmanship, and, in case of default of the 
 contractors in so doing within a reasonable time, the architect is to 
 have full power to employ other persons to re-execute the work, and 
 the cost thereof is to be borne by the contractors. 
 
 11. Any defects, shrinkage, and other faults which may appear 
 within months from the completion of the building, and 
 arising out of defective or improper materials or workmanship, are, 
 upon the direction of the architect, to be amended and made good by 
 the contractors at their own cost, unless the architect shall decide
 
 APPENDIX. 175 
 
 that they ought to be paid for the same, and, in case of default, the 
 employer may recover from the contractors the cost of making good 
 the works. 
 
 12. The contractors are to insure the building against loss or 
 damage by fire, in an office to be approved in the joint names of the 
 employer and contractors for half the value of the works executed 
 until it shall be covered in, and thenceforth until completion, in three- 
 fourths of the amount of such value, and are, upon request, to pro- 
 duce to the architect the policies and the receipts for the premiums 
 for such insurance. All moneys received under any such policies 
 are to be applied in or towards the rebuilding or reparation of the 
 works destroyed or injured. In case of neglect the employer is to be 
 at liberty to insure and deduct the amount of the premiums paid 
 from any moneys payable to the contractors. 
 
 13. The building, from the commencement of the works to the 
 completion of the same, is to be under the contractors' charge ; they 
 are to be held responsible for, and are to make good, all injuries, 
 damages, and repairs occasioned or rendered necessary to the same, 
 by fire or causes over which the contractors shall have control, and 
 they are to hold the employer harmless from any claims for injuries 
 to persons or for structural damage to property happening from any 
 neglect, default, want of proper care, or misconduct on the part of 
 the contractors, or of anyone in their employ, during the execution of 
 the works. 
 
 14. The employer is at all times to have free access to the works, 
 and is to have full power to send workmen upon the premises to 
 execute fittings and other works not included in the contract, for 
 whose operations the contractors are to afford every reasonable 
 facility during ordinary working hours, provided that such operations 
 shall be carried on in such a manner as not to impede the progress 
 of the works included in the contract, but the contractors are not to 
 be responsible for any damage which may happen to or be occasioned 
 by any such fittings or other works. 
 
 15. The contractors are to complete the whole of the works 
 (except painting and papering, or such other works as the architect 
 may desire to delay) within calendar months after the 
 commencement of the same, unless the works be delayed by reason 
 of any inclement weather, or causes not under the contractors' con- 
 trol, or in case of combination of workmen, or strikes, or lock-out, 
 affecting any of the building trades, for which due allowance shall be 
 made by the architect, and then the contractors are to complete the
 
 176 APPENDIX. 
 
 works within such time as the architect shall consider to be reason- 
 able, and shall from time to time, in writing, appoint, and in case of 
 default, the contractors are to pay or allow to the employer as and 
 by way of liquidated and agreed damages, the sum of per 
 
 week for every week during which they shall be so in default, until 
 the whole of the works (except as aforesaid) shall be so completed, 
 provided the architect shall in writing certify that the works could 
 have been reasonably completed within the time appointed. 
 
 16. If the contractors shall become bankrupt, or compound with 
 or make any assignment for the benefit of their creditors, or shall 
 suspend or delay the performance of their part of the contract 
 (except on account of causes mentioned in clause 15, or on account 
 of being restrained or hindered under any proceedings taken by 
 parties interested in any neighbouring property, or in consequence of 
 not having proper instructions, for which the contractors shall have 
 duly applied), the employer, by the architect, may give to the con- 
 tractors or their assignee or trustee, as the case may be, notice 
 requiring the works to be proceeded with, and in case of default on 
 the part of the contractors or their assignee or trustee for a period 
 of days, it shall be lawful for the employer, by the architect, 
 to enter upon and take possession of the works, and to employ any 
 other person or persons to carry on and complete the same, and to 
 authorise him or them to use the plant, materials, and property of 
 the contractors upon the works, and the costs and charges incurred 
 in any way in carrying on and completing the said works are to be 
 paid to the employer by the contractors, or may be set off by the 
 employer against any money due, or to become due, to the contractors. 
 
 17. When the value of the works executed and not included in 
 any former certificate shall from time to time amount to the sum of 
 , or otherwise, at the architect's reasonable discretion, the 
 contractors are to be entitled to receive payment at the rate of 80 
 per cent, upon such value until the difference between the percentage 
 and the value of the works executed shall amount to per 
 cent, upon the amount of the contract, after which time the con- 
 tractors are to be entitled to receive payment of the full value of all 
 works executed and not included in any former payment, and the 
 architect is to give to the contractors certificates accordingly, and 
 when the works shall be completed, or possession of the building 
 shall be given up to the employer, the contractors are to be entitled 
 to receive one moiety of the amount remaining due, according to the 
 best cst i mat of the same that can then be made, and the architect
 
 APPENDIX. 177 
 
 in to give to the contractors certificates accordingly, and the con- 
 tractors are to be entited to receive the balance of all moneys due or 
 payable to them under or by virtue of the contract within 
 months from the completion of the works, or from the date of giving 
 up possession thereof to the employer, whichever shall first happen. 
 The contractors are to be entitled to receive any sum reserved for 
 painting and papering, or otherwise, on the completion thereof. 
 Provided always that no final or other certificate is to cover or 
 relieve the contractors from their liability under the provisions 
 of clause No. 11, whether or not the same be notified by the 
 architect at the time or subsequently to granting any such cer- 
 tificate. 
 
 18. A certificate of the architect, or an award of the referee 
 hereinafter referred to, as the case may be, showing the final balance 
 due or payable to the contractors is to be conclusive evidence of 
 the works having been duly completed, and that the contractors are 
 entitled to receive payment of the final balance, but without pre- 
 judice to the liability of the contractors under the provisions of 
 Clause No. 11. 
 
 19. If the employer shall make default in paying any moneys to 
 which the contractors may become entitled, for days after 
 the amount thereof shall have been certified, or if the works be 
 delayed for months by or under any proceedings taken by 
 any other parties, the contractors are to be at liberty to suspend the 
 works, and to require payment for all works executed and all 
 materials wrought up, and for any loss which they may sustain upon 
 any goods or materials purchased for the works, and in such case the 
 contractors are not to be bound to proceed further with the works con- 
 tracted for. The contractors are to be entitled to such interest and 
 at such rate as the architect shall certify upon all moneys payable to 
 the contractors, payment of which may have been unduly delayed. 
 
 20. Provided always that in case any question, dispute, or differ- 
 ence shall arise between the employer, or the architect on his behalf, 
 and the contractors as to what additions, if any, ought in fairness to 
 be made to the amount of the contract by reason of the works being 
 delayed through no fault of the contractors, or by reason or on 
 account of any directions or requisitions of the architect involving 
 increased cost to the contractors beyond the cost properly attending 
 the carrying out the contract according to the true intent and 
 meaning of the signed drawings and specification, or as to the 
 works having been duly completed, or as to the construction 
 
 12
 
 178 APPENDIX. 
 
 of these presents, or as to any other matter or thing arising 
 under or out of this contract except as to matters left during 
 the progress of the works to the sole decision or requisition of the 
 architect under Clauses Nos. 1, 9, and 10, or in case the contractors 
 shall be dissatisfied with any certificate of the architect under Clause 
 No. 7, or under the proviso in Clause No. 15, or in case he shall 
 withhold or not give any certificate to which they may be entitled, 
 then such question, dispute or difference, or such certificate, or 
 the value or matter which should be certified, as the case may be, 
 is to be from time to time referred to the arbitration and final 
 decision of architect, or in the event of his death or unwill- 
 
 ingness to act, then of architect, or in the event of his 
 
 death or unwillingness to act, then of an architect, being a Fellow 
 of the Royal Institute of British Architects, to be appointed on the 
 request of either party, by the president for the time being of such 
 institute, and the award of such referee is to be equivalent to a 
 certificate of the architect, and the contractors are to be paid 
 accordingly. 
 
 21. Upon every or any such reference the costs of and incidental 
 to the reference and award respectively shall be in the discretion of 
 the referee or arbitrator, who may determine the amount thereof, 
 or direct the same to be taxed, as between solicitor and client, or as 
 between party and party, or otherwise, and may award and direct 
 by whom and to whom and in what manner the same shall be borne 
 and paid, and this submission shall for all purposes be deemed a 
 submission to arbitration within the meaning of the Arbitration Act, 
 1889. 
 
 ARBITRATION CLAUSE. 
 
 The following is the arbitration clause recommended by the 
 Institute of Builders to be used with the form of contract now being 
 issued by the Royal Institute of British Architects, and dated May, 
 1901 : 
 
 "Provided always that in case any dispute or difference shall arise 
 between the employer or the architect on his behalf and the contractors 
 either during the progress of the work or after an entry under Clause 26, 
 or after the determination, abandonment, or breach of the contract, as to 
 the construction of the contract, or as to any matter or thing arising there- 
 under, including and in addition (a) the right to exercise, and the exercise 
 by the architect or the employer of any power conferred upon them or 
 either of them (except as to the matters left during the progress of the
 
 APPENDIX. 179 
 
 works to the sole discretion of the architect under Clauses 4, 9, and 19, and 
 the exercise by him under Clause 18 of the right to have any work opened 
 up) ; (6) the withholding by the architect of any certificate or decision or 
 the failure to express any opinion or approval to which the contractors 
 shall claim to be entitled under the contract ; (c) the nature, terms, and 
 reasonableness or otherwise of any certificate, finding, decision, requisition, 
 or opinion of the architect under the contract, and the time of the giving 
 thereof, as to which the contractors shall be dissatisfied (except those 
 relating to the matters and the right excepted above) ; (d) as to what 
 additions (if any) ought in fairness to be made to the amount of the con- 
 tract by reason of the works being interfered with, delayed or stopped, 
 either through no fault of the contractors or by any fault or default of the 
 employer or any of his representatives, or by reason or on account of any 
 decision, direction, or requisition of the architect, or failure on the part of 
 the architect to give any decision or direction involving increased cost to 
 the contractors beyond the cost properly attending the carrying out of the 
 contract according to the true intent and meaning of the signed drawings 
 and specification but without prejudice to Clause 12 hereof ; (e) any claim 
 by the contractors for work done or goods supplied in connection with the 
 works, though outside the contract, and all other claims of whatever kind 
 by the contractors on the employer in connection with the subject matter 
 or arising out of this contract or any breach thereof, such dispute or differ- 
 ence shall be and is hereby referred to the arbitration and final decision of 
 ; or in the event of his death or unwillingness or inability to act, 
 of ; or in the event of his death, unwillingness, or inability to act, 
 
 of a person to be appointed on the request of either party by the president 
 for the time being of the Royal Institute of British Architects, and the 
 award of such arbitrator shall be final and binding on the parties. No 
 matter or thing (except as aforesaid) shall be deemed to be concluded by 
 the terms of any certificate, opinion, decision, requisition, or notice given 
 by the architect, and the arbitrator shall have power to open up and review 
 any such certificate, opinion, decision, requisition, and notice (save in 
 regard to the said matters expressly excepted above), and to determine all 
 matters in dispute which shall be submitted to him, whether such certificate, 
 opinion, decision, requisition, or notice has been acted upon or complied 
 with or not, and if acted upon or complied with by the contractors to deter- 
 mine the amount payable to the contractors in consequence thereof. Upon 
 every or any such reference the costs of and incidental to the reference and 
 award respectively shall be in the discretion of the arbitrator, who may 
 determine the amount thereof or direct the same to be taxed as between 
 solicitor and client or as between party and party, and shall direct by 
 whom and to whom and in what manner the same shall be borne and paid. 
 This submission shall be deemed to be a submission to arbitration within 
 the meaning of the Arbitration Act, 1889."
 
 i8o APPENDIX. 
 
 III. 
 BUILDING CONTRACT. 
 
 stamp ARTICLES OF AGREEMENT * made the day of 
 
 affixed 19 BETWEEN of in the County of 
 
 (hereinafter called "the Employer") of the one part 
 
 and of and of in the County of 
 
 Builder f (hereinafter called " the Contractor ") of 
 
 the other part. WHEREAS the employer is desirous of at 
 
 and has caused drawings and a specification describing the 
 
 work to be done to be prepared by of , his architect : 
 
 AND WHEREAS the said drawings numbered 1 to inclusive 
 
 and the Specification marked " A " have been signed by or on behalf 
 
 of the parties hereto : AND WHEREAS the contractor has agreed to 
 
 execute upon and subject to the Conditions set forth in the Schedule 
 
 hereto (hereinafter referred to as " the said Conditions ") the works 
 
 shown upon the said drawings and described in the said specification 
 
 for the sum of 
 
 NOW IT IS HEREBY AGREED AS FOLLOWS : 
 
 1. In consideration of the sum of to be paid at the times 
 
 and in the manner set forth in the said Conditions, the con- 
 tractor will upon and subject to the said Conditions execute 
 and complete the works shown upon the said drawings and 
 described in the said specification. 
 
 2. The employer will pay the contractor the said sum of 
 
 or such other sum as shall become payable hereunder at the 
 times and in the manner specified in the said Conditions. 
 
 3. The term " the Architect " in the said Conditions shall mean 
 
 the said or, in the event of his death or ceasing to be 
 
 the architect for the purpose of this contract, such other person 
 as shall be nominated for that purpose by the employer, not 
 being a person to whom the contractor shall object for 
 reasons considered to be sufficient by the arbitrator mentioned 
 in the said Conditions. Provided always that no person 
 
 * Thia Form of Agreement and Conditions for Building Contracts can be 
 obtained from the Secretary, the Institute of Builders, 31 and 32 Bedford Street , 
 Strand, London, W.C. Price Is. each. 
 
 t Insert " s and co-partners " if such is the fact 
 
 State nature of intended works.
 
 APPENDIX. 
 
 181 
 
 subsequently appointed to be architect under this contract 
 shall be entitled to disregard or overrule any decision or 
 approval or direction given or expressed by the architect for 
 the time being. 
 
 4. Any reference in the said Conditions to the bills of quantities 
 
 shall not have the effect of constituting them part of this contract. 
 
 5. The said Conditions shall be read and construed as forming 
 
 part of this Agreement, and the parties hereto will respec- 
 tively abide by and submit themselves to the conditions and 
 stipulations and perform the agreements on their parts 
 respectively in such conditions contained. 
 
 As WITNESS our hands this day of 19 
 
 Signed by the said 
 
 in the presence of 
 
 Signed by the said 
 
 in the presence of 
 
 SCHEDULE OF CONDITIONS. 
 
 1. The works shall be carried out in accordance with the directions Drawings and 
 and to the reasonable satisfaction of the architect in accordance with 
 the said drawings and specification, and in accordance with such 
 further drawings, details, and instructions in explanation of the 
 same as may from time to time be given by the architect. If the 
 work shown on any such further drawings or details, or necessary 
 to comply with any such instructions, directions, or explanations be,
 
 1 82 APPENDIX. 
 
 in the opinion of the contractor, in excess of that comprised in 
 the contract, he shall, before proceeding with such work, give notice 
 in writing to this effect to the architect. In the event of the 
 architect and contractor failing to agree as to whether or not there 
 is any excess, and of the architect deciding that the contractor is 
 to carry out the said work, the contractor shall accordingly do so, 
 and the question whether or not there is any excess, and if so the 
 amount thereof shall, failing agreement, be settled by the arbitrator 
 as provided in Clause 32, and the contractor shall be paid accord- 
 ingly. The contract drawings and specification shall remain in the 
 custody of the architect, and shall be produced by him at his office 
 as and when required by the employer or by the contractor. 
 
 Copies of 2. One complete copy of all drawings and of the specification 
 
 .SSStion d shall be furnished by the architect free of cost to the contractor for 
 his own use. The architect shall furnish to the contractor, within 
 days after the receipt by him of a request for the same, any 
 details which in the opinion of the architect are necessary for the 
 execution of any part of the work, such request to be made only 
 within a reasonable time before it is necessary to execute such work 
 in order to fulfil the contract. Such copies and details shall be kept 
 on the works until the completion thereof, and the architect or his 
 representative shall at all reasonable times have access to the same, 
 and they shall be returned to the architect by the contractor on the 
 completion of the contract. 
 
 Copy of estimate. 3. The contractor shall on the signing hereof furnish the architect 
 with a verified * copy of the original estimate for his sole 
 
 use or that of the surveyor appointed as in Clause 13 hereof, and 
 for the purposes only of this agreement. 
 
 Contractor to 4. The contractor shall provide everything necessary for the 
 
 thin? necewary. proper execution of the works, according to the true intent and 
 meaning of the drawings and specification taken together, whether 
 the same may or may not be particularly shown on the drawings or 
 described in the specification, provided that the same is reasonably 
 to be inferred therefrom ; and if the contractor find any discrepancy 
 in the drawings, or between the drawings and specification, he shall 
 immediately refer the same to the architect, who shall decide which 
 shall be followed. Figured dimensions are to be followed in pre- 
 ference to the scale. 
 
 Local and other 5. The contractor shall conform to the provisions of any Acts of 
 
 anthc.riti.-i! ; 
 
 Notice., Ac. 
 
 * The word " Healed " to be inserted if so agreed.
 
 APPENDIX. 183 
 
 Parliament relating to the works, and to the regulations and bye-laws 
 of any local authority, and of any water and lighting companies with 
 whose systems the structure is proposed to be connected, and shall, 
 before making any variation from the drawings or specification that 
 may be necessitated by so conforming, give to the architect written 
 notice, specifying the variation proposed to be made, and the reason 
 for making it, and apply for instructions thereon. In case the 
 contractor shall not in due course receive such instructions he shall 
 proceed with the work, conforming to the provision, regulation, or 
 bye-law in question, and any variation so necessitated shall be dealt 
 with under Clause 13. The contractor shall give all notices required 
 by the said Acts, regulations, or bye-laws to be given to any local 
 authority, and pay all fees payable to any such authority, or to any 
 public officer in respect of the works. 
 
 6. The contractor shall set out the works, and during the progress Setting out of 
 of the building shall amend at his own cost any errors arising from 
 inaccurate setting out, unless the architect shall decide to the con- 
 trary. 
 
 7. All materials and workmanship shall be of the respective kinds Materials, &c., 
 
 f , to conform to 
 
 described in the specification, and the contractor shall upon the specification, 
 request of the architect furnish him with vouchers to prove that the 
 materials are such as are specified. 
 
 8. The contractor shall keep constantly on the works a competent Foreman, 
 general foreman, and any directions or explanations given by the 
 architect to such foreman shall be held to have been given to the 
 contractor. 
 
 9. The contractor shall, on the request of the architect, immedi- Dismissal of 
 
 , . workmen by 
 
 ately dismiss from the works any person employed thereon by him architect, 
 who may, in the opinion of the architect, be incompetent or mis- 
 conduct himself, and such person shall not be again employed on the 
 works without the permission of the architect. 
 
 10. The architect and any person authorised by him shall at all 
 reasonable times have access to the works, and the architect and his works, 
 representatives shall at like times have access to the workshops of 
 
 the contractor or other places where work is being prepared for the 
 building. 
 
 11. The clerk of works shall be considered to act solely as cierk of works, 
 inspector and under the architect, and the contractor shall afford 
 
 him ever)' facility for examining the works and materials.
 
 1 84 
 
 APPENDIX. 
 
 Variations and 
 extras. 
 
 12. The contractor shall, when authorised by the architect or as 
 provided by Clause 5, vary by way of extra or omission from the 
 drawings or specification, such authorisation is to be sufficiently 
 proved by any writing or drawing given by the architect or by any 
 subsequent written approval by him. No claim for an extra shall 
 be allowed unless it shall have been executed under the provisions of 
 Clause 5, or by the authority of the architect as herein mentioned. 
 Any such extra is hereinafter referred to as an authorised extra. 
 
 13. No variation shall vitiate the contract ; but all authorised 
 extras for which a price may not have been previously agreed, and 
 any omission which may have been made with the knowledge of the 
 architect, or without his knowledge, provided he subsequently give 
 a written sanction to such omission, shall be measured and valued, 
 as hereinafter provided, by * ; and a copy of such measure- 
 ment and valuation shall be given to the contractor. The fees for 
 so measuring and valuing the variations shall be added to the con- 
 tract sum. If in the opinion of the architect the work cannot be 
 properly measured and valued, day work prices shall be allowed 
 therefor, provided that vouchers specifying the time and materials 
 employed shall have been delivered for verification to the architect, 
 or his nominee, at or before the expiration of the week following 
 that in which such work shall have been done. The variations shall 
 be valued at the rates contained in the contractor's original estimate, 
 or, where the same may not apply, at rates proportionate to the 
 prices therein contained. The amount to be allowed on either side 
 in respect of the variations so ascertained shall be added to or 
 deducted from the contract sum as the case may be. 
 
 114. The fees for the bills of quantities and the surveyor's 
 expenses (if any) stated therein shall be paid by the contractor to 
 the surveyor named therein out of and immediately after receiving 
 the amount of the certificate or certificates in which they shall be 
 included. The fees chargeable under Clause 1 3 shall be paid by the 
 contractor before the issue by the architect of the certificate for the 
 final payment. If the contractor fails or neglects to pay as herein 
 provided, then the employer shall be at liberty, and is hereby 
 authorised, to do so on the certificate of the architect, and the 
 amount so paid by the employer shall be deducted from the amount 
 otherwise due to the contractor. 
 
 * Insert " the architect," or the name of a surveyor. 
 
 t In cases where the surveyor is engaged by the employer to be paid direct by 
 him this clause will come out.
 
 APPENDIX. 185 
 
 15. When the contractor shall have received payment of any unfixed 
 certificate in which the architect shall have stated that he has taken 
 
 into account the value of any unfixed materials intended for the 
 works, and placed by the contractor thereon, or upon ground employer, 
 adjacent thereto, all such materials shall become the property of the 
 employei 1 , and shall not be taken away, except for the purpose of 
 being used on the building, without the written authority of the 
 architect ; and the contractor shall be liable for any loss of or 
 damage to such materials. 
 
 16. The architect shall, during the progress of the works, have Power to 
 power to order in writing from time to time the removal from the order removal 
 works, within such reasonable time or times as may be specified in work?* 1 "* 
 the order, of any materials which in the opinion of the architect are 
 
 not in accordance with the specification or the instructions of the 
 architect, the substitution of proper materials, and the removal and 
 proper re-execution of any work executed with materials or work- 
 manship not in accordance with the drawings and specification or 
 instructions ; and the contractor shall forthwith carry out such order 
 at his own cost. In case of default on the part of the contractor to 
 carry out such order, the employer shall have power to employ and 
 pay other persons to carry out the same ; and all expenses con- 
 sequent thereon or incidental thereto shall be borne by the con- 
 tractor, and shall be recoverable from him by the employer, or may 
 be deducted by him from any moneys due or that may become due 
 to him. 
 
 17. Any defects, shrinkage, or other faults which appear within Defects after 
 
 months from the completion of the works, arising in the 
 opinion of the architect from materials or workmanship not in accor- 
 dance with the drawings and specification or the instructions of the 
 architect, or any damage to pointing by frost appearing within the 
 like period, shall upon the directions in writing of the architect, and 
 within such reasonable time as shall be specified therein, be amended 
 and made good by the contractor at his own cost, unless the architect 
 shall decide that he ought to be paid for the same ; and in case of 
 default the employer may employ and pay other persons to amend 
 and make good such defects, shrinkage, or other faults or damage, 
 and all expenses consequent thereon or incidental thereto shall be 
 borne by the contractor and shall be recoverable from him by the 
 employer, or may be deducted by him from any moneys due or that 
 may become due to the contractor. Should any defective work have 
 been done or material supplied by any sub-contractor employed on
 
 1 86 
 
 APPENDIX. 
 
 Work to be 
 opened up at 
 request of 
 architect. 
 
 Assignment or 
 sab-letting. 
 
 Sub-contractor". 
 
 the works who has been nominated or approved by the architect, the 
 contractor shall be liable to make good in the same manner as if 
 such work or material had been done or supplied by the contractor, 
 and been subject to the provisions of this and the preceding clause. 
 
 18. The contractor shall, at the request of the architect, within 
 such time as the architect shall name, open for inspection any work 
 covered up ; and should the contractor refuse or neglect to comply 
 with such request, the architect may employ other workmen to open 
 up the same. If the said work has been covered up in contravention 
 of the architect's instructions, or if on being opened up it be found 
 not in accordance with the drawings and specification or the instruc- 
 tions of the architect, the expenses of opening and covering it up 
 again, whether done by the contractor or such other workmen, shall 
 be borne by, and recoverable from, the contractor, or may be 
 deducted as aforesaid. If the work has not been covered up in con- 
 travention of such instructions, and be found in accordance with the 
 said drawings and specification or instructions, then the expenses 
 aforesaid shall be borne by the employer and be added to the contract 
 sum : provided always that in the case of foundations, or of any 
 other urgent work so opened up and requiring immediate attention, 
 the architect shall, within a reasonable time after receipt of notice 
 from the contractor that the work has been so opened, make or cause 
 the inspection thereof to be made, and at the expiration of such 
 time, if such inspection shall not have been made, the contractor may 
 cover up the same, and shall not be required to open it up again for 
 inspection except at the expense of the employer. 
 
 19. The contractor shall not, without the written consent of the 
 architect, assign this agreement or sublet any portion of the works. 
 
 20. All specialists, merchants, tradesmen, or others executing 
 any work or supplying any goods for which prime cost prices or 
 provisional sums are included in the specification, who may at any 
 time be nominated, selected, or approved by the architect, are 
 hereby declared to be sub-contractors employed by the contractor ; 
 but no such sub-contractor shall be employed upon the works against 
 whom the contractor shall make what the architect considers reason- 
 able objection, or who will not enter into a contract with the con- 
 tractor upon terms and conditions consistent with those in this 
 contract, and securing the due performance, and maintenance of the 
 work supplied or executed by such sub-contractor, and indemnifying 
 the contractor against any claims arising out of the misuse by the 
 sub-contractor or his workmen of any scaffold erected or plant
 
 APPENDIX. 187 
 
 employed by the contractor, or that may be made against the con- 
 tractor in consequence of any act, omission, or default of the sub- 
 contractor, his servants or agents, and against any liability under 
 the Workmen's Compensation Act, 1897, or any amendment thereof. 
 
 21. The contractor shall be responsible for all structural and Damage to 
 decorative damage to property, and for injury caused by the works property" 
 or workmen to persons, animals, or things, and shall hold the 
 employer harmless in respect thereof, and also in respect of any 
 claim made under the Workmen's Compensation Act, 1897, or any 
 amendment thereof, by any person in the employ of the contractor. 
 He shall also be responsible for all injuries caused to the buildings, 
 the subject of this contract, by frost or other inclemency of weather, 
 and shall re-instate all damage caused by the same, and thoroughly 
 complete the whole of the works. 
 
 * 22. (a) The contractor shall insure the works, and keep them insurance. 
 insured until they are delivered up, against loss or damage by fire, 
 
 in an office to be approved by the architect, in the joint names of 
 the employer and contractor, for the full value of the works executed, 
 and shall deposit with the architect the policies and receipts for the 
 premiums paid for such insurance ; and in default the employer may 
 insure the works and deduct the premium paid from any moneys 
 due or which may become due. All moneys received under any 
 such policies are to be paid to the contractor by instalments on the 
 certificates of the architect, and to be applied in or towards the 
 rebuilding or reparation of the works destroyed or injured. The 
 contractor shall, as soon as the claim under the policy is settled, 
 proceed with all due diligence with the rebuilding or reparation, and 
 shall not be entitled to any payment in respect thereof other than 
 the said moneys received, but such extension of the time hereinafter 
 mentioned for completion shall be made as shall be just and reason- 
 able. (6) The whole building and the works executed under this 
 contract shall be at the sole risk of the employer as regards any loss 
 or damage by fire, and in the event of any such loss or damage being 
 so occasioned which affects the original building or structure in 
 addition to the new work, the contractor shall be entitled to receive 
 from the employer the full value of all work then executed and 
 materials then delivered, calculated in the manner provided for by 
 Clause 13 hereof, and this contract, so far as it relates to any sub- 
 
 * In this clause division (a) applies to a new building, and division (6) to an 
 existing building to be altered, (a) or (b) should be struck out to suit circum- 
 stances.
 
 1 88 APPENDIX. 
 
 sequent work, may at the option of either party be determined if in 
 the opinion of the arbitrator such determination shall be just and 
 equitable. 
 
 Date of 23. Possession of the site (or premises) shall be given to the con- 
 
 completion. 
 
 tractor on or betore the day of . He shall begin 
 
 the works immediately after such possession, shall regularly proceed 
 with them, and shall complete the same (except painting and paper- 
 ing or other decorative work which in the opinion of the architect it 
 may be desirable to delay) by the day of , subject 
 
 nevertheless to the provisions for extension of time hereinafter con- 
 tained. 
 
 Damages for 24. If the contractor fail to complete the works by the date 
 ' named in Clause 23, or within any extended time allowed by the 
 architect under these presents, and the architect shall certify in 
 writing that the works could reasonably have been completed by the 
 said date, or within the said extended time, the contractor shall pay 
 or allow to the employer the sum of sterling per * 
 
 as liquidated and ascertained damages for every * beyond 
 
 the said date or extended time, as the case may be, during which 
 the works shall remain unfinished, except as provided by Clause 23, 
 and such damages may be deducted by the employer from any moneys 
 due to the contractor. 
 
 Extension of 25. If in the opinion of the architect the works be delayed by 
 
 force majeure or by reason of any exceptionally inclement weather, 
 or by reason of instructions from the architect in consequence of 
 proceedings taken or threatened by or disputes with adjoining or 
 neighbouring owners, or by the works or delay of other contractors 
 or tradesmen engaged or nominated by the employer or the architect, 
 and not referred to in the specification, or by reason of authorised 
 extras or additions, or in consequence of any notice reasonably given 
 by the contractor in pursuance of Clause 1, or by reason of any 
 local combination of workmen or strikes or lock-out affecting any of 
 the building trades, or in consequence of the contractor not having 
 received in due time necessary instructions from the architect for 
 which he shall have specifically applied in writing, the architect shall 
 make a fair and reasonable extension of time for completion in 
 respect thereof. In case of such strike or lock-out the contractor 
 shall, as soon as may be, give to the architect written notice thereof. 
 But the contractor shall nevertheless use his best endeavours to pre- 
 
 * Insert " day " or " week " as may be agreed.
 
 APPENDIX. 189 
 
 vent delay, and shall do all that may reasonably be required to the 
 satisfaction of the architect to proceed with the works. 
 
 26. If the contractor, except on account of any legal restraint Suspension of 
 
 works bv 
 
 upon the employer preventing the continuance of the works, or on contractor, 
 account of any of the causes mentioned in Clause 25, or in case of a 
 certificate being withheld or not paid when due, shall suspend the 
 works, or in the opinion of the architect shall neglect or fail to pro- 
 ceed with due diligence in the performance of his part of the con- 
 tract, or if he shall more than once make default in the respects 
 mentioned in Clause 16, the employer by the architect shall have 
 power to give notice in writing to the contractor requiring that the 
 works be proceeded with in a reasonable manner and with reasonable 
 dispatch. Such notice shall not be unreasonably or vexatiously 
 given, and must signify that it purports to be a notice under the 
 provisions of this clause, and must specify the act or default on the 
 part of the contractor upon which it is based. After such notice 
 shall have been given, the contractor shall not be at liberty to remove 
 from the site or works, or from any ground contiguous thereto, any 
 plant or materials belonging to him which shall have been placed 
 thereon for the purposes of the works ; and the employer shall have 
 a lien upon all such plant and materials, to subsist from the date of 
 such notice being given until the notice shall have been complied 
 with. Provided always that such lien shall not under any circum- 
 stances subsist after the expiration of thirty-one days from the date 
 of such notice being given unless the employer shall have entered 
 upon and taken possession of the works and site as hereinafter pro- 
 vided. If the contractor shall fail for days after such notice 
 has been given to proceed with the works as therein prescribed, the 
 employer may enter upon and take possession of the works and site, 
 and of all such plant and materials thereon (or on any ground con- 
 tiguous thereto) intended to be used for the works, and all such 
 materials as above mentioned shall thereupon become the property of 
 the employer absolutely, and the employer shall retain and hold a 
 lien upon all such plant until the works shall have been completed 
 under the powers hereinafter conferred upon him. If the employer 
 shall exercise the above power he may engage any other person to 
 complete the works, and exclude the contractor, his agents and 
 servants, from entry upon or access to the same, except that the 
 contractor or any one person nominated by him may hare access at 
 all reasonable times to inspect, survey, and measure the works. And 
 the employer shall take such steps as in the opinion of the architect 
 may be reasonably necessary for completing the works without undue
 
 APPENDIX. 
 
 delay or expense, using for that purpose the plant and materials above 
 mentioned in so far as they are suitable and adapted to such use. 
 Upon the completion of the works the architect shall certify the 
 amount of the expenses properly incurred consequent on and inci- 
 dental to the default of the contractor as aforesaid, and in completing 
 the works by other persons. Should the amount so certified as the 
 expenses properly incurred be less than the amount which would 
 have been due to the contractor upon the completion of the works 
 by him, the difference shall be paid to the contractor by the employer ; 
 should the amount of the former exceed the latter, the difference shall 
 be paid by the contractor to the employer. The employer shall not 
 be liable to make any further payment or compensation to the con- 
 tractor for or on account of the proper use of the plant for the com- 
 pletion of the works under the provisions hereinbefore contained 
 other than such payment as is included in the contract price. After 
 the works shall have been so completed by persons other than the 
 contractor under the provisions hereinbefore contained, the employer 
 shall give notice to the contractor of such completion and may require 
 him from time to time, before and after such completion, to remove 
 his plant and all such materials as aforesaid as may not have been 
 used in the completion of the works from the site. If such plant 
 and materials are not removed within a reasonable time after notice 
 shall have been given, the employer may remove and sell the same, 
 holding the proceeds, less the cost of the removal and sale, to the 
 credit of the contractor. Any notice to be given to the contractor 
 under this clause shall be given by leaving the same at the place of 
 business of the contractor, or by registered letter sent to him at that 
 address. 
 
 " Prime Cort," 27. The words " Prime Cost " or the initials P.O. applied in the 
 specification to goods to be obtained and fixed by the contractor, 
 shall mean, unless otherwise stated in the specification, the sura paid 
 to the merchant after deducting all trade discount for such goods in 
 the ordinary course of delivery, but not deducting discount for cash, 
 and such sum shall be exclusive of special carriage, the cost of fixing, 
 and contractor's profit. 
 
 Proviiion*) 28. The provisional sums mentioned in the specification for 
 
 -inn-. materials to be supplied or for work to be performed by special 
 
 artists or tradesmen, or for other works or fittings to the building, 
 shall be paid and expended at such times and in such amounts and 
 to and in favour of such persons as the architect shall direct, and 
 sums so expended shall be payable by the contractor without discount
 
 APPENDIX. 191 
 
 or deduction, or (without prejudice to any rights of the contractor 
 existing under the contract referred to in Clause No. 20) by the 
 employer to the said artists or tradesmen. The value of works which 
 are executed by the contractor in respect of provisional sums, or in 
 additional works, shall be ascertained as provided by Clause 13. At 
 the settlement of the accounts the amount paid by the contractor to 
 the said artists or tradesmen, and the said value of such works 
 executed by the contractor, shall be set against all such provisional 
 sums or any sum provided for additional works, and the balance, 
 after allowing pro rata for the contractor's profits at the rates con- 
 tained in the contractor's original estimate, shall be added to or 
 deducted from the contract sum, provided that in estimating the 
 amounts paid as last herein provided no deductions shall be made by 
 or on behalf of the employer in respect of any damages paid by the 
 sub-contractor to the contractor, the intention being that the con- 
 tractor and not the employer shall have the benefit of any such 
 damages. 
 
 29. The contractor shall permit the execution of work by any contractor to 
 
 other artists or tradesmen who may be engaged by the employer. oTwork^>y Utl 
 
 others. 
 
 30. The contractor shall be entitled under the certificates to be Payment and 
 issued by the architect to the contractor, and within days 
 
 of the date of each certificate, to payment by the employer from time 
 to time by instalments, when in the opinion of the architect work to 
 the value of (or less at the reasonable discretion of the 
 
 architect) has been executed in accordance with the contract, at the 
 rate of per cent, of the value of work so executed in the 
 
 building, until the balance retained in hand amounts to the sum of 
 after which time the instalments shall be up to the full 
 value of the work subsequently executed. The contractor shall be 
 entitled, under the certificate to be issued by the architect, to receive 
 payment of being a part of the said sum of when 
 
 the works are practically completed, and in like manner to payment 
 of the balance within a further period of months, or as soon 
 
 after the expiration of such period of months as the works 
 
 shall have been finally completed, and all defects made good accord- 
 ing to the true intent and meaning hereof, whichever shall last 
 happen. The architect shall issue his certificates in accordance with 
 this clause. No certificate of the architect shall be considered con- 
 clusive evidence as to the sufficiency of any work or materials to 
 which it relates, nor shall it relieve the contractor from his liability 
 to make good all defects as provided by this agreement. The con-
 
 192 
 
 APPENDIX. 
 
 Non-payment 
 by employer. 
 
 Arbitration. 
 
 tractor when applying for a certificate shall, if required, as far as 
 practicable, furnish to the architect an approximate statement of the 
 work executed, based on the original estimate. 
 
 31. Should the employer not pay the contractor any sum certified 
 by the architect within the times respectively named in Clause 30, 
 the contractor shall give written notice to the employer of the non- 
 payment, and should the employer not pay any such sum within the 
 period of days from the date of delivery of such notice at 
 the employer's address, or sent to him there in the ordinary course of 
 post by registered letter, or if the employer shall become bankrupt 
 or file any petition for liquidation of his affairs, and if his trustee in 
 bankruptcy shall repudiate this contract, or if the trustee shall be 
 unable to show within days to the reasonable satisfaction of 
 the contractor his ability to carry out the contract, and to make all 
 payments due or to become due thereunder, or if the works be 
 stopped for months under an order of the architect or any 
 Court of Law, the contractor shall be at liberty to determine the 
 contract by notice in writing to the architect, and to recover from 
 the employer payment for all work executed and for any loss he may 
 sustain upon any plant or material supplied or purchased or prepared 
 for the purpose of the contract. In arriving at the amount of such 
 payment the rates contained in the contractor's original estimate 
 shall be followed, or, where the same may not apply, rates propor- 
 tionate to the prices therein contained. 
 
 32. Provided always that in case any dispute or difference shall arise 
 between the employer or the architect on his behalf and the contractor, 
 either during the progress of the works or after the determination, 
 abandonment, or breach of the contract, as to the construction of the 
 contract or as to any matter or thing arising thereunder (except as to 
 the matters left to the sole discretion of the architect under Clauses 
 4, 9, and 19, and the exercise by him under Clause 18 of the right 
 to have any work opened up), or as to any objection by the con- 
 tractor to any certificate, finding, decision, requisition, or opinion of 
 the architect, or to the withholding or failure by the architect to give 
 the same, then either party shall forthwith give to the other notice 
 of such dispute or difference, and such dispute or difference shall be 
 and is hereby referred to the arbitration and final decision of 
 
 or, in the event of his death or unwillingness or inability to act, of 
 
 , or, in the event of his death or unwillingness or inability 
 
 to act, of a person to be appointed on the request of either party by 
 
 the president for the time being of the Royal Institute of British
 
 APPENDIX. 193 
 
 Architects, and the award of such arbitrator shall be final and 
 binding on the parties. The arbitrator shall have power to deter- 
 mine all such matters in dispute except as aforesaid, which shall be 
 submitted to him and of which notice shall have been given as 
 aforesaid. The works shall not be stopped pending such reference 
 excepting by the direction in writing or award of the arbitrator. If 
 either party desires to have such dispute or difference determined 
 forthwith he shall give written notice to that effect to the other 
 party, and the arbitrator shall, with the assent in writing of the 
 other party, proceed with the arbitration. In the event of the other 
 party failing within days of such notice to give to the other 
 
 his assent in writing to the immediate determination of such dispute 
 or difference, the arbitrator shall, after written notice to the non- 
 assenting party of a time and place of hearing, decide whether such 
 dispute or difference shall be immediately determined or whether 
 such determination shall await the completion or alleged completion 
 of the works, and the same shall be determined at such time or times 
 as the arbitrator shall decide. If in any such reference the arbitrator 
 shall be of opinion that either party has been unreasonable or 
 vexatious or dilatory either in invoking or in insisting upon refer- 
 ence or in the mode of its conduct, or that injury from delay or 
 otherwise has been occasioned thereby to the other, he may by his 
 award indemnify the latter in respect of such injury. Upon every 
 or any such reference the costs of and incidental to the reference 
 and award respectively shall be in the discretion of the arbitrator, 
 who may determine the amount thereof, or direct the same to be 
 taxed as between solicitor and client, or as between party and party, 
 and shall direct by whom and to whom and in what manner the 
 same shall be borne and paid. This submission shall be deemed to 
 be a submission to arbitration within the meaning of the Arbitration 
 Act, 1889. 
 
 FLY-SHEET TO CONDITIONS OF CONTRACT ISSUED BY THE INSTITUTE 
 OP BUILDERS, 1902. 
 
 The Institute of Builders has issued this form of contract under the 
 following circumstances : 
 
 In 1870 the Royal Institute of British Architects and the Builders' 
 Society agreed upon a form of building contract which was recognised 
 as the agreed form up to 1886. In that year the Royal Institute of 
 British Architects suggested to the Institute of Builders (the successors 
 of the Builders' Society) that the 1870 form was somewhat out of 
 13
 
 194 APPENDIX. 
 
 date and not adapted to modern requirements, and submitted the 
 draft of a new contract. 
 
 This document was the subject of prolonged discussions between 
 the Councils of the two Institutes, mainly owing to the difficulties in 
 reconciling the conflicting views held by the two parties, and also to 
 the advice upon legal points given by their solicitors in relation 
 thereto. No agreement was arrived at, and negotiations were 
 suspended in 1895 for some time. 
 
 But, eventually, in July, 1900, the Councils of the two bodies 
 came to an agreement and decided to recommend a form of contract 
 to their respective members for adoption, and this is the form now 
 issued by the Institute of Builders. The members of the Institute 
 of Builders adopted the recommendations of their Council, but the 
 members of the Royal Institute of British Architects did not do so. 
 
 Under the old conditions (agreed between the builders and the 
 architects in 1870) the architect could claim absolute discretion on 
 the subject of materials and workmanship, yet the provisions of the 
 arbitration clause in those conditions enabled the builder to claim 
 for any increased cost he might be put to by any unreasonable 
 exercise by the architect of his powers, and it is because the Council 
 of the Institute of Builders considers this right should be main- 
 tained that it has resolved to issue the present form of contract, in 
 which similar protection is afforded to the builder. The question as 
 to the probability or possibility of the unreasonable exercise by the 
 architect of his powers is not involved, though the principle as to 
 whether the provisions of the contract are equitable certainly is, and 
 there does not appear to be any sufficient reason for objecting to the 
 arbitration clause being resorted to in case of need. 
 
 The Council, therefore, impresses upon the members of the 
 Institute and the building trade generally the necessity for insisting 
 upon the adoption of this form of contract. 
 
 IV. 
 
 FORM OF CONTRACT FOR MASON WORK IN TAKING 
 DOWN OLD AND BUILDING NEW PREMISES. 
 
 IT is CONTRACTED, AGREED, AND ENDED between the parties 
 underwritten, viz.: of the first part, hereinafter called 
 
 the " employers," and of the second part, hereinafter called 
 
 the " contractors," in manner following : That is to say, whereas the
 
 APPENDIX. 195 
 
 employers having resolved to pull down the existing tenement 
 and build new premises at , conform to plans, elevations, 
 
 sections, and other detailed drawings and specifications prepared by 
 , and different offers for executing the work agreeably to 
 said plans and specifications having been lodged with and considered 
 by the said employers, they preferred the offer of the said 
 for the mason work, and have agreed with them to execute the same, 
 and it being now resolved to enter into the present contract : There- 
 fore, and in consideration of the price hereinafter mentioned, the 
 said contractors bind and oblige themselves and their heirs, executors, 
 and successors to perform, execute, and complete in every respect 
 the whole mason work necessary in taking down the present tene- 
 ment and erecting, executing, and building the new premises, and 
 that in a good, sufficient, and workmanlike manner, conform to the 
 plans, elevations, sections, detailed drawings, and specifications pre- 
 pared by the said , which plans, elevations, sections, and 
 drawings are numbered from , both inclusive, and particu- 
 larly specified in an inventory thereof annexed and subscribed as 
 relative hereto and at their own proper costs and charges to provide 
 the stone and brick, lime, sand, and all materials whatsoever in con- 
 nection with the whole foresaid work, and also to cart away from 
 the buildings all rubbish which shall arise or accumulate in the 
 course of taking down the present buildings and constructing the 
 new premises, and which rubbish the respective contractors shall 
 convey outside the building so far as the same arises from their 
 departments of the work. And, more particularly, the contractors 
 bind and oblige themselves and their foresaids to carry out the 
 operations regarding the taking down of the existing tenement and 
 build and finish the said mason work in every respect as delineated 
 in the foresaid plans, elevations, and drawings, and as described in 
 the said specifications, which with the plans, elevations, sections, and 
 detailed drawings and specifications are each signed by the parties as 
 relative hereto, and are hereby declared and held to be part hereof: 
 And in general, without prejudice to the particulars above specified, 
 the said contractors, bind and oblige themselves and their foresaids 
 that the whole of the said work shall be executed and performed in 
 the best manner and with materials and workmanship of the best 
 kind to the full extent of the drawings and specifications : And 
 further, the contractors bind and oblige themselves and their fore- 
 saids to have the whole work hereby contracted for completed in a 
 perfect and clean manner, and that in every respect to the entire 
 satisfaction of the said , and failing the said , any
 
 196 APPENDIX. 
 
 other architect or architects the said employers may for the time 
 being appoint to examine the said works, and agreeably to the 
 instructions given by the said by the person acting for them 
 
 or any other architect or architects to be appointed as aforesaid, it 
 being an express condition of contract that everything shown on the 
 drawings or described in the specifications, and all minor details of 
 work ordinarily incidental to the operations contemplated, and 
 everything necessary for the due completeness of the work, shall be 
 held as included in the contract, though not specifically shown or 
 described : And it is hereby specially provided, agreed to, and 
 declared that it shall be in the power of the said ai-ehitect or 
 architects, or person acting on their behalf, to order the instant 
 removal of any materials or workmanship they may consider in any 
 respect objectionable : And further, it shall be in the power of the 
 said employers or the said architects to make alterations in the said 
 plans and specifications during the progress of the works without in 
 any respect invalidating the contract, and that the work involved in 
 such alterations, whether addition or deduction, shall be valued at 
 the same rates as those at which the contractors made up their 
 original estimates, conform to schedule of prices signed by both 
 parties as relative hereto, and the amount thus ascertained shall be 
 added to or deducted from the contract price as the case may be, 
 provided always that no payment shall be made for any additions or 
 alterations which are not expressly authorised by the architects in 
 writing, without whose express authority in writing no deviation 
 from the drawings or specifications shall be allowed : Declaring 
 further, that should any additional work be required in the course of 
 the contract to which the said architects shall consider the rates of 
 the said schedule of prices cannot fairly be applied, and the work i& 
 to be charged by day time, that the contractors shall make up at 
 the end of each week a return giving the number of hours employed 
 and a note of all materials used, and no payment shall be'made in 
 respect of such work unless the said return is made up and certified 
 by the inspector or clerk of works : And further, the contractors, 
 bind and oblige themselves and their foresaids to maintain and 
 uphold the whole work hereby contracted for, including additiona 
 and alterations (if any) in good and complete condition and repair 
 for the space of one } r ear from the date at which the work under thia 
 contract shall be finally completed : And it is also agreed that the 
 works hereby contracted for and to be erected shall remain at the 
 risk of the said contractors until the same are wholly completed and 
 delivered over to the said employers, and any damage done to the
 
 APPENDIX. 197 
 
 work or adjacent property by any accident, whether by the weather, 
 by fire, by the workmen employed, or by any other means during 
 the currency of the contract shall be made good by the contractors 
 involved at their own cost, and that to the satisfaction of the owners 
 respectively : For which causes and on the other part, the said 
 employers bind and oblige themselves to make payment to the said 
 contractors and their foresaids of the sum of , being the amount 
 
 of their offer for the mason work of said premises, which sum shall be 
 paid to the contractors and their foresaids by instalments as the works 
 proceed, after the rate of 90 per centum upon the value of materials 
 delivered or work done. Declaring always that before any of the 
 said instalments or the balance under this contract can be demanded 
 from the said employers, the contractors shall be obliged to procure 
 and produce the usual certificate under the hand of the said , 
 
 or failing them such other architect or architects as may be appointed 
 by the said employers, and the balance on this contract and final 
 accounts shall be paid within nine months from the date of the 
 architect's certificate of the completion of all the works, but such 
 certificate is not to relieve the contractors from liability for any 
 injury sustained by the use of improper materials or workmanship, 
 or omissions in the work : And it is hereby provided and declared 
 that in the event of the contractors refusing or delaying to proceed 
 with any part of the work, or to employ a sufficient number of 
 competent men and foremen in the execution of the work, or not 
 adhering to and implementing the conditions hereinbefore, and in 
 the specifications, notes, and general conditions appended thereto con- 
 tained, or not complying with the orders and directions to be given 
 from time to time by the said employers' architects or architect, or 
 becoming insolvent or notour bankrupts, or having their estates 
 placed under sequestration, or from any cause whatever being pre- 
 vented from and delaying to proceed with, or complete, the said works 
 according to this contract, it shall be lawful to the employers, and 
 express power is hereby given to them, as often as any such event 
 shall occur, by a written notice, signed by their law agents and 
 addressed to the contractors at their usual place of business, to 
 require the contractors to commence or proceed with the said work, 
 or to provide and employ such additional workmen and machinery 
 and for such length of time, and to comply with such order as the 
 case may be ; and in case the contractors shall not within seven days 
 thereafter conform to such notice, it shall be lawful to and in the 
 power of the employers to authorise their architects to make such 
 arrangements as they may consider necessary for the completion of
 
 198 APPENDIX. 
 
 the work under this contract, and all payments made on account of 
 such additional workmen or machinery, shall be made and deducted 
 out of the moneys which may then remain due to the contractors, or 
 which may at any time or times thereafter become due to them. And 
 the employers shall in the said event be at liberty to take possession of 
 and use without charge the whole machinery, and erections, and 
 materials of every description which may have been provided by the 
 contractors for carrying on the works, and to provide at the expense 
 of the contractors, such additional machinery, tools or materials as 
 may be required for proceeding with the same, and such money as 
 may be in the hands of the employers shall be applied to the pay- 
 ment of the person so employed to carry on the work, and in case the 
 said moneys shall be insufficient to cover the same, the contractors 
 bind and oblige themselves to make payment thereof to the said 
 employers on demand, and it is hereby agreed that, whatever pay- 
 ments or expenses may be made or incurred by the said employers 
 in reference to the work to be executed under this contract after such 
 default by the contractors, shall be held and considered as payments 
 made to the contractors, and shall be imputed towards the contract 
 price on that footing : Declaring that the provisions of this agree- 
 ment shall in no way prejudice or aftect the right of the employers to 
 hold the contractors liable in damages for breach of contract through 
 failure to implement the same : And it is hereby specially provided 
 and declared that no addition shall be made to, nor deduction allowed 
 from, the said contract price on account of any error or alleged error 
 in or omission from the plans, measurements, or specifications, the 
 contractors having satisfied themselves as to the correctness of the 
 same : And both parties bind and oblige themselves to fulfil this 
 contract to each other in the whole heads, articles, and clauses 
 thereof, and of the relative plans, specifications, notes, and general 
 conditions : And they hereby submit and refer all disputes and 
 differences which may arise between the parties hereto in any way 
 connected with this contract, whether the same shall arise during the 
 course thereof or afterwards, and including all disputes as to the 
 amount payable to the contractors under said contract, or in connec- 
 tion with the said operations or additional works, to the said , 
 whom failing to such other architect or architects as may be 
 appointed as arbiter by the said employers and the contractors : 
 Declaring that the said architects or architect shall not be disqualified 
 from acting as arbiters or arbiter under this submission through their 
 or his having made or assisted in making an estimate of the probable 
 cost of the works hereby contracted for, and whatever the said
 
 APPENDIX. 199 
 
 arbiters or arbiter shall direct or decide by any decree arbitral, interim 
 or final, pronounced by them or him, the said parties respectively 
 bind themselves to execute and abide by, and that under a penalty of 
 sterling, payable by the party failing to the party observing 
 or willing to observe the same, over and above performance : And 
 both parties consent to the registration hereof, and of the said decree 
 or decrees arbitral, interim or final, for preservation and execution. 
 
 IN WITNESS WHEREOF. 
 
 V. 
 
 FORM OF MINUTE OF SUBMISSION REGARDING 
 CONTRACT PRICE PAYABLE UNDER A CON- 
 TRACT FOR MASON WORK. 
 
 WE, considering that by contract between us dated the 
 
 day of 190 I, the said contracted 
 
 to perform the mason work necessary in taking down the existing 
 tenement and building new premises for the said at 
 
 and that said mason work has now been completed : Further, con- 
 sidering that questions have arisen between us regarding the 
 execution of the work, that I, the said have already paid 
 
 to the said various sums at different intervals, amounting 
 
 together to the sum of on account of the said contract, but 
 
 a balance of is still claimed, and under these circum- 
 
 stances we have agreed to enter into this contract of submission : 
 Therefore we hereby submit to the amicable and final decision of 
 as sole arbiter, to determine what sum, if any, is still due 
 by me, the said to me, the said and with what 
 
 interest, if any, thereon, in respect of the said work, and in order to 
 the decision of this question, the said arbiter shall (without prejudice 
 to his general powers as arbiter, and without limitation by reason of 
 the narrative of these presents, or otherwise) be entitled, and he is 
 hereby appointed arbiter, to determine, inter alia the nature, 
 extent, terms, and conditions of the employment, and the sufficiency 
 or insufficiency of the workmanship, and to award and assess 
 damages : And we agree that the ai-biter, while entitled to hear 
 proof, make enquiries, obtain skilled assistance, and hear the parties, 
 shall not be bound to do all or any of these things unless or further 
 or otherwise than as he in his uncontrolled discretion shall think 
 fit, but he shall be entitled to decide the matters hereby referred in 
 whole or in part by his personal skill and knowledge, if and so far
 
 200 APPENDIX, 
 
 as he shall think fit so to do. With power to the arbiter to decern 
 against either party, in whole or in part, for payment of the expenses 
 which may be incurred by the other party, including the expense of 
 these presents, and of the decree or decrees-arbitral, and also for the 
 expense of all skilled assistance, and for the remuneration of the 
 clerk to the submission : And whatever the arbiter shall determine 
 by decree or decrees-arbitral, interim or final, to be pronounced 
 before the expiry of year and day from the last date of these 
 presents, or before the expiry of any other day to which he may 
 prorogate this submission, which he is hereby empowered to do at 
 pleasure, we bind ourselves and our respective heirs, executors, and 
 representatives to implement to each other : And it is hereby 
 declared that although either or both of us shall die during the 
 dependence of this submission, the same shall continue in operation, 
 and with all that shall then have followed, or may thereafter follow 
 thereon, be binding against us both and our respective estates and 
 foresaids : And we agree that in case no final decree-arbitral shall 
 follow hereon, all probation which may be taken hereunder shall be 
 received as legal probation quantum et quale in any subsequent 
 submission or process of law between us or our respective foresaids : 
 And we consent to registration hereof, and of the prorogations and 
 deecree or decrees-arbitral to follow hereon, for preservation and 
 execution. IN WITNESS WHEREOF. 
 
 VI. 
 
 SUGGESTIONS* FOR THE CONDUCT OF ARCHITECTURAL 
 COMPETITIONS. 
 
 Sanctioned by the Royal Institute of British Architects. 
 
 1. The promoters of an intended competition should, AS THEIR 
 FIRST STEP, appoint one or more professional assessors, architects of 
 established reputation, whose appointment should be published in 
 the original advertisements and instructions. The selection of an 
 assessor should be made with the greatest possible care, as the suc- 
 cessful result of the competition will depend very largely upon his 
 experience and ability. 
 
 The President of the Royal Institute of British Architects is 
 
 * Re-issue after Revision, 9th June, 1902.
 
 APPENDIX. 201 
 
 always prepared to act as honorary adviser to promoters in their 
 appointment of assessors. 
 
 All the designs sent in should be submitted to the assessors. 
 
 2. The duty of assessors should be, after conference with the 
 promoters 
 
 (a) To draw up the particulars and conditions (as far as possible 
 in accordance with the principles set forth in these Sug- 
 gestions) as instructions to competitors, and also to advise 
 upon the question of cost. 
 
 (6) To determine whether the designs conform to the instructions, 
 and to exclude any which do not. 
 
 (c) To advise the promoters on the relative merits of the designs 
 admitted to the competition, and to make a selection in 
 accordance with the conditions. 
 
 3. Every promoter of a competition, and every assessor engaged 
 upon it, and any employee of either, should abstain absolutely from 
 competing, and from acting as architect for the proposed work. 
 
 4. The number, scale, and method of finishing of the required 
 drawings should be distinctly set forth, and they should not be 
 more in number, or to a larger scale, than necessary to clearly 
 explain the design. If the assessor advises that perspective drawings 
 are desirable, it should be so stated ; and such drawings should be 
 uniform in size, number, mode of colouring or mounting. 
 
 5. Competitions should be conducted in one of the following 
 ways : 
 
 (a) By advertisement, inviting architects willing to compete for 
 the intended work to send in designs. The promoters, 
 with the advice of the assessor or assessors, should make 
 their selection from such designs. The author of the 
 design awarded the first place should be employed to 
 carry out the work. 
 
 (6) By advertisement, inviting architects willing to compete for 
 the intended work to send in their names by a given day ; 
 with such other information as the candidate may think 
 likely to advance his claim to be admitted to the competi- 
 tion. From these names the promoters, with the advice of 
 the assessor or assessors, should select : (a) an architect to 
 carry out the work ; or (6) a limited number to compete, 
 and each competitor thus selected should receive a specified 
 sum for the preparation of his design. The author of the
 
 202 APPENDIX. 
 
 design awarded the first place should be employed to carry 
 out the work. 
 
 (c) By personal invitation to a limited number of selected archi- 
 tects, to join in a competition for the intended work. 
 Each competitor should receive a specified sum for the pre- 
 paration of his design. The author of the design awarded 
 the first place should be employed to carry out the work. 
 
 6. No design should bear any motto, device, or distinguishing 
 mark ; but all designs should be numbered by the promoters in 
 order of receipt. Any attempt to influence the decision of the 
 promoters, or of the assessor or assessors, should disqualify a com- 
 petitor. 
 
 7. In every case the amount of premium or remuneration for the 
 competitive designs should be fixed under the advice of the assessor 
 or assessors, and should be paid in addition to the usual professional 
 charges for carry iny out the work. 
 
 8. Where a deposit is required for supplying the instructions, it 
 should be returned on the receipt of a bonafide design; or if the 
 applicant declines to compete and returns the said instructions, 
 within a month after their receipt. 
 
 9. Each design should be accompanied by a declaration, signed by 
 the competitor, stating that the design is his own personal work, 
 and that the drawings have been prepared under his own supervision. 
 
 10. A design should be excluded from a competition 
 
 (a) if sent in after the period named (accidents in transit ex- 
 
 cepted) ; 
 
 (b) if it does not substantially give the accommodation asked for ; 
 
 (c) if it exceeds the limits of site as shown on the plan issued by 
 
 the promoters, the figured dimensions on which should be 
 adhered to until officially altered ; 
 
 (d) if the assessor or assessors should determine that its probable 
 
 cost will exceed the outlay stated in the instructions, or the 
 estimate of the competitor should no outlay be stated ; 
 provided always that should the assessor or assessors not 
 have been consulted in the first instance respecting the 
 cost, as recommended in paragraph (a) of Clause 2, and 
 should he or they be of opinion that the outlay stated in 
 the instructions is inadequate for the proper execution of 
 the proposed works, the assessor or assessors shall not 
 be bound in the selection of a design by the amount named
 
 APPENDIX. 203 
 
 in such instructions, but the question of cost shall never- 
 theless be a material element in the consideration of the 
 award. 
 
 (e) if any of the other instructions are violated. 
 
 11. It is desirable that all designs submitted in a competition, 
 except any excluded under Clause 10, should, with the consent of 
 their authors, be publicly exhibited after the award has been made, 
 which award should be published at the time of exhibition. 
 
 12. The architect whose design may be selected as the best should 
 be employed to carry out the work, and he should be paid in accord- 
 ance with the schedule of Professional Practice as to the Charges of 
 Architects sanctioned and published by the Royal Institute. If no 
 instructions are given to him to proceed within twelve months from 
 the date of the selection, he should receive adequate compensation in 
 addition to the premium (if any) awarded to him. In the event of 
 a part only of his original design being carried out, he should be 
 paid a sum to be agreed upon in respect of the deferred portion, such 
 sum to be merged in the usual professional charge when the com- 
 pletion of the design is proceeded with. 
 
 It is essential to the success of any competition that the award of 
 the assessor should be adhered to unless there is some valid objection 
 to the employment of the author of the selected design to carry out 
 the work, as to which the assessor is satisfied. 
 
 * # * It should be understood that the Royal Institute issues these 
 suggestions as a guide to Promoters where a competition has been 
 decided upon, but not as necessarily recommending the principle of 
 competition. 
 
 [INDBX.
 
 INDEX. 
 
 A. 
 
 Acceptance of Tender (See TENDKR). 
 
 Agents entering into Arbitration (See ARBITRATION). 
 
 Alteration and Repair of Mutual Gables (See MUTUAL UABLES). 
 
 of plans, extra work by, 82. 
 
 Altius non tollendi, or ne luminibus officiendi (See SERVITUDES). 
 Appendix. 
 Appointment, 
 
 of architects (See ARCHITECT). 
 
 of oversman, 87. 
 
 Arbiter, 
 
 disqualification of, 83, 84, 85. 
 may be one of the parties, 84. 
 duties of, 88. 
 remuneration of, 86. 
 
 Arbitration Relating to Building Contracts, 80, 81. 
 
 contract of submission in, must be in writing, 80. 
 
 agents entering into, 80. 
 
 general reference in, to all disputes, 81, 83. 
 
 particular clause in submission, 82. 
 
 procedure in, 89. 
 
 endurance of submission in, 90. 
 
 notes of findings in, 91. 
 
 award in, 91, 92. 
 
 reduction of award in, 92, 93. 
 
 Architect, 
 
 Appointment of, 1 . 
 
 by minors, 1. 
 
 by married women, 1. 
 
 by corporations, 2. 
 
 need not be in writing, 2. 
 contract with, personal, 3, 4. 
 
 terminated by death, 5. 
 Authority and powers of, 5. 
 
 extent of, must be gathered from terms of appointment and custom, 
 
 when appointed to superintend erection, 5. 
 
 205
 
 206 INDEX. 
 
 Architect continued. 
 
 Authority and powers of, 
 
 when authorised to obtain tenders, 6, 7, 1 7. 
 
 to prepared drawings, 6, 14. 
 regarding warranty of plans, 7, 24, 30. 
 ordering extra work, 7, 8. 
 giving directions outwith contract, 7, 8. 
 appointing surveyor, 6, 18. 
 to enter into contracts on employer's behalf, 6. 
 to measure up, 18. 
 to assess damages, 44. 
 
 to approve of work disconform to contract, 60. 
 to rely on subordinate or clerk of works, 3, 31. . 
 
 to rely on substitute, 4. 
 Certificates by, 8, 11, 55. 
 for defective work, 34. 
 delaying to issue, 56. 
 " progress," 56. 
 final, 44, 56. 
 
 cannot be varied or altered, 57 
 when condition of payment, 57. 
 final and conclusive, 57, 58, 59. 
 may be verbal, 58. 
 
 wrongfully or fraudulently withheld, 58, 59. 
 where architect dies without certifying, 59. 
 where architect has given undertaking that cost would not exceed a 
 
 certain sum, 61. 
 
 may be granted on surveyor's certificate, 35. 
 Duties of, 
 
 regarding surveying site, 22, 23. 
 foundations, 31. 
 
 plans for Dean of Guild Court, 23. 
 preparation of plans, 9, 23, 24. 
 supplying working plans, 24. 
 approving of plans of work ordered by Court, 25. 
 must discharge duties with care and diligence, 9, 10. 
 Liability of, 
 
 for certifying in excess, 8, 57. 
 
 for important defects in plans, 23, 24. 
 
 for false representations regarding his authority, 9. 
 
 for failure to supply working plans, 24. 
 
 to discover obvious defects in work, 31. 
 for ordering extras without authority, 38, 43. 
 for wrongfully and fraudulently withholding certificate, 58. 
 Qualification* of, 
 
 must have reasonable knowledge and skill, 9, 10. 
 Superintendence of Work by, 31. 
 
 how far exonerated by employment of Clerk of Works, 31, 35. 
 in order to discover defects in work, 31. 
 regarding bottoming for cement floor, 31. 
 negligence in, 33.
 
 INDEX. 
 
 Architect continued. 
 
 Remuneration of, 5, 11, 13. 
 
 must be reasonable, 17. 
 
 payable as work proceeds, 17. 
 
 usual remuneration, 11, 17. 
 
 Scale of, Appendix. 
 
 impliedly earned, 11. 
 
 effect of want of skill on, 11. 
 
 in certain cases not due, 11. 
 
 where work valueless, 11. 
 
 where grossly incorrect estimate, 12, 16. 
 
 where failure as to time, 12. 
 
 where competitive drawings, 12. 
 
 for plans used in litigation, 17. 
 
 for superintendence, &c., 32, 34. 
 
 Architectural Competitions, Suggestions for (See APPENDIX). 
 Authority and Powers of Architects (See ABCHITECTS). 
 Award in Arbitration (See ARBITRATION). 
 
 B. 
 
 Back Ground and Back Areas, building conditions affecting, 139. 
 
 Boundary of Property, presumption as to, 128. 
 Building Conditions and Restrictions, 123. 
 
 referring to particular plan or elevation, 130. 
 affecting front plot or areas, 135. 
 
 Building Materials, 36. 
 
 " sharp" fresh-water sand, 36. 
 
 " clean " and "black " rock, 36. 
 
 better than specified, 36. 
 
 partly supplied by employer, 37. 
 
 stone from particular quarry increase of cost of, 37, 66. 
 
 effect of strikes, &c., on contract to supply, 37. 
 
 defective or bad, 62. 
 
 Building Contract, 
 
 forms of, Appendix II., III. 
 
 arbitration, relating to, 80 81. 
 
 terms of, strictly interpreted, 46. 
 
 deviations from, 51. 
 
 triennial prescription applies to, when not in writing, 49. 
 
 entire, 49, 50. 
 
 See CONTRACTOR. 
 
 Bribery, Corruption and falsehood, ground for reducing an award, 92. 
 Burdens, constitution of, by reference to plans, 124. 
 
 C. 
 
 Ceiling and Floor in Tenement, 112. 
 Certificates by Architects (See ARCHITECT'S CERTIFICATES). 
 Charges, Scale of Architects' (Appendix I.). 
 
 207
 
 208 INDEX. 
 
 Clerk Of Works, Architect's right to rely on, 3, 31, 35. 
 
 Collusion in Withholding Certificates (Sec ARCHITECT'S CERTIFICATES). 
 
 Common Property, righfcfof, 103, 105, 112. 
 
 Common Interest, rights of, 103. 
 
 Common or Mutual Gables (See MUTUAL GABLES). 
 
 Common Passages and Stairs, 121. 
 
 Competitions, Suggestions for Architectural (Appendix). 
 Contract (See BUILDING CONTRACT). 
 
 work disconform to, 60. 
 
 on employer's behalf, Architect entering into, 7, 8. 
 
 Contractor, 
 
 right of, to throw up contract and claim damages, 24, 25. 
 risk of, regarding necessary work not being "extra," 47. 
 liability of, for bad work, 49, 60, 64, 66, 67, 75. 
 where inspector approved of work, 60. 
 for defective materials, 62. 
 entitled to be paid by instalments, 51. 
 entitled to price of contract substantially fulfilled, 52. 
 
 damages of employer prevents completion, 52. 
 may sue employer and architect for wrongfully and fraudulently withholding 
 
 certificates, 58. 
 
 right of, to recover price where work disconform to contract, 60. 
 bound by conditions signed though not carefully read, 81. 
 See DAMAGES. 
 
 Conversion Of Property into Shops, liability for damage by, 72, 77. 
 Cornices, projecting, 110, 111. 
 
 Corporation, Appointment of Architect by (See ARCHITECT). 
 Culpa leuissima (See DAMAGES TO PROPERTY). 
 
 D. 
 
 Damages, 
 
 architect has no implied power to assess, 44. 
 building contractor liable in (See CONTRACTOR). 
 by violent gale of wind, 61, 65. 
 by premature removal of supports, 62, 64. 
 to property by contractor, 64, 67. 
 for failure to implement within time, 66. 
 lapse of years may not bar claim for, 64. 
 
 contractor entitled to, where employer prevents completion, 52. 
 liability of architect for (See ARCHITECT). 
 Damage to Property, 
 
 liability of owner for, 68, 72, 74. 
 
 operations not involving liability on owner, 69, 71, 73, 109. 
 
 degree of care necessary to avoid liability for, 69. 
 
 by demolition of, or operations on, adjacent property, 70, 72, 77, 109. 
 
 by dangerous or hazardous operations, 74. 
 
 by working minerals, 79. 
 
 by careless or unskilful work, 110.
 
 INDEX. 209 
 
 Dangerous Operations (See DAMAGE TO PROPERTY). 
 Dean of Guild, 95, 96. 
 jurisdiction of, 95. 
 
 in Burgh with Bailie Court, 95. 
 
 where magistrates are parties, 95. 
 
 with regard to nuisance, 97. 
 
 regarding questions of heritable title, 100, 101, 102. 
 
 possessory questions, 101. 
 
 regarding uses to which buildings are to be put, 97, 98. 
 
 regarding ventilation, 97, 99. 
 preparation of plans for, 23. 
 approval of plans by, 23, 24, 96. 
 warrant of, required even for cutting joists, 100. 
 power of, regarding open space in rear of tenements, 99. 
 
 to order demolition of insecure property, 98. 
 has no right to prevent building up to boundary, 96. 
 
 interfere with internal alterations not structural or dangerous, 96. 
 
 regarding formation of a tunnel authorised by Act of Parliament, 96. 
 discretion of, where w.c. not shown near outside wall, 97. 
 
 Death, 
 
 termination of architect's appointment by (See ARCHITECT). 
 of architect without certifying work, 59. 
 
 Defects, 
 
 in plans, architect's liability for, 23, 24. 
 in work, 31, 34, 62, 64 (See CONTRACTOR). 
 in materials, 62. 
 
 Destruction of Works, 61. 
 
 who suffers loss by, 61. 
 where contract complete, 61. 
 
 Deviations from Contract, 51. 
 
 Devolution to Oversman, 88. 
 
 Discharge of Cost of Mutual Gable, 118. 
 
 Disconformity of Work to Contract, 60. 
 
 Dividing Line between Flats in Tenements, HO, ill, 112. 
 
 Drawings, 
 
 architects authorised to prepare, 6, 14 (See PLANS). 
 
 competitive, 12. 
 Duties of Architects (See ARCHITECT). 
 
 E. 
 
 Eavesdrop or Stillicide, Servitude of, 165. 
 Edinburgh Dean of Guild Court, 98. 
 Employer, 
 
 breach of contract by, 44. 
 
 liability of, for extras wrongously certified, 44. 
 
 responsibility of, for defects in plans and work, 24 (See DAMAGK*\. 
 
 does not warrant practicability of operations, 48. 
 
 power of, to employ tradesmen to finish contract, 55. 
 
 barred from insisting on implement or damages in certain case, 60. 
 
 14
 
 210 INDEX. 
 
 Entire Contract (See BUILDING CONTRACT). 
 Estimates and Schedules, 27. 
 " Estimate " is a Tender, 30. 
 Estimate of Cost by Architect, 61. 
 
 Expenses in action for removing building under warrant of Dean of Guild, 98. 
 Excess, architect certifying in, 8, 57. 
 
 Extras, 
 
 architect has no power, unless expressly given, to order, 43. 
 
 authority of employer necessary for, 38. 
 
 within or outside the contract, 39, 40. 
 
 new works not under contract are, 40. 
 
 new works under changed conditions are, 40, 41, 42. 
 
 necessary works are not, 47. 
 
 necessary to complete contract, 7, 8, 44. 
 
 occasioned by alteration of plans, 82. 
 
 employer liable for, where architect with authority certifies erroneously, 44. 
 
 price for, 38, 39. 
 
 F. 
 
 Floor and Ceiling in Tenements, 112. 
 Forms of Building Contracts (APPENDIX). 
 Foundations at Fault, 60. 
 
 and front and back walls of tenement, 109, 110. 
 of tenement, 109, 110. 
 
 Fraudulently withholding Architect's Certificates, 58. 
 Front and Back Ground of Tenements, 107. 
 
 Front Plot or Areas, building conditions affecting, 135. 
 
 a. 
 
 Gable (See MUTUAL GABLE). 
 
 Ground or Street Floor in Tenement, owner's rights, 113. 
 
 H. 
 
 Height of Buildings, feuing conditions affecting, 140. 
 
 Heightening Mutual Gables, 117. 
 
 Heritage, competency of Dean of Guild to decide questions of title to, 100. 
 
 I. 
 
 Implied Grant, constitution of servitude by (See SERVITUDES). 
 
 Insecure Building, demolition of (See DEAN OF GUILD). 
 
 Insecure condition Of, liability for damage by, 76, 77. 
 
 Inspector, work approved of by, 60, 67. 
 
 Instalments, payment by, 51. 
 
 Internal Alterations (See DKAN OF GUILD).
 
 INDEX. 211 
 
 J. 
 
 Joists, 
 
 dividing line between property in flats, 111, 112. 
 cutting off, authority for (See DEAN OP GUILD). 
 Jurisdiction of Dean of Guild, 95 (See DEAN OF GUILD). 
 
 L. 
 
 Law of the Tenement, 103. 
 Liability of Architect (See ARCHITECT). 
 
 of building contractor and owner of property (See DAMAGES). 
 Light, Obstruction to, 97 (See DEAN OF GUILD). 
 Light, Air, and Prospect, 
 
 servitudes of, 158. 
 
 power of Dean of Guild regarding, 99. 
 Litigation, plans used in connection with, 17. 
 
 M. 
 
 Married Woman, appointment of architect by (See ARCHITECT). 
 Materials, Building (See BUILDING MATERIALS). 
 Measurements, disputes regarding accuracy of, 81. 
 Minerals, damage by working, 79. 
 Minors, appointment of architect by (See ARCHITECT). 
 Mutual Gable, 106, no, 113. 
 
 purpose of, 113. 
 
 building, 114. 
 
 right to build on neighbouring ground, 114. 
 
 alterations and repair of, 114, 115, 116. 
 
 solum of, 116. 
 
 heightening of, 117. 
 
 ownership and cost of, 117. 
 
 discharge of claims for cost of half of, 118. 
 
 N. 
 
 Negative Servitude (See SERVITUDE). 
 
 Negligence of Architect (See ARCHITECT'S SUPERINTENDENCE). 
 joint, of architect and contractor, 36. 
 
 "Necessary" Work not "Extra," 47. 
 
 New Work, not under contract, 40. 
 
 Notes of Findings in Arbitration (See ARBITRATION). 
 Nuisance (See DEAN OF GUILD). 
 
 0. 
 
 Obstruction to Light, 97, 158. 
 
 Operations on Stairs and Passages (Common), 120, 121. 
 
 on tenements, 78. 
 roof of tenement, 119.
 
 212 INDEX. 
 
 Oversman, 
 
 appointment of, 87. 
 devolution to, 88. 
 
 Owners of Tenement Property, 
 rights of, 104. 
 liability of, for damages (See DAMAGES). 
 
 Ownership and Cost of Mutual Gables, 117. 
 
 of roof of tenement, 119. 
 
 of plans, 25. 
 
 of common stairs and passages, 120. 
 
 P. 
 
 Passages and Stairs (Common), 120. 
 
 ownership of, 120. 
 
 operations on and repairs to, 120, 121. 
 
 Penalty for Failure to execute Work within Time, 66. 
 
 Penalties, 52, 53, 54, 55. 
 
 Plans, 
 
 approval of, 7, 25. 
 
 by Dean of Guild, 23, 24. 
 architect's authority to alter, 8, 12. 
 
 authority to prepare, 6, 14, 23. 
 
 skill in preparation of, 9. 
 
 remuneration for, 11, 13. 
 competitive, 12. 
 defects in, 23, 24. 
 failure to supply, 24, 25. 
 imposing burdens by means of, 124. 
 ownership of, 25. 
 retention of, 27. 
 
 used in connection with litigation, 17. 
 valueless, 11. 
 working, 24, 25. 
 warranty of accuracy of, 7, 24, 30. 
 
 Positive and Negative Servitudes, 151. 
 
 Price, 
 
 payment of, 49, 57, 81. 
 presumption regarding, 49. 
 according to schedule rates, 42. 
 
 to architect's certificates, 56. 
 
 to weights and measurements, 48. 
 in lump sum, 43, 49, 56. 
 for extra work, 38, 39. 
 due if contract substantially complete, 52. 
 deduction from, where contract not complete, 52. 
 
 for penalties, 52, 66. 
 
 Property, liability for damage by insecure condition of, 76, 77. 
 Projecting Cornices, &c., 110, ill.
 
 INDEX. 213 
 
 Qualifications and Powers of Architects (See ARCHITECT). 
 Quantity Surveyor (See SURVEYOR). 
 
 Quantities, warranty of ownership of, 21, 30. 
 
 R. 
 
 Remuneration of Architects (Sec ARCHITECT'S REMUNERATION). 
 Restrictions on Use of Property, 124, 141. 
 Restrictions, 
 
 building, right of superior to enforce, 145, 148. 
 building conditions and, 123. 
 
 Roof of Tenement, 
 
 ownership of, 119. 
 operations on, 119. 
 
 Scale of Architects' Charges (APPENDIX I.). 
 Schedule Rates, payment of price according to, 42. 
 
 Schedules and Estimates, 27. 
 Servitudes, 150. 
 
 real or predial, defined, 150. 
 
 do not require infeftment, 150. 
 
 limited to well-defined classes, 150. 
 
 positive and negative, 151. 
 
 must be exercised in least disadvantageous manner to servient tenement, 151. 
 
 dominant owner must have interest to enforce, 152. 
 
 rights of parties as to repairing subjects affected by, 152. 
 
 negative, constituted by express grant, 152. 
 
 by express reference to a plan, 153. 
 
 by implied grant, 153, 154. 
 
 alttus non tollendi or ne luminibus officiendi, 162. 
 
 summary of rules applicable to, 156. 
 
 of support of land to land, 157. 
 
 of support of land to land encumbered by buildings, 157. 
 
 of support of buildings to buildings, 158. 
 
 of light, air, and prospect, 158. 
 
 right of, cannot be acquired by implied grant or prescription, 158, 159. 
 affecting contiguous dwelling-house, 159. 
 contravention of, 160. 
 Sewer, obligation to maintain, 143. 
 Shops, conversion of property into, 72, 77. 
 Signboards, right to erect, 110, 111. 
 Singular Successors, building conditions when effective against, 123. 
 
 Site, 
 
 title to, and boundaries of, &c., 22. 
 surveying of, 22, 23. 
 Skill, architect must have reasonable (See ARCHITECT).
 
 214 INDEX. 
 
 Soluin, 
 
 and front and back ground of tenements, ownership of, 107. 
 
 of mutual gables, 116. 
 
 Stillicide or Eavesdrop, servitude of, 165. 
 Streets, feuing conditions regarding, 143. 
 Strikes, effect of, on contract to supply materials, 37. 
 Subordinate, architect relying on, 3, 31. 
 Substitute, architect relying on, 4. 
 Superior, right of, to enforce restrictions, 145, 148. 
 
 Superintendence of Work by Architect (See ARCHITECT) 
 Support of Land to Land, 157. 
 
 encumbered with buildings, 157. 
 
 Support of Buildings to Buildings, 158. 
 Surveying Site, &c., 22, 23. 
 Surveyor (Quantity), 
 
 architect's power to appoint, 6, 18, 27. 
 
 employment of skilled assistants by, 18. 
 
 does not warrant correctness of quantities, 21, 30. 
 
 certificates by, 35. 
 
 remuneration of, 18, 19, 20. 
 
 builder liable to pay, 20, 27, 28. 
 
 failing builder, the building owner is liable to pay, 18, 20, '27. 
 
 T. 
 
 Tenders, 
 
 architects authorised to obtain, 6, 7, 17. 
 
 implied power to obtain, 28. 
 generally, 28. 
 alterations on, 29. 
 acceptance of, 28, 29, 30. 
 
 Tenement, law of, 103. 
 Tenements, 
 
 operations on, 78. 
 
 rights of owners of, 104, 105. 
 
 ceiling and floor in, 112. 
 
 dividing line between flats in, 110, 111, 112. 
 
 foundations of, 109, 110. 
 
 solum, and front and back ground of, 107, 135, 139. 
 
 ground or street floor of, 113. 
 
 ownership of roof of, 119. 
 
 front and back walls of, 109, 110. 
 Termination of Architect's Contract by Death, 59. 
 Time, 
 
 lapse of considerable, may not bar claim of damages, 64. 
 damages for failure to implement contract within, 66. 
 
 failure to supply plans within, 24. 
 Triennial Prescription, application of, to building contracts, 49.
 
 INDEX. 215 
 
 U. 
 Ultra Vires Of Arbiters, ground for reducing award, 93. 
 
 V. 
 
 Ventilation. 
 
 Dean of Guild and (See DEAN OF GUILD). 
 open space for, 98. 
 Villas, building conditions affecting, 134. 
 
 w. 
 
 Walls, 
 
 front and back, of tenements, 109, 110. 
 mutual, other than gables, 122. 
 
 Warranty of Operations, 48. 
 
 Warranty of Plans (See PLANS). 
 
 Weights and Measurements, price according to, 48. 
 
 Working Plans (See PLANS). 
 
 LOR1MBR AND CHALMERS, PRINTERS, EDINBURGH.