THE SCOTS. LAW TIMES-DIGEST (SHERIFF COURT).

131

he also claimed damages against them for being rhododendron bushes growing in the plantation, and deprived of the use of his pow. The seatholder the tenant suffered loss thereby. In an action by the alleged that the management had aoted maliciously, tenant against the landlord for the loss sustained, without any warrant or authority, and for the held (1) that the landlord in leaving the gates open purpose of injuring him and driving him out of the and unguarded was in breach of a duty which he church. Be averred that the management devised owed to his tenant; (2) that the injury to the tenant's & scheme of depriving him of his pew, so that being Cows, though a result of the negligence of the landpublioly affronted and privately distressed he might lord, was not a natural or probable consequence of resign bis membership. He further alleged that he that negligence, in respect (a) that the dangerous had sustained serious wrong through the invasion properties of rhododendrons are not matters of common of his civil rights, and had suffered greatly in his knowledge even among persons entrusted with the care feelings and reputation in consequence of the manage- and management of cattle and were not known to the ment's rotings-Held that as the seatholder had set landlord, (b) that it is not & natural instinct or proforth no right to the pow the averments that the pensity of cattle to eat of rhododendron bushes in management had acted maliciously and in combina- injurious quantity and that the action of the tenant's tion did not disclose any cause of action, and action cows in so doing was attributable to, and induced by, dismissed as irrelevant.

the special circumstance that for some months they Queree v. Smith.

76

had been in the byre on winter feeding and their

natural instincts in the matter of green foods were Reparation-Negligence

Accident on unlighted stair- thereby temporarily vitiated, and (c) that the injury Common law and statutory duty to light — Burgh to the tenant's cows was not a contingency which the Police (Scotland) Act, 1892 (55 & 56 Vict. cap. 55), landlord might reasonably be expected to anticipate section 104-While & visitor was about to descend as likely to occur in the case of cattle entering the the last flight of the common stair of a tenement, plantation; and (8) that, therefore, the tenant was he fell down and was injured. In an action by the not entitled to recover damages. visitor against the owners for reparation it was Young v. Houston

26 averred that the close and common stair were lit by inverted gas-brackets Atted for incandescent Reparation-Negligence Property—Defective gas - pipe burners and mantles, there being one bracket -Duty of owners—A gas-pipe leading to a tenement in the close and one on each stair-landing; that and laid in 1898 had, in 1922, become so corroded the gas in the bracket at the close was not that several parts were worn into holes only covered lit on the evening in question, and had not been by a thin coating of rúst, it belonging to the prolit for a period of three or four weeks prior to prietor of the tenement. Employees of the Corporathe date; that during this period there had been tian, without notice to the owner, entered upon digging no mantle fitted ; that the existence of a mantle operations in the vicinity of the pipe and the rust was was necessary to render the gas-bracket capable of disturbed. An escape of gas followed, causing. use as a means of lighting ; that in consequence of injuries to persons in the tenement-Held that the the want of a mantle there was no illumination ; owner of the pipe was liable in damages. that if there had been illumination from the gas

Kennedy v. Benson

102 bracket the accident would not have happened ; and that section 104 of the Burgh Police Act, 1892 (55 & 56 Reparation-Negligence-Street-Running down--Motor Vict. cap. 55), imposed on the defenders an absolute car overtaking tramcar on offside-Duty of driver duty towards all persons lawfully using the stair to of motor car—Contributory negligence- A pedestrian maintain the gas-bracket in such & condition as who was crossing a street passed in front of a tramcar to render it capable of useHeld (1) that there was which was sufficiently far away to enable him to do no duty imposed upon the proprietors of the building 80 safely. Immediately after passing in front of the to light the staircase ; and (2) that the proprietors tramcar the pedestrian was run down by & motor car were not bound to take on themselves the business

which was overtaking the tramcar on its offside at a of inspecting the condition of the lighting appliances, distance of about 1 yard from the tramcar-Held and as the averments did not disclose any breach of (1) that the driver of the motor car was bound in duty owed by them at common law or by statute, the circumstances to take special precautions ; that action dismissed as irrelevant.

he was in fault in not sounding his horn, in passM'Clymont v. Kingston Investment Company

ing too near the tramcar, and at an excessive speed; Limited

113

and (2) that the pedestrian was not bound to foresee

that a motor car was overtaking the tramcar on its Reparation-Negligence Landlord and tenant-Gate- offside, and therefore that he was not guilty of

ways giving access to plantation left open-Poisonous contributory negligence.
shrubs—Injury to cattle. A farm was bounded M.Colgan v. Richmond Park Laundry

121 partly by a drystone dyke in which were two hunting gates. The dyke separated the farm let to the Reparation Negligence Vehicle Duty to avoid tenant from a plantation belonging to and remaining animal on road-A racing whippet dog was walking in the possession of the landlord. The landlord from the west to the east of a public road while a had power to remove any timber cut in the plantation motor van was being driven along the road in & through the lands let, and the tenant was bound northerly direction and more to the right-hand side to uphold the whole dykes, etc., in good condition. than to the centre. When the dog had almost In the plantation rhododendron bushes were growing, reached the east footpath it was run into by the motor and about the end of December the landlord's work- van and received injuries which resulted in deathmen commenced telling trees in the plantation and Circumstances in which held that the owner of the removing the timber through the gates and across motor van was liable in reparation to the owner of the tenant's lands. In the course of the operations the dog. the two gates were left open and unguarded. The

M'Gale v. M'Phillip

112 tenant had his milk cows out on the field adjoining the plantation, and twelve or more of the cows Reparation-Wrongous use of diligence-Arrestment in entered the plantation by the said gates. On the execution-Seaman's wages arrested in bands of his following day seven of the cows became ill, and the employers-Arrestment ineffectual by statutesaid illness was caused by their having eaten of the Averments that the arrestment was lodged " with

.

132

THE SCOTS LAW TIMES-DIGEST (SHERIFF COURT).

66

57

the wrongful intention of attaching pursuer's wages Ship-Soaman-Wages--Forfeiture-Desertion abroadAS seaman aforesaid, and thereby to coerce the Merchant shipping Act, 1894 (57 & 58 Vict. cap. 60), pursuer into payment of their debt, and did act sections 221 and 232-A seaman shipped on board maliciously and with want of probable cause," and

the s.s.

Ernmore as a Areman from the United averment of special damage in respect of dismissal Kingdom to America and back at a wage of $15 per from employment in consequence of the arrestment month. The “ Ernmore ” sailed on 9th September in combination with another creditor also using and arrived at Boston on 22nd September. On 29th arrestments-Averments held to be insuficient to September the seaman desorted at Boston, remained infer that the arrestment was wrongous.

ashore for some time, and shipped as fireman on an M‘Laughlin v. T. Dixon Limited

American ship for a voyage from America to France

and back at & wage of £20 per month. The wages of Reparation-Wrongous use of diligence

Arrestment in the seaman earned to the time of his desertion execution-Seaman's wages arrested in hands of his amounted to £10, but he bad received advances employers-Merchant Shipping Act, 1894 (57 & 58 leaving a balance due to the seaman of S1, 48. id. Vict. cap. 60), section 163-Arrestment ineffectual by For the homeward voyage of the “ Ernmore" 8 statute though otherwise regular - Held (1) that substitute was not engaged in place of the seaman, soction 168 of the Merchant Shipping Act, 1894, does but the owners gave the other fromen who remained not make an arrestment of the wages of a seaman an allowance for sailing shorthanded, the result of either illegal or incompetent but merely makes such which was that the aggregate sum paid to the remainan arrestment ineffectual ; (2) that the creditor by ing firemen exceeded by 84, 108. what the firemen's exercising his ordinary legal right of arrestment in wages would have amounted to it the seaman bad execution was not liable in damages to the debtor romained. In & summary complaint brought by for the consequences of the arrestment.

the owners against the seaman-Held (1) that the M‘Laughlin v. T. Dixon Limited

57

sum due to him had been forfeited under section 221

of the Merchant Shipping Aot, 1894 ; and (2) that Sale- Rejection — Disconformity- Warranty — Wireless the employers had no claim against the deserting

set supplied and Atted up by electrician. In an Areman for excess of wages. action for payment of the price the purchaser Johnston Line Limited v. Docherty

65 alleged that the seller “guaranteed that after the installation the machine would be capable of receiving all the English stations" Circumstances in Statuteswhich held that there was no breach of warranty

Act 1579, cap. 80

86 even assuming that one had been given.

Agricultural Holdings (Scotland) Act, 1908 48 Taylor v. Bell

70
Agriculture Act, 1920

48

Burgh Police (Scotland) Act, 1892 . 50, 113, 119 Ship-Master-Necessaries-Coal-Authority of master to pledge owners' credit for supplies A steam

119 Burgh Police (Scotland) Act, 1903

Customs and Inland Revenue Act, 1878. trawler pat to soa from Boston at the end of

69 December 1922. The master's instructions were to

Dog Licences Act, 1867

69 proceed on a fishing voyage and to return in about

Dogs Act, 1906

69 twelve days and not to put into any other port unless

Factory and Workshop Act, 1901

96 absolutely necessary. The trawler proceeded to

Housing, Town Planning, etc., Act, 1909

74 St Kilda, remaining in that vicinity for about fourteen

Increase of Rent, etc., Act, 1920 6, 9, 15, 20,72

119 days, and then made for Stornoway Harbour, remain

Local Government (Scotland) Act, 1908 ing there for several days. The trawler carried &

Merchant Shipping Act, 1894

57, 65 suficient supply of coal for a twelve days' voyage.

Money-lenders Act, 1900

92, 94 On 20th January 1923 the master, without com

Personal Diligence Act, 1888

45 Pilotage Act, 1918

11 municating with the owners, took on board & supply of coal, although at that date there was sufficient coal

Sheriff Courts (Scotland) Act, 1907 on board to take the trawler back to Boston. The

18, 48, 61, 77, 101

101 suppliers of the coal made no enquiry as to the

Sheriff Courts (Scotland) Act, 1913 master's authority to contract on behalf of the

Small Debt (Scotland) Act, 1887

61

63

Workmen's Compensation Act, 1906 Owners. It was proved that the masters of fishingvessels have implied authority to purchase supplies of coal when necessary-Held that the owners were

Workmen's Compensation Act, 1906 (6 Edw. VII. cap. liable for the price of the coal, as the supplies had 58), section 1 (1)Accident arising out of and in the been ordered by the master from sellers who reason

course of the employment-Workman going home ably believed the purchase to be within the authority

from work-Acting in accordance with custom and of the master for the prosecution of the trade on practice

At meal hour & workman left his work at which the vessel was engaged, according to the usage & shed to go home, and in order to reach the exit of trade.

from the docks he had to cross railway lines situated Maciver v. Boston Deep-Sea Fishing and Ice

between the shed and the exit, this being the most Company

106 direct and customary route. There were other two

means of exit, but in both cases railway lines interShip-Pilotage dues-Liability of ship's agents—Pilotage vened. The workman waited along with other

Act, 1913 (2 & 3 Geo. V. cap. 81), section 49 workmen as a goods train blocked the roadway, and Pilotage inwards-Held (1) that agents who had paid after a period of time the train momentarily ceased other charges on account of the ship in the port of shunting operations, and all the workmen attempted her arrival were liable for the total pilotage dues to cross the railway lines, which they successfully inwards and not merely for those incurred within did save one who was last. While he was crossing, the pilotage district of the port, and (2) that it was the train again commenced and ran the workman not necessary, in order to entitle the pilot to recover, down, sustaining injuries which resulted in deathtbat he should produce a certificate from the master Circumstances in which it was held that an aocident of the ship.

had arisen out of and in course of the employment. Ward v. Lawson & Mitchell 11 M'Ilwaine v. Spencer

63

PRINTED IN GREAT BRITAIN BY NEILL AND CO., LTD., EDINBURGH,