a piece of wire or thin metal, and what in point of fact his acting showed he thought was the proper thing to do. Then again he asks this young lad into his shop, and leaves him without any caution whatever as to this gun. It was natural enough, though wrong, for the boy to handle the weapon, and it was left in a place where it was apt to catch and did catch the boy's eye. How the accident happened is a matter of doubt. It may be, although there was no percussion cap on the nipple, that the cap was sticking in the doghead. This is a possible explanation of how the gun went off, and if so, it is obvious that defr. Pollock did not make a sufficient investigation; while leaving the hammer up, as apparently he did (if there was a percussion cap on the doghead), was not an unlikely thing to lead to the gun going off when touched. If the accident happened through a spark coming in contact with a grain of powder left on the touchhole, which is the only other explanation the S.-S. can think of (unless indeed the barrel had got overheated, which is barely possible), the S.-S. is inclined to hold that in such a place as a smithy, with three or four fires blazing, and sparks flying about in all directions, it was right that more than ordinary precaution should have been taken by defr. Pollock to see that no accident should happen from the gun in question. It is a very doubtful and narrow question; and if it be argued that the case is one of great hardship to Pollock, it must also be remembered what a grievous loss it has entailed upon pursuer, who was quietly, at the time the accident happened, following his ordinary avocation in Pollock's employment. Dr. Loudon stated that for a long time the circulation of the arın was so much affected that he thought the arm must necessarily be lost. He also states that the suffering must have been great, and that the arm, though recovered to a certain extent, will be partially disabled for life, and the pursuer will not be able for any heavy work. As a journeyman blacksmith pursuer earned 25s. per week; as a weaver at the time the proof was led he could only make 3s. or 4s. a week; but the S.-S., in estimating damages, has not held that this is all that the pursuer can be expected to earn throughout his life. He is still young, and may direct his attention to other employments, and in spite of the damage to his arm he may earn a tolerably good wage. In the whole circumstances the S.-S. has estimated the damages at £70. Holding culpa proved as against Frew, jun., and Pollock, a joint and several decree falls to be pronounced against them. With reference to John Dunn there is no proof whatever of culpa even in the most remote degree, nor, although it would certainly have been advisable that James Dunn should have ascertained that the gun was unloaded before he left with it from Kennedies, he does not seem to have used it at all, and there is nothing to show that he could be expected to know it was loaded, and in bringing it down as he did he was merely obeying Pollock's request. At all events the S.-S. cannot hold that culpa inferring legal responsibility has been proved as against him. No defence was attempted (and the S.-S. agrees it would be quite untenable) on the ground that the boy Frew was working for Pollock by blowing the bellows, and that he was accordingly a collaborateur of pursuer. W. C. S."

In this judgment the pursuer acquiesced; the defrs. Frew and Pollock appealed. The Sheriff (W. G. Dickson), in adhering, pronounced the following judgment and note:

"Glasgow, 2d March 1874.-Having heard the procurators for the defrs. Pollock and Frew, jun., and the pursuer on the appeals for the said defrs., and considered the record and proof, for the reasons stated by the S.-S., and under reference to the note hereto, adheres to the interlocutor appealed against, and dismisses the appeals. W. G. DICKSON.

"Note.-There is no dispute as to the facts in this case, which are clearly stated in the S.-S.'s interlocutor and note. As to the questions of law which it involves, the Sheriff has no difficulty in holding that there was culpa on the part of Frew, jun., in meddling with a loaded gun which did not belong to him, which was put aside in a press that he had no business to to which he had no knowledge whether it was loaded or not. taken as an excuse that he was unacquainted with firearms.

enter, and as It cannot be Every lad four

teen years old knows well that touching a gun with careless or inexperienced hands is dangerous. A young man unfamiliar with such weapons ought, in the exercise of the judgment appropriate to his years, carefully to avoid handling them, except under the direction and control of one acquainted with their use. As Frew, jun., caused injury to the pursuer by acting rashly and without due care on the occasion in question, he is liable to the pursuer in damages. There is more difficulty as to the defr. Pollock. On the one hand, the inquiries which he made led him to think that the gun was not loaded. He exercised a certain amount of care in putting it aside in a press where it was concealed, at least partly, and where no one had right to meddle with it. If he examined the nipple, and found there was not a percussion cap on it (which, however, is not sufficiently proved), he exercised still farther care. On the other hand, he could easily have ascertained the fact that the gun was loaded. When he asked if it was, James Dunn answered either that he did not know, because he had not used it,' or that it was 'not loaded that he was aware of, but he had not been using it.' According as Dunn's or Pollock's account of the conversation is taken as correct, either answer left the matter quite doubtful. That Pollock thought so appears from his having tried to get out the ramrod to sound the barrel. Unfortunately he did not ascertain the fact by that or any other means. He left the gun, which thus, for all he knew, was loaded, in an open press where files and nails were kept, and to which every one in the workshop had access, and he gave no warning, and took no step to prevent its being meddled with. In this state of matters he went out, leaving young Frew in the shop, at about the most inquisitive, meddlesome, and mischievous age when firearms are concerned. The accident was the direct consequence of his conduct in these respects. The Sheriff believes the gun did not go off of its own accord, but from young Frew fingering the trigger, probably without knowing what he was doing. If the cap was not on the nipple, it was probably sticking in the doghead; or, if not, enough of the detonating powder from it may have remained on the nipple to ignite the charge on the doghead falling. In whatever way the discharge took place, Pollock was the origo mali, as he furnished the means and opportunity for it, and did not take proper steps to prevent them from being used to the pursuer's injury. The Sheriff concurs with the S.-S. that such conduct was culpable in law, and that the defr. Pollock is liable for the consequences, although caused directly by the act of an intermediate agent between himself and the pursuer. The principle that the primary wrongdoer is responsible in such cases has repeatedly been recognised. In one of the oldest decisions in our books it is quaintly laid down thus:-'Ane man passand be the king's hieway, callis before him twa schiep bound together with ane tow, or with the twa ends thereof and be chance ane horse haueand ane sair back, is lyand in the samine hieway, swa the ane of the schiep passes be the richt side, and the other schiep be the other side of the horse, and the tow quherewith they are bound tuiches his sair back, quherethrow he is moved to rise up, and caries the shiep hingand the ane upon his ane side and the other upon the other side, here and there in sundrie places, and throw the fieldies until he comes to ane open miln without ane keiper, haueand ane fire in the middle flure; and the fire being skattered, the miln is burnt with the twa schiep and the horse. It is demanded quha sall answer for this skeath and damage? 2. It is answered the awner of the horse sall pay for the twa schiep, because the king's hieway sould not be occupied be the horse. 3. And the miller sall answer for burning of the miln, for the horse and for the schiep, and for all other skeath and damnage done in the mill; because he left the miln open and fire in it without ane keiper.'-(Case noted in 'Statutes of King David the 2nd.' Printed in Regiam Majestatem, etc. Edinburgh, 1774.) The same rule is seen in an English case, where a person having tossed into a crowd a lighted squib, which after being thrown from one person to another, fell upon the plt. and injured his eye, the original thrower was held responsible, the others being freed because they acted in self-defence (Scott v. Shepherd, 3 Wilson, 430; noted in Smith on Reparation, p. 82.) In another English case, where the deft. had left his cart and horse unattended in the street, and the plt., a child of seven years old, had got upon the

6

cart in play, and another child had incautiously led the horse on, in consequence of which the plt. was hurt, it was held that it had been properly left to the jury to say if the deft.'s conduct was negligent; and their verdict awarding damages to the plt. was accordingly sustained.-(Lynch v. Nurden, 1841, 1 Ad. Ell. N. S. 29.) In this case Lord Denman observed, If I am guilty of negli gence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third party, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first. If, for example, a gamekeeper returning from his daily exercise, should rear his loaded gun against a wall in the playground of schoolboys, and one of these should playfully fire it off at a schoolfellow and maim him, I think it will not be doubted that the gamekeeper must answer in damages to the wounded party.' The necessity for special care in dealing with objects which may be dangerous to others is seen in the recent case of Mackintosh v. Mackintosh (1864, 2 Macph. 1357), where a party was held liable for the damage caused by a fire which had been spread from a muir-burning carried on with his authority; because, although muir-burning was recognised as lawful, the defr.'s servants had not kept a proper watch lest the fire, which had seemingly been extinguished, should rekindle and spread. Lord Neaves observed (pp. 1362-3)—The only view that I take of this is that the party conducting such an operation as muir-burning should exercise the care and diligence which a prudent man would observe in his own affairs, and which a prudent and conscientious man will observe as to the interests of his neighbours. ... He was bound to guard against the danger by all reasonable precautions; and therefore his task did not end by the extinction of the fire, but remained until there was no chance of its again breaking out.' Applying this standard to the present case, it is thought that the defr. Pollock did not take the precautions which a prudent man would have done, when he left a loaded gun in an open press in his smithy, accessible to all who were there, and especially to a lad of fourteen years old, and took no measures to prevent the lad from meddling with it. On these grounds the Sheriff concurs with the S.-S. that the defrs. Frew, jun., and Pollock are jointly and severally liable in damages to the purHe also considers that the S.-S. has fairly assessed the amount of damages. W. G. D." Act.-William Campbell.—Alt. for defenders Dunn & Pollock---William Brown. For defender Frew-Edward Pellew Dykes, of T. I. & W. A. Dykes.

suer.

Notes of Cases in Court of Session.

FIRST DIVISION.

SHANKS V. THE UNITED OPERATIVE MASON'S ASSOCIATION OF SCOTLAND AND ITS CENTRAL COMMITTEE.-March 11, 1874.

Trade Union-Restraint of Trade-Trade Union Act 1871.-This was an action at the instance of another pursuer against the same trade union which lately succeeded in a similar defence in the Second Division (see March number of Journal of Jurisprudence). The L.-O. (Ormidale) dismissed the present action, chiefly on the ground that the pursuer was bound to leave all questions to be determined by vote of the association. The pursuer reclaimed, but in the meantime a parallel case had been determined in the Second Division, and the Court on Tuesday drew reclaimers' counsel's special attention to the defr.'s plea, that "the association and its laws being directed to support strikes of workmen and in restraint of trade, the said laws cannot be enforced or sustain action in a civil court." In answer to a question from the Lord President, the pursuer admitted that the association was a "trade union."

The Court adhered, without calling on senior counsel for the defrs,

as

The LORD PRESIDENT-Mr. Brand has very fairly conceded that this case is on all fours with the one recently decided in the Second Division. Now, if we entertain doubts upon their decision, we should not be bound to follow a single judgment on what is a very important point. But if we see no reason to doubt the propriety of their judgment, we are bound to have respect to its authority. It appears to me that trade unions were unlawful associations before the passing of the Act 1871, in this sense among others, that actions of such a nature as the present could not be entertained by the courts. This appears, apart from the precedents which have been quoted, from the terms of that Act itself. The 23rd section defines trade unions as "such a combination would, if this Act had not passed, have been decided to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade." Now, it is not disputed, and was admitted, that the association we are here dealing with is a trade union. It follows that it falls under the definition of the Act, and would have been unlawful before the Act was passed. Now, what was the object of the Act? It was to give certain relief to these societies --to confer on them certain rights which they had not before. By the third section certain of their agreements are made lawful, notwithstanding the unlawfulness of the association otherwise, and the fourth section-"nothing in this Act shall enable any court to entertain any legal proceeding with the object of directly enforcing such agreements"-is of the nature of a proviso qualifying the third section. The result of these provisions is plain. These (trade union) agreements are not now to be held unlawful; but yet no court is to entertain an action laid upon them. With regard to some of them there can be no doubt that this is an expedient provision-e.g., it is not desirable to enforce an agreement "to discharge any fine imposed upon any person by sentence of a court of justice;" but the statute is quite as clear as to agreements to provide benefits to members, which is the present case. Both are put by the statute in the same category. And we are just as much barred from the one as the other. I think, therefore, there is no room for hesitation in holding that, by the combined operation of common law and statute, we are barred from entertaining this action.

LORD DEAS-If in this case we entertained serious doubts of the previous decision by the other Division, we should probably take the assistance of the other judges. But if we do not, it is a precedent, and we ought to follow it. I don't see room for doubt, and am disposed to agree both with the Lord JusticeClerk and with your Lordship.

LORD ARDMILLAN-I concur with your Lordship and the Lord Justice-Clerk in the general grounds on which your opinion is placed. I would add that the narration by this pursuer himself of the rules of the association he entered into shows that he cannot well complain. Ordinarily there is no wrong without a remedy by civil law; but where the party founds on a contract which, by implication, and still more by express words, excludes the civil law, then nothing is plainer than that the justice of the case is against him.

LORD JERVISWOODE agreed with the Lord President.

LORD PRESIDENT—I may remark with reference to what Lord Ardmillan has said that in this case I think the statute provides that there shall be a wrong without a remedy.

The action was thereupon dismissed as incompetent.

Balfour for the defrs. asked expenses, which was opposed on the ground that the Second Division had declined to give them.

Lord DEAS-You, the defrs., are pleading that you are an unlawful association.

Balfour-No, we say we are lawful, but that our agreements cannot be enforced.

The Court gave expenses to the defrs.

Act.-Brand, M'Kechnie. Agent-Thomas Lawson, S.S.C.- -Alt. - Balfour, Pearson. Agents-Rhind & Lindsay, W.S.

THE

JOURNAL OF JURISPRUDENCE.

ON DONATIONS.

In contrast to the original mode of acquiring a proprietary right in a res nullius, is the derivative mode, whereby a corporeal subject is, by the act of the owner, transferred to another, and so made his property traditione. By tradition the owner of a corporeal subject, having the right and intention of alienating it, transfers the subject for a just cause to another who receives it with the intention of retaining it in his possession. While tradition is the mode of acquiring the subject on the part of the transferee, the cause or motive of the transference may be either onerous or gratuitous. If the former, the subject is acquired by the title of purchase. If the latter, by the title of donation.

Donation, which thus forms a derivative form of acquiring property gratuitously, may be divided into three classes, viz., 1st, donations non mortis causa, distinctively styled gifts; 2nd, donations mortis causa; and 3rd, donations testamentary.

In donations under the first class, the owner transfers the subject from motives of liberality, to another who receives it as his own. In donations under the second class, the owner transfers the subject in respect of the imminency, contingency, or ultimate certainty of death, to another who accepts of the gift so made. In donations under the third class, the owner does not transfer the subject to another during his own life, nor indeed at all, but the subject is, after his death, transferred by the agency of law to the person pointed out by him as its recipient.

1

In the case of donations under the first and second classes, the transference of the subject is effected by the living to the living, or as it is styled inter vivos. In the case of donations under the third class, the transference of the subject is effected from the dead to the living post mortem testatoris.

The making of a gift is a thing of such ordinary occurrence, and VOL XVIII. NO. CCIX.-MAY 1874.

R