"But the present is a very different case. It was contemplated that the sewing-machine should remain in Fotheringham's possession so long as the hire was paid, and indeed that it should ultimately become his property. It may well be contended, that while the law of hypothec continues as it is, articles supplied on the 'hire purchase' system are more readily subjected to the hypothec than ordinary hired furniture which has to he returned. Is a landlord to be bound to inquire weekly in order to see whether the price has been paid, or to estimate nicely whether the rest of the furniture, without the article hired, is sufficient security for his rent?

"In conclusion, I may briefly refer to the 4th article of the agreement of hire between the defenders and the hirers, which was founded on by the defenders, and is in the following terms: That if the hirer do not duly perform this agreement, the owners may terminate the hiring, and retake possession of the said machine, and for that purpose leave and licence is hereby given to the owners and their servants to enter by force any premises occupied by the hirer, or of which the hirer is tenant, to search for and retake possession of the said machine, without being liable to any suit, action, indictment, or other proceeding by the hirer, or any one claiming under him or her.' There is no doubt that the 'Agreement of Hire' is a skilfully drawn instrument, and places the company in an extremely advantageous position as regards the so-called hirer. But the right which the law of Scotland confers upon the landlord cannot be defeated by an agreement to which he is not a party. If it could, one would have heard less of the oppressive character of the law of hypothec. A little ingenuity expended in devising agreements to meet the various transactions which a tenant may have in regard to things subject to hypothec, would have made the formidable weapon with which the law has armed the landlord perfectly harmless. Pothier deals, indeed, with this very clause (Contrat de Louage, p. 226), and decides that it is ineffectual, so that the same desire to evade the law appears to have been known and practised in France in the last century.

"Much may be said in favour of an alteration of the law of urban hypothec. It has, however, withstood several attacks in Parliament, and been expressly saved in more than one statute. Possibly it will share the fate of its relative, agricultural hypothec. But it would create more evils than it would cure, if individual judges were to attempt to anticipate the action of the Legislature. Until the contrary is settled by statute, or by the Court of Session or House of Lords overruling Penson and Robertson, it appears to me that I have no option but to decide that, in circumstances like the present, a hired sewing-machine or other hired article found in the tenant's premises at the time of sequestration falls under the hypothec." The Sheriff-Substitute continued the case for a week to enable the defenders to return the machine.

Act. D. Pearson-Alt. W. B. Milne.

SHERIFF COURT OF SELKIRKSHIRE.

Sheriff-Substitute SPITTAL.

SCOTT v. WHITE.

Damages-Liability of gamekeeper for shooting dog not actually in pursuit of game.-The following interlocutor explains the circumstances of this case:

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Selkirk, 5th November 1886.-Having considered the process and heard parties' procurators: Finds (1) that about eighteen months prior to 29th May last the pursuer became possessed of a mongrel dog, which he retained, and used partly as a house dog and partly to accompany him as a protection to his goods when he travelled throughout the countryside with his pony and cart; (2) that the said dog in his intervals of business did on several occasions hunt and poach in the grounds of The Haining, and in particular in the Deer Park and about the Loch in said grounds; (3) that the pursuer was warned several times by the defender, gamekeeper at Haining, and also by one of the county constables, that his dog was addicted to straying, and was requested to keep it under proper control; (4) that notwithstanding these warnings, the pursuer permitted his dog to stray into The Haining grounds, where on 29th May last it was seen and shot by the defender; (5) that when the defender shot the dog he did not see any game being actually chased by or in imminent danger of being killed by the dog: Finds in point of law that the defender is liable to the pursuer in damages for having shot said dog; assesses said damages at one pound sterling, for which decerns against the defender, and for the further sum of sixteen shillings as modified expenses. CHARLES GREY SPITTAL.

เ

"Note. The pursuer alleges in his condescendence that his dog was a liver and white spaniel of valuable breed.' In making this statement he was perfectly well aware that it was not true. In his evidence he admits this, and merely says that the father of his dog was a spaniel, which he sold to a traveller for a sovereign, while its mother was 'a foreign dog,' but of what breed we are not informed. The dog had undoubtedly some sporting propensities (inherited, no doubt, from the paternal side of the house), for the pursuer says that on one occasion it, within his own knowledge, killed three ducks; but he claims to have cured it of its taste for ducks by giving it a sound thrashing. It is to be regretted that the pursuer did not carry on his instructions with regard to other game, and impress upon his dog the necessity of abstaining from all appearance of evil, and attending solely to its proper business of accompanying his pony and cart by day and acting as a watch-dog in his house at night. For it is clear that the dog was in the habit of wandering in places where it had no business to be, and became, in fact, a notorious poacher. On 29th May the defender observed two dogs hunting in The Haining grounds, and pursued them. They ran off, and he lost sight of them. Coming near the town, he saw in The Haining grounds a dog which he took to be one of those he had been pursuing. Whereupon he shot the dog, which in fact was the pursuer's. Now, in

point of law, the keeper was not entitled to shoot the dog; in these circumstances I have not found any Scotch decision precisely in point, but the English law, which in this matter is probably the same as the Scotch, is thus stated by Addison (Torts, 5th edition, p. 469):—' Dogs trespassing in pursuit of animals feræ naturæ cannot lawfully be destroyed. "A dog," observes Lord Ellenborough, "does not incur the penalty of death for running after a hare on another man's ground; and if there is any precedent of that sort which outrages all reason and common sense, it is of no authority to govern other cases. A gamekeeper has no right to kill a dog for following game," although the owner of the dog has received notice that trespassing dogs will be shot. But a dog chasing and pursuing game in preserves, might, it is apprehended, be shot, if the game could not otherwise be saved from destruction. Thus, if a dog chases conies in a warren, or game in a preserve, or deer in a park, or sheep in a fold, it may be killed by the owner of the animals to prevent their destruction, but not after the chase is discontinued, and the peril has ceased.' When the pursuer's dog was shot, no game was observed in immediate peril from the dog; I have therefore found the defender liable in damages. But when we come to the amount of damages, the amount claimed by the pursuer, viz. £25, is ridiculously over-estimated. The pursuer's agent, before the action was raised, wrote the defender claiming £25 as the value of the dog. That, no doubt, was based upon the pursuer's unfounded assertion that the dog was 'a liver and white spaniel of valuable breed.' The dog turns out to be nothing of the kind, as the pursuer very well knew all along, and the pursuer in his evidence put on the dog only the value of £5, the remaining £20 being claimed as solatium for his wounded feelings, or rather apparently as a punishment of the defender, as he thought it a terrible cruel thing to kill it.' It seems to me that £5 is far more than the value of the dog. Its real market value was probably not more than 10s. at the most. The pursuer complains of loss of companionship' through the death of the dog. But the dog was an animal of large sympathies, and seemed to have bestowed comparatively little of its society on the pursuer. It went with the pony and cart whether these were accompanied by the pursuer or by a stranger. On the day when it was killed, it was neither with the pursuer nor with the pony and cart, but seemed rather to have been loafing down towards town in a general way in quasi companionship with the pursuer's housekeeper. When away from the pursuer it probably forgot all its lessons about improper pursuit of ducks, and roamed wherever its fancy and sense of smell led it. Indeed, the pursuer's agent himself suggested that when it left the high road and went through the fatal hole in the wall it did so because it got on the trail of a rabbit. Now, if the pursuer had not been warned to keep his dog under control, he might fairly have claimed a moderate sum of damages for its death. But it is abundantly clear that the pursuer did receive several warnings of his dog's unlawful sporting propensities; yet he took no steps to cure it of these, but let it roam about as much as ever. In these circumstances I cannot see my way to award more than £1 in all to the pursuer for the loss of his dog, both as market value and as solatium, and as the case, in my opinion, ought to have been brought in the Small Debt Court, and not in the Ordinary Court, I have awarded only Small Debt expenses. C. G. S."

6

Act. Kemp-Alt. Alexander.

GENERAL INDEX.

VOL. XXX. NO. CCCLX.-DEC. 1886.

OBITUARY.

REVIEWS.