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a clear case of injustice and iniquity will not be covered by them. I know no case where reduction or rectification of the contract has been allowed unless the error was material. The price to the pursuers was not even enhanced by £ 5, because they made their offer without knowing or caring what the extent of ground was, and they cannot say they have not got a good title.” Many English authorities were cited. 8 Nov., 1877. Morton and Others v. Smith and Others, 5 S.C., 83.
Railway-Reparation-Culpa. A horse strayed at night, without fault of the owner, two miles on a public road, then upon a private branch railway, on a level crossing, and afterwards when on the main line it was killed by a passing train. Held that the owner of the branch line was not liable in damages, either under the statutes or at common law, because of not having gates at the level crossing, or at the junction with the main line. Per Lord President (Inglis): “ The occupant of the adjoining land is also the owner of the private railway, and accordingly he is the only person who is creditor in the railway company's obligation to fence, and if both the creditor and the debtor in that obligation agree to make a breach in that fence for the purpose of letting in the private line to join the main line, there seems to be nobody else that can interfere with it, or can say they are prejudiced by what they have done.” 9 Nov., 1877. Matson v. Baird & Co., 5 S.C., 87.
Bankrupt-Discharge-Fraud. The Court refused a bankrupt his discharge, though ten years had elapsed since the date of the sequestration, and though there was no opposition, in respect that the accountant in bankruptcy was “unable to certify that the bankruptcy arose from innocent misfortune or losses in business. Per Lord President (Inglis): “ The statute leaves it to the discretion of the Court to grant or refuse a discharge, though unopposed, whenever the report of the accountant in bankruptcy or other sufficient evidence discloses a certain state of matters, viz., that the bankrupt has been guilty of fraudulent concealment of his estate, &c.” 16 Nov., 1877. Miller, 5 S.C., 144.
Ship-Shipmaster-Bottomry-Cargo. A ship came into collision with another, and put into a home harbour for repairs. The captain and mate, who were owners
of the ship, granted to a shipbuilder a bond of bottomry for the amount of repairs and damages due to the other vessel. The owner of the cargo refused to consent to the cargo being hypothecated for the damage. The ship and cargo were sold. Held that except to the extent of the freight, the bondholder had no right to the price of the cargo, as the master under the circumstances had no right to hypothecate it. Per Lord President (Inglis) : “ The master of a vessel in a foreign port, when he has not the means of communicating immediately with her owners, and with the other parties interested, such as the owners of the cargo and the underwriters, represents the interests of all these; and it is his right and his duty to do the best for all concerned. And if the circumstances be such that he cannot proceed on his voyage without raising money on bottomry, and if it is necessary to include the cargo in the bond, he is justified in doing so. But here the owners were present, so without consent of the owners of the cargo, he could not hypothecate their property.”
Many English cases were cited. 23 Nov., 1877. Veitch v. Scott and Others, 5 S.C., 196.
Restrictions and Prohibition.
A feu charter contained a prohibition against any building on the lands feued, except dwelling houses, and prohibiting any public house or tavern. Held that the erection of a hydropathic establishment, though not licensed to deal in excisable liquors, was a contravention of the prohibition, and where the superior had given a relaxation of the restriction in one case this did not prevent his insisting on the restriction on the remainder of the land. Per Lord President: “ The main occupation of the building is for the purpose of carrying on a trade, and a trade in the strictest sense of the term. It is quite a different thing from a man taking in lodgers into his private house. A hotel does not cease to be a hotel because it has no license. A temperance hotel is none the less a hotel because it has no license. On the second point, it will not do to say that because an illegal feu has been granted and the conditions of the feu allowed to be violated that therefore all the other feuers are liberated.” Lord Shand dissented on both grounds: “I apprehend there is no ground which can prevent the proprietor or occupant of a dwelling-house from having lodgers or boarders or from using it as a boarding school. The superiors cannot enforce the restriction against one property while they have released it on
the property adjoining and thus materially altered the character of the immediate neighbourhood.” English cases were cited. 23 Nov., 1877. Ewing v. Campbell, 5 S.C., 230.
Reparation--Liability of Owner and Custodier of a Dog.
A dog, whilst in the custody of two persons not the owners, attacked and bit a man. Both were aware that the dog had previously bit a man, to whom the owner had given reparation. The custodiers were found liable in damages, but the owner assoilzied. Per Lord Justice Clerk (Lord Moncreiff): “ The custodiers of the dog had full knowledge of the previous attack, and it lay with them to allege and prove provocation. not prepared to lay down as a general proposition that the owner of a dog is not to be held liable unless the dog is in his personal custody. On the contrary, I think that as long as the owner retains the substantial control of its custody, it is of no consequence whether he exercises that control by himself or by another He is responsible for its safe custody to the public. Indeed, it has been held that the knowledge of a servant of a dog's ferocity is the knowledge of the master. I am therefore not prepared to say that if a man keeps a dog which he knows ought not to go at large, and lends it to another person who allows it to go at large, he may not be held responsible. But this is not to be stretched to an unreasonable extent. commits the care of such an animal to another for a length of time, and for his own behoof, and the custodier is trustworthy, I think the owner is not liable. In this case, the dog had been six weeks with the custodiers, who were as fully aware as the owner of the former outbreak on the dog's part. I think the owner was entitled to assume that they would take proper care, and not let the dog go at large.” English cases were cited. 23 Nov., 1877. Gowan v. Dalziel, 5 S.C., 241.
Legal Obituary of the Quarter.
(ENGLAND, SCOTLAND, AND IRELAND.) Adam, James, Esq., S.S.C. (Scot.), aged 88. Admitted 1828.
Atkins, George, Esq., Barrister-at-Law (Irel.), aged 36. Called 1868. Nov. 24.
BARKER, Theodore, Esq., Solicitor, aged 34. Admitted 1866. Nov. 20.
Best, William, Esq., Solicitor, Leeds, aged 62. Admitted 1841. Nov. 17.
BUBB, William Henry, Esq., M.A., Solicitor, Cheltenham, aged 52. Admitted 1861. Jan. 17.
CARLETON, John William, Esq., Q.C. (Irel.), aged 65. M.A., Trin. Coll., Dub., J.P. for Co. Dublin. Called 1839. Q.C. 1860. Nov. II.
Carr, John, Junr., of Gray's Inn, Esq., Barrister-at-Law, Chief Magistrate of the Gambia Settlement, aged 28. Called 1872. Dec. 3.
COURTNEY, Henry Nicholas, of Lincoln's Inn, Esq., Barristerat-Law (while travelling in Jamaica). LL.M., Trin. Coll., Camb. Called 1873. Dec. 20.
CUNNINGHAM, James, Esq., W.S. (Scot.), aged 78. Admitted 1823. J.P. for City of Edinburgh. Nov.
Dalton, Thomas, Esq., Solicitor, Cardiff, Clerk of the Peace, Glamorganshire, aged 80. Admitted 1819. Dec. 8.
DOMMETT, William, Esq., Solicitor, Chard, Somerset, aged 64. Admitted 1841. Nov. 30.
Downing, McCarthy, Esq., M.P., formerly a solicitor (admitted 1839), aged 64. M.P. for Cork (Liberal) from 1868 till his death. J.P. for Co. Kerry, and J.P. and D.L. for Co. Cork.
DUNBAR, John, of the Middle Temple, Esq., Barrister-at-Law, M.P. (Home Ruler) for New Ross, aged 51. M.A., Trin. Coll., Dublin. Called to the Irish Bar 1849, to the English Bar 1854.
DURDIN, Robert Garde, Esq., M.A., Solicitor (Irel.) Admitted 1841. Oct. 19.
East, Sir James Buller, Bart., D.C.L., of Bourton House, Gloucestershire, and a Bencher of the Inner Temple, aged 89. Eldest son of the late Right Hon. Sir Edward Hyde East,
Bart., for some years Chief Justice at Calcutta, and author of “East's Reports," and, jointly with the late Mr. Durnford, of the “ Term Reports.” M.A., D.C.L., Ch. Ch. Oxon. Called 1813. M.P. for Winchester (Liberal-Conservative), 1830-32, and 183564. Became a Bencher 1853. J.P. for Oxfordshire, and J.P. and D.L. for Gloucestershire. Nov. 19.
ERRINGTON, John, of High Warden, Northumberland, and of Lincoln's Inn, Esq., Barrister-at-Law, aged 70. J.P. and D.L. for Northumberland, High Sheriff, 1865. Called 1832. Dec. II.
FALCONAR, Alexander, Esq., Sheriff-Substitute of Nairn, Scotland, since 1823; aged 75. Dec. 13.
Foster, Edward Walker Webb, Esq., Solicitor, Feckenham, Worcestershire, aged 30. Admitted 1873. Oct. 18.
GILLMAN, Sylvester, Esq., Crown Solicitor, for Cork County and City, Ireland, aged 55. Admitted 1848. Nov. 30.
GORDON, John, Esq., Solicitor, Clerk of the Peace for the Borough of Bolton-le-Moors, aged 71. Admitted 1829. Nov. 27.
GRANT, Robert, Esq., of Kinarth, Advocate (Scot.), aged 77, J.P. and D.L. for County of Elgin. Called 1823. Oct. 15.
Grover, John Nightingale Key, Esq., Solicitor, Manchester, aged 38. Admitted 1861. Nov. II.
Gwillim, John, Esq., Solicitor, Hereford, aged 64. Admitted 1837. Oct. 16.
HAYTER, Right Hon. Sir William Goodenough, Bart., Q.C., and a Bencher of Lincoln's Inn, aged 85. The deceased baronet, who for many years acted as the Liberal “ Whip” in the House of Commons, was the youngest son of the late John Hayter, Esq., of Winterbourne-Stoke, Wilts. Educated at Winchester, and Trinity Coll. Oxon (second class in Classics 1813). Called to the Bar 1819, and practised for twenty years, retiring in 1839 as a Q.C.; M.P. for Wells, 1837-65; Judge Advocate-General, 1847 till May, 1849, when he was appointed Financial Secretary to the Treasury; Parliamentary and Patronage Secretary, 1850-Feb., 1852, and again Dec., 1852–March, 1858. Succeeded in the baronetcy by his son, now Sir Arthur Divett Hayter, M.P. for Bath.
Hyde, Thomas, Esq., Solicitor (Irel.), aged 76. Admitted 1858.
Ivimey, Joseph, Esq., Solicitor, Superintendent Registrar of St. Pancras, and for many years Solicitor to the Anti-Corn Law League, aged 76. Admitted 1825. Oct. 4.
Jones, John, Esq., Solicitor, Dolgelley, aged 70. Admitted 1832.