Trustees,

13, 1885

It will be observed that the question arises in an action in which the donor's representatives exercise an option, which undoubtedly has been transmitted to them, to void the transaction; and the only answer made to them is the answer which would have been made to the donor himself had he exercised an option during his lifetime-that he is precluded from impeaching it by conduct evincing a deliberate intention to confirm it during his lifetime. Now I entirely agree with what Lord Craighill has said as to the evidence upon that point. It is not, I think, maintained that lapse of time would in itself be an absolute bar to the rescission of such a conveyance.

It is very good evidence tending to instruct the intention of the donor to confirm, but in itself it is not conclusive evidence of that intention. I think all the evidence we have here is consistent with an intention on the part of the donor to set aside the transaction. It is equally consistent to leave it standing. But the result of that is, that there is no evidence of any deliberate intention on the part of the donor that the transaction shall not be challenged. I think, further, that in estimating the weight that ought to be given to evidence in such a case the nature of the property may be very material; and having regard to the peculiar nature of the right which is conveyed by the assignation under challenge, I think it impossible to hold that the mere abstinence for several years -four or five years in this case-on the part of the donor to make any direct challenge of the use which the donee so made of the right necessarily infers an intention to leave him in the enjoyment of a permanent right. The donor might be very well content that the privilege should be exercised for a time without having finally made up his mind, after he was in a position to make his election between voiding and confirming the transaction, that it should not be impeached. But without saying more, I am on the whole matter of the same opinion as the Lord Ordinary.

LORD JUSTICE-CLERK-I have had very great difficulty in this case, and I have listened very attentively to the opinions your Lordships have delivered, and I regret to say that those difficulties have not been removed. But I shall only content myself with explaining very shortly the direction in which they point.

I quite accede to the general principle upon which the proposed judgment proceeds. Our law is exactly the same as the law of England in the foundation of it on that matter, but it is a remarkable fact, not to be lost sight of in a juridical point of view, that the cases on this head, as regards the relation of agent and client, which have been decided are with us very few indeed, while in England they have been very numerous. Where there is a paucity of decision I think that is a fact not without its importance, and what I should deduce from it would be this, that while the principle is the same, it does not follow that all the dicta that have been recorded by the English Judges are necessarily for our guidance. But this is a very peculiar case. It is not the case of an agent obtaining from his client a landed estate, or a large sum of money, or stocks, or shares, or anything of that kind. It is a giftthe donation-of a means of recreation and enjoyment, not for gain, but for the purpose, as I

say, of recreation of the donee and his friends, and the proposition that is maintained, as I understand to its full extent, is that that never can be done when the relation between the parties is that of agent and client. I should hesitate to affirm that as an abstract proposition. Suppose an agent is presented with a season-ticket for an exhibition by the party who has the right to the exhibition, or even that a pass to a cricket ground is given by the members of a cricket club to a gentleman, their solicitor, who may have pulled them through some difficulty on a former occasion, or that a landed proprietor gives his solicitor the right to drive through his groundshimself and his family-as long as he resides in a particular place. Hundreds of other cases of the same kind might be instanced, all of which would fall under the rule. There would be no escape from it. Now, I should have no sympathy with challenges of that kind, and I doubt if the law can be stretched and extended to such a point as that. But in the present case that is not all, for it goes a little further. The granter of the right was the lessee of the theatre, and he conveys away absolutely one of the boxes to his law-agent. There is no confirmation of the gift, and as to value, while to the donee there was probably more value in it from the fact that it was not done for gain, the right conferred is said to be not without value, although value is not the prominent part of it. The main feature of it is its use for the purposes of recreation by the grantee and his friends. No other use has been suggested. It was said that the grantee might let it to the public, but I think a serious question might have arisen there whether that was within the true import of the grant.

I have made these observations on the nature of the case, but to tell the truth I have no sympathy with it at all. It is not upon that that my main difficulty rests, because I can see that the logic of the matter might come to the conclusion at which your Lordships have arrived. But I think that the subsequent actings of the donor really preclude him and his representatives from this challenge. I think it has not been fully described as a lapse of time. It is not the lapse of time, which truly has nothing to do with it, but the material elements-I think they have been rather overlooked are, first, that the grantee has continued to use the grant in the knowledge of the granter, and secondly, that the relation of agent and client has ceased to exist, and ceased to exist for five years during which use has been made of the grant. That is not lapse of time. It is not a matter of time at all. It is rei interventus in the knowledge of the granter, and rei interventus after all bar had been removed by the cessation of the relation of agent and client. my apprehension, even upon the strictest view of the authorities that have been quoted to us, the five years that elapsed after Mr Reid ceased to be Mr Logan's agent amounted to a confirmation, and could amount to nothing else, of the grant that had been given. So far from thinking that the conversations between Mr Logan and his friends go against that view, my strong impression is that they give it the strongest confirmation. For if he was pressed by Mr Mair and the members of his own family to undo this grantwhich he did not-and allowed it to go on to the end of his days without any challenge to the

In

Reparation-Personal Injury-Persons Engaged together in a Dangerous Amusement-Liability of Persons so Engaged for Injury to Other Persons.

A man while engaged in his work of building a stack was injured by another who was working with him, and who, in the course of some rough play in which the injured man was not taking part, but without any intention of injuring him, pushed him off the stack. Held that the person whose act caused the injury was liable in damages to the injured man.

Observed that a person who is injured in the course of a game in which he takes part by any cause ordinarily occurring in such a game is not entitled to damages therefor, but takes the risks of the game in which he joins.

James Reid, crofter, Graystone, in the parish of Skene and county of Aberdeen, raised the present action against Alexander Mitchell, crofter, Lyne of Skene, in the same parish and county, concluding for £300 for bodily injuries sustained by him. He averred that the injuries were caused by the defender having wilfully, recklessly, and carelessly seized him and pushed him off a stack of straw, which they were then engaged in building, to the ground, whereby he fell on his head and sustained the injuries libelled.

The defender stated in defence that he accidentally knocked against the pursuer and both fell off the stack to the ground. There was no intention on his part to push the pursuer off.

A proof was led at which the following facts appeared-Pursuer, defender, and two other men were engaged in building a round straw stack about twelve feet in diameter with straw from a steam threshing-machine which was being worked beside it at the time. At the time of the accident the stack was about five feet in height, at least a man could look over it. The straw was being forked up by men from the ground in large quantities, so that it occasionally came over the men and covered them. Defender began larking, and the other two men joined him by

Trustees &

13, 1885

throwing each other down in the straw. Pursuer, whose duty it was to go continuously round the stack and keep the straw out to the circumference did not join in the fun, but seemed to enjoy it. According to the evidence of one of the other men on the stack, defender just put his hands on pursuer's shoulder and pursuer slipped over the side. Witness thought he did so just to keep up the fun. Pursuer deponed that he heard defender say, just before he ran at him, "I'll ca' James Reid down," but this was not heard by any of the others, and was denied by the defender. Defender said he was rising up from some straw which had been thrown over him by the forkers and could not see for it when he accidentally knocked against the pursuer. Pursuer fell on his head and sustained concussion of the brain and injury to the spinal cord. Defender also fell off the stack. It appears from the evidence of several witnesses that the frolic was no greater than was usual on such occasions.

The Sheriff-Substitute (DOVE WILSON) pronounced this interlocutor-"Finds in fact that on the occasion set forth in the petition the pursuer was injured through the fault of the defender: Finds in law that the defender is liable in damages; assesses the same at the sum of fifty pounds sterling, and decerns against the defender for that sum.

"Note.-[After narrating the facts]-Unless it can be said that the injury was the result of a pure accident, the defender must be held responsible. I do not see how it can fairly be attributed to pure accident. It is undoubted that the defender had no intention to injure the pursuer, and that nobody was sorrier for what happened than he was. His conduct does not show lack of proper feeling on his part. Nevertheless, the injury could easily have been prevented had be exercised ordinary care, for in the exercise of ordinary care the defender would not have interfered with the pursuer. It seems to me, therefore, impossible to absolve the defender from the consequences of his indiscretion. A thing which ordinary care could have prevented cannot be called a pure accident. To take any other view would be to throw the whole consequences of the defender's fault upon the pursuer, and unfortunately, even though the pursuer does get such compensation as the law can award, the consequences upon him will be very serious.

"I have been somewhat reluctant to come to this conclusion, the defender having had no bad motive, and his fault not having been great, but I do not see that any other result would be equitable."

On appeal the Sheriff (GUTHRIE SMITH) pronounced this interlocutor--"Recals the said interlocutor: Finds it proved that on the occasion libelled, while the pursuer was engaged with some others in building a stack of straw, he was unintentionally pushed off the stack and fell and injured himself, but not through the fault of the defender: Therefore assoilzies the defender from the conclusions of the action.

"Note. This is a lamentable accident, arising out of the rough play which sometimes goes on in the farmyard in the building of a straw stack, but much as everyone must sympathise with the victim of the occurrence, there was plainly no

wish to do him any injury, and I cannot, on a review of all the facts, agree with the SheriffSubstitute that the defender is liable in damages. The distressing feature in the case is that the injuries sustained by the pursuer are so serious, that even if the defender were liable, any adequate compensation would be wholly beyond his income, for like the pursuer he is but a farm labourer. The Sheriff-Substitute has decided against the defender on the ground that 'a thing which ordinary care could have prevented cannot be called an accident.' But it seems to me that this way of stating the question is in the circumstances not wholly accurate. When an injury is done in the course of play, we say in popular speech that it was accidental, because unintended. But the legal meaning is, that although the party sought to be charged has been guilty of what in other circumstances, would prima facie be an assault or trespass to the person, his excuse lies in the fact, that as both consented to the frolic, each of them must be taken to have assumed the risk of such chances and misadventures as might occur in the course of it, unless the other was guilty of some excess which increased the risk so undertaken beyond what fairly and reasonably might have been expected. If, for instance, he gave way to temper, or took an unfair advantage, or used undue force, or conducted himself with a reckless disregard of consequences, he will be responsible, but not otherwise. As was said in the case of Rylandsv. Fletcher, L. R., 1 Ex. 287'All the cases in which inevitable accident has been held an excuse for what prima facie was a trespass can be explained on the principle that the circumstances show that the plaintiff had taken the risk upon himself.' So far as I am aware there is no case directly applicable in our own law, and none was cited in the argument. But in an American case there is, I conceive, much good sense in the way in which the question was presented to the jury. It was an action for an assault, to which the defence was that it was done in play. The Judge ruled, 'That if the defendant intended to do no bodily harm, and the parties were lawfully playing by mutual consent, and the act was no other than the plaintiff had reason to suppose would be done in such play, the defendant was not liable; that whether the force used was reasonable was not to be determined by the results, but from the evidence of the force, and the circumstances and nature of the act; and that if the defendant intended to do the act, and the act was unlawful and unjustifiable, and caused bodily harm, the plaintiff could recover. Held that the defendant had no ground of exception.' -Fitzgerald v. Cavin, 110 Mass. 153, cited in the American edition of Underhill on Torts, p. 207.

"There is some reason for saying that as the pursuer, being busy with keeping the stack in shape, was not taking an active part with the other men who were pushing and tumbling each other about, a distinction may be made between him and the rest. The effect of this would be to make them all liable in the claim which is now preferred. With some difficulty I have come to think that in the circumstances any such distinction cannot fairly be taken. They were all engaged in a common work; the pursuer did nothing to stop the larking, and showed no objection to it. In fact they were all consenting parties, no one

apprehending for a moment that any harm was likely to arise. In the next place, I can find nothing in the proof to show that 'the defender ran at the pursuer,' as the Sheriff-Substitute infers, or that the pursuer is right in his impression that he purposely knocked him off the stack, saying at the time, 'I'll ca' James Reid down.' These words were not heard by any of the other witnesses, and the defender denies that he said He admits he came against him, how he cannot tell, but when the pursuer slid off the stack the defender slid with him, which shows, I think, that this, which was the primary cause of the injury sustained, was neither intended nor anticipated. So standing the evidence, I am of opinion that the defender must be acquitted of blame or responsibility.'

So.

The pursuer appealed to the Court of Session, and argued-If he had engaged in the play, then he took the risk of an accident, and had no case; but it was proved that he took no part in it. He was therefore in the position of a passer-by on the street who was hurt by a person engaged in a game or a frolic there, and who became legally liable for the injury caused by him-James v. Campbell, 5 Carrington & Payne, 372.

The defender replied-The pursuer had failed to prove any intention on the part of the defender to push him off the stack. The occurrence was either a pure accident or an accident caused by one player to another.

a very unhappy affair, all the more that the party against whom the charge is made had not the slightest intention of injuring anyone. There was a foolish and ridiculous romp in which four or five men were engaged on a stack of straw of 12 feet in diameter. The consequence was, that the pursuer, who was not taking any share in the romping, fell off the stack to the ground, and was very seriously hurt. I think it is clearly proved that the defender caused him to fall. The defender says he was pushed against him, or that he accidentally knocked against him. I do not think that is proved. I think he meant to make him join in the play, and that from the momentum he acquired on the elastic footing of the straw he went against him with considerable force. The Sheriff-Substitute has found in favour of the pursuer, and I am of the same opinion. The Sheriff, on the contrary, thinks that as no animus injuriandi on the part of the defender against the pursuer is shown, and as they were all engaged in a frolic together, there is no liability on the part of the pursuer. I am unable to concur in that view. I think it is proved that the pursuer, though amused at his companions, was working, not larking. But I do not think that is an important matter in the case. I think that what the defender did was so manifestly a dangerous proceeding that he must be held to have taken the risk of it. I therefore think the Sheriff-Substitute's view is the right one, and that we should revert to it.

LORD YOUNG-I am of the same opinion. I think the principle which governs the case is quite an obvious one, and that we do not require to borrow from the law of England or any other

source in order to find it. When people engage in a game which is dangerous, or in which accidents may happen, every player taking part in it takes on himself the risks incident to being a player, and will have no remedy against anyone from whom he may receive injury in the course of it unless violence or unfairness has been used towards him. He takes the risks incident to the game, and the results must remain where they fall. And I should say the same principle would govern where romping suddenly arises amongst workmen. The rompers take the risks incident to their romping, and unless there is foul play there will be no liability for accidental injury by one workman to another. I should go the length of saying that if two men engage in a pugilistic combat each must take the black eyes or the bloody noses which the other gives him; and the same with a bout at single-stick, if both voluntarily engage in it each must take the raps he gets, and if there be no foul play there can be no accident giving rise to liability of the one to the other. We are familiar in the criminal courts with the law where death to one of the parties is the result of a fair fight. The surviving combatant will be responsible for culpable homicide, because he has committed a breach of the peace, but if the fight has been perfectly fair the punishment is generally almost nominal. Here there was a romp going on. I think it is according to the evidence that the pursuer took no part in it, and therefore that he did not take the risks incident to it, and without any fault on his part nearly lost his life. I think that was attributable to the fault of the defender, who I think attacked the pursuer, and technically assaulted him, though he did it playfully and with no bad intention, for if a man playfully attacks another to make him engage in sport, I think that is an assault, and if injury results that constitutes an actionable wrong. I have therefore arrived at the same conclusion as the Sheriff-Substitute.

LORD RUTHERFURD CLARK-I am of the same opinion. I think it is clear that the pursuer took no part in this frolic, and that he was knocked over by the fault of the defender, and therefore that the judgment of the Sheriff-Substitute should be reverted to.

LORD CRAIGHILL was absent on Circuit.

The Court pronounced the following interlocutor:

"Find in fact that the injury sustained by the pursuer on the occasion set forth in the petition was caused by the fault of the defender: Find in law that the defender is liable to the pursuer in damages: Therefore sustain the appeal; recal the judgment of the Sheriff appealed against; affirm the judgment of the Sheriff-Substitute, and of new ordain the defender to make payment to the pursuer of the sum of £50 thereby found due in name of damages, with interest," &c.

Counsel for Pursuer (Appellant)-StrachanWatt. Agent-Andrew Urquhart, S.S. C.

Counsel for Defender (Respondent)-Guthrie. Agent John Macpherson, W.S.

Wednesday, June 17.

FIRST DIVISION.

[Exchequer Cause.

CLERK (SURVEYOR of taxes) V. THE

BRITISH LINEN COMPANY BANK. Revenue-Inhabited-House-Duty-Separate Tenements-Customs and Inland Revenue Act 1878 (41 and 42 Vict. cap. 15), sec. 13, sub-secs. 1 and 2.

A banking company were proprietors of a building of which the front portion of the ground floor was occupied as bank premises, while the back portion was used by their agent as an office for the sale of stamps and the collection of taxes in the course of his duty as subcollector for the district. The first floor was entirely occupied by the bank agent as writing chambers in connection with his business as a law-agent. The second or attic floor was used by the accountant of the bank as a dwellinghouse. Access to the tenement was obtained by two doors, one of which was a public access from the street to the bank premises only. The other was a side door opening into a lobby, whence there was a stair to the first floor, and thence by another passage and stair to the dwelling-house on the second floor. A person in the dwelling-house bad thus access into any part of the whole building without going outside. Held (following Russell v. Coutts, 9 R. 261) that there being thus internal communication from the dwelling-house throughout the whole building, the bank and other business premises were not "separate tenements" exempt from inhabited-house-duty as being "occupied solely for the purposes of any trade or business," and therefore exempt from duty in respect of 41 Vict. c. 15, sec. 13.

This was an appeal by the Surveyor of Taxes from the decision of the Commissioners for executing the Acts relating to the inhabited-houseduties for the county of Selkirk. The Commissioners, sustaining an appeal against the assessment laid on under the Inhabited-HouseDuty Acts by the Surveyor, had relieved the respondents the British Linen Company of assessment upon certain premises as far as occupied for business purposes. The following facts were set forth in the case for appeal:-The property charged with assessment (which belonged to the British Linen Company) consisted of a building of three floors fronting Market Place of Selkirk. The front portion of the ground floor, valued at a rental of £45, was occupied exclusively as bank premises by the British Linen Company, while the back portion was occupied as an office for the sale of stamps and the collection of taxes by Mr John Steedman, solicitor, who was the bank s local agent at Selkirk, and also sub-distributor of stamps and sub-collector of taxes for the district.

The first floor consisted of four rooms and a lavatory. They were not enclosed by themselves, but each room entered from a passage running along the side of the building. They were all occupied by Messrs Lang & Steedman, solicitors, of which firm Mr Steedman was sole partner, in

connection with their business as law-agents; and in one of the rooms, which was occupied by Mr Steedman personally, banking business was also transacted by him when not in the agent's room on the ground floor. For the stamp office and the rooms on this floor Mr Steedman paid a rent of £30 to the bank.

The second or attic floor, valued at a rental of £15, was reached by a door in the passage on the first floor (marked D on a sketch produced), and thence by a staircase exclusively belonging thereto. It was occupied by the bank accountant or senior clerk of the branch, and for it he paid no rent. He kept the key of this door. In going from his house to the bank, or vice versa, the occupant could only do so by this door, and then through by a door (marked C on the plan) on the ground floor between the stamp office and the bank.

There were two entries to the premises, first, by a door (marked A on the sketch) leading direct from the street to the rooms occupied for banking purposes, and second, by a side door (B) from a passage running along the side of the building, and which side door opened into a vestibule or lobby having an access to the banking rooms on the right and the stamp office on the left, and from which a stair rose to the upper floors. Access would be had by either of these entries A or B throughout the whole building.

The bank rooms could be, and after business hours were, shut off from the rest of the premises by the door marked C, which locked from either side. The public entrance to the stamp office and the upper portions of the building was by the side door B.

The assessment against which the bank had appealed to the Commissioners was at the rate of 9d. per pound on £90, the cumulo value of the premises above described.

It was maintained for the bank before the Commissioners that the premises above described consisted of three separate tenements, which were capable, without change or alteration, of being let to separate tenants; that the whole of the first floor, which completely intersected the building, was, in point of fact, let and occupied as a separate tenement; that the upper floor, which alone was occupied as a dwelling-house, was a separate tenement; that the bank and stamp offices and the law office premises were used solely for business or professional purposes, and were therefore exempt in terms of 41 Vict. c. 15 (Customs and Inland Revenue Act 1878), sec. 13.

It was maintained for the Surveyor of Taxes that the premises did not fall under the exemption founded on by the bank, the principal portion being in the occupation of the bank itself or its officers, the remainder being occupied by Mr Steedman in his law and stamp business; that there was no structural division thereof into separate tenements, and there being an internal communication throughout the whole, which was used by the accountant daily as the bank's official resident on the premises, and which was the only access from the bank to his dwelling-house when the bank office was closed for the night.

The Commissioners found that the appellants were entitled to be relieved of the said assessments, so far as regards the portion of the premises occupied for business purposes in terms of section 13 of the Act 41 Vict. c. 15, and that the dwell

ing-house being a separate tenement and under the value of £20, was not liable to be assessed, and therefore sustained the appeal.

The Surveyor of Taxes took the present Case for the opinion of the Court.

Argued for him-This building was not a tenement used solely for business within the sense of the statute, because the accountant of the bank, who was not a caretaker, occupied the top flat. This was a stronger case than the Scottish Widows Fund, January 22, 1880, 7 R. 491, because the access to this top flat was through the bank premises, and not by means of a common outside stair as was the case there. The question was, whether this could be called a property divided into or let in different tenements. It could in no reasonable sense be so said. The top flat could not with any safety be let to anyone but the accountant of the bank, or some such other person. There was no distinction between this case and the case of Russell v. Coutts (December 14, 1881, 9 R. 261), for the accountant's house could in no sense be called a separate tenement; there was no structural division between it and the bank and stamp offices.

Replied for the bank-The Commissioners were right in relieving from the assessment, for the dwelling-house occupied by the accountant was a separate tenement. The criterion of separateness was from the lessee's point of view, i.e., from the interior. When once he was in

his house, no-one could enter except by his door (D in the plan), of which he kept the key. The bank and stamp offices were complete separate tenements. If the chambers and the top flat were let to separate tenants there would be no doubt about the case, on the authority of Nisbet v. M'Innes, Mackenzie, & Lochhead, July 15, 1884, 11 R. 1095. It could not make any difference that the tenant of the top flat was the accountant of the bank. There was no appreciable distinc tion between this case and the case of Corke v. Brims, July 7, 1883, 10 R. 1128. There the separate tenements opened into a common vestibule. Here there was a stair and passage in common. The tenant of the top flat had to leave his own house before he could get into any of the other premises. His house was structurally separate from the bank and stamp offices.

Sub-sec. 1, sec. 13, of 41 Vict. c. 15, provides that "Where any house being one property shall be divided into and let in different tenements, and any such tenements are occupied solely for the purposes of any trade or business, or of any profession or calling by which the occupier seeks a livelihood or profit, or are unoccupied, the person chargeable as occupier of the house, shall be at liberty to give notice in writing at any time during the year of assessment to the surveyor of taxes for the parish or place in which the town is situate, stating therein the facts; and after the receipt of such notice by the surveyor, the Commissioners acting in the execution of the Acts relating to the inhabited-house-duty shall, upon proof of the facts to their satisfaction, grant relief from the amount of duty charged in the assessment, so as to conform the same to the duty on the value according to which the house should in their opinion have been assessed if it had been a house comprising only the tenements other than such as are occupied as aforesaid or are unoccupied."