contention that the question of her access to the children would be foreclosed if the reclaiming note were held to be incompetent, that question was foreclosed in any event, because the question of the custody of the children, which covered questions of access, had been settled by the interlocutor which the pursuer had allowed to become final. Argued for the reclaimer (pursuer)—The competency of the reclaiming note was fixed once and for all at the date when it was lodged, and at that date the decree of divorce had not become final. Accordingly since at that date the marriage was still in subsistence the reclaiming note was competent. In any event, although the marriage was now dissolved there remained the question of access to the children, and also the question of the expenses of the action, and the wife was entitled to reclaim because these questions could only be raised in this process, and their determination depended on the granting or refusal of the divorce. At advising LORD PRESIDENT-The facts out of which this reclaiming note arises are these: Mr and Mrs Bridges raised what are sometimes called, though it is not a very accurate expression, mutual actions of divorce. These actions came to depend before the same Lord Ordinary; the proofs in the two actions were led on the same day, and the Lord Ordinary pronounced judgment on the same day in both actions. In the action by the husband against the wife he found the wife guilty of adultery and pronounced decree of divorce, whereas in the action at the wife's instance he found her averments not proved, and assoilzied the husband from the conclusions of the action. The present reclaiming note is taken by the wife against the decree which assoilzied her husband, but she has not presented a reclaiming note against the decree which divorced her, and accordingly that decree is now final. The question raised by the respondent was argued to us as one of competency. I do not think it is a question of competency, and so far as competency is concerned there is no reason why the case should not go to the roll. But as the whole question was argued before us, I see no reason for sending it to the roll, because nothing more can be said, and accordingly I think we can give judgment at once. The point argued was that it was impossible for us now to deal with the Lord Ordinary's judgment in this case, in respect that it will be impossible for us to reach an opposite conclusion from his Lordship, because there is now no marriage to dissolve. The marriage has already been dissolved by a final decree in the husband's action, and it was argued that, that being so, it is impossible for us in this action to recal the decree of absolvitor of the husband and to pronounce decree against him. I think that that argument must prevail, and this really follows from what was said by the Lord President in the case of Walker v. Walker, 9 Macph. 460, where one action was allowed to catch up the other just in order to avoid the situation which we have here. I think the present case is in exactly the same position as if one of the parties had died. If a spouse raises an action of divorce, and during the pendency of that action the other spouse dies, the proceedings fall, because decree of divorce can no longer be pronounced. Accordingly I am of opinion here that although the question is not strictly one of competency we should refuse the reclaiming note, because really it is impossible for the case to go on. I wish to add that as we thought the question one of general interest and of difficulty, we consulted the Second Division on the matter, and the Second Division are unanimously of the opinion I have just expressed. LORD KINNEAR-I concur. I think it clear that we cannot entertain as an open question, a question that has already been decided by a final judgment which we have no power to review. If the summons had contained any separate or separable conclusion rested upon some other basis than the marriage which the pursuer seeks to dissolve, I think it might have been right and proper that we should have allowed that separate conclusion to remain and consider it on its own merits. But there is no such conclusion in this action, because all the conclusions are in reality consequences of the main decree in which the pursuer asks divorce. I therefore agree that the present reclaiming note cannot be entertained. LORD JOHNSTON-In this case the Lord Ordinary pronounced decree of divorce for adultery at the instance of Mr Bridges against his wife, and, by her failure to reclaim, that decree has become final and cannot now be reviewed. As it stands it forms res judicata against Mrs Bridges. But Mrs Bridges had also raised a counter action of divorce against her husband, and in this also the parties had not merely joined issue before decree in the action at Mr Bridges' instance, but the actions which could not be conjoined were running pari passu. It is maintained that the moment the decree in the husband's action had become final, the marriage being then dissolved, the wife's action ipso facto fell and could not be proceeded with. When the case was discussed in the Single Bills I was disposed to think, notwithstanding what was said in the case of Brodie, 8 Macph. 854, that this was not a necessary result of what has happened here. The parties had, as I have said, joined issue on the counter action on the question whether facts and circumstances exist which require the Court to divorce and separate the husband from the wife and her society, to find and declare that he has forfeited all the rights and privileges of a lawful husband. As certain of these rights and privileges are or may be patri v. Bridges 17, monial, and as, at any rate since Lockhart's case, 1790, M. voce Adultery, Ap. No. 1, mutual actions of divorce have been competent, the Court recognising that mutual guilt may affect patrimonial consequences, I could not say that I saw any reason why the prior decree in the husband's action should prevent the wife's action being carried to a conclusion, or any more inconsistency, issue having once been joined, in the Court pronouncing the formal decree of divorce in the mutual actions ex intervallo than unico contextu. But it is proper that in this matter I should defer to the opinions of your Lordships and of the Judges of the other Division who have been consulted. LORD MACKENZIE concurred with the LORD PRESIDENT and LORD KINNEAR. The Court adhered. Counsel for Pursuer and ReclaimerIngram-Mercer. Agent-J. George Reid, Solicitor. Counsel for Defender and RespondentA. R. Brown. Agents-Grant & Gibb, S.S.C. Saturday, December 17. FIRST DIVISION. [Lord Dewar, Ordinary. CLELLAND v. ROBB. Reparation-Negligence-Relevancy-Boy of Twelve Ordered to Yoke Horse Alleged to have been Known to be Addicted to Kicking, and Fatally Kicked while doing 80. In an action of damages the pursuer averred that his son, aged 12, was occasionally employed by the defender and was ordered by him to help in yoking horses to a threshing machine driven by horse power, and to yoke a certain horse to a beam, for which purpose it was necessary to stoop between the horses heels and the beam; that in performing this operation the boy was killed by a kick from the horse; that the defender knew the horse was addicted to kicking; that "the defender in ordering the deceased to yoke the said horse as aforesaid was negligent, and the deceased was killed owing to the defender's negligence." Held (aff. judgment of Lord Dewar) that the pursuer's averment of negligence though in general terms was relevant, and issue approved. Observations (per the Lord President and Lord Kinnear) upon liability for negligence being set up by failure to perform a duty. William Clelland, miner, Whitburn, raised an action of damages against Robert Robb, farmer, Croftmalloch Farm, there, on the ground that his son had been killed through the negligence of the defender. The pursuer averred "(Cond. 2) For some time prior to 19th February 1910 the deceased James Clelland, a son of the pursuer, who at the said date was about eleven years and 11 months old and was still attending school, had been occasionally out of school hours employed by the defender at his said farm to do small pieces of light work. His remuneration consisted of such small sums as the defender chose to give him. (Cond. 3) At the said date the deceased James Clelland was at the said farm at the request of the defender. The defender was about to thresh corn. The threshing machine at the said farm is driven by horse power, the horses being yoked to the end of a beam by means of short chains from a swing bar hanging behind the horses' hips, which chains can be hooked on to the beam. (Cond. 4) The defender ordered the said James Clelland to help in yoking the horses to be used to drive the said mill. The said James Clelland accordingly, under the defender's directions, brought out one of the said horses, while the defender brought out another. When the said horses had been brought to the said mill the defender ordered the deceased James Clelland to yoke one of the said horses, which was a black horse, to the beam. The defender did not in any way warn the said James Clelland against attempting to yoke the said horse to the beam. It was necessary for the deceased James Clelland in order to do this to stoop down close behind the horse and between the horse and the beam. Just as he was fastening the said chains to the beam the horse kicked him in the forehead, rendered him unconscious, and caused injuries of which he subsequently died without regaining consciousness. (Cond. 5) The defender in ordering the deceased James Clelland to yoke the said horse as aforesaid was negligent, and the deceased James Clelland was killed owing to the defender's negligence. The said operation of yoking is one during which any horse is apt to be restive, and requires skill and quickness and experience in watching the behaviour of the horse on the part of the person performing it. The deceased James Clelland, as the defender well knew, was attempting the said operation for the first time, and was not of a proper age to do so with safety, and was without any experience in the management of horses. Further, the horse in question was, as the defender well knew, ill-tempered and given to kicking. For an inexperienced boy of the age stated to attempt to yoke the horse in question to the said beam was highly dangerous and well calculated to lead to the accident which occurred, and the defender, in ordering or permitting the deceased James Clelland to yoke the said horse, acted with gross negligence." The defender pleaded-"(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed with expenses." On 16th November 1910 the Lord Ordinary (DEWAR) approved of the following issue for the trial of the cause-"Whether, on or about 19th February 1910, and at or near Croftmalloch Farm, Whitburn, James Clelland, a son of the pursuer, was killed through the fault of the defender, to the loss, injury, and damages of the pursuer." Opinion.-"The pursuer in this action states that the defender occasionally employed his son to assist in farm work. On 19th February 1910, when the boy was eleven years and eleven months, the defender ordered him to assist in yoking horses to a threshing-mill. The boy led out one of the horses, and when he was in the act of hooking one of the short chains attached to a swing bar hanging behind the horse's hips, he was kicked in the head and killed. The pursuer avers that his son had no experience in the management of horses, had never yoked one before, and that the yoking operation in question was apt to make any horse restive, and required experience in watching the horse's behaviour, and that this particular animal was known to the defender to be ill-tempered and given to kicking. "The defender maintains that there is no relevant averment of negligence for which he can be held responsible, in respect that it is not stated that the boy got any specific order to hook the chain, and that there is not sufficient specification that the horse was known to be vicious. I do not think that this contention is sound. If the boy were asked to 'help in yoking' he would naturally assume that that included the hooking of the chains, and I do not think that it was reasonably prudent to permit an inexperienced boy to interfere with chains at a horse's heels in circumstances where it was likely to become restive; and if the defender knew the horse was 'illtempered and given to kicking' he ought to have warned the boy to stand back, even although the horse had never previously succeeded in kicking anybody. 'Negligence is the omission to do something which a reasonable man, guided upon these considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do- Blyth v. Birmingham Waterworks Co., 11 Exch. (1856) 781, 784. "I think a reasonably prudent man would in the circumstances set forth on record have adjusted the chain himself and warned the boy to keep away." The defender reclaimed, and argued— There was no relevant averment of knowledge that the horse was dangerous; “given to kicking" was not sufficiently specificSmith v. Wallace & Co., March 11, 1898, 25 R. 761, 35 S.L. R, 583; Cox v. Burbidge, 1863, 13 C.B. (N.S.) 430; Lee v. Riley, 1865, 18 C.B. (N.S.) 722, 34 L.J.,C.P. 212; Taylor v. Suther land, 1910 S.C. 644, 47 S.L.R. 541. deceased being a boy of twelve the defender did not owe to him a duty of protec tion as to a child. The Argued for the respondent-Specification was to be determined with reference to circumstances, and in such a case as the present a general averment would be held Dec. 17, 1910, to be sufficient-Renwick v. Von Rotberg, July 2, 1875, 2 R. 855; Burton v. Moorhead, July 1, 1881, 8 R. 892, 18 S. L.R. 640. The averments in Cond. 5 made it unnecessary to aver knowledge of specific acts of kicking on the horse's part, the operation in question not being a usual one, such as yoking to a cart. LORD PRESIDENT This is an action brought by the father of a boy who was killed by the kick of a horse. The averment is that the deceased boy had been occasionally employed for odd jobs-not at a fixed but at a trifling remuneration-by the defender at his farm, and that upon a certain occasion in accordance with that practice the deceased boy was at the farm and was temporarily employed by the defender; that in the course of that temporary employment the defender gave him an order to yoke--by which I understand to attach-horses which were about to be used to drive a threshing mill; that in the course of that operation he did not in any way warn the deceased boy of the danger which he incurred, the danger, the pursuer explains, being that the boy was dealing with a horse which the defender knew to be given to kicking; that in consequence of that the boy got behind the horse, and the horse kicked and struck him on the forehead and he died. I think that the case is a very thin one, but I cannot say that it is absolutely irrelevant, and I think that its relevancy primarily and necessarily depends upon there being this relation of employer and employed at the moment. By that I do not mean that the boy was in any sense taken into the defender's service, but that he was doing something which the defender had set him to do. Originally as the record stood there was an expression that the defender had "permitted" him to do what is alleged, but that has been taken out, and therefore the record as it stands must depend upon an order of some sort having been given. It was objected that there was not sufficient specification of the facts, from which it was to be inferred that the defender knew of the kicking propensities of the horse. I have come to be of opinion that the averment as made in general terms is in accordance with the usual practice, although I can quite see that if a specific instance was proposed to be given at the trial, and it came out at the trial that the knowledge must have been in the possession of the pursuer's advisers, it might very well be that the evidence should be refused for want of due notice having been given. But the pursuer takes his risk of that, and I do not think that we can say that the case is irrelevant because specific instances are not given. Therefore I think there must be an issue. But I cannot part from the case without saying that I do deprecate exceedingly what the Lord Ordinary has set forth in his note. He quotes the case of Blyth v. Birmingham Water-works Company, 11 Exch. (1856) 781 and 784, and also quotes the v. Robb , 1010. definition there given of what negligence is. Well, the definition given there is a very good one, and was strictly in point in the case. The case itself has to do with the duty of a water-works company to make their pipes sufficiently strong to resist frost, and the dictum is given secundum subjectam materiem. But the Lord Ordinary quotes it as if negligence per se was sufficient to make liability. Negligence per se will not make liability unless there is first of all a duty which there has been failure to perform through that neglect. I also deprecate very much that the Lord Ordinary should say afterwards that he thinks a reasonably prudent man would in the circumstances set forth in the record have adjusted the chain himself and warned the boy to keep away." Nobody can tell how the circumstances set forth in the record are going to come out, and how they come out, it seems to me, will make the whole difference. LORD KINNEAR-I agree with your Lordship. I have nothing to add except that in particular I agree with what your Lordship has said as to the Lord Ordinary's observation about negligence, and I think it is extremely important that that should be said, because we constantly find in discussion of this kind that the primary necessity for resting the charge of negligence upon some relation of duty is forgotten. There can be no question as to the authority of the passage which the Lord Ordinary quotes from Baron Alderson, and which is so frequently cited. But the learned Judge was giving the standard or measure of negligence, assuming it to be an actionable wrong, and was not defining the conditions on which an action for negligence will lie. The law is well stated by Sir Frederick Pollock, where, after stating the general rule in the words of Baron Alderson, he goes on to say (Pollock on Torts, 6th ed., p. 420) --"It was not necessary for him to state, but we have always to remember, that negligence will not be a ground of legal liability unless the party whose conduct is in question is already in a situation that brings him under the duty of taking care." I agree that the first condition of relevancy is that the pursuer should aver a duty on the part of the defender "of taking care" for the safety of the boy whose death resulted from the accident. As to the averments, I agree with what your Lordship has said, and have nothing to add. LORD JOHNSTON and LORD MACKENZIE concurred. Tuesday, December 20. SECOND DIVISION. [Lord Guthrie, Ordinary. CATHCART v. CHALMERS. Lease-Outgoing-Compensation for Improvements-Contracting Out-Substitution of Conventional for Statutory Compensation - Time for Making Claim· Illegal Condition Agricultural Holdings (Scotland) Act 1883 (46 and 47 Vict. cap. 62), sec. 36. The Agricultural Holdings (Scotland) Act 1883, sec. 36, provides-"Any contract or agreement made by a tenant by virtue of which he is deprived of his right to claim compensation under this Act in respect of any improvement specified in the schedule hereto (except an agreement providing such compensation as is by this Act permitted to be substituted for compensation under this Act) shall, so far as it deprives him of such right, be void." He The lease of a farm prescribed compensation for improvements to be paid in lieu of the compensation provided by the Agricultural Holdings Act 1900, sec. 1, and relative schedule (which superseded sec. 1 and relative schedule of the Agricultural Holdings (Scotland) Act 1883). The lease also contained a proviso that no claim for compensation should be made by the tenant later than one month prior to the determination of the tenancy. The tenant having given notice in terms of the lease of his intention to terminate the tenancy, quitted the farm accordingly. made claims for compensation prior to the determination of the tenancy (which but for the proviso would have been timeously made) but less than one month prior thereto. The landlord intimated to the tenant that the claims were excluded by the lease in respect that they were not timeous. Thereafter on the application of the tenant the Board of Agriculture and Fisheries appointed an arbiter for the purpose of dealing with the claims. A note of suspension and interdict having been presented by the landlord to prevent the arbitration being proceeded with, the Court-rev. the decision of the Lord Ordinary (Guthrie) - refused the interdict, holding that the stipulation contained in the lease as to the time of making the claim was void in respect that it was an agreement by the tenant by virtue of which he was deprived of his right to claim compensation. The Agricultural Holdings Act 1900 (63 and 64 Vict. cap. 50) enacts-Section 1-“(1) Where a tenant has made on his holding any improvement comprised in the First Schedule to this Act, he shall, subject as in the [Agricultural Holdings (Scotland) Act] 1883 (in this Act referred to as the principal Act), and in this Act mentioned, be entitled at the determination of a tenancy on quitting his holding, to obtain from the landlord as compensation under the said Acts for the improvement such sum as fairly represents the value of the improvement to an incoming tenant. . . ." Section 2"(2) Any claim by a tenant for compensation under the principal Act or this Act in respect of any improvement comprised in the First Schedule to this Act shall not be made after the determination of the tenancy." The Agricultural Holdings (Scotland) Act 1883 (46 and 47 Vict. cap. 62) enacts-Section 5-“ Where, in the case of a tenancy under a lease beginning after the commencement of this Act, any particular agreement in writing secures to the tenant for any improvement specified in the third part of the schedule hereto, and executed after the commencement of this Act, fair and reasonable compensation, having regard to the circumstances existing at the time of making such agreement, then in such case the compensation in respect of such improvement shall be payable in pursuance of the particular agreement, and not under this Act." Section 36 is quoted supra in rubric. Sir Reginald Archibald Edward Cathcart, Baronet, presented a note of suspension and interdict against Alexander Hyslop Chalmers and J. Montgomerie Pearson in order to prevent them proceeding with an arbitration under the Agricultural Holdings (Scotland) Acts. The respondent Chalmers had been tenant of a farm which had been let to him by the complainer on lease. The lease, dated 2nd and 14th March 1903, incorporated the estate regulations, which included, inter alia, an article prescribing the compensation for improvements to be paid to the tenant in lieu of that which he might otherwise have claimed in respect of improvements specified in Part III of the First Schedule annexed to the Agricultural Holdings Act 1900. The article also contained the following proviso"Provided always that no claim for compensation under the said Acts or under these conditions shall be made by the tenant later than one month prior to the determination of the tenancy." The tenant having given notice in terms of the lease of his intention to terminate the tenancy vacated the farm on 28th November 1908 accordingly. On 9th November the tenant posted a claim for compensation to the landlord, who received it on 10th November. This was followed by an amended claim posted on 26th and received on 27th November. The landlord intimated to the tenant that the claims had not been made timeously and were therefore barred. The tenant treated this as a refusal to agree to the nomination of an arbiter and applied to the Board of Agriculture and Fisheries for the appointment of an arbiter under the Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 61) to deal with the said claims. The Board appointed the respondent Pearson to be arbiter, whereupon the landlord brought a suspension and interdict to prevent the tenant proceeding with his claim and the arbiter from entertaining it. Answers were lodged by the respondent Chalmers only. The complainer pleaded-"(1) The pretended claims of the respondent Alexander Hyslop Chalmers against the complainer not having been timeously made, and being excluded by the terms of the lease referred to in the statement of facts for the complainer, and therefore not a competent subject for arbitration, the complainer is entitled to interdict as craved. (2) The agreement as to compensation incorporated in the lease having been validly entered into under section 5 of the Agricultural Holdings (Scotland) Act 1883, the respondent's claims for compensation can only be prosecuted in accordance with the provisions thereof." The respondent pleaded, inter alia—“ (2) The lease founded on being a contract or agreement made by a tenant, by virtue of which he is deprived of his right to claim compensation under the Agricultural Holdings Acts, is, so far as it deprives him of such right, void by the Agricultural Holdings (Scotland) Act 1883, sec. 36, and the Agricultural Holdings (Scotland) Act 1908, sec. 5, and the prayer of the note should accordingly be refused." On 13th January 1910 the Lord Ordinary (GUTHRIE) granted interdict as craved. Opinion."I think the complainer here is entitled to interdict. The case for the respondent was argued under two separate views-the one being based on section 5 of the 1883 Act, and the other being based on section 36 of the 1883 Act, taken along with section 2 of the 1900 Act. The argument based on section 5 of the 1883 Act depended on the view that the right to compensation existed, even although there might be a clause such as the clause contained in section 17 of the articles, regulations, and conditions incorporated in this lease, under which no claim for compensation, under the said Acts or under these conditions, shall be made by the tenant later than one month prior to the termination of the tenancy. It was maintained that it would be competent, under section 5 of the 1883 Act, to void the effect of that clause by showing the arbiter that that was not a fair and reasonable condition. It seems to me clear that section 5 does not apply in the circumstances. It applies to an agreement substituted instead of the Act in relation to compensation for any improvement specified in the third part of the schedule annexed to the Act, and it has no application to the clause relating to notice which we are dealing with in this case. "The other argument, under section 36 of the 1883 Act and section 2 of the 1900 Act, raises a different question. It is said that under section 1 of the 1883 Act there is a right absolutely expressed to the tenant to get compensation for improvements, the class of improvements being specified in the schedule, instead of which there is provision that you may have a substituted agreement. It is said in regard to notice that the only restriction on the tenant is that no claim by him shall be |