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Appendix Page 13


including upkeep and inspection, which were or might be exigible at the instance of strangers to the contract against the party making use of the coach. These are duties for which, even in a question with others than his servants, it is far from certain whether one who uses and controls a vehicle is entitled to discharge himself of responsibility by delegating the duty under contract. It would rather appear that any negligence of the delegate would be imputed and would be pleadable against his constituent. See MacDonald v. Wyllie & Son, 1 F. 339. All these considerations indicate that the only appropriate defendant would have been the Postmaster-General. It was apparently because this defendant was in a position to plead that immunity against claims in tort which is open to be pleaded by a Government Department, that an attempt was made to transfer responsibility for the injury against the party who had taken himself bound under a contractual obligation to maintain and repair. It was recognised that 'hard cases make bad law,' and the plaintiff was accordingly refused a title to sue. The decision appears to me to be merely an illustration of the rules of law described by the phrases 'res inter alios actæ' and 'proximate cause.' The case of Earl v. Lubbock, 1905, 1 K.B. 253, affords nothing more than a less notable example of the application of the same rules of law.

    There were, however, three among the cases which were cited by Mr Clyde, in two of which the learned Judges appear to recognise, and in the third to proceed upon a distinction as regards liability towards third parties, which was assumed in law to affect those who produce or prepare articles or appliances according as these are or are not dangerous per se. The first two of these cases were both concerned with paraffin lamps, one of which was designed for domestic lighting and the other for industrial brazing. In Longmeid v. Holliday, 6 W. H. & G. Exchequer Reports 761, Parke B. as his ground for deciding



Lord Moncrieff

Appendix Page 13

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