Skip to the content

Appendix Page 22



Lord Justice-Clerk


prove fault on the part of the defenders.' But, while formally reserving my opinion, I think I indicated not obscurely the view which I entertained, on a perusal of the English cases, if it had been necessary to express that view and decide the case upon it.

    Now, the only difference — and, so far as I can see, it is not a material difference — between that case and this case is that there we were dealing with a mouse in a ginger-beer bottle, and here we are dealing with a snail in a ginger-beer bottle. Quoad ultra the circumstances appear to be identical.

    Now, my Lords, if the opinions which were expressed by Lord Ormidale and Lord Anderson be sound, and if the opinion which I at any rate indicated, if I did not clearly express it, be sound, then it follows that the conclusion which the Lord Ordinary arrived at in this case, namely, that a proof is necessary, was a wrong conclusion. His Lordship held that the plea to relevancy tabled by the defenders was a bad plea, and repelled it. If the views which I have expressed are sound, that plea ought to have been sustained and not repelled.

    We have been invited by Mr Milligan to re-consider the views which were expressed in Mullen's case, and to which I have drawn attention. I am bound to say that, having re-considered the whole matter in light of the cases to which reference was made on that occasion and on this, having read with attention the Lord Ordinary's Opinion, and having listened with care to the argument propounded by Mr Milligan at the Bar, my opinion remains unaltered. My view is that the averments of the pursuer in this case are irrelevant.

    I think it unnecessary to detain your Lordships by going through the cases for a second time, seeing that they were so fully canvassed on a recent occasion in this Division. I will

Appendix Page 22

Back to index