The only remaining question is, whether the Lord Ordinary was right in refusing the reference to oath craved by the respondent. That reference is to the oath "of the complainer, whom failing to his agent.' The reference to the oath of the agent is not competent, and I hold the reference was properly refused.

LORD M'LAREN-I agree that the reference is not expressed in such terms that the complainer was bound to accept it, and therefore that the Lord Ordinary rightly refused to sustain it.

On the other question, I concur in the view suggested by Lord Kinnear in the course of the discussion, and further developed by your Lordship in the chair, that it is not according to our practice that a reclaiming-note against an interlocutor refusing a reference to oath should be counted as a reclaiming-note on the merits of the case. A reference to oath puts an end to the case as a case in litigation. The object of the present reclaiming - note is that the Court should sustain the reference to oath, and we are therefore disentitled from examining the Lord Ordinary's previous judgment on the merits. The opposite view seems to me to be entirely at variance with the language of the Court of Session Act.

LORD KINNEAR concurred.

Fencing.

Held that part of a road supported upon a retaining-wall, and with a drop of 8 or 9 feet to the seashore, was not necessarily dangerous so as to require fencing, and that the question of whether it was dangerous or not was peculiarly one for a jury to determine upon evidence.

Mrs Alice Graham or Fraser, Whitehill Street, Glasgow, and her children, brought an action against the Provost, Magistrates, and Town Council of the burgh of Rothesay, being the local authority for said burgh, for damages and solatium for the death of the late Robert Fraser, her husband. Mrs Fraser also sued for damages for injuries sustained by herself.

The case was tried before Lord Adam and a jury upon 21st, 22nd, and 23rd March 1892, when the following facts were ascertained The deceased Mr Fraser and his

wife were, on the evening of 29th August 1890, standing on the public road within the burgh of Rothesay which leads from Rothesay to Port Bannatyne. The road in question runs along the seashore. At the point at which Mr and Mrs Fraser were standing there is a footpath on the side furthest from the sea, but there is none on the side nearest to the sea. Along the roadway there is a single line of tramway rails, with occasional double lines or lyes used as crossing-places for the tram-cars. The road is bounded and supported on the side nearest to the sea-wall by a perpendicular breast or retaining-wall. The top of this wall is on the same level as the road, and the depth of the wall from the road to the shore beneath varies from 8 to 9 feet or thereby, the shore below consisting of rock and shingle. There is no cope or parapet or fence or protection of any kind on the sea side of the road for the protection either of foot-passengers or of vehicles. Mr and Mrs Fraser were standing near the edge of the retaining-wall looking out towards the sea. An open hackney carriage, occupied by three ladies, was being driven along the road at the time. When a little distance away from the place where Mr and Mrs Fraser were standing one of the wheels of the carriage collapsed, the horse ran off, and the horse and the carriage and its occupants were precipitated over the retaining-wall on to the shore beneath. The horse and carriage swept Mr and Mrs Fraser also over the breastwall on to the shore beneath. Mr Fraser sustained injuries from which he died in the course of a few hours, and Mrs Fraser suffered serious personal injury.

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The pursuers contended, inter alia, that the defenders had failed in their duty of fencing the said road-a duty imposed on them at common law and by statute, in particular by section 94 of the Act 1 and 2 Will. IV. c. 43, which provides as follows, 'And be it enacted, that the trustees of every turnpike road shall erect sufficient parapet walls, mounds, or fences, or other adequate means of security along the sides of all bridges, embankments, or other dangerous parts of the said roads"-in respect that the part of the road in question was a dangerous part.

The jury returned a verdict for the defenders.

The pursuers moved for a rule, on the ground that the verdict was contrary to evidence, as the place of the accident was plainly dangerous-res ipsa loquitur-and ought to have been fenced.

At advising

LORD ADAM-One of the questions raised was, whether or not the particular part of the road where the accident happened was dangerous-in which case it was admitted that the defenders were bound both at common law and under the statute of Will. IV. to fence it.

On this question we had a large body of conflicting evidence. Witnesses were adduced who spoke to the condition of hundreds of miles of roads in the Highlands,

in Argyllshire, Dumbartonshire, and in Ayrshire and other counties. Some of them said that roads like the present were always fenced, while others said that these roads were never fenced. I told the jury that I thought that evidence of little value, as we did not know the particulars of each case. There was also evidence on both sides of persons who were in the constant habit of using the road. That being so, it was for the jury to say whether they, taking all that evidence into consideration, and also the local circumstances, such as the breadth of the road, situation, lighting, and other surrounding circumstances, were of opinion that the road was in that particular part dangerous and ought to have been fenced. I do not know what their opinion was, for the verdict they returned is a general one. There was clearly a conflict of evidence, however, on the question whether the place was dangerous, and their verdict on the matter must be given effect to unless the pursuers can show that the mere existence of a drop of 8 feet from the road to the beach involves necessarily a dangerous place. If that proposition could be maintained, the verdict is contrary to the weight of the evidence. I do not think, however, that it can be maintained. On the whole matter, I see no ground for interfering with the verdict.

LORD M'LAREN-The chief question to which argument for the pursuer was addressed was, whether the jury were wrong in coming to the conclusion that the place where the accident happened was not a dangerous part of the road in the sense of the statute.

Now, the question whether a place is dangerous is so evidently a question of fact that it may be said to be a matter peculiarly within the province of a jury, and I should not be disposed to interfere with the finding of a jury on such a question unless that finding should stand condemned as being contrary to facts of general knowledge and experience.

When we come to consider the description of the road in question, the case seems to me to be a very simple one indeed.

If it had been intended that every road supported on a retaining-wall exceeding eight feet in height should be fenced, it would have been easy to frame an enactment to this effect. From one's knowledge of the roads of this country, it would be impossible to carry out such a provision without very great expense to the counties. Accordingly no such absolute burden is laid on these communities, but they are to take into consideration whether particular parts of a road may not be so dangerous as to require fencing in the interests of the safety of the public.

There may be long stretches of straight road carried to a height much exceeding the height of the road in question, which would in the opinion of most persons be quite safe, because if the road is of sufficient breadth there would be no occasion to drive near the edge, and carriages meeting on the road would pass each other

at a walking pace. One has seen long stretches of such unfenced road in valleys in the Highlands and other mountainous districts of this country. On the other hand, there may be danger altogether irrespective of the height of the retainingwall. There is the case of a road carried along the slope of a valley, and where the road turns at an acute angle, so that the drivers of two approaching carriages could not see each other until they met at the angle. That might be held to be a very dangerous place, and a place which ought to be fenced irrespective of the height of the road. The whole question is one of circumstances and of degree, and even the amount of traffic on a road is an element of consideration on the question of danger. Now, there are no specialties in this case tending to show that the jury were wrong in the conclusion which they expressed in their verdict. They thought the road reasonably safe, and I am of opinion that no cause has been shown for interfering with their judgment on the matter.

LORD KINNEAR-I am of the same opinion. The verdict for the defenders is general, and we cannot tell whether the jury found as they did because they thought that the place where the accident occurred was not a dangerous place which the defenders were bound to fence, or because they thought that although there ought to have been a fence, its absence did not cause or contribute to the accident. Either ground would have been sufficient to support the verdict, because the pursuers had to show both that the defenders were in fault and also that their fault was the cause of the injury.

Now, there is no question that there was evidence both ways upon the question whether the place was dangerous, and we cannot say that the verdict is wrong in so far as it negatives fault on any ground short of this, that irrespective altogether of the evidence of experts, and of the special circumstances of the case, a road with a perpendicular fall of 83 feet towards the sea beach is necessarily and in all cases so dangerous as to impose a duty upon the Road Trustees to fence it. I think it is impossible to come to such a conclusion, and I see no reason to interfere with the verdict, assuming that we have no means of knowing that the jury meant to find that there was no fault on the part of the defenders.

LORD PRESIDENT-The question upon which the verdict of the jury is said to be wrong is the question whether the part of the road upon which this accident happened was dangerous. If it was dangerous, then at common law and under the statute of 1 and 2 Will. IV. c. 43, there would be an obligation upon the local authority to fence it. I say this because it is not suggested that this was a bridge or embankment, in which case there is no discretion given by the Act, for they must be fenced.

The question whether it was a dangerous part of the road was one which was most

obviously an appropriate question for the jury. But in the speech which we have just heard we have had no analysis of the evidence. On the contrary, the case has been presented as if res ipsa loquitur upon the bare fact that there was a drop of 8 feet from the road to the shore.

In some places there might be particular facts as to local situation which would have aided the jury in arriving at an adverse conclusion, but they had here no case of that kind to deal with, and I think we should not be justified in granting a rule unless we came to the conclusion as matter of common sense that where there was an unprotected drop of 8 (or for that matter a drop or declivity of any substantial depth) from a road to a shore, there was an obligation upon the local authority to fence the road. To say this would be, in my opinion, to reach a preposterous and unreasonable conclusion, and one which would incidentally lead to the bankruptcy of all the Highland County Councils.

The Court refused the motion.

Counsel for Pursuers-Comrie ThomsonGuy. Agents Macandrew, Wright, & Murray, W.S.

Counsel for Defenders - Asher, Q.C.A. S. D. Thomson. Agent-John Latta, S.S.C.

Thursday, June 2.

FIRST DIVISION.

[Lord Stormonth Darling,
Ordinary.

ROYAL BURGH OF RENFREW v.
MURDOCH.

Burgh-Common Good - Harbour-Loan for Benefit of Harbour-Obligation to Repay Loan-Assignation of Harbour Rates in Security - Burgh Harbours (Scotland) Act 1853 (16 and 17 Vict. c. 93), secs. 17, 18, 19, and Sched. B.

A burgh which had adopted the Burgh Harbours (Scotland) Act 1853, borrowed a sum of money for the extension and improvement of its harbour, and granted a bond and disposition in security, in the form prescribed by Schedule B of the Act, which contained an obligation to repay the money lent, and assigned the harbour rates in security. The harbour rates proved insufficient to repay the loan.

Held that under the bond and assignation the burgh was bound to repay the money out of the common good. The Burgh Harbours (Scotland) Act 1853 (16 and 17 Vict. c. 93), upon the preamble that "Whereas the harbour and other dues leviable at the harbours belonging to many of the royal burghs in Scotland have. become inadequate for the maintenance of such harbours, and it is expedient that further provision should be made for the extension, improvement, and regulation of

such harbours and for the increase of the rates and duties__leviable_thereat, Be it enacted". Sec. 17. "From and after

the adoption of this Act in any burgh, the whole future revenue of the harbour shall be applied and expended by the town council in the maintenance, improvement, and extension of the harbour, and in no way and for no other purpose whatever." Sec. 18. (With rubric "Town Council may borrow money on the security of the rates")-"It shall be lawful for the town council from time to time to borrow for the purposes of extending or improving the harbour, such sum or sums as they shall deem expedient. . . and to assign the rates by this Act authorised to be levied in security of the repayment of the sum so borrowed.. provided always that intimation shall be given by the town council of their intention to borrow money by the insertion of a notice to that effect, and stating the sum proposed to be borrowed. . . once in a newspaper published in the burgh . . . provided also that the resolution to borrow any sum of money shall be approved of by at least twothirds of the members of the council who are present" at the meeting, authorising the loan, "and that the whole sums so borrowed

shall be applied and expended in the extension and improvement of the harbour, and in no other way and for no other purpose whatsoever." Sec. 19. "The bonds and assignations to be granted for securing the repayment of the sums to be borrowed or advanced as aforesaid shall be in the form of Schedule B hereunto annexed, and shall be signed by the provost or acting chief magistrate of the burgh, and by the treasurer and town clerk at an open meeting of the town council, and two of the councillors present shall sign as witnesses thereto, and such bonds and assignations shall be recorded in the minute-book of the town council... and in case of competition, such bonds and assignations shall have priority and preference, according to the dates of such registration, and until repayment of the sums so borrowed or advanced, and interest thereon, such sums, and the bonds and assignations granted therefor respectively, shall form a lien on the rates by this Act authorised to be levied preferable to all other debts and claims against the burgh, and the creditors in right of such sums shall be entitled to receive the same from the town council or their officers out of the first and readiest of such rates."

The Act 3 Geo. IV. c. 91 (Sir William Rae's Act 1822) by sec. 11 enacts "That it shall not be lawful for the magistrates or the town council of any burgh to contract any debt, grant any obligation, make any agreement, or enter into any engagement, which shall have the effect of binding them or their successors in office, unless an act of council shall have been previously made in that behalf; and any such contract, obligation, agreement, or engagement, made or entered into without such act of council, shall be void and null as against the common good of the burgh."

Upon 2nd August 1886 the Town Council of Renfrew, after due intimation by advertisement, unanimously resolved to borrow the sum of £1300 from Mr James Murdoch, 2 Lennox Place, Whiteinch, Partick, in terms of the Burgh Harbours (Scotland) Act 1853, for the extension and improvement of the harbour of Renfrew, and minuted their resolution.

Thereafter a bond and disposition in security was executed upon the same day in the following terms:-"The Royal Burgh of Renfrew has this day borrowed the sum of £1300 from James Murdoch, clerk, residing at No. 2 Lennox Place, Whiteinch, Partick, for the extension and improvement of the harbour of the said burgh, which sum we hereby bind the said burgh to pay to the said James Murdoch, his heirs, executors, and assignees, at the term of Whitsunday 1891, within the Council Chambers of the said burgh, with interest thereof at the rate of £1, 10s. per centum per annum from the date hereof, payable half-yearly at the terms of Whitsunday and Martinmas in each year until paid: . . . And we hereby assign to the said James Murdoch and his foresaids the rates authorised to be levied at the said harbour by the Act 16th and 17th Victoria, chap. 93rd, entitled an Act to enable burghs in Scotland to maintain and improve their harbours, in security of the repayment of the foresaid sums, principal and interest, which are herby declared a lien on the said rates: And we consent to the registration hereof for preservation and execution: In witness whereof.'

This bond and disposition in security was in the form prescribed by Schedule B of the Act. No interest was paid upon this bond after Whitsunday 1887, and upon 23rd May 1891 the creditor charged the burgh of Renfrew to repay the loan with interest.

A note of suspension of the charge presented by the Magistrates of Renfrew having been passed, a record was made up in which the complainers averred "The charger's loan in 1886 is the last in date and in ranking of the said loans upon the harbour rates. He was certiorated before and at the time of the loan that his security covered only the harbour rates, and in no way affected the common good. The burgh borrows at the rate of 4 per cent. on the common good. The security over the harbour rates, as in the charger's bond, not being so good, the harbour bonds carry 4 per cent. The burgh in session 1878-79 promoted unsuccessfully a private bill for power to give the security of the common good in addition to the harbour rates in loans to the extent of £20,000, for the extension and improvement of the harbour."

The complainers pleaded-"(1) The charger's security being limited to the harbour rates, and there being no funds to meet his charge, the complainers are entitled to suspension. (2) The charge being given wrongfully for the purpose of attaching the common good or other funds of the burgh, in and to which the charger

has no right, the same should be suspended."

The respondent pleaded-"(2) In respect of the personal obligation of the said royal burgh contained in the bond upon which the charge now sought to be suspended proceeds, the charge, being orderly proceeded, ought not to be suspended, and, in any event, can only be suspended upon caution or consignation of the sum due under the bond. (3) The complainers being bound by the terms of the bond founded upon to repay the sum therein contained, and the term of payment being come and bygone, the charge ought not to be suspended."

Upon 17th February 1892 the Lord Ordinary (STORMONTH DARLING) repelled the reasons of suspension, found the warrants and charge orderly proceeded, and decerned.

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Opinion. The royal burgh of Renfrew is proprietor of the harbour of Renfrew, and in 1875 it adopted the Burgh Harbours (Scotland) Act 1853. The purpose of that Act was to make further provision for the extension, improvement, and regulation of harbours belonging to royal burghs in Scotland, and for the increase of rates and duties leviable thereat. Accordingly it enabled town councils to adopt the Act, and thereupon to prepare a schedule of rates not exceeding the maximum rates appended to the Act, and, on the schedule being approved by the Board of Trade, to exact the rates therein specified. It further provided (sec. 17) that from and after the adoption of the Act in any burgh the whole future revenue of the harbour should be applied and expended by the town council in the maintenance, improvement, and extension of the harbour, and in no other way, and for no other purpose whatsoever. It also, by section 18, enabled the town council, from time to time, to borrow for the purpose of extending or improving the harbour such sums as they might deem expedient, and to assign the rates in security of the repayment of the sums so borrowed. By section 19 it provided a form of bond and assignation, and declared that, until repayment of the sums so borrowed, and interest thereon, such sums, and the bonds and assignations granted therefor, should form a lien on the rates preferable to all other debts and claims against the burgh, and that the creditors in right of such sums should be entitled to receive the same from the town council and their officers out of the first and readiest of the rates.

"The burgh of Renfrew seems to have exercised its borrowing power under the Act to the extent of £6500. The respondent's bond for £1300 was the last of those issued, and was granted in 1886, bearing interest at 4 per cent. It is in the statutory form, is signed and attested by the proper persons, and contains these words which sum we hereby bind the said burgh to pay to the said James Murdoch, his heirs, executors, and assignees, at the term of Whitsunday 1891, within the Council Chambers of the said burgh.'

"The question is, does this obligation extend to the whole burgh property (except, of course, such as is specially appropriated to other purposes), or is it limited to the harbour rates?

"In support of the latter view, the complainers are not able to point to any express words of limitation in the statute, but they appeal to its general scope and tenor, and especially to the dedication of the whole future revenue of the harbour to harbour purposes, and the provision that the lenders shall be entitled to get their money out of the first and readiest of the rates.

"In order to test this argument, it is necessary to consider what was the state of the law as regards burghs having a grant of harbour before the passing of the Act. The harbour and its dues formed a part of the common good. The right to levy dues had its counterpart in the obligation to maintain and improve the harbour, but the dues could not be increased without statutory authority, and the burgh could not be compelled to expend_its_general funds for harbour purposes. If, however, it chose to do so, the debt so incurred was, I apprehend, an ordinary debt of the burgh, and was recoverable out of the common good, provided the proceedings were taken in compliance with Sir William Rae's Act (3 Geo. IV., cap. 91), sec. 11.

"In that state of matters the Act was passed, on the preamble that the dues leviable at many of the burgh harbours in Scotland had, by reason of the change in the value of money and other causes, become inadequate for the maintenance of such harbours. The contemplation of the statute was, not that harbours were a source of revenue to burghs, but that they were either a burden if properly maintained, or if not, that they had fallen into a condition of disrepair. The leading purpose therefore was to improve the harbours, and as a means to that end to raise the rates. It would have been rather surprising if the Act had not taken care to provide that the increased rates should be entirely devoted to harbour purposes. But that seems to me to afford no ground for holding that if a burgh chose to adopt the Act (which it was not bound to do), and chose to borrow money (which it was not bound to do), the common good should be relieved of all responsibility for the money so borrowed. Presumably before the Act was passed the common good derived no benefit from the existence of the harbour. Assuredly after the adoption of the Act it could derive none. But the general prosperity of the burgh might gain largely by the harbour being put into a satisfactory state, and it might be a perfectly prudent act of administration in the true interests of the community to pledge the common good for such a purpose. That was the view of municipal policy which led to the enactment of section 7 of the Public Works Loan Act of 1882, and that was the view which the burgh of Renfrew itself took when it promoted unsuccessfully in session 1878-79 the private bill mentioned

June 2, 1892.

in the condescendence. I think the burgh was wrongly advised in supposing such a bill to be necessary, but the mere fact of its introduction is enough to show that in the estimation of the municipal authorities the common good might well be burdened with liability for harbour loans, though it could derive no direct pecuniary benefit from harbour expenditure.

"Neither do I think that the provisions in the statute for assigning the rates in security of harbour loans necessarily or even naturally imply that no other fund is available for repayment. Where a harbour authority has no property except the works and the rates which they produce (as in the case of the Elgin and Lossiemouth Harbour Company, 6 R. 987, and the Greenock Harbour Trustees, 15 R. 343), the fund for repayment and the subject of security may be one and the same. But in such cases the document granted to the lender is simply an ‘assignment,' not as here a bond and assignation.' The case is very different where the harbour belongs to a body like a burgh having other funds of its own. The natural meaning of binding a burgh to repay money is that the existing town council and their successors in office are to make forthcoming the whole available property of the burgh, and there is nothing inconsistent with that in assigning a particular portion of the property of the burgh as a security to the lender. I think it would require either express words, or (to use Lord Eldon's classical phrase) 'impli cation plain,' to limit the effect of general words of obligation. Admittedly the statute contains no such express words, and the implication seems to me to be all the other way.

"I assent to the complainers' argument that the respondent's bond derives its whole efficacy from the statute, and that apart from the statute it would not be in a form to bind the burgh or to affect the common good. But the bond is in the form prescribed by the statute, and the whole question is as to the effect of a bond so conceived. In the solution of that question it is of no moment to say that it is not in the form prescribed by the earlier Act of 3 Geo. IV. c. 91.

"I am therefore of opinion that the charge was orderly proceeded, and that the note of suspension must be refused, with expenses."

The complainers reclaimed, and argued They had not intended to pledge, nor had they in fact pledged, the credit of the burgh. In borrowing as they had done, they had acted as Harbour Trustees dealing with a special fund-the harbour ratesquite separate from the common good. The bond was not in the form employed when the credit of the common good was pledged, nor had a formal Act of Council been passed as required by Sir William Rae's Act. The bond was in the form prescribed by the Act of 1853, which throughout its provisions contemplated harbour rates, and harbour rates alone. Had these rates yielded a surplus, the common good could not have been bene