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Notes on Decided Cases.

Donatio mortis causa.- Recovery of Donor-Deliverer-M'Nicol v. M'Dougal, 25th October, 1889, 17 Ret. p. 25, deserves some notice in connection with the doctrine of mortis causa donation. The facts of the case are unimportant. The gift alleged was of money standing on depositreceipt in name of deceased, and the person in whose custody the depositreceipt was found failed to prove a gift of the money. But it is necessary to call attention to the grounds of decision in the leading opinion of Lord Young, because these are at variance with the law laid down in some recent cases. A donation mortis causa "is made," he says, "in contemplation of death, and in my opinion, whatever may have been said to the contrary, in immediate contemplation of death. Then, if that apprehension is not realised, and death does not follow, but the apprehensive donor recovers, I think the donation is revoked by that very fact, and that it will not survive the donor's recovery. Here the alleged donation was made a long while before death. The donor survived about a year. I doubt, and indeed I am individually of opinion, that no donation mortis causa will endure for a year. I do not think that it is of the nature of a donation mortis causa to last anything approaching a year." He then goes on to say that it is essential to a gift, whether inter vivos or mortis causa, that the donor must divest himself and invest the donee, and that such divestiture and investiture could not in the case of donation inter vivos be made by indorsation of the deposit receipt, and that "until the donee got the money everything might be undone, although after he had got the money the gift would be irrevocable;" and that a donation mortis causa required the same investiture and divestiture, otherwise it would be a mere verbal legacy and of no effect.

Now, in the case, once regarded as leading, of Morris v. Riddick (5 Macp. 1036), three propositions were laid down by Lord Deas as expressing the characteristics of donatio mortis causa. These are (1.) It must be made in the prospect of death; (2.) It takes effect only in the event of death occurring in the existing illness, otherwise the gift must be returned. (3.) There must be delivery.

In Crosbie's Trs. v. Wright (7 R. 823), the last of these propositions was, with some slight qualification, recalled by Lord Deas himself, and expressly repudiated by the other judges. In this case the names of the donees stood on the deposit-receipt, which was payable to survivors or survivor. The Lord President said "I do not think delivery is absolutely necessary, . . the question is, Was there a previous animus donandi in regard to the money?. . . I think the deceased . . . had an animus donandi de presenti, and, if that is conclusively proved, I am not prepared to say that more is required to constitute donation mortis causa, provided the elements of such donation be present." Divestiture of donor and investiture of donee here, then, consists in the expression of an animus donandi de presenti. Prove that and you make out your case for donation.

...

The second of Lord Deas's propositions in Morris v. Riddick, was displaced five years later in Blyth v. Curle (12 R. 674). This was a case of a bank pass-book in joint-names of donor, donee, and survivor. Lord Deas's second proposition was pleaded against the donation. The Lord President, after reviewing the texts in the Digest, and the whole cases in the Scottish books, puts it aside as untenable, saying "The fair implication [from the Roman texts] seems to me to be that, while the donor's power of revocation subsists till his death, if he die without revoking, the gift will become absolute by his death, though that may occur after many years, and not as the result of the peril, the apprehension of which was the immediate motive of the gift." And again, “I cannot find in any of our authorities, with the exception of the dicta relied on by the appellants, a recognition of the necessity of a present imminent peril to life, as a condition of the right or power to make a donation mortis causa.” The other judges agree in this opinion; and the decision as to delivery given in Crosbie is also reviewed and unanimously affirmed. In Lord Advocate v. Galloway, 11 Ret. 541, the same bench had in the previous year sustained a donation mortis causa where the donor, though aged, was in good health, and went about his business for three years after he made the gift. In his opinion in M'Nicoll v. Macdougall, therefore, Lord Young virtually goes back to the old proposition of Morris v. Riddick. He says his view is that of the law of England. That the laws of the two countries should be assimilated is no doubt desirable, but the process should not and cannot be by judicial decision. It must be by legislation proceeding on a view of public utility, which judges are seldom well qualified to form. Nor should it be by the Scots law adopting the rule of the law of England in cases where, in the opinion of Scots lawyers, their own law possesses the better principle.

R. B.

Reparation-Limits of Liability.-Scott's Trustees v. Moss, 17 R. p. 32; 27 S.L.R. 30.-Moss advertised a descent in a parachute from a balloon, which was to ascend from a recreation ground in the outskirts of Edinburgh, seventeen acres in extent. Admission thereto being by payment, a large crowd collected in the neighbourhood outside, and the parachutist descending in a field close to, but outside the enclosure, this crowd rushed into the field to see the descent and the performer. The pursuers sued for damages thus done by the trampling crowd to the field. The Court sent the question to a jury on the issue whether this descent into the pursuers' field might readily have been foreseen by defender, and whether, as a consequence of the descent, and as the natural and probable effect thereof, the crowd entered the field. Now this decides the liability of the defender in law, but the ground of the defender's liability is one that is not easily expressed in terms of any of the usual legal maxims, and neither the Lord President nor Lord Shand attempted so to formulate their opinions. Lord Adam, indeed, said that the ground of the defender's liability in law was that a person was not entitled to do anything on his own property which was likely to cause damage to his neighbours. But this does not satisfactorily meet the case, for neighbourhood is not apparently essential, and it would, probably, in the view of the Court, have made no difference to the case that the balloonist had ascended from North Berwick with a southerly wind, intending to alight on the foreshore at Elie, and had there alighted on private property, and damage had been caused by a crowd. It is not what is done on the defender's ground that causes the damage, but what is done on the pursuers'. Besides, this maxim quoted by Lord Adam has no bearing at all on the principal point in the case, which was that the damage was not done by the parachutist (who for the purpose of the argument may be assumed to be the defender), but by outside individuals, from whom the defender was obtaining no benefit, and who might be acting illo invito, and who were certainly committing a delict in breaking into the pursuers' field. This, therefore, is a liability which cannot be well explained on any theory of employment, agency, or identification, and it disregards the usually válid defence that the damage was caused by the wilful delict of a third party. The Lord President and Lord Shand hold that the defender was liable for the natural and probable consequence of his action-a consequence which he ought to have foreseen; but they did not show how the liability could arise, and to that extent the judgment is not satisfactory. For a man is not in every case liable for the natural and probable consequence of his action. For instance, it is the natural and probable consequence of giving the next Lord Mayor's Show that some of the crowd of spectators will be hurt; and if a man makes a triumphal entry into a town by a highway lined with trees, it is natural and probable that a crowd will climb them and damage them, but in neither case will the principal actor be liable.

And he will escape liability, because he has been engaged in an act lawful in itself, and he has not been negligent or faulty in performing it. This explains the case of Fairbanks v. Kerr, 10 Amer. Rep. 664, where individuals in listening to an orator in a public place climbed on heaps of paving stones, and broke them, and in which the defender (the orator) was held not liable. Negligence alone, though damage result, will not create liability, because the damage may be too consequential, or, in other words, not necessarily foreseen, and this is the case of Sevoles v. North London Railway Company, 21 L.T.R. 835. In this case an engine left the rails through the fault of the Company, and fell into a private garden, the flowers in which were injured by people going to look at the wreck (Cf. Hay v. North British Railway Company, 4 S.L.R. 136). Two elements are required to create liability; and they are-(1) that the primary act must be unlawful or negligent; and (2) that the consequences must be the natural and probable consequences of the act, or consequences which ought to have been foreseen. Both these elements are present in Moss's case. See also as to joint negligence, Burrows v. March Gas Company, L.R., 5 Ex., p. 67.

A. T. G.

account.

The Game of Speculation. Mollison v. Noltie, Jan. 24, 1889, 16 R. 350. To those who have read the cases of Foulds v. Thomson, 1857, 19 D. 803, and Thacker v. Hardy, 1878, 4 Q.B.D. 685, this decision can present no difficulty. In Foulds the species facti was this. A person employed a broker to sell stocks which he did not possess, and to buy stocks which he did not intend to take up. His expectation was that the broker would so arrange matters that a mere payment of "differences" would settle the But in this he was mistaken-the broker entered into real contracts with buyers and sellers of stocks, which he became personally bound to implement, and did ultimately implement by advancing the money himself. Having done so, he sued his constituent for repayment of his advances, and also for commission. Thacker's case was a repetition of the same story, with this one addition, that it was there held to be clearly proved (what was not so clear in Foulds) that the broker knew his constituent to be a mere speculator, and also knew that, unless matters were arranged for him as he expected, he would be unable to meet his engagements. In both cases the Court reached the same conclusion-namely, that the broker was entitled to recover his advances and commission, and that the constituent could not repudiate liability on the pretext that the transaction involved gaming or wagering. The contract between the broker and the speculator the Scottish and English Courts alike held to be a bond fide onerous undertaking, in respect of which the broker incurred obligations for his principal. Assuming

the principal's object to have been "sheer speculation, in which he hoped to gain by the rise of stocks bought, or by the fall of stocks sold," and characterising the proceeding as "gambling in the popular sense of the term," they drew the distinction that "a party may gamble in speculations without either gaming or wagering" (L. J.-C. Hope, 19 D. 812). In Lord Wood's terse language, "To wagering or gaming there must be two parties. . . The parties must come together directly or through their brokers. . . . There must be opposite parties, and there can be no innocent ignorant parties." In the cases referred to, the opposite parties-the buyers or sellers of the stocks were not shown to be gaming against the broker's constituent; and the course of dealing was, as expressed by Brett, L.J., in Thacker's case, that "the plaintiff (broker) did not agree to buy from or sell to the defendant, but that he was only bound to buy or sell for him; but that agreement made it necessary that the plaintiff should, as principal, enter into real contracts for the purchase and sale of stocks with the jobbers. The plaintiff carried out these instructions and incurred obligations, in respect of which actions might now be brought against him. The plaintiff sued the defendant for commission upon the sale of stock, and for indemnity against the liability which he has incurred through the defendant desiring to speculate. I think that the plaintiff is entitled to recover in respect of both claims."

The step from these decisions to the decision in Mollison's case is an easy one. In Mollison there were two speculators who employed a broker to negotiate a joint-speculation, and the transaction having resulted in loss, one of the speculators paid the broker in full, and then sued the other for contribution of his share. The Court sustained the action. From the former cases it was plain that both principals were liable to the broker, and the liability being joint and several, he could in his option have recovered a share from each, or the whole from either. That being so, it would have been irrational to hold that through the accident of the broker demanding and recovering his whole debt from the one, the other should escape altogether. The Lord Justice-Clerk expressly based his judgment on Fould's case, and Lord Young his on Thacker's case, though the direct bearing of the passage he quotes from Thacker is somewhat difficult to appreciate.

The case of Mollison v. Noltie is interesting, not so much from what it decides, as from what it suggests as remaining for decision. The judges there indulge in no surmises, but Lord Wood in Foulds and L. J. Lindley in Thacker raise incidentally some very interesting speculations regarding the limits of the doctrine affirmed in these cases. It is decided law that where two opposite parties speculate against one another in "differences," neither can recover against the other, Grizewood v. Blane, 1851, 11 C.B. (Scott), 538; Heiman v. Hardie & Co., 1885, 12 R. 406. The contract then is pure wagering. Suppose such a contract conducted through brokers alive to its true nature and employed to conduct it as wagering. Would