133 / 364
case the plaintiffs' banking business was a genuine
business.
(United Dominions Trust Ltd.
v.
Kirkwood,
Law
Times,
23/7/65.)
Driving without reasonable consideration
The defendant was charged with driving a double-
decker bus on August 29, 1964, without reasonable
consideration for other persons using the road,
contrary to section 3 (i) of the Road Traffic Act,
1960. Five of his passengers gave evidence that
during the journey, and particularly at a point where
there was a sharp bend, the speed of the vehicle was
such as to cause panic and alarm to them and to give
rise to a fear that the vehicle would overturn. No
evidence was offered by the prosecution that anyone
outside the vehicle was treated without reasonable
consideration. At the end of the case for the
prosecution it was submitted for the defendant that
there was no case to answer since, the intention of
the section being to prevent misconduct by a driver
towards persons outside on the highway, the
passengers in a vehicle did not come within the
words in this section "other persons using the road".
The justices acceded to that submission and dis
missed the information.
On appeal by the prosecutor :—HELD, that the
words "other persons using the road" in section 3 (i)
meant persons other than the driver of the vehicle
who was alleged to have driven without reasonable
consideration, and included passengers. The
prosecution, therefore, made out a prima facie case
of driving without reasonable consideration, and the
case must be remitted to the justices with a direction
to continue the hearing.
(Pawley
v.
Wharldall (1965) 3 W.L.R. p. 496.)
'Easement—repair of hedge
A hedge formed the boundary between the farms
of the plaintiff and the defendant. Defendant's sheep
had trespassed through a gap in the hedge and
damaged the plaintiff's farm. The question arose,
whether a claim for damages could be successfully
resisted on the ground that the defendant had a
prescriptive right, in the nature of an easement, that
the plaintiff should repair the hedge. If there is
evidence that repairs to that part of the hedge had
been carried out by the plaintiff or his predecessors
in title for fifty years, but no evidence that this had
been done on the demand of, or as an obligation to,
the defendant or his predecessors in title.
The Court of Appeal held that such claim could
not be successfully upheld. The law recognised that
there could be a legal obligation for the benefit of
a dominant tenement that a boundary hedge should
be kept in repair by the occupier of a servient
tenement. But there must be proof in one way or
another tha't the repairs had been carried out as a
matter of obligation. There might have been some
agreement between the parties' predecessors in title
whereby each undertook to keep in repair part of the
hedge, but such an undertaking or covenant to
perform positive acts of repair was not capable of
running with the land.
(Jones
v.
Price (1965) 3 W.L.R. 296; (1965)
2 All E.R. 625.)
Larceny—whether finder a bailee
T. found a large bag of rabbit pellets (a food-stuff
for rabbits) by the side of the road, and took posses
sion of it. He believed that the owner could be
found by taking reasonable steps, but did not then
intend to steal the pellets. Later he formed the
intention to steal. Is he guilty of larceny on the
ground that he had constituted himself a bailee of
the property ? A Divisional Court (Lord Parker C.J.,
Sachs and Browne JJ.) held that a finder is not a
bailee within the meaning of that term in section i
of the Larceny Act, 1916.
(Thompson
v.
Nixon (1965) 2 All E.R. 741.)
Insurance—exceptions clauses as to condition of motor
vehicle
The policy by which the insured's motor-coach
was covered by the insurers provided that "the
insured shall take all due and reasonable precautions
to safeguard the property insured and to keep it in
a good state of repair" and further that the insurers
"shall not be liable for damage or injury caused
through driving the motor-vehicle in an unsafe
condition either before or after the accident." A
collision in which the motor coach was involved was
caused by inadequate maintenance of the brakes,
which was due to the failure of a competent mechanic
employed by the insured to carry out his duties. The
insured had, however, no proper system for a
systematic check on the maintenance of individual
vehicles. The question arose as to whether the
insurers are liable to indemnify the insured and can
they counterclaim for sums paid by them, under the
Road Traffic Act, 1960, s. 206 (i) ?
HELD by Cumming-Bruce J., that having regard
to the wording of the first part of the exceptions
clause the second part did not impose an absolute
liability on the insured irrespective of intention or
negligence. Nor would the first part of the clause be
broken if the insurers had only proved casual
negligence by an employee, since it imposed only
a personal obligation on the insured. But the
insured's failure to provide a proper system of
maintenance and repair was a breach of this personal
obligation, which debarred him from claiming