The Gazette 1964/67

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