the Court of Exchequer in Longmeid v. Holliday (1) thus:
"And it may be the same "—that is, responsibility may arise-
" when any one delivers to another without notice an instrument
in its nature dangerous, or under particular circumstances, as a
loaded gun which he himself loaded, and that other person to
whom it is delivered is injured thereby, or if he places it in
a situation easily accessible to a third person, who sustains
damage from it. A very strong case to that effect is Dixon v.
Bell. (2) But it would be going too far to say that so much
care is required in the ordinary intercourse of life between one
individual and another, that, if a machine not in its nature
dangerous-a carriage, for instance-but which might become
so by a latent defect entirely unknown, although discoverable
by the exercise of ordinary care, should be lent or given by one
person, even by the person who manufactured it, to another,
the former should be answerable to the latter for a subsequent
damage accruing by the use of it." Here there is the case of
a carriage which, so far as the evidence goes, was not visibly
out of repair. Apparently the wheel required oiling, and for
that purpose the cap was removed, and, as it was defective, a
piece of zinc was nailed on to the wheel. That had nothing to
do with the accident, but was done to supply a better means
of oiling the wheel; and, in my opinion, the van cannot fall
within the category of dangerous articles to which Parke B.
alludes. One other ground was suggested upon which the
defendant might be held to be liable. That is the principle
affirmed in Heaven v. Pender (3), that where a person having a
common interest with another invites that person to use certain
premises or chattels, the person so inviting incurs a responsi-
bility with regard to the condition of the premises, or of the
chattels, as the case may be. Nothing of that kind can be set
up in this case. It was hardly contended that such considera-
tions were applicable to this case; but it was said that it
came within the dictum enunciated by Lord Esher in his judg-
ment, as to the duty to use ordinary care and skill to avoid
a danger to another that a person of ordinary sense would
(1) 6 Ex. 761, at p. 767. (2) (1816) 5 M. & S. 198; 17 R. R. 308.
(3) 11 Q. B. D. 503, at p. 515.

C. A.

1904

EARL

v.

LUBBOCK.

Collins M.R.

C. A.

1904 EARL

v.

LUBBOCK.

Collins M.R.

recognise as likely to arise if he did not use that ordinary care and skill in his own conduct. That, however, was not a decision of the Court, and it was subsequently qualified and explained by Lord Esher himself. (1) I have pointed out what was the judgment of the Court, and the plaintiff has entirely failed to bring his case within the principle of that judgment, and this appeal must fail.

STIRLING L.J. I am of the same opinion. In order to succeed in this action the plaintiff must bring his case within the proposition enunciated by Cotton L.J. and agreed to by Bowen L.J. in Heaven v. Pender (2), to the effect that "any one who leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such a condition as to cause danger, not necessarily incident to the use of such an instrument or thing, is liable for injury caused to others by reason of his negligent act." That passage was cited to the county court judge, and was relied on in this Court by counsel for the plaintiff. As to the first part of that proposition, with regard to a dangerous instrument, I take it that the reference is to a thing dangerous in itself, and that is shewn by the illustration that is given, and also by what is stated in the second part of the proposition which treats of an instrument or thing in such a condition as to cause danger, not necessarily incident to its use. I think, therefore, that the van which the plaintiff was driving does not fall within the first branch of the sentence that I have quoted, and that to succeed the plaintiff must bring the case within the second part. In that case he must adduce evidence to shew that to the knowledge of the defendant the van was in such a condition as to cause danger, not necessarily incident to its use. It appears to me that the plaintiff was not in a position to do this, and consequently he failed in establishing the liability of the defendant, and this appeal must be dismissed.

(1) See Le Lievre v. Gould, [1893] 1 Q. B. 491, at p. 497.
(2) 11 Q. B. D. 503, at p. 517.

MATHEW L.J. I am of the same opinion. The argument of counsel for the plaintiff was that the defendant's servants had been negligent in the performance of the contract with the owners of the van, and that it followed as a matter of law that any one in their employment, or, indeed, any one else who sustained an injury traceable to that negligence, had a cause of action against the defendant. It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on. No prudent man would contract to make or repair what the employer intended to permit others to use in the way of his trade. There was in this case no evidence before the learned county court judge that this van was in a state that made the defendant liable under any of the conditions of liability that have been laid down in the cases to which reference has been made. Further, there was no evidence that the plaintiff was invited by the defendant to use the van. I concur in thinking that the appeal must be dismissed.

Appeal dismissed.

Solicitors for plaintiff: Buchanan & Hurd.
Solicitors for defendant: Sayle, Carter & Co.

A. M.

C. A.

1904 Dec. 9.

[IN THE COURT, OF APPEAL.]

DAWSON v. GREAT NORTHERN AND CITY
RAILWAY COMPANY.

Lands Clauses Acts-Compensation-Lands injuriously affected-Assignment of Right to Compensation Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), s. 68-Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25.

A claim, under s. 68 of the Lands Clauses Consolidation Act, 1845, to compensation in respect of an interest in lands, injuriously affected within the meaning of that section, is not a claim to damages for a wrongful act, but a claim of a right to compensation for damage which might be done in the lawful exercise of statutory powers, and such a claim is capable of assignment.

Judgment of Wright J., [1904] 1 K. B. 277, reversed.

APPEAL and cross-appeal from the judgment of Wright J., reported [1904] 1 K. B. 277.

The defendant railway company constructed under statutory powers a tunnel under or near certain houses in which the plaintiff was interested and in which she carried on business, and she claimed to be entitled to compensation on the ground that her interest in the houses had been injuriously affected by structural damage to the houses and by damage to trade stock. An inquiry was held under the Regulation of Railways Act, 1868, s. 41, before Ridley J. and a jury, and the jury assessed the compensation for structural damage at 20007., and that for damage to trade stock at 21001. The action was brought to recover 4150l., which included a sum of 50l. the claim to which was abandoned. By agreement between the parties the other sums of 2000l. and 21007. were attributed in equal third parts to three separate portions of the plaintiff's holding, which were distinguished as "the freeholds," the "Berry and Vickery leaseholds," and the "Hewitt leaseholds," as to which different considerations arose.

With regard to "the freeholds," these were vested in one Blake in fee simple, subject to a lease vested in the plaintiff. By agreement between Blake and the railway company the

C. A.

1904

DAWSON

v.

GREAT

AND CITY
RAILWAY.

latter agreed to purchase for 8501. the right to maintain and use a tunnel in and through the portion of Blake's property therein defined, and the sum so to be paid was to include compensation for all damage, loss, or inconvenience occasioned to the land the subject of the agreement, except for structural NORTHERN damage through drainage or subsidence caused by the works of the company. At a later date Blake conveyed the freeholds to the plaintiff subject to the easement granted to the company, and Blake as beneficial owner purported to assign to the plaintiff all the rights, benefits, and advantages of him, Blake, conferred by or to be derived from his agreement with the company so far as the same related to the hereditaments conveyed to the plaintiff, save and except the purchase-money of 8501. which Blake was to be entitled to receive.

With regard to the "Berry and Vickery leaseholds," after damage had been done to the premises, Berry assigned the lease of the houses held by him to the plaintiff, and by a deed of even date, reciting that the premises had been damaged by the works of the company, he further assigned to the plaintiff all sums of money which he might be entitled to recover from the company by way of compensation for structural damage caused by the execution of the defendants' works, and all his rights of every description against the company in relation thereto. Vickery similarly assigned to the plaintiff the lease of his house and all his rights against the company in respect of structural damage to the premises. Notice of these assignments was given by the plaintiff to the company.

With regard to the Hewitt leaseholds which were acquired by the plaintiff other considerations arose, which are dealt with in the judgment of the Court.

At the trial of this action before Wright J. the learned judge, as appears by a note to the report of the case in the Court below, held that the claim in respect of the freeholds was of an interest created after the date of the notice to treat, and fell within the decision of the Court of Appeal in Mercer v. Liverpool, St. Helen's and South Lancashire Ry. Co. (1), subsequently affirmed in the House of Lords (2), that it was (1) [1903] 1 K. B. 652. (2) [1904] A. C. 461.