disposition that would answer the description. There is no doubt at all about No. 105. the identity of the sasine confirmed, and therefore I think that objection totally unfounded. In 1851 Sir James consolidates the property and the superiority in May 23, 1873. his person, and in 1856 he dispones the whole to Mr Dalgleish, or Mr Dal- Duke of Argyll gleish's trustees, with two manners of holding. Objection is taken to the instrument of resignation that the procurator named in it is not designed. Now, if that objection were raised by a singular successor competing with the party who held this particular title the objection certainly might require consideration, because, although it is true enough, as your Lordship has said, that there is no statute requiring the procurator to be designed, the same thing may be said with regard to the designations of all the parties in notarial instruments and in feudal titles; and it would be a strong thing to say that in none of these deeds, constituting the actual title to heritable subjects, is it necessary that the parties whose act or presence is essential shall be so designed as to identify them, and distinguish them from others; for without a designation I do not see the practicability of identification. The alleged party named may be anybody or nobody,-a pupil, or a woman, or other disqualified person; and it might be difficult to see good ground for distinguishing etween the identification by designation of the procurator and of anybody else vhose name is necessary. All that would require great consideration before we ould affirm the immateriality of this omission, especially as there is no practice ▷ sanction it. But I agree with your Lordship that it is quite unnecessary to o into that, because I think it is not in the mouth of this party to take that obection to his own title. As regards calling the heir, the old law undoubtedly was that the heir must ways be called; but it has been settled by decisions that if the former vassal as granted a conveyance with procuratory and precept, or, in other words, a nveyance upon which the disponee is in a position to obtain an infeftment hich shall denude the previous vassal, then you do not require to call the heir. ow, I am disposed to think that that is the case here, whether there was a od consolidation or not. If the consolidation was good it is conceded that ere is an end of the objection. But even supposing there was no good conlidation, I think the same result would follow. In order to pass the property om one party to another it is not necessary that the disponee should be in a sition to hold directly under any particular superior, if the vassal who is conying conveys all that he has, and gives the disponee every right that he has mself to enter in the one way or in the other. Suppose that each of these hts was in a totally different position, the disponee could still take a valid feftment, which, from the date of recording, would be good to him against the world. It would not even require separate instruments, for in one inument you may have infeftment in different subjects, and in different ways; d even supposing there was no consolidation at all I do not see anything to ader Mr Dalgleish's trustees here from taking an infeftment which shall make eir title complete, subject to any right which any superior or mid-superior y have to call upon them to enter. They might have granted separate procuories or precepts applicable to the mid-superiority and to the property. These to be held embodied in this deed of 1834, which is equally available as if had authorised infeftment in the mid-superiority by one manner of holding, 1 in the property by another. Therefore, in no point of view can I see that gleish's trustees are in any other position than that in which the Court have ided that it is not necessary to call the heir. ORD ARDMILLAN.-I have studied this case carefully, and I have come to the e conclusion. The only thing I would like to add is, that I rather think objection taken to the want of designation of the procurator would not be a d objection after the decision in the case of Morton in 1830, apart from the that this party cannot take the objection. LORD JERVISWOODE concurred. THE COURT adhered to the Lord Ordinary's interlocutor. v. Dalgleish's Trustees. No. 106. May 23, 1873. 2D DIVISION. ARCHIBALD BALLENY, Pursuer and Appellant.-Mair. ROBERT SCOTT CREE, Defender and Respondent.-Trayner. Reparation-Master and Servant-Collaborateur.-In an action of damages for personal injury raised by a workman in a paper-work against his master it was proved that the pursuer had been injured in consequence of the machine at which he was employed being in a defective state through the negligence of the manager and a mechanic employed in the works, and that there had been no personal negligence on the part of the master. Held that the master was not liable for the fault of those employed by him, seeing that he had taken reasonable care to employ competent workmen. ARCHIBALD BALLENY, a workman employed in a paper-work in PollockSheriff of Renshaws, raised this action against his employer, Mr Cree, paper manufac turer there, concluding for damages for bodily injury. frewshire. I. The pursuer was a machineman in the defender's paper-works, and while working at his machine his hand was caught between the felt-roll and so injured that his arm had to be amputated. The circumstances of the accident were thus described in the proof. The pursuer deponed;-". . . . Mr Cree had a manager under him, Peter Baillie, who superintended, and there was a mechanic, Benjamin Stewart, who looked after the machine being in working order, and made any necessary repairs. On 25th August last, about two o'clock afternoon, I was at work at the machine as usual, when an accident occurred. My hand was caught between the felt-roll and one of the cylinders, and drawn in and crushed and burned. It was the first felt-roll with which the paper comes in contact. . . . . The cylinder at which it happened is known as the first cylinder. It was revolving at the time, as also was the felt-roll, and the paper was being drawn downwards between them. I ascribe the accident to the want of the guide-roll for the first roller. That guide-roll was of brass, and should have been placed a little above the point where my hand was caught. There was a brass guideroll in that position all the time I was working there until a fortnight before the accident occurred. I found it removed one night when I went to work, and saw it lying beside the machine. The 'journal'. . . . was off it. It would not bide in when screwed on, being too loose. When the screw of the journal is loose the guide-roll will not work, and no paper could pass over into the machine without being torn and broken. About two days after I told Mr Baillie that he would require either to get a new guide-roll or to have the old one sorted. He said they were getting a new one. The reason I spoke to him of it then was, that I thought it should have been sorted immediately on the guide-roll being found deficient, but seeing that nothing was done in two days I thought it right to speak to him about it. I did not speak to the mechanic about it; he saw the guide-roll every day, for it was lying about. The manager and defender must also have seen it, and could not fail to notice that it was out of its place. It lay on a stance for holding paper in the passage, down the room by the side of the machine, about six inches above the ground. It lay there till three or four days before the accident, when I noticed that it had been placed under a table in the same room as the machine. On the same occasion as I noticed that the brass guide-roll was removed out of its place I found that a wooden roll had been placed on a bracket close by the cylinder. It was on the same frame as the bracket supporting the felt-roll, but further out from the cylinder. That wooden roll did not supply the place of the brass guide-roll. It was not suitable from its position to supply its place. If the brass guide-roll had been in its place I could not have sustained this injury to my hand and No. 106. arm. My hand could not have been drawn in. There is very little risk of danger if the brass roll is in its place; very little indeed, with ordinary May 23, 1873. Balleny v. care and attention. . . . . The felt-roll is about the height of my shoulder. Cree. The purpose of the brass guide-roll is to guide the paper down to the feltroll, and it prevents our hands from getting down to the felt-roll. The machine worked well enough, and made good paper during the fortnight that the brass guide-roll was not in its place. During that fortnight I considered that there was danger in working the machine, owing to the want of the brass guide-roll." George Preston, also machineman with the defender, and working alternate shifts on the same machine with the pursuer, deponed—“. . . . About three weeks before the accident to the pursuer the brass guide-roll leading to the first cylinder went wrong and would not work. I found it would not revolve, and was breaking the paper. I removed it. . . . . ... The next morning after I took out the guide-roll I mentioned that I had done so to Benjamin Stewart, the mechanic, and told him what was wrong with it. I also told him I could not do without it. He said he would have to get it sorted, but he did not say when. I spoke to him again about it—a week before the accident. Pursuer had at that time nearly got his hand caught by it, and I mentioned this to the mechanic, and said it was dangerous to work without it. I do not remember what he said. I also spoke to the manager, Mr Baillie, about it. It was the same time --a week before the accident-that I spoke to him. I said it would be much better to get it sorted, or a new one in its place; and I also mentioned about pursuer having nearly had his hand caught in it. I also mentioned to him that I had put in the wooden one to try and save the paper from being crushed in the back side. His only answer was that he would have to tell Ben-meaning the mechanic-about it. Nothing was done till after the accident. If that brass guide-roll had been in its place it was nearly impossible that such an accident could have occurred as happened to pursuer. I do not think it could have occurred. If that brass guide-roll had been in its place pursuer would not have had any occasion in doing his work to have had his hand near the place where it was caught. He must then have gone out of his way to put it in either carelessly or very stupidly. The wooden roll which I put in did not in any way serve as a protection from coming near to the felt-roll. . . . . I never spoke to Mr Cree, the defender, before the accident about the roll being taken out. Baillie was the manager, and I spoke to him." . . . .... On the other hand, Andrew Mason, managing engineer of James Bertram and Sons, who had constructed the machine in question, deponed".... As constructed by us the normal mode of working that machine was that the paper should be led to the cylinder by means of the guideroll, and so be conducted to the felt-roll. The purpose of the brass guideroll is to place the paper so that it shall lie flat on the cylinder before it touches the felt-roll; also, it enables the paper to get all the advantage of the cylinder. The guide-roll places the paper on the heated cylinder, so that the paper is flat against it before it reaches the felt. There is another guide-roll represented on the plan-it is at the bottom of and beyond the fourth cylinder. Its purpose is to guide the paper from the cylinders to the calender presses. In constructing this machine these guide-rolls were intended solely for leading the paper, and had no reference to providing for the safety of the workmen. Each of the cylinders has a framework of iron four inches in thickness, and that framework is an open one, and is between the revolving cylinder and any person who may be standing at the end of the cylinders. If the brass guide-roll No. 106. May 23, 1873. were away from defender's machine, and a wooden roller were placed on same bracket as the felt-roll, there would, in my opinion, be as great safety to a machineman as if the brass guide-roll were in position. A machineman's is a dangerous kind of work. . . . . When the machine was wrought by means of a wooden roller in place as above, and without brass guide-roll, I consider that it could only have been through carelessness that a workman could have his hand and arm drawn in between the cylinder and the felt-roll." ---- The pursuer pleaded; The pursuer having, while engaged in the defender's service, been injured through or by a defective machine or apparatus belonging to the defender, the defender is liable to him in damages and solatium. The defender pleaded;-(1) The injury sustained by the pursuer having been occasioned by or through his own want of care, skill, and attention, or at least not by and through any fault, negligence, or carelessness of the defender, or those for whom he is responsible, no liability rests on the defender. (2) At the time of the occurrence of the accident libelled the pursuer was engaged in a hazardous employment, and any risk or danger to which he was thereby subjected being equally apparent to him as to the defender the pursuer was bound to look to his own safety. The Sheriff-substitute (Cowan) and the Sheriff (Fraser) assoilzied the defender. The pursuer appealed.' At advising, LORD JUSTICE-CLERK.-It is quite clear that this accident was caused by the want of a brass roller to protect the hands of the workmen. There had been such a brass roller, but it was not in its place at the time of the accident; in its absence an inefficient temporary substitute had been put up. The next question is, how did it come that the machine was thus defectivel This is not doubtful. As the brass roller, from its fastenings having given way, would not stay in its place, it ought to have been replaced by Stewart, a mechanic employed on weekly wages. There was also a foreman or inanager of the name of Baillie. It seems that the defender, the owner of the works, was constantly on the spot, but that he was not acquainted with machinery, or qualified to judge of it. The pursuer complained of the want of the brass roller, and the manager and Stewart were both quite aware that it was not in its place. Stewart affects to say that the machine was quite good without it. I do not go into that, for it is clear that the roller was an important and necessary part of the machine. The first question comes to be, is there any reason to say that the pursuer went into danger knowingly? I have come to the clear opinion that the pursuer did not go into danger with his eyes open. His duty was to work the machine. No doubt he knew that the roller ought to have been there; but although the hazard was increased, still it was possible to work the machine, and I can t hold that the pursuer contributed to the accident by continuing to work. The next question is, was the defender responsible for the defective state of the machine? Personally he did nothing to make himself responsible. He had opportunities of seeing that the machine was defective, but he was not and did not profess to be a skilled mechanist, so as to be a judge of what was necessary. There seems no ground for charging him with personal fault. Is he, then, responsible for the undoubted neglect of Stewart and Baillie, his servants? It cannot be disputed that they were guilty of the grossest neglect; 1 M'Neill v. Wallace & Co., July 7, 1853, 15 D. 818; Alsop v. Yates, Jar. 18, 1858, 27 Law Journal (Exch.), 156; Fraser on Master and Servant, d edit. p. 94, et seq. but the evidence does not shew that they were not qualified for the situations No. 106. they held. Stewart perhaps was not a very steady man, but he was undoubtedly qualified, and he had been highly recommended. The case resolves into the appli- May 23, 1873. cation of the rule that if an accident occur through the fault of a fellow-servant Balleny v. Cree. the master is not liable. I am of the same opinion as the Sheriff-principal, and generally on the same grounds,-that as the accident occurred from the fault of a fellow-workman the master is not liable, seeing that individually and personally he was not to blame. LORD COWAN.—I am of opinion with your Lordship that there is no blame attachable to the pursuer, so as to exclude on that ground his claim for reparation. The evidence proves that his conduct was that of a skilled workmen. Nor can I hold on the proof that he wilfully went into a seen danger. The ground of judgment, however, adopted by both Sheriffs is sufficient for the defence. I do not agree with that part of the Sheriff's note to his interlocutor where he says that it is of no moment that the defender was practically not acquainted with machinery. I think that fact is far from being immaterial, for it laid on him the duty of being all the more careful in the selection of those to whom he entrusted the superintendence and management. I think, however, that he fully discharged his duty in this respect. As he himself was unacquainted with machinery he entrusted the charge of his work to a properly qualified and skilled mechanic, and to a superintendent and manager. They eglected their duty to get the machine properly repaired, and hence the accilent; whether both or only one of them was in fault is not of consequence, ecause both were collaborateurs or fellow-workmen of the pursuer. olding that the defender is not liable on that ground. I concur in LORD BENHOLME.-I concur generally, though not in everything which has een said by your Lordships. What strikes me as sufficient to suppor the dgment is, that there was no fault on the part of the defender. He himself as not a skilled mechanist, and he cannot be made responsible for the defect in he machinery. I hardly concur regarding the pursuer's own conduct. I do not think he was ee from blame. He had had a previous warning by having his hand nearly aught by the machine. It was not prudent in him to continue to work while the brass roller was not LORD NEAVES.-I concur, and on the grounds stated by your Lordship in the THE following interlocutor was pronounced :-"Find it proved that |