Appendix Page 20

20

page 474), a judgment upon relevancy in favour of the defender in this case would result in one or other of two forensic situations, with which law in the one case and equity in the other must be concerned to deal. If on the one hand a liability should in the event of action be found to attach the retail trader, such a liability in the circumstances of the case having its necessary origin in breach of warranty and not in negligence, is one which that trader (apart from any contractual release from liability which is not alleged) would be entitled to pass on against the present defender in a separate action of relief. In answer to such an action, the plea founded on independent negligence which received effect in Wood v. Mackay, 8 F. 625, would not be open to the defender. Any award so to be obtained would merely charge the law with the requirement of an operose and costly circuity of process. If, on the other hand, such and ward should be refused, the pursuer, who avers that she has sustained an undeniable injury, would be left without redress. Although such a possible consequence has an established recognition under the rubric 'Damnum absque injuria,' it is only under the gravest possible constraint that equity dare acknowledge a wrong without a remedy.

    This question of relevancy having been disposed of, and the questions which remain for disposal being typical questions of fact, the case would in ordinary course have been sent to a jury. Mr Morton, however, did not propose an issue, and on his motion I shall accordingly allow a proof. The allowance of proof will, however, be after answer on the question of law.