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only say that, if my view be right, it would seem to be unnecessary to go into the facts of the present case at all. The two questions are quite distinct, and it appears to be a convenient way — if it is a sound way — of disposing of this case to recall the Lord Ordinary's Interlocutor, and to dismiss the action. That is the view which I entertain, and which I suggest to your Lordships we should adopt.

(2) LORD ORMIDALE

    My Lord, I agree. I think it is quite impossible for myself personally to go back upon the view of the law which I expressed in the previous case which has been referred to. Except for the distinction referred to by your Lordship, I think the circumstances of the present case are substantially identical. And, accordingly, I agree with your Lordship that we must recall the Interlocutor of the Lord Ordinary, and dismiss the action.

(3) LORD HUNTER

    I agree with your Lordships in thinking that the question raised in this case was raised under precisely similar circumstances in the case of Mullen, to which your Lordship has referred. In that case I dissented from the view taken by the majority of the Court. The judgment there proceeded upon the ground that the pursuer had failed to establish negligence against the defenders. At the same time, it is perfectly true that two of your Lordships expressly proceeded upon the ground that there had been a failure upon the part of the pursuer to