Respondent's Case Page 11

11
justifying a third exception, therefore, Thomas v. Winchester confirms the existence of the two exceptions from a recognised general rule. And it was just for that reasons that Lord Dunedin quoted Thomas v. Winchester in the Dominion Natural Gas Co. case, which was also a case of an article dangerous per se. Lord Dunedin, accordingly, it is submitted, was definitely affirming the proposition for which the Respondent of this case contends, and his Lordship's observations in that case are respectfully adopted by the Respondent.	57 Am. Dec. 455. 57 Am. Dec. 455, 1909, A.C. 640 at 646.
The main authority upon which Lord Hunter bases his dissenting opinion, however, was the often quoted dictum of Brett. M.R. in Heaven v. Pender. This dictum, however, was not concurred in by the majority of the Court in that case; it was expressly repudiated as being valid in a case such as the present, by the learned Master of the Rolls himself in Le Lievre v. Gould; and it was rejected by the Court in Earl v. Lubbock, and the case of Winterbottom v. Wright followed in place of it. Moreover, the dictum in question receives scant support from modern authorities. It cannot therefore, it is submitted, afford the Appellant any assistance in the present case.	1882, 9 Q.B.D. 302, 1883, 11 Q.B.D. 503. 1893, 1 Q.B. 491 at p. 497. 1905, 1 K.B. 253. 1842, 10 M. & W. 109.
On the whole matter, accordingly, the Respondent humbly submits that the majority of their Lordships of the Second Division in their Opinions in the mouse cases and in this case have rightly interpreted the law and have arrived at the correct conclusion in this case, and that the Appeal should be dismissed, for, among others the following

Back to index

Click to view an image of the original document