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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

APPENDIX

APPENDIX A.

HISTORICAL NOTE ON THE CLASSIFICATION OF THE FORMS OF PERSONAL ACTION.

(By Mr. F. W. Maitland.)

The history of the attempt to classify the English personal actions under the two heads of Contract and Tort will hardly be understood unless two preliminary considerations are had in mind.

(1.) Between the various forms of action there were in old time many procedural differences of serious practical importance. A few of these would have been brought out by such questions as the following:—

• (a) What is the mesne process proper to this action? Does one begin with summons or with attachment? Is there a capias ad respondendum, or, again, is there land to be seized into the king’s hand?
• (b) What is the general issue? Is it, e.g., Nil debet, or Non assumpsit, or Not guilty?
• (c) What mode of proof is open to the defendant? Is this one of the actions in which he can still wage his law?
• (d) What is the final process? Can one proceed to outlawry?
• (e) How will the defendant be punished if the case goes against him? Will he be merely amerced or will he be imprisoned until he makes fine with the king?

In course of time, partly by statutes, partly under cover of fictions, the procedure in the various personal actions was made more uniform; but the memory of these old differences endured, and therefore classification was a difficult task.

(2.) The list of original writs was not the reasoned scheme of a provident legislator calmly devising apt remedies for all conceivable wrongs; rather it was the outcome of the long and complicated struggle whereby the English king at various times and under various pretexts drew into his own court (and so drew away from other courts communal, seignorial, ecclesiastical), almost all the litigation of the realm. Then, in the thirteenth century, the growth of Parliament prevented for the future any facile invention of new remedies. To restrain the king’s writ-making power had been a main object with those who strove for Parliaments(a) . The completeness of the parliamentary victory is marked by the wellknown clause in the Statute of Westminster II.(b) which allows the Chancery to vary the old forms so as to suit new cases, but only new cases which fall under old law. A use of this permission, which we are apt to think a tardy and over-cautious use, but which may well have been all that Parliament would have suffered, gave us in course of time one new form of action, namely, trespass upon the special case, and this again threw out branches which came to be considered as distinct forms of action, namely, assumpsit and trover. Equity, again, met some of the new wants of new times, but others had to be met by a stretching and twisting of the old forms which were made to serve many purposes for which they were not originally intended.

Now to Bracton writing in the middle of the thirteenth century, while the king in his chancery and his court still exercised a considerable power of making and sanctioning new writs(c) , it may have seemed very possible that the personal actions might be neatly fitted into the scheme that he found provided in the Roman books; they must be (1) ex contractu vel quasi, (2) ex maleficio vel quasi(d) . Personal actions in the king’s court were by no means very common; such actions still went to the local courts. Perhaps it is for this reason that he says very little about them; perhaps his work is unfinished; at any rate, he just states this classification but makes hardly any use of it. The same may be said of his epitomators Britton(e) and Fleta(f) . Throughout the middle ages the theory that personal actions may be arranged under these headings seems to remain a sterile, alien theory. It does not determine the arrangement of the practical books, of the Register, the Old Natura Brevium, Fitzherbert’s Natura Brevium, the Novae Narrationes. Even Hale, when in his Analysis he mapped out the field of English law, did not make it an important outline.

The truth seems to be that the most natural classification of writs was quite different. It would give us as its two main headings—(a) Praecipe; (b) Si te fecerit securum.

(a) In one class we have writs beginning with Praecipe quod reddat—faciat—permittat. The sheriff is to bid the defendant render (do, permit) something, and only if this command be ineffectual will the action proceed. To this class belong the writ of right and other proprietary real actions, also debt(g) , detinue account, and covenant.

(b) In the other class the writ supposes that there is already a completed wrong and a perfect cause of action in the king’s court. If the plaintiff finds pledges to prosecute, then the defendant must appear and answer. To this class belong the possessory assizes, trespass and all the forms developed out of trespass, viz. case, assumpsit, trover.

Much is made of this classification in a book which once was of good repute, a book to which Blackstone owed much, Sir Henry Finch’s Discourse on Law(h) . The historical basis seems this: the king’s own court takes cognizance of a cause either because the king’s lawful precept has been disobeyed, or because the king’s peace has been broken.

But in order to assure ourselves that the line between breaches of contractual obligation and other causes of action cannot have been regarded as an elementary outline of the law by our mediæval lawyers, we have only to recall the history of assumpsit. We are obliged to say either that at some moment assumpsit ceased to be an action ex maleficio and became an action ex contractu, or (and this seems historically the better way of putting it) that it was an action founded not on contract, but on the tort done by breach of some contractual or other duty voluntarily assumed. It must have been difficult to hold that the forms of personal action could be aptly distributed between tort and contract, when in the Register actions founded on non-performance of an assumpsit occurred, not even under the title of Case (for there was no such title) but under the title of Trespass mixed up with assaults and asportations, far away from debt and covenant(i) .

The same point may be illustrated by the difficulty which has been felt in modern times of deciding whether detinue was ex contractu or ex delicto. Bracton, fixing our terminology for all time, had said(k) that there was no actio in rem for the recovery of movables because the judgment gave the defendant the option of paying the value instead of delivering the chattel. The dilemma therefore of contract or tort was offered to claims to which, according to Roman notions, it was inapplicable. But whether detinue was founded on contract or founded on tort, was often debated and never well settled. During the last and the earlier part of the present century the fact that in detinue one might declare on a loss and finding (detinue sur trover) was taken to prove that there was not necessarily any contract between the parties(l) . Opinion was swayed to the other side by the close relation between detinue and debt(m) , a relation so close as to be almost that of identity, especially when debt was brought, not in the debet and detinet, but in the detinet only(n) . A middle opinion was offered by the learned Serjeant Manning(o) that detinue sur bailment was ex contractu, and detinue sur trover was ex delicto; this would have allowed the question to turn on the choice made by the plaintiff’s pleader between two untraversable fictions. A recent decision of the Court of Appeal(p) shows that the difficulty cannot occur in its old form. We are no longer, even if once we were, compelled to say that all claims for delivery of a chattel must be ex contractu or all must be ex delicto, though even the theory that every such claim is either ex contractu or ex delicto has difficulties of its own, which might have been avoided were we free to say that such a claim may be actio in rem.

Because of the wager of law assumpsit supplanted debt; so also for a long while the work of detinue was done by trover. That trover was in form ex delicto seems not to have been doubted, still it often had to serve the purpose of a vindicatio. As Lord Mansfield said(q) , “Trover is in form a tort, but in substance an action to try property. . . . . An action of trover is not now ex maleficio, though it is so in form; but it is founded on property.”

For these among other reasons the attempt to force the English forms into the Roman scheme was not likely to prosper. Nevertheless the theory that the personal actions can be grouped under contract and tort made way as the procedural differences between the various forms were, in one way and another, obliterated. Blackstone states the theory(r) , but does not work it into detail; following the plan which he inherited from Hale, he treats debt, covenant, and assumpsit as remedies for injuries affecting property, injuries affecting choses in action(s) . In later books of practice the various forms are enumerated under the two headings; detinue appears sometimes on one side of the line, sometimes on the other(t) .

Apart from the statutes which will be mentioned presently, little of practical importance has really depended on the drawing of this line. The classification of the personal actions has been discussed by the Courts chiefly in three contexts.

1. As to the joinder of actions. We find it said at a comparatively early day that “causes upon contract which are in the right and causes upon a tort cannot be joined”(u) . But the rules regulating this matter were complicated, and could not be reduced to this simple principle. In the main they turned upon those procedural differences which have been noticed above. Thus it was said that the actions to be joined must be such as have the same mesne process and the same general issue, also that an action in which, apart from statute(x) , the defendant was liable to fine, could not be joined with one in which he could only be amerced. Assumpsit could not be joined with debt; on the other hand debt could be joined with detinue(y) . This matter once very fertile of disputes has become altogether obsolete.

2. As to the survival of actions (a) against and (b) for personal representatives. Here again it may be doubted whether the line of practical importance has ever been that between contract and tort, though the latter has often been mentioned in this context.

(a) If we look back far enough we find that it was only by slow degrees that the executor came to represent the testator in at all a general way(z) . It was, for instance, a rule that the executor could not be sued in debt if the testator could have waged his law. At one time and before the development of assumpsit, this must have meant that the executor could hardly ever be sued for money due upon a simple contract. In Coke’s day it was still arguable that assumpsit would not lie against the executor(a) , and not until the contrary had been decided was it possible to regard the executor as bearing in a general way the contractual liabilities of the testator. On the other hand it seems to have been quite as early established that the executor could be made to answer for some causes of action which were not breaches of contract, i.e., where the estate had been increased by the proceeds of the testator’s wrong-doing(b) . But so long as the forms of action existed they were here of importance. Thus the executor could not have been sued in trespass or trover though the facts of the case were such that he could have been sued in assumpsit for money had and received(c) . Trespass, it may be remembered, had but very gradually become a purely civil action; to start with it was at least in part a criminal proceeding: so late as 1694 the defendant was, in theory, liable to fine and imprisonment(d) ; criminal proceedings founded on the testator’s misconduct could not be taken against the executor.

(b) As regards the other question, what actions survive for an executor or administrator, we find it early said that at common law actions in contract do survive while actions in tort do not(e) ; but already in 1330 a statute, which was very liberally construed, had given the executor some actions which undoubtedly were the outcome of tort(f) . On the other hand it has been held even of late years that (apart from all question as to real estate) an action for breach of contract does not necessarily survive for or against the personal representative; the cause of action given by a breach of promise to marry is not as a general rule one for which representatives can sue or be sued(g) . But the present state of the law as to the survival of actions is discussed above(h) .

3. Several discussions as to the line between contract and tort were occasioned by the rule that while joint contractors must be sued jointly the liability of joint tort-feasors is joint and several(i) . The earliest authority draws the distinction between “praecipe quod reddat” and debt on the one hand, and “trespass et huiusmodi” on the other(k) . But the antithesis of contract and tort crops up in the seventeenth century(l) . A decision(m) of Lord Mansfield in 1770, that the objection to non-joinder of all joint contractors as defendants can only be taken by plea in abatement deprived this matter of much of its importance. Still the question whether there has been breach of a joint contract, or a tort for which several are liable severally as well as jointly, is of course a question which may still arise and be difficult to answer(n) .

Lastly we come to the statutory adoption of the theory that every personal action must be founded either upon contract or upon tort. The first statute which recognized this doctrine was seemingly the County Courts Act, 1846(o) . Here, in a section dealing with costs, the antithesis is “founded on contract,” “founded on tort.” The County Courts Act of 1850(p) fell back on an enumeration of the forms of action, placing covenant, debt, detinue, and assumpsit in one class, and trespass, trover, and case in another class. The Common Law Procedure Act, 1852(q) , assumes in its schedule of forms that actions are either “on contracts,” or “for wrongs independent of contract;” but sect. 74 admits that “certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs;” some very needless litigation might have been saved had a similar admission been made in other statutes.

By the County Courts Act of 1856(r) , costs in a certain event were made to depend upon the question whether the action was “an action of contract.” By the Common Law Procedure Act of 1860(s) , costs in a certain event were made to depend on the question whether the action was “for an alleged wrong.”

A section of the County Courts Act, 1867(t) , drew a distinction as to costs between actions “founded on contract,” and actions “founded on tort.”

Lastly the County Courts Act of 1888 in several of its sections draws a distinction between “an action of contract” and “an action of tort”(u) , while elsewhere(x) it contrasts an action “founded on contract” with one “founded on tort.”

The practical upshot, if any, of these antiquarian remarks is that the courts of the present day are very free to consider the classification of causes of action without paying much regard to an attempt to classify the now obsolete forms of action, an attempt which was never very important or very successful; an attempt which, as we may now think, was foredoomed to failure.

APPENDIX B.

EMPLOYERS’ LIABILITY ACT, 1880.

(43 & 44 Vict. c. 42.)

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

Amendment of law.1. Where after the commencement of this Act personal injury is caused to a workman

• (1.) By reason of any defect(a) in the condition of the ways(b) , works(c) , machinery, or plant(d) connected with or used in the business of the employer(e) ; or
• (2.) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him(f) whilst in the exercise of such superintendence(g) ; or
• (3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform(h) , and did conform, where such injury resulted from his having so conformed(i) ; or
• (4.) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or byelaws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or
• (5.) By reason of the negligence of any person in the service of the employer who has the charge or control(k) of any signal, points, locomotive engine, or train upon a railway(l) ,

the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death(m) , shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work(n) .

Exceptions to amendment of law.2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases; that is to say,

• (1.) Under sub-section one of section one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition(o) .
• (2.) Under sub-section four of section one, unless the injury resulted from some impropriety or defect in the rules, byelaws, or instructions therein mentioned; provided that where a rule or byelaw has been approved or has been accepted as a proper rule or byelaw by one of Her Majesty’s Principal Secretaries of State, or by the Board of Trade or any other department of the Government, under or by virtue of any Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective rule or byelaw.
• (3.) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence(p) .

Limit of sum recoverable as compensation.3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, or a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury.

Limit of time for recovery of compensation.4. An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice(q) that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death: Provided always, that in case of death, the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice.

Money payable under penalty to be deducted from compensation under Act.5. There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such workman, representatives, or persons in respect of the same cause of action; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action.

Trial of actions.6.— (1.) Every action for recovery of compensation under this Act shall be brought in a county court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed(r) .

(2.) Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation.

(3.) For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this Act in a county court, and otherwise preventing multiplicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts.

“County court” shall, with respect to Scotland, mean the “Sheriff’s Court,” and shall, with respect to Ireland, mean the “Civil Bill Court.”

In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section nine of the Sheriff Courts (Scotland) Act, 1877.40 & 41 Vict. c. 50.

In Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the instance of different parties and in respect of different injuries.

Mode of serving notice of injury.7. Notice in respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury(s) and the date at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers.

The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served.

The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post; and, in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and registered.

Where the employer is a body of persons corporate or unincorporate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body.

A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy(t) therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading.

Definitions.8. For the purposes of this Act, unless the context otherwise requires,—

The expression “person who has superintendence entrusted to him” means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour(u) :

The expression “employer” includes a body of persons corporate or unincorporate:

38 & 39 Vict. c. 90. The expression “workman” means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies(x) .

Commencement of Act.9. This Act shall not come into operation until the first day of January, one thousand eight hundred and eighty-one, which date is in this Act referred to as the commencement of this Act.

Short title.10. This Act may be cited as the Employers’ Liability Act, 1880, and shall continue in force till the thirty-first day of December one thousand eight hundred and eighty-seven, and to the end of the then next Session of Parliament, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that period shall be continued as if the said Act had not expired.

[The Act has been continued from time to time since 1887. Many proposals for amendment of it have been made, but none has yet become law.]

[(a) ]See a complaint by the bishops in 1257, Mat. Par. Chron. Maj. (ed. Luard) vol. vi. p. 363. New writs contrary to law are made in the Chancery without the consent of the council of the realm. So under the provisions of Oxford (1258) the Chancellor is to swear that he will seal no writs save writs of course, without the order of the king and of the council established by the provisions. See Stubbs, Select Charters, Part 6, No. 4.

[(b) ]Stat. 13 Edw. I. (1285) c. 24.

[(c) ]His doctrine as to the making of new writs will be found on fols. 413—414 b. See fol. 438 b for a writ invented by William of Raleigh. In several other cases Bracton notices that the writ has been lately devised by resolution of the Court (de consilio curiae), e. g. the Quare Ejecit, fol. 220.

[(d) ]Fol. 102.

[(e) ]Vol. i. p. 156. Britton’s equivalent for maleficium is trespass.

[(f) ]Fol. 120.

[(g) ]The writ of debt in Glanvill, lib. 10, cap. 2, is just the writ of right with the variation that a certain sum of money due is substituted for a certain quantity of land. There may be trial by battle in Debt; see lib. 10, cap. 5.

[(h) ]Editions in 1613, 1636, 1678, and 1759. In the last of these see pp. 257, 261, 284, 296. Blackstone notices this classification in Comment. vol. iii. p. 274.

[(i) ]Registrum, fol. 109 b; writs for not cutting down trees and not erecting a stone cross as promised, are followed immediately by a writ for entering a warren and carrying off goods by force and arms.

[(k) ]Fol. 102 b.

[(l) ]Kettle v. Bromsall (1738) Willes 118; Mills v. Graham (1804) 1 B. & P. N. R. 140, 8 R. R. 767; Gledstane v. Hewitt (1831) 1 Tyr. 445; Broadbent v. Ledward (1839) 11 A. & E. 209; Clements v. Flight (1846) 16 M. & W. 42, 16 L. J. Ex. 11.

[(m) ]Walker v. Needham (1841) 4 Sc. N. R. 222; 3 Man. & Gr. 557; Danby v. Lamb (1861) 11 C. B. N. S. 423, 31 L. J. C. P. 17.

[(n) ]“And indeed a writ of debt in the detinet only, is neither more nor less than a mere writ of detinue.” Blackst. Comm. iii. 156.

[(o) ]3 Man. & Gr. 561, note.

[(p) ]Bryant v. Herbert (1878) 3 C. P. Div. 389, reversing S. C. ibid. 189, 47 L. J. C. P. 670.

[(q) ]Hambly v. Trott (1776) 1 Cowp. 371, 373, 374.

[(r) ]“Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs.” Comm. iii. 117.

[(s) ]Ibid. 153.

[(t) ]Thus in Tidd’s Practice (chap. i.) detinue is treated as ex delicto; in Chitty’s Pleading (chap. ii.) it is classed as ex contractu, but hesitatingly.

[(u) ]Denison v. Ralphson (1682) 1 Vent. 365, 366.

[(x) ]5 & 6 W. & M. c. 12, abolishing the capiatur pro fine.

[(y) ]The learning on this topic will be found in the notes to Coryton v. Lithebye, 2 Wms. Saund. 117 d. See also the observations of Bramwell, L. J. in Bryant v. Herbert, 3 C. P. Div. 389—391.

[(z) ]See Bracton, fol. 407 b.

[(a) ]Pinchon’s Case (1611) 9 Rep. 86 b. By this time the province within which wager of law was permitted had been so much narrowed by judicial decision that it had become possible to regard as merely procedural the rule as to debt against executors stated above.

[(b) ]Sir Henry Sherrington’s Case (temp. Eliz.) Sav. 40. See remarks on this case and generally on this piece of history by Bowen L. J. in Phillips v. Homfray, 24 Ch. Div. 439, 457, 52 L. J. Ch. 833.

[(c) ]Hambly v. Trott, 1 Cowper 371; Phillips v. Homfray, ubi sup.

[(d) ]Stat. 5 & 6 W. & M. c. 12. The penal character of the writ of trespass is well shown by the clause of the Statutum Walliae introducing that writ into Wales. “Justitiarius . . . . si invenerit reum culpabilem, castiget eum per prisonam vel per redemptionem vel per misericordiam, et per dampna laeso restituenda secundum qualitatem et quantitatem delicti, ita quod castigatio illa sit aliis in exemplum, et timorem praebeat delinquendi.”

[(e) ]Le Mason v. Dixon (1627) W. Jones, 173.

[(f) ]Stat. 4 Edw. III. c. 7. De bonis asportatis in vita testatoris.

[(g) ]Chamberlain v. Williamson (1814) 2 M. & S. 408, 15 R. R. 295; Finlay v. Chirney, 20 Q. B. Div. 494, 57 L. J. Q. B. 247.

[(h) ]P. 59.

[(i) ]See notes to Cabell v. Vaughan, 1 Wms. Saund. 291.

[(k) ]Br. Abr. Responder, 54.

[(l) ]Boson v. Sandford, 3 Salk. 203; 1 Shower 101; Rich v. Pilkington, Carth. 171; Child v. Sands, Carth. 294; Bastard v. Hancock, Carth. 361.

[(m) ]Rice v. Shute, 5 Burr. 2611.

[(n) ]As to the possibility of the same act or default answering both descriptions, see the last chapter of the text.

[(o) ]9 & 10 Vict. c. 95, s. 129.

[(p) ]13 & 14 Vict. c. 61, s. 11.

[(q) ]15 & 16 Vict. c. 76.

[(r) ]19 & 20 Vict. c. 108, s. 30.

[(s) ]23 & 24 Vict. c. 126, s. 34.

[(t) ]30 & 31 Vict. c. 142, s. 5. Recent decisions are Bryant v. Herbert, 3 C. P. D. 189, 389, 47 L. J. C. P. 670; Pontifex v. Midland R. Co. 3 Q. B. D. 23; Fleming v. Manchester, &c. R. Co. 4 Q. B. Div. 81.

[(u) ]51 & 52 Vict. c. 43, ss. 62, 65, 66.

[(x) ]51 & 52 Vict. c. 43, s. 116.

[(a) ]This must be a defect showing some negligence of the employer; Walsh v. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586. “Defect” “means the absence of fitness to secure safety in the operation for which the machinery is used”: per Kennedy, J., Stanton v. Scrutton (1893), 5 R. at p. 246, 62 L. J. Q. B. at p. 408.

[(b) ]An object left sticking out over a way is not a defect in the condition of the way; McGiffin v. Palmer’s Shipbuilding Co. (1882) 10 Q. B. D. 5, 52 L. J. Q. B. 25. “Defect in condition” includes unfitness for safe use, whether from original fault of structure or want of repair; Heske v. Samuelson (1883) 12 Q. B. D. 30, 53 L. J. Q. B. 45; or insufficiency of any part of the plant for the particular purpose it is being used for; Cripps v. Judge (1884) 13 Q. B. Div. 583, 53 L. J. Q. B. 517; but not mere negligent user: Willetts v. Watt, ’92, 2 Q. B. 92, 61 L. J. Q. B. 540, C. A. Any space which workmen have to pass over may be a “way”: ib. As to sufficiency of evidence on this point, Paley v. Garnett (1885) 16 Q. B. D. 52. A dangerous or improper collocation of things not defective in themselves may be a defect; Weblin v. Ballard (1886) 17 Q. B. D. 122, 55 L. J. Q. B. 395; but see Thomas v. Quartermaine, 18 Q. B. Div. 685; and qu. whether Weblin v. Ballard be right, per Bowen L. J. at p. 699.

[(c) ]Leaving a wall which is under repair insecure for want of proper shoring up may be a defect in the condition of works within this subsection; Brannigan v. Robinson, ’92, 1 Q. B. 344, 61 L. J. Q. B. 202.

[(d) ]“Plant” may include horses, and vice in a horse is a “defect”; Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7.

[(e) ]The words of this section do not apply to ways, works, &c. which are in course of construction, and not yet sufficiently complete to be used in the business; Howe v. Finch (1886) 17 Q. B. D. 187. They do apply to “an arrangement of machinery and tackle which, although reasonably safe for those engaged in working it, is nevertheless dangerous to workmen employed in another department of the business”; Smith v. Baker, ’91, A. C. 325, 354, 60 L. J. Q. B. 683, per Lord Watson.

[(f) ]See interpretation clause, sect. 8.

[(g) ]Osborne v. Jackson (1883) 11 Q. B. D. 619.

[(h) ]Snowden v. Baynes (1890) 25 Q. B. Div. 193, 59 L. J. Q. B. 325.

[(i) ]Orders or directions within the meaning of this sub-section need not be express or specific; Millward v. Midland R. Co. (1884) 14 Q. B. D. 68, 54 L. J. Q. B. 202. The order need not have been negligent in itself, nor the sole or immediate cause of the injury: Wild v. Waygood, ’92, 1 Q. B. 783, 61 L. J. Q. B. 391, C. A.

[(k) ]The duty of oiling and cleaning points is not “charge or control”; Gibbs v. G. W. R. Co. (1883-4) 11 Q. B. D. 22, 12 Q. B. Div. 208, 53 L. J. Q. B. 543. Any one having authority to set a line of carriages or trucks in motion, by whatever means, is in charge or control of a train; Cox v. G. W. R. Co. (1882) 9 Q. B. D. 106.

[(l) ]“Railway” has its natural sense, and is not confined to railways made or used by railway companies; Doughty v. Firbank (1883) 10 Q. B. D. 358, 52 L. J. Q. B. 480.

[(m) ]A workman can bind himself by contract with his employer not to claim compensation under the Act, and such contract is a bar to any claim under Lord Campbell’s Act; Griffiths v. Dudley (1882) 9 Q. B. D. 357, 51 L. J. Q. B. 543. If made for a distinct and substantial consideration, it may be for an infant worker’s benefit so as to be binding on him: Clements v. L. & N. W. R. Co. ’94, 2 Q. B. 482, 63 L. J. Q. B. 837, C. A.

[(n) ]This evidently means only that the defence of “common employment” shall not be available for the master; not that the facts and circumstances of the workman’s employment are not to be considered, e.g. if there is a question of contributory negligence. Nor does it exclude the defence that the workman in fact knew and accepted the specific risk; Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340; but such defence is not admissible where the risk was created by breach of a statutory duty; Baddeley v. Earl Granville (1887) 19 Q. B. D. 423, 56 L. J. Q. B. 501; and a workman’s continuing to work with defective plant after he has complained of the defect to the employer or foreman, who has refused or neglected to amend it, is not conclusive to show voluntary acceptance of the risk; Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7; Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683, see p. 153, above.

[(o) ]See Kiddle v. Lovett (1885) 16 Q. B. D. 605, 610.

[(p) ]This sub-section creates a new and special statutory defence, see Weblin v. Ballard (1886) 17 Q. B. D. 122, 125, 55 L. J. Q. B. 395. It does not enlarge by implication the right of action under sect. 1; Thomas v. Quartermaine, note (n).

[(q) ]This notice must be in writing; Moyle v. Jenkins (1881) 8 Q. B. D. 116, 51 L. J. Q. B. 112, and must contain in writing all the particulars required by sect. 7; Keen v. Millwall Dock Co. (1882) 8 Q. B. Div. 482, 51 L. J. Q. B. 277.

[(r) ]Proceedings in the county court cannot be stayed under sect. 39 of the County Courts Act, 1856. That section applies only to actions which might have been brought in the Superior Court; Reg. v. Judge of City of London Court (1885) 14 Q. B. D. 818, 54 L. J. Q. B. 330; affirmed in C. A., W. N. 1885, p. 95. As to grounds for removal, see Munday v. Thames Ironworks Co. (1882) 10 Q. B. D. 59, 52 L. J. Q. B. 119.

[(s) ]It need not state the cause of action with legal accuracy; Clarkson v. Musgrave (1882) 9 Q. B. D. 386, 51 L. J. Q. B. 525; cp. Stone v. Hyde, 9 Q. B. D. 76, 51 L. J. Q. B. 452.

[(t) ]Stone v. Hyde (1882) 9 Q. B. D. 76, 51 L. J. Q. B. 452; Carter v. Drysdale, 12 Q. B. D. 91.

[(u) ]Shaffers v. General Steam Navigation Co. (1883) 10 Q. B. D. 356, 52 L. J. Q. B. 260; cp. and dist. Osborne v. Jackson (1883) 11 Q. B. D. 619; Kellard v. Rooke (1888) 21 Q. B. Div. 367, 57 L. J. Q. B. 599. The difference between a foreman who sometimes lends a hand and a workman who sometimes gives directions is in itself, of course, a matter of fact.

[(x) ]“Any person [not being a domestic or menial servant] who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour;” 38 & 39 Vict. c. 90, s. 10. This definition does not include an omnibus conductor: Morgan v. London General Omnibus Co. (1884) 13 Q. B. Div. 832, 53 L. J. Q. B. 352. Nor the driver of a tramcar: Cook v. N. Metrop. Tramuays Co. (1887) 18 Q. B. D. 683, 56 L. J. Q. B. 309. Nor a grocer’s assistant in a shop, though he makes up and carries parcels in the course of his employment: Bound v. Lawrence, ’91, 1 Q. B. 226, 61 L. J. M. C. 21, C. A. (on the Employers and Workmen Act). Nor a potman in a publichouse, whose duties are substantially of a menial or domestic nature: Pearce v. Lansdowne (1892) 62 L. J. Q. B. 441. It does include a driver of carts, &c., who also has to load and unload the goods carried: Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7.

The Act of 1875 did not apply to seamen or apprentices to the sea service, sect. 13. By 43 & 44 Vict. c. 16, s. 11, it was extended to them, but not so as to affect the definition of “workman” in other Acts by reference to the persons to whom the Act of 1875 applies. Seamen, therefore, are not within the Employers’ Liability Act.