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THE LAW OF NEGLIGENCE AS AFFECTED BY THE
EMPLOYERS' LIABILITY ACT.

THE case of Thomas v. Quartermaine, recently decided in the
Court of Appeal, and reported elsewhere, is one of great importance
with regard to the construction of the Employers' Liability Act.
The Court of Appeal affirmed the decision of the court below
(34 W. R. 74, 17 Q. B. D. 414); but, unfortunately, they were not
unanimous, the Master of the Rolls dissenting from the judgments
of Bowen and Fry, L.JJ.

The facts of the case were these:-The plaintiff was employed in the defendant's brewery. There was in the brewery a vat, round which there was a rim fourteen inches high. The plaintiff, while pulling at à board near this vat, in consequence of the board's coming away suddenly, fell backwards into the vat and was scalded. The county court judge found for the plaintiff, holding that the vat's not being fenced was a defect in the plant within the meaning of sub-section 1 of section 1 of the Act, and that the plaintiff had not been guilty of any contributory negligence. The Queen's Bench Division (Wills and Grantham, JJ.) reversed

his decision.

far as such a doctrine can be considered to extend, it seems to us that this may be so. But, as pointed out by the majority of the court, it cannot be supposed that by those words it was intended to put a workman into a better position than the general public. We hardly imagine that the Master of the Rolls would say that it can be so supposed. The doctrine volenti non fit injuria had no special application in the case of master and servant.

The question, therefore, is narrowed to this, What would be the law if, instead of a workman, the plaintiff had been one of the general public, who, with knowledge of the existing condition of affairs, frequented the place? Here really seems to have been the divergence of opinion. The Master of the Rolls holds very sweeping views on the subject of negligence, which he expounded in the case of Heaven v. Pender (11 Q. B. D. 503). In a previous article on that case we ventured to express an opinion that the rule which he there lays down is too wide. We do not believe that there is any authority for the view that the law of England on the subject of negligence is as he there expresses it. The rule, as he there lays it down, is that, whenever one person is, by circumstances, placed in such a position with regard to another that everyone of ordinary sense who did think would at once At the threshold of the inquiry arising upon the above facts there recognize that, if he did not use ordinary care and skill in his own lie important questions with regard to the scope and meaning of conduct with regard to those circumstances, he would cause danger the Act, which is not by any means a faultless piece of drafts- of injury to the person or property of the other, a duty arises to manship. As our readers will be aware, it was passed mainly in use ordinary care and skill to avoid such danger. It is obvious that consequence of the supposed hardship involved by the application in the application of this formula the principle volenti non fit injuria of the doctrine of common employment first developed in the case has really little or no place, except so far as it may be considered of Priestly v. Fowler. We have on various occasions discussed coincident with the doctrine of contributory negligence; and the this matter, and ventured to take exception to the terms in which legal duty is really made coincident with the moral duty of a the judges had formulated this doctrine in the cases on the subject. humane man. If circumstances be proved that come within the It was said that the servant impliedly contracted to run the risks formula, the only remaining question is whether contributory incident to the employment. This always has seemed to us to be, negligence existed, and, if that be negatived, liability results. as applied to many cases, untrue in fact and to involve the merest Looking to the practical aspect of the matter, and the usual petitio principii. No such contract really existed in the majority action of juries, it seems to us that the general application of this of cases, and the implication of it, as in many other cases formula, in the full sense of the words, would be likely to prove of so-called implied contracts, merely came to this: that the law most disastrous. With great submission, it appears to us that the annexed an incident to a certain relation. We have always Master of the Rolls' view makes the duty far too wide, and thought that the real justification of the doctrine of Priestly v. likewise overlooks the important considerations that arise with Fowler lay in the fact that the business in which the servant is regard to the connection between the alleged negligence and the employed is carried on for the joint benefit of the master and resulting damage. In these cases the legal duty is not, as it servant, wages being really, politico-economically speaking, a seems to us, to the public in general, but to a person ascertained share of profits, and that it is obviously necessary to the existence by the circumstances under which the damage happens. If a of businesses that the master should employ servants to do things bale of goods is carelessly let fall into a street from a warehouse in his place, and such delegation is, therefore, as much for the when there happens by good fortune to be no passer by, there is fellow-servants' as the master's benefit. It is clear that the Act a breach of a moral duty on the part of someone, but no breach gets rid of the doctrine of common employment; but employers of a legal duty in any substantial sense of the.word, so far as we run other risks than those caused by the negligence of fellow-can see, because there is nobody to whom a duty has arisen, or in servants. There are dangers from dangerous machinery and such respect of whom there is any breach of duty. The existence of like. These dangers would come within the artificial formula the duty towards the person damaged must depend on the circumthat the servant had contracted to run the risks incidental to the stances under which he was brought into contact with the cause of employment. But, as we have said, we do not believe that damage. Certainly in cases where the direct cause of the mischief formula to be anything but a misleading phrase, which ex- is the action of the person injured, not the alleged act of mispressed and, at the same time, affected to account for a result, the feasance or nonfeasance by the defendant, such act being only a result, no doubt, being correct, but not the reason given for it. remoter cause, it must depend on circumstances, we think, The true maxim applicable to this class of dangers is, we think, whether there is any duty or breach of duty. It appears to us Volenti non fit injuria. A man has dangerous machinery the that, before the Master of the Rolls' judgment in Heaven v. character of which it is open to anyone to perceive; and he Pender, this was always treated as well established. What may employs a person to attend to it or to work in connection with it. be shortly called the "trap" doctrine is altogether superfluous Of course, it is possible to express the legal result in terms of a and immaterial, if the Master of the Rolls is right. Where a contract. If I employ you to work with this dangerous machinery, person himself voluntarily brings about his own exposure to the you undertake to run the risk of damage to yourself from it. It is danger arising from any dangerous object, knowing of its existence possible, of course, that in some cases there may be some more or and character, we cannot see how there can be any negligence or less undefined mental operation or understanding corresponding breach of duty involved on the part of the person whose property, to this formula, but the truth is that, unless the law or in whose control, such object is. depends on such a mental understanding, that is, if the legal result would be the same, whether there is such an understanding or not, it seems incorrect to state the law in terms of a contract. The substantially correct way of putting the result seems to be that, when a person willingly incurs a risk, it cannot be true to say that the mischief he sustains is caused by the negligence or breach of duty of another. The Master of the Rolls' view of the words of the Act, which say that the workman shall have the same right of compensation against the employer as if he had not been in the service of the employer nor engaged in his work, is, so far as we can gather, that they do away with the old doctrine that the workman impliedly undertook the risks of the service. So

A good deal, however, turns, in the application of the maxim volenti non fit injuria, on the meaning of the word "voluntarily." We think that in dealing with this question Lord Bramwell goes as much too far in one direction as the Master of the Rolls in the other. We doubt whether, for this purpose, every act can be said to be voluntary which is the result of volition. There is a difficulty here which is inherent in the very nature of things. The poet speaks of the schoolboy going unwillingly to school; nevertheless the boy goes, and goes voluntarily in one sense, but involuntarily in another; because he knows he will be punished if he does not. Moreover, we do not think it reasonable to hold that, wherever the immediate

who paid the premiums. When the life dropped, it was held that G. was entitled to be repaid the premiums at once.

cause of the damage is the voluntary act of the party injured, he cannot recover. That is not the true meaning of volenti non fit injuria. We do not ourselves think that, if someone wrongfully digs an excavation in front of a man's door, he is bound to stop in his house till it is filled up or take the risk of any attempt to get out-assuming that such an attempt is a reasonable one to make. Similarly, when a train is driven beyond the platform. It must be a question, to some extent, of degree. We cannot, however, think that these are all mere questions of contributory negligence, as the Master of the Rolls' view would appear to make them. The occupier of the house and the railway passenger, in the cases we have put, do not bring themselves into the position in which they must choose between one of two evils-a serious loss or inconvenience, and running a certain amount of risk. The work-In Saunders v. Dunman (26 W. R. 397, 7 Ch. D. 825), the first of the man who goes to work at a particular place, or continues working there, with knowledge of the state of things there existing, does so voluntarily, and has himself caused his exposure to the risk. We know that there are many who think that the necessity he is under of earning his bread practically compels him, in the sense in which we are discussing the meaning of the term "voluntary"; and we fully expect that many of our legislators will be prepared to alter the law so as to give effect to that view. The case of the workman, however, is essentially different from those we have referred to. In the one class of cases the damage may result directly from the voluntary act of the party injured, but the situation out of which the occasion for that act arose was solely caused by the misfeasance or negligence of another. In the case of a workman the situation arises from his own volition.

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From these cases it is clear that the doctrine was gaining ground that anyone interested in the policy might pay the premiums and expect to obtain a lien upon it for the amounts, and Lord Romilly's express allusion to salvage made such an interpretation of the law probable. It is curious that the two cases which first checked this tendency should both have been before Lord Justice Fry, who was also a member of the Court of Appeal which has finally destroyed it. Its defect lay in this, that it would, unless carefully guarded, have made it possible for a mortgagor to claim, in priority to the mortgagee, expenses which he had incurred in preserving the property. This, of course, would contradict a settled rule of law. cases just referred to, the mortgagor, by taking out administration, had perfected the title of the mortgagee, and hence he claimed his expenses in priority to the mortgage. In answer to the argument that this could be supported on the ground of an implied request, it was held that the motive which the mortgagor had in securing his own ultimate interest made any such implication unnecessary. But the cases cited above were clearly a difficulty. As to West v. Reid, Fry, J., pointed out that the question of lien was not really decided (merely, however, because it was thought too clear for argument), and, as to Shearman's case, he chose to ignore the expressed ground of decision, and supposed that it went on the fact of the previous offer. However, the whole matter was thoroughly discussed in Re Leslie (31 W. R. 561,23 Ch. D. 552), and the same judge, setting aside the doctrine of salvage, enunciated clearly the cases in which a lien might be created upon policy-moneys by payment of the premium. He further rejected the claim of a stranger, and even of a part-owner. In the case before him a husband had paid premiums on a policy effected by his wife before marriage, and had died without having reduced it into possession. A claim to repayment of the premiums on the ground that he had had a joint interest with his wife was made unsuccessfully on behalf of his estate.

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THERE has been a marked tendency of recent years to apply the maritime doctrine of salvage to the preservation of a life policy by payment of the premiums, and when we remember how frequently this is really done, not for the benefit of the person paying, but for the benefit of a prior claimant, the extension of the doctrine-viz., Falcke v. Scottish Imperial Insurance Co. (35 W. R. 143, 34 is not unnatural. In spite, however, of the fact that it has been expressly recognized on the bench, has been repeatedly advanced in argument at the bar, and has found its way into the text-books, it has now received a decisive check in the Court of Appeal, as well as in the courts below, and it may be useful to observe how this has been brought about.

The cases which had been chiefly relied on as establishing the principle were the following:-In West v. Reid (2 Hare, 249) an assignment of a policy was made to W., which was invalid for want of notice to the company. Hence, on the bankruptcy of the assignor, it passed to the assignees in bankruptcy. W., however, had paid the premiums, and it was admitted at the bar that he was entitled to have them repaid to him. Burridge v. Row (1 Y. & C. Ch. 183) was more complicated, but was briefly as follows: A., on his marriage with B., covenanted to settle £5,000, and as security assigned to trustees a policy of insurance. B., who had only a life interest under the settlement, subsequently paid the premiums, and it was held that she was entitled to a lien for the sums so paid. In both these cases the person paying the premiums had an interest, real or supposed, in the maintenance of the policies, and while payment by a mere stranger might well be excluded, yet a good foundation was laid for securing the lien to all who could reasonably expect it. Accordingly, in the next case the doctrine was laid down more explicitly. This was Shearman v. British Empire Mutual Life Assurance Co. (20 W. R. 620, 14 Eq. 4). Here P. mortgaged a policy on his own life to S., and afterwards became bankrupt. He continued to pay the premiums till his death, and then his widow and executrix was allowed to recover them for his estate. Apparently she claimed the whole policy, for she refused an offer of a sum greater than the premiums. But to these, at any rate, Lord Romilly, M.R., held that she was clearly entitled, and expressly stated that the premiums paid subsequently to the bankruptcy were in the nature of salvage moneys. The same doctrine seemed to be applied again in Gill v. Downing (22 W. R. 360, 17 Eq. 316). A married woman, who was tenant for life of a policy without power of anticipation, but with a subsequent power of appointment, mortgaged it to G.,

But it will be convenient to pass on at once to the most recent case Ch. D. 234), in which the decision in Re Leslie was indorsed and the question of salvage more fully onsidered. Here there was a first mortgage to the insurance company itself, a second to Falcke, and the premiums were paid by the mortgagor. In the court below it had been held by Bacon, V.C., apparently on the authority of the earlier cases, that he was entitled to have them repaid to him out of the policy-moneys. In the Court of Appeal, however, those cases were explained away, and, from the judgments there delivered, combined with that in Re Leslie, it is possible to ascertain the law on the subject with some certainty.

1. A lien certainly arises in the following cases :

(a.) Where there has been a contract with the beneficial owner of the policy to pay the premiums. Such contract may be express or implied. The latter would be the case where a request to make the payments could be implied, and it was stated by Cotton, L.J., that such request would be implied from slight circumstances. It was considered that this was probably the ground of the judgment in West v. Reid.

(b.) Where trustees have a claim to be indemnified out of the trust property for money expended in its preservation. And the lien which they themselves would have is given to anyone else who actually advances money at their request. It is necessary, however, that they should not have a fund applicable to the purpose, for in this case neither they themselves nor the person advancing money will have a lien. Hence such person was refused his lien in Clack v. Holland (2 W. R. 402, 19 Beav. 262). This principle enabled the court to explain Gill v. Downing (suprà), where the mortgagee, in paying premiums, only exercised a power expressly given to the trustees of the policy.

(c.) Where a mortgagee adds to his charge money paid by him to preserve the property.

(2) But where there is no contract, express or implied, it may sometimes be possible to support the claim to a lien on the ground of acquiescence. The mere outlay of money on property for the benefit of another person with a prior interest is not sufficient. This would let in the mortgagor in priority to the mortgagee. It is necessary, as was pointed out by Fry, L.J., that the person

expending the money should do so in a mistaken belief as to his title, and that the person benefiting by it should know of such mistake and yet not interfere.

(3) If a person paying premiums does not come under any of these cases it is now clear that he cannot call the doctrine of salvage to his assistance. Both Bowen and Fry, L.JJ., lay this down clearly. And it seems to make the matter no better that be has an interest as part-owner or otherwise in the policy. It is true the law is laid down differently in Mr. Crawley's excellent book on Life Assurance. Thus, at p. 98, we read :-" If premiums are paid by persons having an interest in the policy-e.g., tenant for life or in remainder the payments are in the nature of salvage, and the person paying acquires a lien on the policy." In support of this he quotes Burridge v. Row, Todd v. Moorhouse (19 Eq. 69), and Gill v. Downing, all of which are explained away in the two cases we have been discussing. As to the first, not very clearly; as to the second, on the ground of a request by the trustees to pay; while the explanation of the third we have already seen. Perhaps, however, it would not be safe to say that no case can arise in which payment by a person interested would not be held to create a lien. We have pointed out that the unlimited application of the doctrine of salvage would conflict with the rule as to money expended by a mortgagor. The difficulty seems to have been to distinguish on principle between a mortgagor and those standing in his place. In practice the distinction was drawn easily enough; thus in Shearman's case it was only to the premiums paid after the bankruptcy that the doctrine was applied, and the reason for this was clearly stated in Norris v. Caledonian Insurance Co. (8 Eq. 127), where the executor of the mortgagor was allowed a lien, inasmuch as he had no business to pay away assets for the benefit of a particular creditor. Thus the distinction would be between the mortgagor and his voluntary assigns on the one hand, who would be excluded by the ordinary rule, and his involuntary assigns-i.e., his creditors on the other hand. Upon the same line with these would stand all persons with limited interests, who, through no fault of their own, are bound to pay the premiums or else look on and see their property wasted. It is submitted that the application of a doctrine analogous to that of salvage would have been reasonable and would have explained all the cases. It is difficult indeed to see how some, such as Burridge v. Row and Norrie v. Caledonian Insurance Co., come within the list of cases as now laid down, and yet the court seems to have abstained from overruling them. However, there is the list, and it seems clear that it must now exclude the more flexible application of the doctrine of salvage.

CORRESPONDENCE.

THE LODGERS' GOODS PROTECTION ACT.

[To the Editor of the Solicitors' Journal.]

Sir,-Permit me to call, through the medium of your columns, the attention of solicitors throughout the country to the very useful Bill which the Right Hon. Sir H. J. Selwin-Ibbetson has brought in for amending the Lodgers' Goods Protection Act.

The injury done by means of that Act to landlords is probably too well known to every owner and manager of houses let out in lodgings to require mention. An unscrupulous tenant lives on the rents which he receives from his lodgers and does not pay his own rent for the house he sub-lets, leaving the landlord to turn him out by action when two or three quarters' rent have become due, at a cost perhaps of £20 or £30, and the loss, by the time that a judgment can be obtained-if the tenant, as he frequently does, enters a vexatious appearance-of probably more than a year's rent.

The remedy proposed by the Bill meets the case by giving the superior landlord the right of distress on the lodger's goods to the extent of the rent which shall become due from the lodger after he has notice from the superior landlord that rent is due to him, in effect enabling the superior landlord by notice to attach the lodgers rent and transferring to the landlord the right of distress for the lodger's rent accruing after notice, which, by the law as it stands, is now vested in the fraudulent mesne tenant, and the Bill guards the lodger, by very stringent provisions, from a double distress.

I would urge all who are interested in house property of the class affected to bring the matter to the attention of their representatives in Parliament and request them to support the Bill. The matter is absolutely free from all party or class colour; it is the middle classes who suffer the loss referred to.

I enclose a form of petition in support of the Bill which is being used if you have room to insert it for further adoption. 1, New-inn, Strand, March 21. JOHN ELLERTON.

The following is a copy of the form of petition enclosed :— "To the Honourable the Commons of the United Kingdom of Great Britain and Ireland in Parliament assembled.

"The petition of the undersigned being owners of house property in England or persons having experience in the management of such property,

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Humbly sheweth :-That the Lodgers' Goods Protection Act, while it has operated beneficially towards lodgers in preventing their goods from being seized for rent not due by them, has entailed great losses on the landlords of the large class of houses which are let at rack rents and underlet in lodgings by depriving such landlords of them from their immediate lessees or tenants, in cases where such their only effectual means of obtaining payment of the rent due to lessees or tenants, desiring to avoid payment of their rent, keep few or no goods of their own on the premises, but regularly collect their lodger's rents, the lessees or tenants of that class of property being frequently persons of such small means that the remedies for recovering the rent as a debt are practically useless, and the landlord can only recover possession of his house at considerable cost, with the loss of two or three quarters of a year's rent. be supplied by enacting that the exemption of lodgers' goods from “That a substantial if not complete remedy for this mischief would distress for superior rent should not apply to the extent of such rent as should become due from them after notice were given to them of such superior rent being in arrear, so as in effect to enable the superior landlord by notice to attach or intercept the lodger's rent. "That such alteration in the law would cause no injustice or hardship whatever to anyone, the lodger would not be liable to pay his rent more than once, and no more would be taken from the mesne porarily the right of distress from the wrong-doing mesne tenant to tenant than that which he owed. It would merely transfer tem

the defrauded landlord.

"Your petitioners, therefore, humbly pray your Honourable House that the law relating to the exemption of lodgers' goods from distress for superior rent may be amended in the manner above mentioned or in such other manner as to your Honourable House shall seem just.

"And your petitioners will ever pray."

[We presume the intention is to give to the landlord the same right of distress as the mesne tenant has-i.e., to distrain for the weekly rent of the lodger as it becomes due.-ED. S.J.]

SOLICITORS AND THE IMPERIAL INSTITUTE.
[To the Editor of the Solicitors' Journal.]

Sir,-In reply to the letter from "A Solicitor " in this week's issue of the SOLICITORS' JOURNAL, it is believed by many that the Institute will assist in the federation of the empire, in which I, for one, take great interest. Why should solicitors take no part in it? I fail to see that anyone will be a marked man for not contributing. Everyone pleases himself; but this is the national scheme, and it is, to my mind, worthy of support.

Why not also start a fund for poor solicitors?
March 21.

ANOTHER SOLICITOR.

THE CORONER'S POWER TO FINE. [To the Editor of the Solicitors' Journal.] Sir,-In your issue of the 19th inst. I notice a short article concerning my action in fining a juryman at an inquest, which seems to throw some doubt on to my power in the matter. The facts of the case do not seem to have been correctly brought to your notice. They are shortly these:

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On the 14th inst. I opened an inquest and the jurymen were sworn. I found it necessary to adjourn to the 16th inst. for the attendance of a necessary witness, and on the adjournment a juryman appeared helplessly drunk, although the hour of the day was 10.45 a.m. fortunately there were only twelve jurymen, including this man, and, therefore, I was compelled to either again adjourn or go on with a drunken juryman. My course of conduct was clear, and I again adjourned the case and fined the drunken juryman for contempt of court. It was he who appealed to his brother jurymen as to his state, and, so that I should not appear to act hastily or arbitrarily, I allowed the jury to express their opinion, which was unanimously against the man. In so doing I acted, as I thought, fairly and cautiously. Surely no one with any idea of decency could doubt that the action of this man was a gross contempt of court to the delay and hindrance of justice.

As to the power of a coroner to punish for contempt of court, the law on this point seems to be well settled.

The coroner's court is an inferior court of record, and, as such, has attached to its jurisdiction, and inherent in it, a power to punish by fine or imprisonment for contempt, if committed in court (Ex parte Pater, 33 L. J. M. C. 142), but not for contempt committed out of court (Cockburn, C.J., Reg. v. Lefroy, 8 Q. B. 134).

As to contempt of process, the power of the coroner is in no way limited by 7 & 8 Vict. c. 92, s. 17, which provides a method for fining jurors or witnesses, but also at the end of the same section expressly reserves to the coroner his ancient right of punishing for contempt. The 17th section seems to give to the coroner a simpler way of punishing, by fine, persons guilty of disobedience to his orders.

It is not to be supposed that a coroner would knowingly allow a drunken person to serve on a jury, but it seems to me to be clearly a contempt of court for a person who has been duly summoned to appear before the court in such a state of drunkenness as to incapacitate him from carrying out his duties. 4. BRAXTO duties.

A. BRAXTON HICKS, Coroner for Surrey.

2, Elm-court, Temple, E.C., March 23.

OFFICIAL RECEIVER v. TAILBY.

To the Editor of the Solicitors' Journal. Sir,-If you will take an opportunity of giving to the authorities on the general question that "thorough consideration," without which, at p. 327, you tell us you are not prepared to say that the Court of Appeal were wrong, you will, I feel sure, no longer hesitate in pronouncing the judgment of the court in the above case to be manifestly wrong. You will find that, while indefensible on principle, it rests ultimately for authority on the obiter dicta of some common law judges in Belding v. Read; such dicta having respect to a matter of equity with which these judges were unfamiliar, and being, moreover, obviously based on an extraordinary misconception of the distinction pointed out by Lord Westbury in Holroyd v. Marshall, between specific and non-specific goods. The fallacy consists in treating "specific" as opposed to "indefinite"; whereas, in fact, a contract to sell 500 chests of tea, though perfectly definite, is not specific; but, on the other hand, a contract to sell all the tea which may be shipped to the vendor this year, next year, or during his life, though as indefinite as possible, is just as much a contract for specific goods as is a contract to sell the 500 chests now in his warehouse, and is therefore equally entitled to specific performance.

General assignments or charges of future property by joint-stock companies, in the form of debentures, have long been familiar, and specific performance is every day given of them, either in an action or under liquidation, as regards both corporeal chattels and bookdebts; but by the above decision a section of the Court of Appeal now tells us (in effect) that the constant practice of five-and-twenty years is all wrong.

I will not stop to criticize the utterly untenable distinction suggested between an assignment of book-debts to arise in a particular frade, and an assignment of all future book-debts; but will content myself with pointing out that the judges who decided this case in the Court of Appeal are logically bound to hold that a gift by will of the whole of the testator's real and personal estate is void for uncertainty! L. W. L.

March 21.

March.

CASES OF THE WEEK.
MORGAN ♥. HARDY (FOTHERGILL, Third Party)—C. A. No. 1, 21st
INDEMNITY AGAINST COVENANT TO REPAIR-BANKRUPTCY OF SURETY BEFORE
TERMINATION OF LEASE-BANKRUPTCY ACT, 1869 (32 & 33 VICT. c. 71),
8. 31.

This raised an important point as to the construction of section 31 of the Bankruptcy Act, 1869. By an agreement made in 1873, Fothergill undertook to indemnify the defendant against a covenant contained in a lease to the defendant by the plaintiff to leave certain premises in repair at the end of the term thereby demised. In 1875 Fothergill became bankrupt, and was discharged in January, 1876. The term granted by the lease did not expire until January, 1883. In an action by plaintiff for breach of the covenant the defendant brought in Fothergill as third party, but he contended that the agreement to indemnify was, under section 31 of the Act of 1869, a "liability, present or future, certain or contingent" to which he was subject at the time of the proceedings, and was therefore a debt provable in bankruptcy, from which he was discharged by the order of discharge. The defendant, however, contended that the liability was one incapable of being estimated. The action was tried before Deuman, J., who gave judgment for the defendant as against the third party (34 W. R. 254, 17 Q. B. D. 770). Fothergill appealed, and

THE COURT OF APPEAL (BOWEN and FRY, L.JJ.; LORD ESHER, M.R., dissenting) allowed the appeal. They considered that the intention of the Act of 1869 was to discharge the bankrupt when he obtained his order of discharge from all claims of contract creditors, and that, therefore, it bankruptey. The trustee might possibly decline to estimate it, or, if he was the duty of every such person to bring his claim before the trustee in did estimate it, and the court considered that such a claim was not capable of being estimated, there was machinery specially provided by which it might be declared to be a debt not provable in bankruptcy. The words of the section clearly included such a liability as this. Lord ESHER, M.R., thought that the liability in question was incapable of estimation, and that there was no duty on the defendants to have brought it before the trustee, who could not have estimated it. If he had estimated it it would have been necessary to go to the court to set aside his estimation, on the ground that it was incapable of valuation, and was, therefore, not a debt provable in bankruptcy, and the Legislature could not have intended to force the creditor to go through such a useless form.--COUNSEL, Francis Williams, Q.C., and Abel Thomas; Lumley Smith, Q.C., and T. Terrell; McIntyre, Q.C., and Clement Higgins, Q.C. SOLICITORS, Wilkins, Blyth, & Dutton; Kingsford, Dorman, & Co.; Field, Roscoe, & Co.

MALLET v. HANLEY AND ANOTHER-C. A. No. 1, 21st March. PARLIAMENT VEXATIOUS OPPOSITION TO BILL-"PETITIONER "-COSTS28 & 29 VICT. c. 27, s. 2.

The

By section 2 of 28 & 29 Vict. c. 27, when the committee on a private Bill shall decide that the preamble is proved, and report that the promoters of the Bill have been vexatiously subjected to expense in promoting the Bill by the opposition of any petitioner against the same, then the their costs of the promotion of the Bill as the committee may think fit. promoters shall be entitled to recover from the petitioner such portion of ment of certain tramways authorized by Act of Parliament in 1883. A In the session of 1886 the plaintiff was promoting a Bill for the abandonpetition against the Bill was presented in the name of the Skegness and St. Leonards Tramway Co., the petition being sealed with the company's seal. The two defendants were directors of that company, and the committee of the House of Commons decided that the preamble of the Bill was proved, and reported that the promoter had been vexatiously subjected to expense by the opposition of the present defendants, the directors of the company, petitioners against the Bill, and that the promoter was entitled to recover certain costs so incurred from them. costs were taxed, and a certificate given, and judgment for the amount signed, the Court of Appeal holding that the proper course was for the defence. The case is reported 35 W. R. 201, 18 Q. B. D. 303. The defendants to move to set the judgment aside, and for leave to deliver a defendants accordingly so moved, on the ground that the statute only gave the committee jurisdiction to award costs against a "petitioner," and that the tramway company, and not the defendants, were the petitioners, and that, therefore, the committee had no jurisdiction, and the certificate was invalid. Affidavits were filed shewing that the defendants alone petitioner stated that he appeared for the two defendants. Divisional Court (Lord Coleridge, C.J., and Mathew, J.) refused the application (see ante, p. 318), and the defendants appealed. THE COURT OF APPEAL (BOWEN and FRY, L.JJ.; Lord ESHER, M.R., dissenting) allowed the appeal. They thought that it was a question of the jurisdiction of the Parliamentary committee to inflict costs upon a petitioner. This jurisdiction was entirely statutory, and the court, therefore, had power to inquire into the construction of the statute. In their opinion the defendants were not petitioners within the meaning of the statute, and, therefore, they could not be rightly compelled to pay the costs. The meaning of petitioner was clearly the person who was present before the committee and who had signed and presented the petition. In this case the petition had been presented by the company, and the committee had no power to go behind that petition and inquire who were really the persons opposing this Bill. There was no machinery provided by the Act for such an inquiry, and no means by which such persons could be heard in their own defence. Lord ESHER, M.R., was of the

The following are the circuits chosen by the judges for the ensuing Spring Assizes, which are expected to commence about the 19th of April next-viz, Western Circuit, Mr. Justice Denman; South-Eastern Circuit, Mr. Justice Field; Oxford Circuit, Baron Huddleston: NorthEastern Circuit, Justices Manisty and Grantham; Midland Circuit, Mr. Justice Hawkins; North and South Wales Circuits, Mr. Justice Mathew; Northern Circuit, Justices Day and Wills. Prisoners only will be tried at these assizes, except at Leeds on the North-Eastern Circuit, and Man-authorized the presentation of the petition, and that counsel for the chester and Liverpool on the Northern Circuit, at which three places both civil and criminal business will be taken.

On the 17th inst., in the House of Commons, Mr. Baggallay asked the First Commissioner of Works whether, looking at the facts that during the present and recent sittings of the High Court of Justice the hearing of actions, particularly jury actions, had been delayed in consequence of the insufficient number of courts at the Royal Courts of Justice, and that three judges were sometimes unnecessarily sitting together in Banc because there was no court for the third judge to sit in, he would consider the desirability of providing further accommodation for the judges to hold their courts. Mr. Plunket said the facts referred to had not been brought to his notice. The question of further accommodation at the Royal Courts of Justice seemed to be for the consideration, in the first instance, of the Lord Chancellor rather than of the Office of Works. Of course any suggestion coming from the Lord Chancellor would be immediately and carefully considered.

The

contrary opinion. He considered that such a construction of the statute would work great injustice to the promoter of the Bill. If the parties were present before the committee, as they undoubtedly were in this case, he thought the committee had jurisdiction to inquire whether they really presented the petition, and that, the committee having rightly exercised that jurisdiction, there was abundant evidence on which they could find the defendants to be the real petitioners.-COUNSEL, Bigham, Q.C., and T. W. Chitty; H. D. Greene, Q.C., and H. Kisch. SOLICITORS, Torr & Co.; W. Whitfield.

THOMAS v. QUARTERMAINE-C. A. No. 1, 21st March. EMPLOYERS' LIABILITY ACT, 1880 (43 & 44 VICT. c. 42), s. 1-KNOWLEDGE OF PLAINTIFF-DEFENCE OF CONTRIBUTORY NEGLIGENCE. The plaintiff was a workman employed in the defendant's brewery, and, while endeavouring to pull away a plank lying underneath one of the boilers, he fell backwards into a vat filled with scalding liquid which had a rim raised only fourteen inches above the level of the ground. The county court judge held that there was evidence of negligence on the part of the defendant, since the rim did not afford sufficient protection to the vat. The Divisional Court reversed this decision (34 W. R. 741, 17 Q. B. D. 414), on the ground that it was not a defect in the condition of the ways, works, and machinery. THE COURT OF APPEAL (BOWEN and FRY, L.JJ.; Lord ESHER, M.R., dissenting) now upheld this decision, but on different grounds. They said the case was one of great importance, since it depended on the construction of the Employers' Liability Act. In their opinion that Act did not do more than remove such fetters as were imposed by the relation of master and servant. The Act had placed a workman, with certain exceptions, in a position as advantageous, but no better than that of persons using his master's premises, but who were not employed by the master. The workman would have to prove that there had been some breach of duty by the master towards the workman and that that breach of duty was the proximate cause of the accident. Although mere knowledge of the risk on the part of the workman did not necessarily amount to a conclusive defence, still knowledge, under circumstances which shewed that the risk was voluntarily encountered, would amount to a complete defence. It was plain that in this case the plaintiff had known of the danger and had voluntarily incurred it. If the case of Weblin v. Ballard (34 W. R. 155, 17 Q. B. D. 122) conflicted with this view, that case must be overruled. Lord ESHER, M.R., considered that the question was one of fact for the county court judge, and that there was evidence on which he was justified in finding that the defendant had been negligent. The knowledge by the plaintiff of the risk was no defence to such an action; it only amounted to evidence of contributory negligence on the part of the plaintiff. On that evidence the county court judge had found, as a fact, that there was no contributory negligence, and the court had no power to interfere with that finding.COUNSEL, Crump, Q.C., and Hodson; Graham and E. P. Hewitt. SOLICITORS, Summerhayes; Wansey, Bowen, & Co.

ADAMS v. BATLEY-C. A. No. 1, 23rd March.

validity of any such composition or scheme, and it shall be binding on all the creditors, so far as relates to any debts due to them and provable under the bankruptcy." Section 15 of the Debtors Act, 1869, provides that "where a debtor makes any arrangement or composition with his creditors under the provisions of the Bankruptcy Act, 1869, he shall remain liable for the unpaid balance of any debt which he incurred or increased, or whereof, before the date of the arrangement or composition, he obtained forbearance by any fraud, provided that the defrauded creditor has not assented to the arrangement or composition otherwise than by proving his debt and accepting dividends." The question was, whether section 15 applied to a composition accepted under the provisions of section 28, so that a creditor whose debt had been incurred by fraud, and who had not assented to the composition otherwise than by proving his debt and accepting dividends, could prove for the unpaid balance of his debt in an action to administer the estate of the (deceased) debtor brought by another creditor. It was contended that section 15 of the Debtors Act applied only to a composition accepted by the creditors of a debtor who had instituted proceedings for the liquidation of his affairs or composition under sections 125 and 126 of the Bankruptcy Act, 1869.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.), affirming the decision of Bacon, V.C., held that section 15 applied to a composition under section 28 as well as to a composition under section 126, and that the creditor was entitled to prove in the administration action for the unpaid balance of his debt. THE COURT also held that the existence of the administration action, though it was not expressed to be brought by the plaintiff on behalf of the other creditors of the testator, prevented the Statute of Limitations from running against a creditor, who, though he was not a party to the action, was entitled to go in and prove his debt under the judgment.-COUNSEL, A. Young; Ince, Q.C., and St. John Clerke. SOLICITORS, John Holmes & Son; Leathley & Phipson.

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This was an appeal from a decision of Kay, J. (ante, p. 60, 35 W. R. 135). The question was whether the Statute of Limitations applies by analogy to a claim against the separate estate of a married woman. In April, 1875, the second husband of H. paid to her separate account £400. H. died on December 30, 1884, without having made any payment of interest or principal in respect of the £400, or given any acknowledgment in writing of her liability to repay it. There was evidence that she had verbally admitted that the £400 had been lent to her, and had agreed to repay it, with interest at five per cent., out of her separate estate. H. was, at the time of her death, possessed of separate estate available for the payment of the £400. In an action to administer her estate the husband claimed to rank as a creditor against her separate estate for £400 and interest. The claim was disallowed by the chief clerk, and his decision was confirmed by Kay, J., who held that, assuming the £400 to have been a loan, there was no ground for saying that a simple contract debt contracted by a married woman ought not to be treated in equity as barred by

PRACTICE INTERROGATORIES-PENALTY-3 & 4 Will. 4, c. 15, s. 2; 5 & 6 analogy to the Statute of Limitations.

VICT. c. 45.

This was an appeal from a divisional court ordering the defendant to answer the plaintiff's interrogatories. The action was brought to recover certain sums of forty shillings for infringement of the copyright of certain musical compositions under 3 & 4 Will. 4, c. 15, s. 2, as extended to musical compositions by 5 & 6 Vict. c. 45. By that section any person infringing the copyright shall be liable for each and every representation of the composition to the payment of an amount not less than forty shillings, or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be the greater damages. The defendant declined to answer the interrogatories on the ground that the action was an action for penalties, and that, therefore, no discovery was allowable. THE COURT (Lord ESHER, M.R., BOWEN and FRY, L.JJ.) dismissed the appeal. They said that the case did not come within the doctrine which prevented a court of equity from allowing discovery by way of interrogatories. The payment of money in this Act was a payment by way of damages and not by way of penalty. It was not a payment imposed on the defendant by way of punishment, but by way of compensation to the plaintiff. It had none of the characteristics of a penalty.-COUNSEL, Shortt; Fillan. SOLICITORS, Dangerfield & Blythe, for Hall, Son, & Lord, Manchester; Grayston.

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In this case a question arose as to the effect of a composition under section 28 of the Bankruptcy Act, 1869, upon a debt which the debtor had incurred by a fraud. Section 28 provided that, after the making of an adjudication of bankruptcy, the trustee in the bankruptcy might, with the sanction of a special resolution of the creditors assembled at any meeting of which notice has been given, specifying the object of such meeting, accept any composition offered by the bankrupt or assent to any general scheme of settlement of the affairs of the bankrupt upon such terms as may be thought expedient," subject to the approval of the court, and that "the approval of the court shall be conclusive as to the

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision. COTTON, L.J., said that in his opinion the statute operated by analogy as a bar. What, according to the doctrine of courts of equity, was the position of a married woman with regard to her separate estate? As this debt was contracted in 1875 the case was not governed by the Married Women's Property Act, 1882, but by the general rules of equity as to separate estate. Under the doctrine of separate estate married women were allowed a protection which could not be annexed to the estate of a man. When a restraint on anticipation was imposed a married woman was precluded from binding by her act property which belonged to her for her separate use. But, where no restraint on anticipation had been imposed, the court considered the married woman, so far as regarded her separate property, as in the same position as if she were a feme solethat is, she was capable of entering into contracts which would bind her separate property just as if she were unmarried. Such contracts could not be enforced against her personally, though they would bind her separate property. And after a claim had been established in an action against her by a creditor, an inquiry would be directed what separate estate she had at the time of contracting the debt, and the trustees of the property would be directed to apply it in satisfaction of the claim. Being, therefore, entitled to contract as regarded her separate property (if not restrained from anticipation) just as if she were a feme sole, the necessary consequence was that the Statute of Limitations was applicable to the contracts of a married woman just in the same way as it would apply to the contracts of a feme sole or any other person not incapacitated from entering into a contract. The analogy of the statute, therefore, applied in equity to the debts and obligations of a married woman. debt was contracted by the married woman with her husband, who could was argued that the statute ought not to apply in this case, because the not bring an action against his wife. It was true that there could be no judgment in the ordinary way against a married woman, and that the court would require the trustees of her separate estate to be before it. The fact that in this case the husband was himself the trustee would not have prevented his obtaining payment of the debt, as he had the legal ownership of the fund which was liable to satisfy the debt. In his lordship's opinion the decision of the Lord Chancellor of Ireland in Vaughan v. Walker (8 Ir. Ch. Rep. 458) was erroneous. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, Fischer, Q.C., and J. G. Wood; Graham Hastings, Q.C., and Phipson Beale; Colt. SOLICITORS, W. & J. Flower & Nussey; Steavenson & Couldwell; Torr & Co.

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