His life was one of unbroken success. Born in easy circumstances, he never knew the bitter trials of poverty. His culture and refinement made his company always sought after, and from early manhood his friends and acquaintances were among the ablest and most cultivated people of the land. He had rapid success at the Bar; he rose to a position, as an advocate, second only to Erskine he had all the celebrity and consideration that eminent nisi prius lawyers invariably acquire in England. He attained, at last, his judgeship and his peerage. In private life, too, his domestic relations and fortunes seem to have been extremely happy. And not only did his abilities, learning and industry deserve this success, but he is one of the men to whom the world does not begrudge it. His professional and personal character was singularly pure and stainless. Naturally humane and amiable in disposition, he seems to have acquired little or nothing of the arrogance and tendency to brutality that the fierce struggles of the English Bar too frequently nourish in successful barristers. His political career was honorable, if not eminent. He was a Whig when to be a Whig was unpopular, and detrimental to professional success. When he broke from his party, and joined the Conservatives, it was when the great questions that had interested him had been settled, and when his action seemed likely to exclude him from office for ever.

His defects were, as we have said, a rather excessive vanity, and a coldness and lack of enthusiasm, which made him unwilling to take great risks or to sacrifice much for the benefit of the public. While he supported Romilly in his efforts to reform the criminal code, Canning in his advocacy of the abolition of religious disabilities, and Wilberforce in his struggle with slavery, he took no prominent part in any one of these contests. His time was absorbed with his professional pursuits; outside of these he had little ambition, and, unlike Romilly, Plunket, and Brougham, he could not find time for other things. Such defects may seem small compared with the serious blemishes on the reputations of his contemporaries, with the great faults and misdeeds of Eldon and Ellenborough, or even with the smaller ones of Lyndhurst and Brougham; but they prevented his life from being like theirs and Denman's (a man of very inferior ability, but of intenser and far wider sympathies) — part of the political

history of his time. But notwithstanding these defects of character, he is eminently a man of whom the profession may be proud, and the annals of the English Bar contain few more unsullied or more distinguished names.

C. H. HILL.

THE RELATION OF MASTER AND SERVANT IN THE LIGHT OF SOME RECENT DECISIONS.

A PERUSAL of the lately decided cases of Johnson v. Boston,1 and of Rourke v. White Moss Colliery Co.,2 cannot fail to impress the reader with the fact, that the decisions therein involve a new as well as a very important principle of law. The rule which exempts a master from liability for an injury done to one servant by the negligence of a fellow-servant is familiar to every lawyer, and well settled by authority; but these two cases are the first ones, as far as we can discover, in which, in order to apply that rule, it has been held that, in the performance of a piece of work, simple superintendence and direction on one side, and submission thereto on the other, are conclusive evidence of a contract of service between the person who superintends and directs and the person who does the work under such superintendence and direction, notwithstanding that every other element of such a contract as to the same work is shown to exist between the person doing the work and a third person. In Johnson v. Boston, both the question of service and that of the applicability of the rule of exemption in such cases were directly passed upon; and in Rourke v. White Moss Colliery Co., although it was not necessary for the decision of the case then before the court to consider more than the question of service, and the majority of the court confined themselves in their opinions to this point, Chief Justice Cockburn went farther, and dealt with the question of the master's exemption. Our purpose in this paper will be to ascertain how far the authorities had gone in the application of the well-settled rule as to fellowservants before the decisions in these two cases, and to what extent these later decisions create a new departure.

In all the cases in England in which this rule was applied, before the case of Wiggett v. Fox,3 decided in 1856, there was no

1 118 Mass. 114.

3 11 Exch. 882; 25 L. J. N. s. Exch. 188.

2 2 C. P. D. 205.

question that both the party injured and the wrong-doer were the servants of the same master. The only point for consideration was whether those servants were fellow-servants in the sense of fellow-workmen or fellow-laborers, and what were their rights as such, or what were the duties of the master towards them.1 So it is with many cases since 1856, in all of which the question was as to the development of the rule, and its applicability to particular cases.2 But the case of Wiggett v. Fox introduced a new element, and furnished the first occasion on which it became necessary, as a preliminary step to the application of the doctrine as to fellow-servants, to consider whether the relation of master and servant existed; and it is with this case, and with others of the same class, which have since been decided, that we have more especially to do. In order entirely to appreciate how important it is that it should appear, in the first place, that both the sufferer and the wrong-doer are in fact the defendant's servants, in the full meaning of the word, it will be useful to recall the reasons upon which the master's freedom from liability is founded, by a brief notice of the clearest statements of those reasons made on some of the occasions when it became necessary to test the applicability of the rule now under consideration.

The principle upon which the rule is based is declared by the courts to be, that a servant, when he engages to serve a master, undertakes as between himself and his master to run all the ordinary risks of the service; and this includes the risk of negligence on the part of a fellow-servant whenever he is acting in discharge of his duty as a servant of him who is the common master of both.8

1 Priestley v. Fowler, 3 M. & W. 1; Hutchinson v. York, Newcastle, & Berwick Railway Co., 5 Exch. 343.

2 Bartonshill Coal Co. v. Reid, 3 Macq. 266; Bartonshill Coal Co. v. McGuire, 3 Macq. 300; Morgan v. Vale of Neath Railway Co., L. R. 1 Q. B. 149; Tunney v. Midland Railway Co., L. R. 1 C. P. 291; Wilson v. Merry, L. R. 1 H. L. Sc. 326; Lovell v. Howell, 1 C. P. D. 161.

8 See Priestley v. Fowler, 3 M. & W. 1; Hutchinson v. York, Newcastle, & Berwick Railway Co., 5 Exch. 343; Bartonshill Coal Co. v. Reid, 3 Macq. 266; Bartonshill Coal Co. v. McGuire, 3 Macq. 400; Morgan v. Vale of Neath Railway Co., L. R. 1 Q. B. 149; Tunney v. Midland Railway Co., L. R. 1 C. P. 291; Wilson v. Merry, L. R. 1 H. L. Sc. 326; Lovell v. Howell, 1 C. P. D. 161; Farwell v. Boston & Worcester R. R., 4 Met. 49; Gilman v. Eastern R. R. Co., 10 Allen, 233; Flike v. Boston & Albany R. R., 53 N. Y. 549; Caldwell v. Brown, 53 Penn. St. 453; Chicago & Alton R.R. Co. v. Murphy, 53 Ill. 336; and many others.

In Hutchinson v. York, Newcastle, & Berwick Railway Co.,1 decided in 1850, and which is the second case in this line of decisions, Alderson, B., says, "He [the servant] knew when he engaged in the service that he was exposed to the risk of injury, not only from his own want of skill or care, but also from the want of it on the part of his fellow-servants; and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk." In Bartonshill Coal Company v. Reid,2 after having stated what was the ordinary rule of law holding the master liable for the carelessness of his servant to strangers, the Lord Chancellor (Cranworth), in delivering his final judgment, in 1858, says, "But do the same principles apply to the case of a workman injured by the want of care of a fellow-workman engaged in the same work? I think not. When the workman contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself. He knows, if such be the nature of the risk, that want of care on the part of a fellow-workman may be injurious to him; and that against such want of care his employer cannot by possibility protect him." So Erle, C. J., in Tunney v. Midland Railway Co.: says "The rule has been settled by a series of cases, beginning with Priestley v. Fowler and ending with Morgan v. Vale of Neath Railway Co.,5 that a servant, when he undertakes to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in discharge of his duty as servant of him who is the common master." And in Wilson v. Merry, decided in 1868, after quoting what Lord Cranworth said in Bartonshill Coal Co. v. Reid, with approval, the Lord Chancellor (Lord Cairns) goes on to say, "I would only add to this statement of the law, that I do not think the liability or non-liability of the master to his workman can depend upon the question, whether the author of the accident is not or is, in any technical sense, the fellowworkman or collaborateur of the sufferer. In the majority of cases in which accidents have occurred, the negligence has no doubt been the negligence of a fellow-workman; but the case of the fellow-workman appears to me to be an example of the rule, and

15 Exch. 343.

L. R. 1 C. P., p. 296.

2 3 Macq. 266.
5 L. R. 1 Q. B. 149.

4 3 M. & W. 1.

6 L. R. 1 H. L. Sc. 326.