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ber, paid him for his work from the 21st of October to the 3d of November." On the 27th of October, 1874, the plaintiff, being one of the men employed and paid by Whittle, was injured by the negligence of Lawrence. A verdict was found for the plaintiff, with leave to move to enter judgment for the defendants, if the court should be of opinion that the defendants were not liable to the plaintiff for Lawrence's negligence. The lower court ordered judgment to be entered for the defendants; and the Court of Appeals (consisting of Cockburn, C. J., Mellish, L. J., Baggally, J. A., and Bramwell, J. A.) affirmed that judgment. Cockburn, C. J., says, "When we look at the answers to the interrogatories, the facts amount to no more than this: Whereas Whittle would have been obliged to have an engine and an engineer, in order to carry out the excavation which he had undertaken, the company, having already an engine and an engineer on the spot, say to the contractor, We have got an engine and engineer ready, and it shall be a part of the contract that we will let you have them to do your work, and be under your control; and we will pay you so much the less per yard than we should have done had you been obliged to find the engine and pay the engineer.' It appears to me that the defendants put the engine and this man Lawrence at Whittle's disposal just as much as if they had lent both to him. But when a person lends his servant to another for a particular employment, the servant, for any thing done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who has lent him. Looking at the present case, I think we must arrive at the conclusion, that Lawrence was practically in Whittle's service at the time he was guilty of the negligence complained of; and, this being so, it follows that Lawrence became the fellow-servant of the plaintiff," &c. The other members of the court agreed that Lawrence was not the servant of the defendants, but was the servant of Whittle, for the particular work in performing which the negligence occurred, and upon the same grounds; but they confined their opinions to the decision of this point alone. It seems to have been assumed that Lawrence was in the general employment of the defendants; and that the question to be decided was, whose servant he was in the special act of managing the engine, pulley, and hoppet. In the view of the facts taken by the Chief Justice,

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which, apparently, all his associates agreed, it might very well be contended that the contract was in fact that Whittle should pay the engineer for his services in working the engine, &c., and that he made the company his agent to pay. The defendants then retained no control over the work in which Lawrence was occupied, except that which is given by the power to dismiss him whenever they chose.1 If this interpretation does not seem satisfactory, it is submitted that we have a case which directly decides that simple superintendence and direction is sufficient to create the relation of master and servant between him who directs and him who submits to such direction.

It may very well be that a man may lend his general servant to another for a particular employment, and that the general employment may not thereby be terminated; but does not the question still remain, whether the person lent becomes the servant of the borrower? Here Whittle agreed to take Lawrence, and make use of him; and for that privilege he paid the company a sum of money, which was, as the Chief Justice understood the facts, to be deducted from what otherwise the company would have paid him. That is, the defendants agreed to lend Lawrence to Whittle for an equivalent paid to them. It is difficult to see how this transaction as to Lawrence differed from that as to the coachman in Quarman v. Burnett; 2 and yet in the latter case the defendants were not liable for the negligence of the coachman, for the reason that he was not their servant. It is not necessary to dwell upon what is said by the learned Chief Justice in Rourke v. White Moss Colliery Co. as to the case of Wiggett v. Fox; because, as he himself remarks, the case "does not apply to the present, the facts being very different."

To create the relation of master and servant, as we understand the law, there must be a contract of service, express or implied; and we fail to discover any intimation in the preceding authorities that this contract does not require for its creation the mutual consent of both parties to it, as in the case of every other contract. It is extremely difficult to understand, in these two later cases, how any such consent can be implied on the part of John

1 That they did have this power is not particularly stated in the Court of Appeals ; but it was assumed to be the fact by both counsel, in the argument before the Common Pleas Division.

26 M. & W. 499.

son or Lawrence to become the servants of the city of Boston in the one case, or of Whittle in the other. If they were in any general employment, they certainly, as far as the evidence went in each case, were engaged at the time of the accident in performing exactly the sort of work which they had agreed with their general employers to do; and, if either of them had refused to do that very work, we cannot but think that he would have been guilty of a breach of his contract with his general employer. Can it be said, that, under these circumstances, these two men are to be taken each to have agreed with another person to become his servant as to the same work by simply submitting to his superintendence and direction, a position which, it would seem, each must be assumed to have contemplated when he made his contract with his general employer? If the answer be in the affirmative, it is submitted that the application to such cases of the rule laid down in Priestley v. Fowler calls for an extension of the principles upon which that rule is based, to a state of facts very different from those in regard to which those principles were first enunciated.

WILLIAM F. WHARTON.

DIGEST OF THE ENGLISH LAW REPORTS FOR MAY, JUNE, AND JULY, 1877.

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BAILOR AND BAILEE. See MASTER AND SERVANT, 2.

BANKRUPTCY.

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See BILLS AND NOTES, 1, 2; PARTNERSHIP, 2; Proof. BANKS AND BANKING. See PARTNERSHIP, 1.

BEQUEST.

G. P. was

1. Gift of £10 to G. P. after the death of the life-tenant. named one executor and trustee, but did not accept. Held, that the usual presumption that the gift was made to him as executor was rebutted by its not being payable till after the death of the tenant for life, and that G. P. was entitled to the gift. — In re Reeve's Trusts, 4 Ch. D. 841.

2. Will appointing widow executrix, directing sale of real estate, and the widow to pay the debts. Bequest to the widow of "all my money, cattle, farming implements, &c.; she paying my brother J. the sum of to him or his heirs; to my brother L. the sum of, to him or his heirs." Held, that the widow was entitled to the whole, subject to the payment of the debts. —Chapman v. Chapman, 4 Ch. D. 800.

BILL OF LADING.

December 22, 1875, G. & Co., fruit merchants, bought a shipment of goods of the defendants, payment by acceptance at three months on delivery of the shipping documents. Jan. 1, 1876, G. & Co. applied to the plaintiff for an advance of £2,000. They were already indebted to the plaintiff, and he advanced the £2,000, on the promise of G. & Co. to cover their previous account with further security. Jan. 4, the bill of lading, bearing date Dec. 29, 1875, indorsed in blank by defendants, was handed to G. & Co., and they accepted a draft for the price. The next day, they delivered the bill of lading

to the plaintiff, according to their promise of Jan. 1 to give him security. Jan. 8, G. & Co. suspended; the ship arrived Feb. 3; the defendants tried to stop the goods in transitu; and plaintiff claimed them under the bill of lading. The jury expressly found that all the plaintiff's acts were done bona fide. Held, that he was entitled to the goods. The transfer of the bill of lading Rodpassed the property, even though the consideration therefor was past. ger v. Comptoir d'Escompte de Paris (Law Rep. 2 P. C. 393), not approved; Leask v. Scott Brothers, 2 Q. B. D. 376.

See VENDOR AND PURCHASER.

BILLS AND NOTES.

1. Where the drawer of a dishonored bill has been adjudged bankrupt before the dishonor, a notice sent to him, instead of to the trustee in bankruptcy, by the holder of the bill, is sufficient to enable the latter to prove in the bankruptcy. Such notice sent to the only post-office address of the drawer with which the holder was acquainted is sufficient, although it had ceased for months to be the proper address of the drawer. - Ex parte Baker. In re Bellman, 4 Ch. D. 795.

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2. M. & Co. made advances to K. & C.; and drew bills of exchange on K. & C. for the amount, which the latter accepted. They also made assignments to M. & Co. of certain debts due them, intended as security for the same advances. The debtors had notice of the assignment. K. & C. went into liquidation, and a bank which had discounted the above bills proved for the full amount thereof. The trustee collected the assigned debts, under an agreement between him and K. & C. that this should be done without prejudice to the rights of M. & Co. The latter applied to have the proceeds of the debts paid over to them. Held, that M. & Co. must first take up the bills which they had had discounted at the bank; and, if any thing was found due them above the amount of the bills, the proceeds of the debts should be applied first in payment of that balance, and, if any thing then remained, it should be applied in discharging M. & Co.'s liability under the bills of exchange. Ex parte Mann. In re Kattengell, 5 Ch. D. 367.

See HUSBAND AND WIFE, 2.

BONDS.

Coupon bonds were issued as security for a loan, interest payable semiannually for ten years. The redemption of the bonds was provided for by twenty semiannual drawings of not less than £50,000 each, the whole loan being £1,000,000. The drawings were to be May 1 and November 1 in each year. M. & Co., the borrowers, executed a deed of railway property to W. & D., trustees, by which they agreed to transmit such sums monthly as would be sufficient to meet the half-yearly service and redemption of the loan." "And the sums so remitted as aforesaid shall be applied in payment, on the next following 1st of December and 1st of June (as the case may be), of the principal sums secured by such of the said mortgage bonds as shall have been drawn for redemption on the preceding 1st of November and 1st of May (as the case may be) . . . and of the half-yearly interest on such of the said mortgage bonds as shall be outstanding and bearing interest which will

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