therefore, be good if he can show at the hearing that he had no reasonable means of discovering the fraud when it was actually committed by the defendant. (Gibbs v. Guild, 51 L. J. 228; see also Smith v. Chadwick, 51 L. J. Ch. (App.) 597.)

MAINTENANCE,

123. Equal legacies are given, one to each of a class of children, with a direction to accumulate the income, the principal with the accumulations to be paid at twenty-one, with survivorship in the case of the death of any under that age, to the others. Advise the trustees as to whether maintenance is allowable by them, or will be allowed by the Court.

The law on the subject is now governed by sect. 43 of the Conveyancing Act, 1881. We should advise the trustees that without any application to the Court they may, at their sole discretion, pay to the parent or guardian (if any) of each infant, or otherwise apply for or towards the infant's maintenance, education, or benefit, the income arising from the investment of each of the legacies or any part thereof, whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the maintenance or education of the infants or not. We should also advise the trustees that the residue of the income (if any) will have to be accumulated by them in the way of compound interest, and the resulting income thereof from time to time on securities on which they are by the will (if any), or by law, authorised to invest trust money, and that they must hold those accumulations for the benefit of the person who ultimately becomes entitled to the property from which the same arise. We should also explain, if necessary, that the trustees may at any time, if they think fit, apply those accumulations or any part thereof as if the same were income arising in the same current year. This advice would be subject to and qualified by any express provisions (if any) in the will on the subject. We should caution the trustees that if they, notwithstanding our advice, were likely to be obstinate or refuse to allow the infants a fair sum out of the income, the infants may apply to the Court by originating summons for an order for maintenance. (See Haynes's Chancery Practice, 453-455.)

MASTER AND SERVANT.

124. Does the relation of master and servant exist between A. and B. in the following case so as to make the former liable in damages to C., or is the relation only that of bailor and bailee? B., a cub driver, hires a cab and horse from A. for the purpose of plying for hire, at a fixed sum per day, the cab and horse to be returned every evening to A.'s stables. Whilst driving, B., by his sole negligence, runs into C.'s brougham, causing damage thereto. Give reasons for

your answer.

It is clear in the above case that at common law the relation that exists between A. and B. is that of bailor and bailee and not that of master and servant, and, therefore, A., without being guilty of any wrongful act or default, or authorising B. or any one else to be guilty of any wrongful act or default, has not at common law incurred any liability. (See King v. Nugent, 51 L. J. Q. B. 105; L. R. 8 Q. B. D. 104.)

Where, however, A. and B. are subject to the provisions of the Hackney Carriage Acts (i.e., are within the metropolis), the relation between them is usually that of master and servant, quoad C. and the public, though as between themselves the relation is that of bailor and bailee. The above Acts do not, however, provide in all cases that the relation is that of master and servant, even as regards the public. (See King v. Nugent, supra, where the facts were peculiar, the proprietor only finding a cab at 108. a week and the driver found the horse and harness.)

If, in the above case, A. and B. are subject to the above-mentioned Acts, A. will be liable. (See Venables v. Smith, 46 L. J. Q. B. 470; L. R. 2 Q. B. 279.)

125. What is now the law with reference to the liability of employers for injuries sustained by their servants in the course of their employment? Refer to any recent legislation on the subject, and give the procedure under it.

The law is, that subject to the provisions of the Act hereinafter mentioned, and in the absence of a contract expressly excluding that Act (Griffiths v. Earl of Dudley, 51 L. J. Q. B., 543), that a

master is not responsible to his servant for an injury happening to one of his servants in consequence of the negligence of another of his servants, provided the servants were engaged in one common employment, or in accomplishing one common general object; though not necessarily one common, immediate, or particular object, and provided the servant was not exposed to unreasonable risks, and the master endeavoured to select proper servants, and did not knowingly acquiesce in the negligence. (Smith's Man. Com. Law, 8th ed., 439.)

The Employers' Liability Act, 1880 (44 & 45 Vict. c. 42), came into operation on the 1st January, 1881, and enacted as follows:

1. Where, after the commencement of this Act, personal injury is caused to a workinan

(1.) By reason of any defect in the condition of the way, works, machinery, or plant connected with or used in the business of the employer; or

(2.) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him while in the exercise of such superintendence; 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, and did conform, where such injury resulted from his having so conformed; 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 of any signal, points, locomotive engine, or train upon a railway,

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, 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.

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 1 of section 1, 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.

(2.) Under sub-section 4 of section 1, unless the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned; provided that, where a rule or bye-law 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 bye-law.

(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.

3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found equivalent to the estimated earnings, during three years preceding the injury, of 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.

4. An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice 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.

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, when 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.

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.

(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.

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, 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.