had not yet been put into a cab, and had not been tried in a gingle, which was usual, and by violent kicking and bolting he caused an accident, in which the plaintiff was injured.

The learned judge, Byles, J., ruled that there was no evidence of knowledge to substantiate the first count, but laid the case on the second count before the jury, and a verdict was found for the plaintiff on the second count, with leave to the defendant to move to enter a nonsuit or verdict for himself; the Court to have power to amend. A rule nisi having been obtained pursuant to such leave, on the ground that the plaintiff was the servant of the defendant and there was no hiring, and that even if there were a hiring, there was no implied promise that the horse was reasonably fit; and also for a new trial on the ground of the verdict being against evidence; the plaintiff to be at liberty, if necessary, to argue that the judge was wrong in directing the jury that there was no evidence to support the first count

Collins shewed cause.-First, after the case of Powles v. Hider (1), there can be no doubt that the cab-owner is liable to the public for the negligence of the driver, but that case does not decide, nor do the facts here shew, that as between the cabowner and driver the relation of master and servant exists; on the contrary, the driver has to pay a fixed sum whether he earns anything or not, and he has the absolute control of the cab, facts incon. sistent with the existence of the relation of master and servant. The owner leads the public to suppose that the driver is his agent and servant, but at the same time, as between themselves, this may not be so. Secondly, when an article is let or hired out, it is implied that it is fit for the purpose for which it is hired. Thus in Story on Bailments, sec. 383, it is said that "a letter for hire warrants

the thing free from any faults inconsistent with the proper use or enjoyment of it;" in Addison on Contracts, 6th ed. 451, that where the letter of a carriage "gets it ready for the road, he impliedly warrants

(1) 6 E. & B. 207; s. c. 25 Law J. Rep. (N.S. Q.B. 331.

the vehicle to be road-worthy, and fit for the performance of the journey for which it is known to be required; and this implied warranty extends to the coachman, horses, and harness, and all other necessary equipments for the journey ;" and in Oliphant on the Law of Horses, 3rd ed., 249, that even if a particular horse be selected it makes no difference-citing Chew v. Jones (2). Lastly, there was some evidence of concealment within the first count.

Francis in support of the rule.-First, there cannot be two contracts, as is in effect contended by the other side; either the driver is a servant or not, and that point is decided by Powles v. Hider (1) and Morley v. Duncombe (3), where it is expressly said that the method adopted is only a mode of paying wages, so that the driver is the servant of the owner.

[BYLES, J.-In Powles v. Hider (1), the Court do not seem to decide whether it is a case of agency or of master and servant.]

Stage coachmen formerly depended on the money they got from the passengers, and in many hotels the servants used to pay for their situations, but they were none the less servants. Further, the statutes treat the cab owner and driver as master and servant, thus the former keeps the licence of the latter, with the power of making reports on it, and under 1 & 2 Will. 4. c. 22. s. 6, the driver, if not a servant, would be liable to a penalty as a letter of the cab, and by 6 & 7 Vict. c. 86. s. 27, he cannot allow any one else to drive, as a bailee can. Secondly, assume that this is a case of bailment, still there is no warranty. In Story on Bailments, section 390, it is laid down that where the defect is unknown, it simply goes in discharge of the contract, and in Chitty on Contracts, 9th ed., 418, the principle of law is stated to be, that where a specific article is bought, the maxim "caveat emptor" applies, though where the buyer orders goods to be supplied, trusting to the seller's judgment, there is a warranty that they are reasonably fit for their purpose, a passage recognised as law in Bigge

(2) 11 Law Times (O.S.) 231. (3) 11 Law Times (N.S.) 199.

v. Parkinson (4), and no reliance was here placed on the defendant's judgment. Further, a specific chattel was here agreed on, and therefore, according to Sutton v. Temple (5), there was no warranty.

[At the close of the argument, Redhead v. The Midland Railway Company (6) and Francis v. Cockrell (7) were also mentioned.]

Cur, adv. vult.

The following judgments were delivered on May 4.

GROVE, J.-In this case, the two questions which remained to be decided were, first, was the plaintiff the servant of the defendant in such sense that within the decided cases on that subject, he, the plaintiff, could not recover in respect of injuries sustained in the ordinary course of his employment; secondly, supposing the relation of master and servant in that sense did not exist, but that the relation was analogous to that of bailor and bailee, was there an implied contract by the former that the thing hired was reasonably fit for the purpose for which it was hired?

The evidence at the trial was, that the plaintiff was the driver of a cab, and the defendant the cabowner. The cabman in these cases pays 18s. a day, taking the risk of profits or loss upon himself. If he does not bring home or pay the 188. he is not allowed to drive again, or in the words of the defendant, "No money, no cabs." During the day the cabman is free to do what he likes with horse and cab, provided he does not ill use them, or misconduct himself to the public.

On the occasion in question, the defendant, who supplied cab and horse, supplied, first, a horse which could not be made to go further than the exit of the stable yard; secondly, a horse which lay down three or four times; and thirdly, the horse which caused the injury to the driver in question by violent kicking and bolting.

(4) 7 Hurl. & N. 955; s. c. 31 Law J. Rep. (N.S.) Exch. 300.

(5) 12 Mee. & W. 52; s. c. 13 Law J. Rep. (N.S.) Exch. 17.

(6) 38 Law J. Rep. (N.s.) Q.B. 169.

(7) 39 Law J. Rep. (N.S.) Q.B. 113, 291.

There was evidence that the third horse was what is called "green," i.e., fresh from the country and untried, and that it was usual in such cases to try the horses first in what is called a gingle.

The learned judge held that there was no evidence of knowledge to support the first count, and left the case to the jury, reserving the question above mentioned. The jury found for the plaintiff with damages 501. With this verdict the learned judge was not dissatisfied, and this Court held at the argument that he was right as to the want of evidence of a scienter.

It was contended on behalf of the defendant, on the authority of the cases of Morley v. Duncombe (3) and Powles v. Hider (1), that the plaintiff was the servant of the defendant, and that within the decisions on the subject the master was not liable to the servant for injuries sustained in the ordinary course of service. On the other hand it was argued on behalf of the plaintiff that those were cases where a third party, namely, one of the public, was injured, and that although the cabmen might, by reason of statutable provisions and responsibilities to the public, be liable to a person injured when riding in the cab, yet that they were not in point as to the relations of cab owners and cab drivers, and that these were to each other as bailor and bailee on a contract of hiring. It was further contended for the defendant, that even if the latter relation were the true one, there was no implied promise by the cab owner that the horse supplied was reasonably fit for the purposes for which he was used, and if so, the defendant was not liable.

On both these reserved questions I am of opinion that judgment should be for the plaintiff. The non-liability of master to servant in cases where a stranger would be liable, appears to be founded on the servant's undertaking or subjecting himself to the ordinary risk of his service, the " dangers" of which "he is just as likely to be acquainted with as his master."

These latter words are used in the judgment of the Court of Exchequer, delivered by Lord Abinger in the leading case on

the subject, Priestly v. Fowler (8), in which case the injury was occasioned by the breaking down of an overloaded van, and the judgment went on to say, "the plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail, would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on behalf of his master to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sus tain by the negligence of others employed under the same master, than any recourse against his master for damages could possibly afford." In Dynen v. Leach (9), where the injury was by the slipping of a clip to which a sugar mould was attached, Bramwell, B., says, and similar expressions fell from other members of the Court, "The workman is as well acquainted as the master with the nature of the machinery, and voluntarily uses it." These criteria I do not think apply to the present case. The cabman could not know the qualities of the different horses he was or might be from day to day supplied with, nor was he the cab owner's servant, in the sense of taking upon himself perils the nature or extent of which he had no reasonable means of ascertaining.

In Powles v. Hider (1), relied on for the defendant, where the question was mo:e fully entered into than in Morley v. Duncombe (3), the judgment proceeds on the relation to the public of the cabowner. It says, "Looking to the position of the proprietor and the driver of the cab under the circumstances proved, and to the Acts of Parliament which regulate their respective duties, we are of opinion that the driver is to be considered the servant, or agent, of the proprietor, with

(8) 3 Mee. & W. 1; s. c. 7 Law J. Rep. (N.S.) Exch. 4.

(9) 26 Law J. Rep. (N.s.) Exch. 221.

authority to enter into contracts for the employment of the cab on which the proprietor is liable." After discussing the question of wages, to which I shall presently refer, the judgment proceeds to contrast that case with the hiring of a job carriage, "when the hirer becomes bailee, and can in no sense be considered the servant of the proprietor." It then considers the provision of the statute, 1 & 2 Will. 4. c. 22. sec. 20, viz.: that every hackney carriage shall at all times have upon it a plate, with the Christian name and surname of the proprietor of such carriage; and the Court goes on to

"and the cab in question had upon it a plate with the Christian name and surname of the defendant as the proprietor. The proprietor who applies for and accepts a licence to which such a condition is annexed, and employs his cab under it must be considered to hold himself out to the world as the proprietor, and he must incur the liabilities of the proprietor to all who use the cab, with the authority of the driver in the ordinary course of dealing." After referring to 6 & 7 Vict. c. 86, it says: "It would be most inconvenient and unjust towards the public if an action such as the present, brought against one who proclaimed himself to be the actual proprietor of the cab when it was engaged by the plaintiff, could be defeated by evidence of a secret agreement between the proprietor and the driver, with respect to the remuneration of the driver and the proprietor, in which the earnings of the cab are to be divided between them." I think it sufficiently appears from the above, that what the Court had under consideration in that case was the relation and responsibility of the cab proprietor to the public, and that it had not in view the nature of the contract between the cab owner and the driver or cabman. Indeed this seems to be excluded by the part of the judgment last quoted.

The Court it is true considered the payment of a fixed sum as a mode of compensation for the cabman's labour, and no doubt this may be so, but the payment by the person who uses the horse and carriage to the proprietor of it, though not inconsistent with such a view,

cannot, I think, be regarded as evidence of a contract of service, but rather (prima facie at least) as more consistent with that of a contract of hiring. In this case, therefore, where the cabman is under no control as to his movements by the cab owner, where he may make special bargains with the public, where he does not and cannot reasonably be expected to know the risks he encounters, where he prima facie pays instead of receives, where he is not carrying out his master's orders, where the perils are unknown to him and change from day to day, where there is no notice of dismissal, but only a refusal to supply cab and horse on non-payment, and where there are no correlative duties beyond those of bailor and bailee, and statutable duties of each respectively to the public; I feel obliged to come to the conclusion that the cabman is not the servant of the cab owner in the sense (to use the term above quoted) of rendering the latter exempt from liability to the former, in cases where a party, not bearing the relation of master and servant, would be liable.

It remains for me to consider the second point, ie., assuming the relation of the parties to be in the nature of that of bailor and bailee, is there an implied contract by the former that the thing supplied is reasonably fit for the purpose for which it is hired ? I am of opinion that there is. Even in the case of master and servant the House of Lords has held, in appeals from Scotland, that the master is bound to take all reasonable precautions for the safety of his workmen, and is liable for accidents occasioned by his neglect towards those whom he employs, and the law of England is there stated, obiter, to be the same as that of Scotland -Paterson v. Wallace (10), Bryden v. Stuart (11). These cases apply also to the first point. In Chew v. Jones (2) it is laid down at Nisi Prius, by Pollock, C.B., that "If a horse or carriage be let out for hire for the purpose of performing a particular journey, the parties letting warrant that the horse or carriage, as it may be, is fit and proper, and competent

(10) 1 Macq. H. L. 748. (11) Ibid. 30.

for such journey;" he says, however, further on, "it is not the case of a bailee, but of a contract in which the plaintiff impliedly warrants that his horse is fit to do a certain journey."

In the judgment of Lord Abinger in Sutton v. Temple (5), it is said, "If a carriage be let for hire and it breaks down on the journey, the letter of it is liable, and not the party who hired it. So if a party hire anything else of the nature of goods and chattels, can it be said that he is not to be furnished with the proper goods, such as are fit to be used for the purpose intended? Undoubtedly the party furnishing the goods is bound to furnish that which is fit to be used. In every point of view the nature of the contract is such that an obligation is imposed on the party letting for hire to furnish that which is proper for the hirer's accommodation." Smith v. Marrable (12), which was the case of letting a house infested with bugs, and where the Court said that there was an implied condition in letting a house that it was reasonably fit to be inhabited was distinguished from the case then under consideration, and therefore so far upheld.

The words first quoted from this judg ment seem exactly to meet the present case, and I am consequently of opinion that where there is a hiring of goods not agreed to as specific chattels, and where as here the person hiring has no reasonable means of ascertaining their quality, the hirer is bound to supply such as are reasonably fit for the purpose. My judgment is therefore on both points for the plaintiff, and that the rule should be discharged.

BYLES, J.-I also am of opinion that the rule to enter a nonsuit should be discharged.

It may be useful to consider in what relation the parties would have stood to each other before the Hackney Carriage Acts were passed, or in places where they do not apply.

Suppose that in a country town, in the time of Charles I., the owner of a horse

(12) 11 Mee. & W. 5; s. c. 12 Law J. Rep. (N.S.) Exch. 223.

and cart contracted to allow another man to have the entire and exclusive personal use and control of them, at so much a week or so much a day, for the purpose of conveying for the driver's profit passengers or goods, within the limits of the town, but without reserving to himself, the owner, any right to direct where the horse and cart should go, provided they were used within the prescribed limits, and were returned within the agreed time.

What in that case would have been the nature of the relation between the parties? I should have thought it would not have been that of master and servant, but would have been that of bailor and bailee. The contract would fall within that class of bailments called "locatio, i.e., contractus qui de re fruendâ vel faciendâ pro certo pretio convenit." It may not be necessary to the existence of a bailment of this sort that the possession of the chattel should vest in the bailee, it is enough if he have only the use and enjoyment of it. It would in either view still be a bailment though he should be obliged to use it within the prescribed limits, and to drive it himself personally, and not to allow any one else to do so.

Such I should have thought would have been the relation existing between the parties in this case, but for some expressions used by Lord Campbell in the case of Powles v. Hider (1), which expressions, however, not being necessary to the decision of the case are perhaps extrajudicial.

For it must be recollected that the case of Powles v. Hider (1) was decided on the Hackney Carriage Acts there cited, and on the relation created by those Acts as between the proprietor and the public. Here on the contrary we are dealing with the rights and liabilities of the proprietor and driver inter se. The driver as between the cab owner and himself seems to me to have the complete and exclusive control and disposition of the vehicle within a certain district, and not to be a servant of the proprietor, and therefore by the terms of the contract entitled to be furnished with a suitable, at least with a quiet or manageable horse.

But even on the supposition that the

relationexisting between these parties inter se was not analogous to that of bailor and bailee, but was that of master and servant, I think, nevertheless, that in the present case there was evidence of the defendant's liability. For in this case there was the personal interference and superintendence of the master, the now defendant, in the supply of the horse, and therefore evidence of his personal negligence causing injury to his servant by sending the servant out with an untried, vicious and dangerous horse, not reasonably fit and proper for the work, the master having had the means of knowing the horse's character, and the servant having no such opportunity.

In Ormond v. Holland (13), Lord Campbell and Mr. Justice Crompton both state [as a qualification to the general rule laid down in Priestly v. Fowler (8)], that the master is liable if there be personal negligence on his part.

Moreover it has been held, and very recently, in this Court, Warren v. Wilder, that a master is liable to his servant if he expose the servant to unreasonable risk, and the servant be thereby injured, and that this is a question which ought to be left to the jury (14).

WILLES, J.-In this case the plaintiff, who was a cabman, driving a horse and cab provided by the defendant, a cabmaster, the cabman keeping the earnings of the cab and paying so much a day to the cabmaster upon the terms usual in the trade, and which were of the same character as (13) 1 E. B. & E. 102.

(14) Warren v. Wilder.-This was an action by a barmaid of an hotel against her master, the landlord, for injuries she had received from an explosion of gas by the negligence of the master in allowing the gas pipes in the house to remain out of order, and instead of having them examined by a gas-fitter, going himself with a lighted candle to examine the part where the gas escaped before the gas was turned off at the metre, and thereby causing an explosion, which injured the barmaid, who was serving behind the bar at the time. The learned Judge left it to the jury to say whether the defendant had exposed the plaintiff to unreasonable risk, and a verdict was found for the plaintiff with leave to the defendant to move to enter a nonsuit on the ground that there was no evidence of liability to go to the jury. A rule nisi was granted, pursuant to such leave, and on the 15th of April, 1872, this rule was discharged, on the ground that there was abundant evidence to go to the jury.