politic and corporate; "parent," which is to include father, mother, grandfather and grandmother, stepfather and stepmother; "child," which is to include son, daughter, grandson, granddaughter, stepson and stepdaughter. In 1864 an amending Act was passed (i) to enable all or any of the persons for whose benefit an action would lie, to sue in their own names when either there is no executor or administrator, or when such executor or administrator has failed to bring any such action within six months from the date of death. The second section provides that in such actions the defendant may pay money into Court, as compensation, in one sum to all persons entitled, without specifying the shares into which it is to be divided by the jury; if the plaintiff or plaintiffs take an issue thereon, and the jury find such sum as paid in sufficient, then the defendant is entitled to a verdict on that issue. The remedy given by the principal Act is not quite the same as that which would have been secured to the deceased if he had survived. For instance, the personal representatives must prove some actual pecuniary loss to the persons to be benefited (k), and they are not entitled to recover sentimental damages for the pain and suffering of the deceased person, nor by way of compensation for their own grief (). There must be some reasonable expectation of pecuniary benefit to be derived from the deceased if he had survived, otherwise the representatives have suffered no pecuniary loss which would justify the action (m). However, where evidence was given that a son had at one time contributed to the support of his father, even though the father had had no support from him for some years, it was held that there was evidence of pecuniary injury to the father in an action under Lord Campbell's Act for compensation for the death of the son (n). Funeral expenses have been held to be items which cannot be recovered in such an action (0).

Where the relatives have received money under a policy of insurance upon the life of the deceased, this should not be taken into account in assessing the damages to be recovered (p). A child en ventre sa mère at the time of the

(i) 27 & 28 Vict. c. 95.

(k) Duckworth v. Johnson, 4 H. & N. 653; 29 L. J. Exch. 25, and other cases, cited presently, as to pecuniary loss.

(1) Blake v. M. Rail. Co., 18 Q. B. 93; 21 L. J. Q. B. 233.

(m) Franklin v. S. E. Railway, 3 H. & N. 211.

(n) Hetherington v. N. E. Rail. Co., 9 Q. B. D. 160; 51 L. J. Q. B. 495.

See also the cases cited in the course of the argument in that case.

(0) Dalton v. S. E. Rail. Co., 27 L. J. C. P. 227.

(p) Bradburn v. G. W. Rail. Co., L. R. 10 Exch. 1; 44 L. J. Exch. 9;

death of the person in respect of which the action is brought, is entitled to maintain such an action (9).

Injury or damage, under Lord Campbell's Act, means the injury or damage which causes the death, and not the injury or damage suffered by the person who claims the damages in respect of the death; it follows that where an action is brought against any public body the period of six months, within which the action must be commenced, runs from the date of the neglect, or, in the case of a continuance of the injury or damage to the deceased person, from the ceasing of such injury or damage (r).

The next subject to be dealt with is that dealing with the relationship of master and servant, and which is now governed by the Employers' Liability Act, 1880, and the Workmen's Compensation Acts of 1897 and 1900. The master was always liable to his servants for the results of his own personal negligence, but for the acts of fellow-servants, under the doctrine of "common employment," apart from the statute, he was not liable; this doctrine appears to have been first judicially recognized as long ago as 1837 (s) by Chief Baron Abinger. The effect of the Employers' Liability Act is to confer upon a "workman" a prima facie right to recover damages for injuries sustained, not only when the master has been personally guilty of negligence, but also when he has delegated his duties or powers of superintendence to other persons, and when such duties have been so negligently performed that injury has resulted from such negligence to the workman. The damages recoverable are limited by sect. 3 to a sum equivalent to the estimated earnings during the period of three years preceding the injury sustained.

Whether any person who may be employed as driver of a motor car is, or can be considered, a "workman within the meaning of the Act turns upon the construction of sect. 8 of the Employers' Liability Act, and of sect. 10 of the Employers and Workmen Act, 1875 (t), in which the word "workman" includes "any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether

and see Grand Trunk Rail. Co. of Canada v. Jennings, 13 App. Cas. 800; and Hicks v. Newport, &c. Rail. Co., 4 B. & S. 403 n.

(q) The George and Richard, 24 L. T. (N. S.) 717.

(r) Markey v. Tolworth Joint Hospital, &c., (1900) 2 Q. B. 454; 69 L. J. Q. B. 738; 83 L. T. 28.

(8) Priestly v. Fowler, 3 M. & W. 1.

(t) 38 & 39 Vict. c. 90.

under twenty-one years or not, has entered into, or works under, a contract with an employer, whether such contract be express or implied, oral or in writing, and be a contract of service, or a contract personally to execute any work or labour."

It is only necessary here to say that it has been held from time to time that the words "or otherwise engaged in manual labour" have been held to mean ejusdem generis with the manual labour exercised by the workmen more particularly defined in the section (u).

Under this section it has been held that the driver of a tramcar is not engaged in manual labour so as to come within the definition of "workman" within the meaning of the Act (x). It may well be that, whenever the question here alluded to does arise, the Courts will hold that the driver of a motor car is an “ artificer," and therefore a workman (y) within the meaning of the Act.

By the Workmen's Compensation Acts, the liability of an employer is extended, and sect. 7 of the Act of 1897 provides that the Act shall apply only to employment by the undertakers, as hereinafter defined, on or in or about a railway, factory, mine, quarry, or engineering work, and to employment by the undertakers, as hereinafter defined, on, in, or about any building which exceeds thirty feet in height and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power is being used for the purpose of the construction, repair, or demolition thereof. An accident while loading a cart in the street near the factory is an employment "about" (z), but not an accident a mile and a half away (a).

The sub-sections to this sect. 7 contain further definitions of railways, factories, engineering work, undertakers, employers, and workmen, &c.

Sect. 1 of the Workmen's Compensation Act, 1900, extends the Act of 1897 to the employment of workmen in agriculture.

(u) Morgan v. L. G. O. Co., 13 Q. B. D. 832; 53 L. J. Q. B. 352.

(x) Cook v. North Metropolitan Tramways Co., 18 Q. B. D. 683; 56 L. J. Q. B. 309.

(y) See Ruegg on the Employers' Liability and Workmen's Compensation Acts, and Willis' Workmen's Compensation Acts, as to all questions arising under these Acts.

(z) See Powell v. Brown, (1899) 1 Q. B. 157. (a) Lowth v. Ibbotson, (1899) 1 Q. B. 1003.

One other interesting question, which arises out of the Employers' Liability Act, may with advantage be alluded to here; that is, whether, and when, a workman voluntarily incurs a risk arising from his employer's non-fulfilment of the duties imposed on him by law, and thereby loses his right of action; this is commonly spoken of as the doctrine of "Volenti non fit injuria.”

In Thomas v. Quartermaine (b), the following facts were found: (1) that there was a defect in the works by reason of there being no sufficient fence round the vat; (2) that the defendant was guilty of negligence in not having fenced the vat; (3) that the accident was caused by such defect; (4) that both the plaintiff and defendant knew of the defect; (5) that the plaintiff was not guilty of contributory negligence. Upon these findings, the majority of the Court of Appeal held that the doctrine applied, and that the plaintiff, having voluntarily incurred the risk of injury, could not recover, and in the course of his judgment, Bowen, L. J., pointed out that the words were, not "scienti," but "volenti non fit injuria," and that where the injured person, knowing and appreciating both risk and danger, voluntarily incurs them, there is no right of action.

Probably, the above rule is beyond question, and the only difficulty arising with regard to the expressions used is their application to particular facts, which differ as a rule in every case (").

The real question will always turn upon what is the right inference to be drawn from the facts. In the case of Smith v. Baker, which came before the House of Lords in 1891 (d), the doctrine was most fully discussed, and in the particular circumstances was held not to apply. Lord Halsbury, L. C., said in his judgment (e): "For my own part, I think that a person who relies on the maxim must show a consent to the particular thing done. Of course, I do not mean to deny that a consent to the particular thing done may be inferred from the course of conduct as well as proved by express

(b) 17 Q. B. D. 414; 18 Q. B. D. 685; 56 L. J. Q. B. 341. Plaintiff fell into a cooling vat, and was thereby injured.

(e) Farmouth v. France, 19 Q. B. D. 647; 57 L. J. Q. B. 7. Vicious horse kicking driver, who complained of horse, but was told to continue driving it.

(d) (1891) A. C. 325; 60 L. J. Q. B. 683. Birmingham Battery and Metal Co. (C. A.), W. N. Q. B. 338.

(e) (1891) A. C. 336.

Followed in Williams v. (1899) 106; (1899) L. R. 2

consent; but if I were to apply my proposition to the particular facts of this case, I do not believe that the plaintiff ever did or would have consented to the particular act done under the particular circumstances. It appears to me that the proposition upon which the defendants must rely must be a far wider one than is involved in the maxim volenti non fit injuria.' I think they must go to the length of saying that wherever a person knows there is a risk of injury to himself, he debars himself from any right of complaint if an injury happens to him in doing anything which involves that risk. For this purpose, and in order to test this proposition, we have nothing to do with the relation of employer and employed. The maxim in its application in the law is not so limited, but where it applies, it applies equally to a stranger as to anyone else; and if applicable to the extent that is now insisted on, no person ought_ever to have been awarded damages for being run over in London streets. It is, of course, impossible to maintain a proposition so wide as is involved in the example I have just given, and in both Thomas v. Quartermaine and in Yarmouth v. France it has been taken for granted that mere knowledge of the risk does not necessarily involve consent to the risk."

In practice it will be found that in summing up cases to juries, or in deciding cases when sitting alone, the judges endeavour, since the decision in Smith v. Baker, to frame the questions to be answered by the jury, or the findings of facts by themselves, in such a manner as to avoid the possibility of future discussions as to the findings. In other words, the decision desired is one of fact rather than of law, so as to obtain a final result without resorting to a Court of Appeal.

It should be observed that under this Act a workman is entitled, by the terms of his contract with his employer, to renounce the benefits of the Act (ƒ).

All actions under the Employers' Liability Act must, under sect. 4, in case of death, be commenced within twelve months from the time of death, unless there is in the opinion of the judge some reasonable excuse; or, in case of injury, the action must be commenced within six months from the occurrence of the accident causing the injury. No action is maintainable unless notice that injury has been sustained

(f) Griffith v. Earl of Dudley, 9 Q. B. D. 357; 51 L. J. Q. B. 543. Even if an infant, when for his benefit: Clements v. L. & N. W. Railway, (1894) 2 Q. B. 482; 63 L. J. Q. B. 837.