was not so strong as the present, because here the master had express notice of the dangerous character of the particular machinery which was to be employed. Knowing the danger he ordered the jiddy to be used for earth only. In Paterson v. Wallace (1), it was laid down that "it is the master's duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch and secure when, in fact, the master knows, or ought to know, that it is not So. And if from any negligence in this respect damage arises, the master is responsible.' * * *

Monk and Parker, in support of the rule:

First, as to the alleged neglect in not causing the jiddy to be used. The master had provided a proper jiddy, and had employed competent workmen, who might have used it. He had therefore done all that the law requires a master to do.

(MARTIN, B.: I think that he ought to have insisted on the jiddy being used for water. He gave orders to the banksman to use the jiddy for earth.)

The principle is well established that a servant undertakes the risks incident to his employment, and cannot turn round and sue his master for an accident occasioned by the risk he has so undertaken. Thus, in Priestley v. Fowler (2), the master was held not responsible for an accident to his servant arising from a defect in the construction of a van, which, being overloaded, broke down.

(POLLOCK, C. B.: No doubt it is rather the business of a coachman than of the master to ascertain the state of the vehicle he drives. Suppose the wheel of a carriage is *defective, and the master observes it and expresses his opinion about it; if, after that, the servant chooses to drive, he would take his risk with his master.)

In Assop v. Yates (3) the master was held not liable, for the
reason, amongst others, that the servant, after having complained
of the hoarding, voluntarily continued at work. In Skipp v.
The Eastern Counties Railway (4) a similar point was decided:
there the learned Judge said that the defendant was liable if
the accident was occasioned by an improper and dangerous
practice habitually used by him and with his sanction. Now
in Dynen v. Leach (5) BRAMWELL, B., said, "there is nothing
legally wrongful in the use, by an employer, of works or
(4) 96 R. R. 679 (9 Ex. 223).
(5) 112 R. R. 918 (26 L. J. Ex. 221).

(1) 1 Macq. 748, 751.

(2) 49 R. R. 495 (3 M. & W. 1).
(3) 115 R. R. 793 (2 H. & N. 768).

GIDLOW.

machinery more or less dangerous to his workmen, or less safe GRIFFITHS than others that might be adopted. It may be inhuman so to carry on his works as to expose his workmen to the peril of their lives, but it does not create a right of action for an injury which it may occasion when the workman has known all the facts, and is as well acquainted as the master with the nature of the machinery, and voluntarily uses it." In the present case the learned Judge's direction was defective in not adverting to the fact that the plaintiff had notice of the danger.

(POLLOCK, C. B.: If there is a dangerous process which is convenient to the workmen the master is not bound to compel them to use a safe one. They may for their mutual convenience incur the greater risk.)

The remarks of Lord CRANWORTH, in Paterson v. Wallace (1),
apply only to a case where the servant has no notice of the
danger he is incurring. The fact that the jiddy was not used
by the banksman was a species of risk which a servant under-
takes as one of the risks of his service: Wiggett v. Fox (2). One
of the reasons which induced the COURT to hold the defendant
not liable in that case was that, from the nature of things, a
workman is just as likely to be acquainted with the risks he runs
as the employer. Hutchinson v. The York, Newcastle and
Berwick Railway Company (3) is to the same effect. As to
the defect in the hook, the plaintiff was the person who him-
self attached the bucket to the hook, and though he had com-
plained of the insecurity of it, he did not quit his employment
but voluntarily took his chance of what might happen.

Cur. adv. vult.
The judgment of the COURT was now delivered by
WATSON, B.:

This is an action to recover damages for an injury sustained by the plaintiff. The circumstances were these: the plaintiff was a mine sinker, and was, together with several other workmen, employed by the defendant in sinking a coal pit in Lancashire. The plaintiff was at work at the bottom of the pit, and had assisted in filling a tub with water, which was drawn up to the top to be emptied. Owing to something which occurred at the top, where other workmen were employed to empty it, the tub fell down the pit and injured the plaintiff.

The cause was tried before my brother Byles at the last Liverpool Assizes, and a verdict found for the plaintiff, and

748.

(2) 105 R. R. 922 (11 Ex. 832).

(3) 82 R. R. 697 (5 Ex. 343).

[ *654 ]

GRIFFITHS

v.

GIDLOW.

[655]

[ *656 ]

a rule was obtained for a new trial, which has been argued before us. On the argument, it was admitted by the learned counsel for the plaintiff, that it has now been settled, by all the Courts at Westminster Hall, that a master is not responsible for an injury sustained by a servant for the mere negligence of a fellow servant engaged in the same employment; but the Court of Exchequer Chamber, in Roberts v. Smith (1), has decided that it is the master's *duty, when he personally interferes, to take care to provide that the tackle and apparatus supplied by him is proper and secure, and that he is liable for damage caused by want of due care in this respect. The same principle was laid down by the House of Lords in Paterson v. Wallace (2), as existing in the law of Scotland, and it was sought to bring the present case within it by two circumstances.

First, evidence was given that the hook by which the barrel was attached to the tackle which drew it up was not safe; that it ought to have been a spring hook, which it was alleged would have prevented the misfortune which led to the accident. The answer to this seems to us to be, that the plaintiff himself knew the hook which was used, and worked with it himself, possibly attached it to the tub or barrel which afterwards fell upon him, and seems never to have made any observation or complaint in respect of it. We think that a servant so acting cannot maintain an action against his employer. He himself was contributory to the injury, and, as it was stated by Lord CRANWORTH, in the case in the House of Lords, it is essential for the plaintiff or pursuer to establish that the injury arose from no rashness of his own.

The second circumstance relied on was, that an apparatus called a jiddy was not used. It was proved that the defendant had supplied a jiddy for the purpose of being placed over the top of the pit where the tub was emptied; and the workmen at the top used it when soil or earth was brought up, but not when water was raised out of the pit. It was proved also that the defendant was in the habit of coming to the place where the pit was sinking several times daily. We think that the defendant is not rendered liable by these circumstances. He supplied a proper apparatus. The defendant's fellow workmen neglected to use it; there was no evidence that the defendant gave any direction whatever to *this effect; and it seems to us, that to hold the defendant liable, would be to utterly fritter away the rule that the master is not answerable for an injury caused to one servant by the negligence of another. In the case of

(1) 115 R. R. 499 (2 H. & N. 213).

(2) 1 Macq. 748.

የ.

GIDLOW.

Vose v. The Lancashire and Yorkshire Railway Company (1), GRIFFITHS this Court expressed an opinion that extreme caution should be used not to relax the rule, and to this we adhere. We therefore think that the rule must be absolute for a new trial.

Rule absolute.

PENNINGTON v. CARDALE (2).

(3 H. & N. 656-669; S. C. 27 L. J. Ex. 438; 6 W. R. 837; 31 L. T. O. S. 301.) Leases granted by Deans and Chapters for long terms of years, not in conformity with the disabling and restraining statutes, are not void but voidable only.

P., a lessee, being in possession, and the Dean and Chapter of C. being possessed of the reversion expectant upon his term, of the manor of W., in June, 1786, granted certain building leases for 99 years, from Michaelmas, 1786, of certain premises, part of the manor, at several yearly rents of 147., payable to the Dean and Chapter and P. respectively. Rent was regularly paid to and accepted by successive Deans down to 1856. In 1849, on the surrender by the plaintiffs of the existing lease of the manor, the Dean and Chapter redemised the manor for 21 years to the plaintiffs, "except and reserved out of this demise unto the said Dean and Chapter and their successors, all such rents and sums of money and other right and interest, benefit and advantage, which hath been or are, or shall be reserved to them in and by any building leases for long terms of years of any parti of the several lands and tenements hereby demised," &c. "to have, hold, occupy and enjoy the site and courtlodge and all other the premises with the appurtenances, except as before excepted, and subject to the building leases : Held, that the demise to plaintiffs was subject to all leases de facto granted, and that the plaintiffs did not acquire any right to avoid the building lease of 1786.

Semble, that the premises comprised in the building lease of 1786 were excepted out of the lease of 1849.

EJECTMENT to recover possession of a house and piece of land in St. Mary, Newington, parcel of the manor of Walworth.

At the trial a verdict was taken for the plaintiffs, subject to the opinion of the Court on a special case to be settled by an arbitrator. The case was in substance as follows:

At the time of the making the lease next mentioned, the Dean and Chapter of Canterbury were seised in fee of the manor of Walworth. By lease of the 27th of June, 1771, *the Dean and Chapter demised to H. Penton the manor of Walworth, including the property claimed in this action, for 21 years, at the rent of 281. 8s. 4d., payable half-yearly.

An Act of Parliament was passed in 1774 entitled An Act for enabling the Dean and Chapter of Canterbury, H. Penton and T. Brandon to grant building leases, pursuant to two several agreements entered into for that purpose. After reciting the lease of June, 1771, an agreement dated the 23rd of February, 1773, between the Dean and Chapter and H. Penton; a lease, (1) 115 R. R. 771, 775 (2 H. & N. 728, 734).

(2) Magdalen Hospital v. Knotts (1876-1879) 5 Ch. D. 175, 181, 8

Ch. D. 709, 725, 47 L. J. Ch. 726, 38
L. T. 624, 4 App. Cas. 324, 48 L. J. Ch.
579, 40 L. T. 466.

1858.

July 1.

[656]

[ *657 ]

ፖ.

CARDALE.

PENNINGTON dated November, 1773, from the Dean and Chapter to Thomas Brandon of other portions of their property at Newington not included in the lease to H. Penton, and an agreement between the Dean and Chapter and Thomas Brandon, dated the 3rd of December, 1773: and that it was desirable that the agree ments should be carried into effect, which by reason of the disabling statutes passed in the reign of Queen Elizabeth could not be done: the Act provides that from May, 1774, the agreements should be confirmed; and that it should be lawful for the Dean and Chapter and their successors, and the said H. Penton, his executors, administrators and assigns jointly, and also for the said Dean and Chapter and their successors, and the said T. Brandon, his executors, administrators and assigns jointly, and they severally were empowered, notwithstanding any statutes then in force, from time to time by indenture to make any leases of all or any part of the lands, &c., to Penton and Brandon respectively demised, to any person or persons for any term of years not exceeding 99, to take effect in possession and not in reversion or remainder or by way of future interest, for the purpose of making any new buildings, &c., at the best and most improved yearly rent, &c., without taking any fine or sum of money, &c., for the making of such lease, and so as the rent be reserved quarterly, and that one *moiety of the rent to be reserved in respect of the premises so demised to H. Penton or any part thereof, during the continuance of the term to be granted of the said premises, be made payable to the Dean and Chapter and their successors, and that the other moiety of the rent to be reserved in respect of the said premises so demised to H. Penton be reserved to H. Penton, his executors, &c.

[ *658]

The Act then contains similar provisions as to the reservation of rents in leases to be granted by the Dean and Chapter and Thomas Brandon, of portions of the land comprised in his demise.

Then follow certain restrictions as to all leases to be granted under the Act, namely: "and so as all and every such lease &c. be under the following restrictions, that is to say; that no such lease shall be valid unless there shall be therein contained a condition of re-entry on non-payment of the rent, and unless the lessee to whom such lease shall be made execute a counterpart, and covenant for the payment of the rent to be thereby reserved, and to build and keep in repair the buildings intended and agreed to be built by such lease, and so as there be contained in such lease all such conditions, covenants, &c., on the part of the lessee, as are usual or proper in such cases."