fessed object of that statute was, to avoid trifling and frivolous suits. Its title is "An Act to avoid trifling and frivolous suits in law in Her Majesty's Courts in Westminster." The preamble is,--" For avoiding the infinite number of small and trifling suits commenced or prosecuted against sundry Her Majesty's good and loving subjects in Her Majesty's Courts at Westminster (which by the due course of the laws of this realm ought to be determined in inferior Courts in the country), to the intolerable vexation and charge of Her Majesty's subjects," be it enacted, &c. It is plain, therefore, that this statute strikes at frivolous and vexatious suits, in the sense of their being brought for the recovery of small sums of money, and nothing else. By this action the plaintiff sought to recover, and did recover, the large sum of 1621. 98. 7d. upon the money *count. It is clearly not a case *429] for a certificate under the statute of Elizabeth. KEATING, J., was engaged in the Divorce Court.

Rule absolute.(a)

paid 107. into Court upon one breach (which sum was accepted), and the plaintiff recovered a verdict in respect of another breach, with 18. damages. The Judge certified under the 43 Eliz. c. 6, s. 2, "that the jury in this cause found a verdict for 18. and no more:" and the Court held, that, notwithstanding this certificate, the plaintiff was entitled to costs.

(a) As to the form of the certificate under the 23 & 24 Vict. c. 126, s. 34, see Saunders v. Kirwan, 10 C. B. N. S. 514 (E. C. L. R. vol. 100), and Gooding v. Britnall, antè, p. 148.

SEARLE v. LINDSAY and Others.

Nov. 22.

A master is not responsible for an injury occasioned to a servant by tackle defective through the neglect of a fellow-servant, if there be no negligence or want of care on the part of the master, either as respects the providing of proper machinery, or the competency of the servant.

The plaintiff was engaged as third engineer on board a steam-vessel of which the defendants were the owners, and, whilst employed with others under the orders of the chief engineer in turning a winch, one of the handles came off in consequence of the machine being through the neglect of the chief engineer in a defective and unsafe condition, and the plaintiff was seriously injured,-Held, that the owners were not liable.

THIS was an action against shipowners for an injury occasioned to the plaintiff, an engineer on board their vessel, through the insufficiency and defective state of the machinery.

The first count of the declaration stated that the defendants were possessed of a certain steamship or vessel called the Ireland, and the plaintiff for certain hire and reward therefor to be paid to him agreed with the defendants to serve and do the work and duties of third engineer on board the said vessel during a certain voyage from Portsmouth to Kurrachee, and back to England; and that the defendants undertook to provide the said ship or vessel with good and sufficient machinery and apparatus necessary for the purpose of working and navigating the said vessel during the said voyage, and to secure and fasten well and sufficiently the same for the purposes aforesaid; and thereupon *the plaintiff entered on board the said vessel, and *430] upon the terms aforesaid; yet the defendants did not provide the said vessel with good and sufficient machinery and apparatus for the purpose of navigating and working the said vessel during the said voyage, and did not well and sufficiently secure and fasten the said

machinery and apparatus then on board the said vessel, whereby and in consequence of which the plaintiff, who was working at the winch on board the said vessel during the said voyage, was severely bruised, hurt, and wounded, and was permanently injured, and rendered unfit for work, and incurred great expense and loss of time in endeavouring to be cured of the said injuries.

The second count stated that the plaintiff was employed by the defendants to do the work and duties of third engineer upon and about the machinery and apparatus on board the defendants' said steamship or vessel called the Ireland, to be used for the purpose of working and navigating the said vessel during a voyage from Portsmouth to Kurrachee and back to England, which said machinery and apparatus were, by the negligence and default of the defendants, constructed unsafely and with defective and improper materials, and were in an unsafe condition and unfit for the purposes of working and navigating the said vessel during the said voyage as aforesaid, which the defend ants well knew, but of which the plaintiff was ignorant; and, by reason of the premises, whilst the plaintiff was so employed as such engi neer as aforesaid, working at the said apparatus on board the said vessel during the said voyage as aforesaid, one of the handles of the winch belonging to the said apparatus came off, and thereby and in consequence thereof the plaintiff was severely bruised, hurt, and wounded, and was permanently injured, and rendered unfit for work, &c., &c.

*The defendants pleaded,-first, to the first count in the [*431 declaration, that they did not promise and undertake as alleged, secondly, to the first count, that they did not break their promise and undertaking, as alleged,-thirdly, to the second count, not guilty. Issue thereon.

The cause was tried before Erle, C. J., at the sittings in Middlesex after last Trinity Term. The facts which appeared in evidence were as follows:-In September, 1857, the plaintiff shipped as third engineer on board a steam-vessel called the "Ireland," of which the defendants were the owners, for a voyage from Portsmouth to Kurrachee and back to England. The screw of the Ireland was put into gear by means of a patent winch, which required six men to work it,—three at each handle. In the course of the voyage out, whilst the plaintiff and others (amongst whom were two soldiers) were at the winch, one of the handles came off in consequence of the want of a nut or pin to secure it, and the result was that the men at the other handle were overpowered, and one of them (the plaintiff) grievously injured. The chief engineer on board was a person named Simpson, who was admitted to be a competent workman. It was his duty to see that the machinery (which was in proper condition at the commencement of the voyage) was kept in order; and his attention had been called to the state of the winch several times, but he had omitted to remedy the defect.

On behalf of the defendants, it was submitted that there was no negligence or breach of duty on their part, and that they were not responsible to the plaintiff for the negligence of a fellow-workman.

His Lordship was of opinion that the objection was well founded, and accordingly directed a nonsuit to be entered,-reserving leave to

*432]

the plaintiff to move to *set aside the nonsuit and enter a verdict for an agreed sum, if the Court should think that the evidence entitled him to succeed.

Petersdorff, Serjt., on a former day in this term, obtained a rule nisi accordingly.

Lush, Q. C., and Le Fevre, now showed cause.-There was no evidence to charge the defendants in this case with the consequences of this unfortunate accident. There is no warranty, arising out of the relation of owner and seaman, of the seaworthiness of the vessel or of the sufficiency of all the machinery or appliances on board: Couch v. Steel, 3 Ellis & B. 402 (E. C. L. R. vol. 77). This is simply the case of an injury sustained by a servant or workman through the negligence of a fellow-workman. The authorities are numerous to show, that, in such case, the master is not responsible where he has exercised ordinary care in the selection of his servants and in providing proper machinery. In Priestley v. Fowler, 3 M. & W. 1,† which was an action by a servant for an injury sustained by the breaking down of a van in consequence of its having been overloaded by a fellow-servant, Lord Abinger, in delivering the judgment of the Court, says: "The mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is, no doubt, bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself: and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the *433] master. In that sort of employment, especially, which is described in the declaration in this case, 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 the 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 sustain by the negligence of others engaged under the same master, than any recourse against his master for damages could possibly afford." The doctrine there laid down has been affirmed by many subsequent decisions, amongst others, by Hutchinson v. The York, Newcastle, and Berwick Railway Company, 5 Exch. 343,† Wigmore v. Jay, 5 Exch. 354, Tarrant v. Webb, 18 C. B. 797 (E. C. L. R. vol. 86), Roberts v. Smith, 2 Hurlst. & N. 213,† and Ormond v. Holland, Ellis B. & E. 102 (E. C. L. R. vol. 96). In Tarrant v. Webb, Jervis, C. J., says: "The rule is now well established, that no action lies against the master for the consequences to a servant of the mere negligence of his fellow. That, however, does not negative liability in every case. The master may be responsible where he is personally guilty of negligence: but certainly not where he does his best to get

competent persons. He is not bound to warrant their competency." And in Roberts v. Smith, Willes, J., expressly desired it might be understood that the Exchequer Chamber ordered a new trial " upon the ground that there appeared to have been evidence of the personal interference and negligence of the master." The same principle is laid down by the House of Lords in the case of The Bartonshill [*434 Coal Company v. Reid, 3 Macqueen 266, where Lord Cranworth, C., says: "With reference to the law of England, I think it has been completely settled, that, in respect of injuries occasioned to one of several workmen engaged in a common work (and I know of no distinction whether the work be dangerous or not dangerous), the master is not responsible if he has taken proper precautions to have proper machinery and proper servants employed. When I say it is settled, I mean only as far as it can be settled without having been brought by writ of error to any superior Court. The principle of the law of England I take to have been enunciated in the case of Hutchinson v. The York, Newcastle, and Berwick Railway Company, 5 Exch. 349,† and to have gone upon this,-that, so far as persons external to the master and his servants are concerned, the master is to be considered as responsible for every one of those servants; and the person who receives an injury is not bound to inquire whether that injury has resulted from one sort of miscarriage or another: the master is the person to whom, on general principles, he is entitled to look; so far as he is concerned, he is externally the whole, and the whole is considered as one body united in the master. But the case is different when the question arises within the circle of the master and servants. The law of England considers that the person who undertakes the service undertakes it knowing that he is liable to injury as well from accidents that cannot be guarded against, as from neglect or mismanagement on the part of those who are engaged with him in the common occupation. The Court of Exchequer came to the conclusion that the principle which makes the master liable to complaints made ab extra, does not make him liable to complaints arising intra the whole body, consisting of himself and *his workmen. I take that to be established, unless, upon further consideration in this House, the House should come to [*435 the opinion that that has been wrongly laid down." And, when the case came before the House on a subsequent occasion, the same learned Lord, who had then ceased to be Chancellor, in delivering his opinion, said: "A large portion of the ordinary acts of life are attended with some risk to third persons, and no one has a right to involve others in risks without their consent. This consideration is alone sufficient to justify the wisdom of the rule which makes the person by whom or by whose orders those risks are incurred responsible to third persons for any ill consequences resulting from want of due skill or caution. But, do the same principles apply to the case of a workman injured by the want of care of a fellow-workman engaged together in the same work? I think not. When the workman contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself: he knows, if such be the nature of the risk, that want of care on the part of a fellow-workman may be injurious or fatal to him, and that against such want of care his employer

cannot by possibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame. He knows that the blame was wholly that of the servant. He cannot say the master need not have engaged in the work at all; for, he was party to its being undertaken. Principle, therefore, seems to me opposed to the doctrine that the responsibility of a master for the ill consequences of his servant's carelessness is applicable to the demand made by a fellowworkman in respect of evil resulting from the carelessness of a fellowworkman when engaged in a common work. That this is the view of the subject in England, *cannot, I think, admit of doubt. *436] It was considered in the Court of Exchequer in Priestley v. Fowler, 3 M. & W. 1,† afterwards fully discussed in the same Court in Richardson v. The York, Newcastle, and Berwick Railway Company, 5 Exch. 343,† and acted on by the same Court in Wigmore v. Jay, 5 Exch. 354. Those decisions would not, it is true, be binding on your Lordships, if the ground on which they rested were unsound; but the circumstance of their having been acquiesced in affords a strong argument to show that they have been approved of: more especially as in the first two cases the question appeared on the record, and might therefore have been brought before a Court of Error." It is impossible for the owner of a ship to guard himself against negligence of this sort. Every man on board knows that he must trust to the skill and care of his shipmates: their want of care is part of the risk he takes upon himself. Here, the defendants had employed as chief engineer a man whose competency was never questioned. What more could they do? Besides, the plaintiff was himself an engineer. [WILLIAMS, J.-It does not appear that he had notice of the defective state of the winch.] Its condition was apparent.

Petersdorff, Serjt., and Morgan A. McDonnell, in support of the rule. -There were essential materials which should have been submitted to the jury, and which might in all probability have produced a dif ferent result. There clearly was evidence for the jury that the machine which caused the injury to the plaintiff was not in a proper condition at the commencement of the voyage. The plaintiff's case is rested upon the proposition laid down by Lord Cranworth in The Bartonshill Coal Company v. Reid, 3 Macq. 266, as the result of a careful review of all the authorities upon the subject,-"Servants must be supposed to have the risk of the service in their contemplation when *437] they voluntarily undertake it and agree to accept the stipulated remuneration. If, therefore, one of them suffers from the wrongful act or carelessness of another, the master will not be responsible. This, however, supposes that the master has secured proper servants, and proper machinery for the conduct of the works." The turning of the winch-handle was not properly part of the plaintiff's duty: but, having been ordered to do it, he had no alternative but to obey. The rule of law which is relied on by the defendants does not apply where the parties ordered are children or inexperienced persons. Here, two of the persons set to do this work were soldiers. (WILLIAMS, J.-Where do you find it laid down that that is the principle upon which the non-liability of the master for an injury to a servant from the negli gence of a fellow-servant, is founded?] It is an element in the propo