payment of what shall be due unto the said Joseph Bushell, every article, clause and agreement herein before mentioned shall cease and be void, anything herein contained to the contrary in anywise notwithstanding."

Bushell's name was over the door of the branch establishment. Bushell had no authority from Jones to accept bills on his behalf. Prior to the acceptance sued on, it had been brought to the knowledge of Jones, in July, 1864, that bills had been accepted by Bushell for payment for goods supplied to him, and Jones then remonstrated with Bushell for accepting bills without authority, and Bushell promised Jones not to do so for the future.

The banking company when they took the bill had no knowledge of the defendants or their mode of carrying on business. The acceptance of the bill now sued on was in Bushell's handwriting. It did not appear whether any consideration had been given for the bill originally, but the banking company had given full consideration to Taylor, who indorsed the bill to them.

A verdict was found for the plaintiff for 1857. 17s., with leave to the defendant Jones to move to set aside that verdict and to enter a verdict for himself, if there was no evidence upon which the jury could reasonably find a verdict for the plaintiff.

J. Brown now moved accordingly.. Jones is in the position of a person who has held out Bushell as a partner; but his liability cannot be more than that of a nominal partner. The plaintiff was a total stranger to Bushell & Co. He was the public officer of the bank, and took the bill in payment of a debt from Taylor, a customer of the bank. But a nominal partner's liability to the responsibilities of a real one is imposed, in order to prevent those persons being defrauded or deceived who may deal with the firm, of which he holds himself out a member, on the faith of his apparent responsibility; but where the person dealing with the firm has never heard of him as a component part of it, that reason no longer applies-Waugh v. Carver (1). In Young v. Axtell (2), which was an action to recover 600l. and upwards for coals sold

(1) 1 Smith's Lead. Cas. (5th edit.), 818, 843. (2) Ibid. 827.

and delivered by the plaintiff, a coal-merchant, an agreement between the defendants was given in evidence, stating that the defendant, Mrs. Axtell, had lately carried on the coal-trade, and that the other defendant did the same; that Mrs. Axtell was to bring what customers she could into the business, and that the other was to pay her an annuity, and also 28. for every chaldron that should be sold to those persons who had been her customers, or were of her recommending. The plaintiff also proved that bills were made out for goods sold to her customers in their joint names; and the question was, whether Mrs. Axtell was liable for the debt. Lord Mansfield said, "he should have rather thought that Mrs. Axtell would be liable, not on account of the annuity, but the other payment, as that would be increased in proportion as she increased the business. However, as she suffered her name to be used in the business, and held herself out as a partner, she was certainly liable, though the plaintiff did not at the time of dealing know that she was a partner, or that her name was used." But this ruling extends the nominal partner's liability too far. In Dickenson v. Valpy (3) Park, J. says, "If it could be proved that the defendant held himself out-not to all the world, for that is a loose expression-but to the plaintiff himself, or under such circumstances of publicity as to satisfy a jury that the plaintiff knew of it, and believed him to be a partner, he would be liable." So a man cannot be charged as a partner by one who when he contracted was in ignorance that the nominal partner's name had been used, and so no false impression could have existed on his mind at all-Carter v. Whalley (4).

[COCKBURN, C.J.-The question here is one of agency, and not of nominal partnership. The defendant holds a man out in a position which gives him credit which he would not otherwise have obtained. He puts Bushell in a position to carry on the business as ostensible owner: does not that impliedly give him authority, as respects the world, to do all things ordinarily necessary to carry on that business ?]

(3) 10 B. & C. 140. (4) 1 B. & Ad. 11.

COCKBURN, C.J.-I think that there should be no rule. The defendant carries on business at Luton, in Bedfordshire, and also in London, but in London in the name of Bushell & Co. At the same time he employs Bushell as his manager, who became, therefore, his agent, but who was held out to all the world as a principal in London. The case, therefore, comes within the principle that if you employ a person as agent, in some particular agency which involves a peculiar authority, you cannot divest him of that authority as against the world by a private arrangement. Bushell therefore must have whatever authority is incidental to the character of a principal in such a business as the defendants'. It is incidental to the character of that business to accept bills to meet liabilities incurred in the course of it; therefore, Bushell cannot, as to the rest of the world, be deprived of that authority by a private arrangement between Jones and Bushell.

MELLOR, J.—I am of the same opinion. I think this case differs from those where one member of a partnership holds out another as partner. Here the defendant Jones is owner of the business, and the question is, whether Bushell was allowed to appear to the world as a principal by the owner of the business. I think it would be dangerous to allow one person to carry on a business by and in the name of another, and at the same time permit him secretly to deprive that other of the authority necessary to carry on that business, and bind him as to the rest of the world.

SHEE, J.-I am of the same opinion. The leave to move in this case is a special leave. I think there was reasonable evidence to sustain a verdict for the plaintiff, and by so holding, I do not think that we are in danger of discrediting the rule which requires that an agent through whom it is sought to make the principal liable must be shewn to have been held out by the principal as having such authority. Rule refused.

The rule which exempts a master from liability to his servant for injury arising to such servant from the negligence of his fellow servant employed with him for a common object, is not confined to a common immediate object, but embraces all cases where the risk of injury from the negligence of the one is so much a natural and necessary consequence of the employment which the other accepts that it must be included in the risks which are to be considered in his wages. A carpenter employed to do work for a railway company, and amongst other things paint a shed at their station, is so necessarily brought into contact with the traffic of the line that risk of injury from the carelessness of porters employed to turn carriages on the turn-tables on the line is naturally incident to such an employment and within the rule.

The facts of this case were shortly these: The plaintiff was employed by the defendants as their servant to do work as a carpenter and joiner on their station whilst the railway traffic was being carried on in it by the servants of the defendants. In the course of painting an engine-shed at the station the plaintiff got upon a ladder which was placed near to one of the turn-tables. The servants of the defendants who were engaged in shifting a carriage, allowed it to project so far beyond the turn-table that in turning it the end of the carriage struck against the ladder, and the plaintiff was thrown off and injured. Those who were shifting the carriage were guilty of negligence, and there was no contributory negligence on the part of the plaintiff.

At the trial the verdict in the action was directed for the defendants, with leave to move to enter a verdict for the plaintiff for 2501., on the ground that there was no common employment between the defendants' servants and the plaintiff, such as to exempt the defendants from liability.

* Coram Pollock, C.B., Erle, C.J., Willes, J., Bramwell, B., Channell, B., Byles, J., Keating, J. and Pigott, B.

The rule to enter a verdict for the plaintiff was discharged by the Court of Queen's Bench (1).

Macnamara (Hughes with him), for the appellant, the plaintiff in the action.-The plaintiff would be entitled by the general rule to recover against the defendants for the injuries he has sustained if it were not for the exemption grafted on the general proposition that in the absence of personal negligence on the part of the master he is not liable for an injury sustained by one servant through the negligence of a fellow servant engaged in a common work or employment with him. The question in this case therefore is, whether the plaintiff and the servants employed in turning the carriage on the turn-table were engaged in a common work or employment. In order to define common work or employment, it is necessary to look for the reason of the exception, which is that the servant contracts with the master with reference to the risks he knows or expects to be involved in the service which he undertakes. If he suffers injury from one of the risks he could have known or contemplated on making the contract, he has no cause of action against his master, in the absence of personal negligence in the latter; but if his injury arises from a cause he could not have anticipated, he ought not to be deprived of his remedy against his master. In all the cases where the master has been held exonerated the servants have clearly been engaged in a common work. In Bartonshill Coal Company v. Reid (2) Lord Cranworth says, "The driver and guard of a stage-coach, the steersman and rowers of a boat, the workman who draws the red hot iron from the forge and those who hammer it into shape, the engineman who conducts a train and the man who regulates the switches or the signals, are all engaged in a common work. And so in this case, the man who lets the miners down into the mine in order that they may work the coal, and afterwards brings them up together with the coal which they have dug, is certainly engaged in a common work with the miners themselves. They are all contributing directly to the common object of their common employer in

(1) See the report of the argument and decision below, 33 Law J. Rep. (N.s.) Q.B. 260.

(2) 3 Macq. Scotch App. Cas. H.L. 295.

bringing the coal to the surface." In The Bartonshill Coal Company v. M'Guire (3) Lord Chelmsford said, "The Lords of Session in the case of Reid decided that Shearer and the deceased were not collaborateurs, because Shearer had the superintendence of the machinery for lowering and raising the men and the materials for the mine. A superintendence which took his duties altogether from common employment with the men below, and the deceased's business was to excavate coal from the pit, a line of business entirely different from that of the engineman. But, my Lords, it appears to me that the deceased and Shearer were engaged in one common operation, that of getting coals from the pit. The miners could not perform their part unless they were lowered to their work, nor could the end of their common labour be attained unless the coal which they got was raised to the pit's mouth, and, of course, at the close of their day's labour, the workmen must be lifted out of the mine. Every person who engaged in such an employment must have been perfectly aware that all this was incident to it, and that the service was necessarily accompanied with the danger that the person intrusted with the machinery might be occasionally negligent and fail in his duty." Lord Cranworth, at page 277 of Reid's case (2), says, that a servant undertakes the service with reference to the risks he runs from fellow-servants (6 engaged with him in the common occupation," or, as the same learned Lord calls it in page 282, common work." And at page 284 he says, "When the workman contracts to do work of any particular sort he knows, or ought to know, to what risk 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." Again, at page 293, after considering Gray v. Brassey (4) and the judgment of the Lord President therein, his Lordship said, "He considered the question to turn on what is to be regarded as common service. He intimated that it is not enough that the servant injured and the servant

66

(3) 3 Macq. Scotch App. Cas. H.L. 308. (4) 15 Court of Sess. Cas. 2nd ser. 135.

causing the injury should be servants of the same master-they must be employed on the same work; and he observed, truly, that if a gentleman's coachman were to drive over his gamekeeper the master would be just as responsible as if the coachman had driven over a stranger. . . . The opinions thus enunciated are, I conceive, in strict accordance with the doctrine of the English cases."

[POLLOCK, C.B.-Do you say that the gamekeeper would have an action against his master, supposing that on the occasion of a shooting party, as he went in the drag with the party to the covers, the coachman who drove them drove so negligently that the gamekeeper was thrown out and driven over?]

On the cases, it is submitted, he would, unless he were a volunteer, or it was part of his employment (5). In Macguire's case (6) Lord Chelmsford, after referring to the prior cases on this subject, says, at page 307 of the report, "In the consideration of these cases it did not become necessary to define with any great precision what (5) From the following case, which has occurred in America, it would seem that no action would lie in such a case as that put by the Lord Chief Baron. In Gilshannon v. the Stony Brook Railroad Corporation (1) (1852), the plaintiff was a common labourer employed in repairing the defendants' road-bed, at a place several miles from his residence. Each morning and evening he rode with other labourers to and from the place of labour on the gravel train of the defendants. This was done with the consent of the company and for mutual convenience; no compensation being paid directly or indirectly by the labourers for the passage, and the company being under no contract to convey the labourers to and from their work. While thus on their way to their work on one occasion a collision took place with a hand car on the track, through the negligence of those having charge of the gravel-train, and he was thrown off and run over by the gravel-train, for which injury the action was brought; and it was held, that the defendants were not liable, and the nonsuit of the plaintiff stood. And Mr. Justice Dewey, in delivering judgment, says, "How does this case differ from that suggested at the argument of the counsel for the defendants, who supposed a case where the business for which the party is employed is that of cutting timber or standing wood, and the servant receives an injury in his person on the way to the timber lot by the overturning of the vehicle in which he is carried by the negligence or careless driving of another servant? There is no liability on the part of the master in such a case.'

(1) 10 Cush. Rep. 228.

(6) 3 Macq. Sc. Cas. 300.

NEW SERIES, 35.-Q.B.

was meant by the words 'common service' or 'common employment,' and perhaps it might be difficult beforehand to suggest any exact definition of them. It is necessary, however, in each particular case to ascertain whether the servants are fellowlabourers on the same work, because, although a servant may be taken to have engaged to encounter all risks which are incident to the service which he undertakes, yet he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment. Where servants, therefore, are engaged in different departments of duty, an injury committed by one servant upon the other by carelessness or negligence in the course of his peculiar work, is not within the exception, and the master's liability attaches in that case in the same manner as if the injured servant stood in no such relation to him." At page 311 of the same judgment he comments on M'Naughton v. the Caledonian Railway Company (7), and says, that case "may be sustained without conflicting with the English authorities, on the ground that the workmen in that case were engaged in totally different departments of work; the deceased being a joiner or carpenter who, at the time of the accident, was engaged in repairing a railway carriage, and the persons by whose negligence his death was occasioned, the engine-driver and the person who arranged the switches." M'Naughton v. the Caledonian Railway Company (7), M'Naughton was employed as a carpenter or joiner in repairing a railway carriage on a siding, and was killed by a collision caused by an engine driving violently into the siding, and the defendants were held liable. The judgment of the Lord Ordinary in the above case is given in Smith's Master and Servant, 2nd edit. 145: "It may be that the two persons, viz. the wrongdoer and the injured, though both at the time servants of one master, are engaged in different operations and in distinct departments of work. A dairymaid is bringing home milk from the farm, and is carelessly driven over by the coachman. A painter or slater is engaged at his work on the top of a high ladder, placed against the side of a country-house, and is injured by the carelessness of the gardener, who wheels (7) 19 Court of Sess. Cas. 271.

E

In

his barrow against the ladder and upsets it. . . . . . In such and similar cases it could hardly be contended that the rule laid down in Priestly v. Fowler (8) would apply." It is submitted, therefore, in this case that whilst the carpenter may know the risks of bad scaffolding, the danger of tools and the risks he runs from the carelessness of other carpenters, he can know nothing of turn-tables, or when or how they should be used or the dangers attaching to them. The railway porters may know all about such matters, but the carpenter cannot be expected to know anything about them. Nor, in fact, is there anything in common between the work of a carpenter in or about the sheds or platform and that of the porters who are engaged in working the trains and attending to the passengers. Neither is the one work a continuance of the other, as in the case of the miners and the engineman employed to take them up and down the pit. The carpenter acts without and independently of the porter, and vice versû.

[POLLOCK, C.B.-The railway is a large concern, and, for the purpose of conducting its business, the carpenter's work and the iron work must be kept in good order.]

He referred to Priestly v. Fowler (8), Hutchinson v. the York, Newcastle and Berwick Railway Company (9), Wigmore v. Jay (10), Waller v. the South-Eastern Railway Company (11). In Holmes v. Clark(12) Mr. Justice Byles, in his judgment, asks "Why may not the master be guilty of negligence by his manager or agent whose employment may be so distinct from that of the injured servant that they cannot with propriety be deemed fellow servants?" Searle v. Lindsay (13) was an action by the third engineer of a steam-vessel against the owners for injuries he suffered when working at a winch, in consequence of the handle of the winch, by which the screw was worked, coming off

(8) 3 Mee. & W. 1; s. c. 7 Law J. Rep. (N.S.) Exch. 42.

(9) 5 Exch. Rep. 343; s. c. 19 Law J. Rep. (N.S.) Exch. 296.

(10) Ibid. 354; s. c. 19 Law J. Rep. (N.s.) Exch. 300.

(11) 2 Hurl. & C. 102; s. c. 32 Law J. Rep. (N.S.) Exch. 205.

(12) 31 Law J. Rep. (N.8.) Exch. 356; s. c. 2 Hurl. & C. 102.

(13) 11 Com. B. Rep. N.S. 429; s. c. 31 Law. J. Rep. (N.S.) C.P. 106.

through the want of a nut or pin to secure it, which the chief engineer ought to have seen in its place. He was nonsuited, and the nonsuit upheld; but there Mr. Justice Keating, in his judgment, lays stress upon the fact that the plaintiff was an engineer and knew the danger of working the winch in an imperfect state.

[BRAMWELL, B. referred to Wiggett v. Fox (14). Your contention would narrow common object" to common immediate object.]

ERLE, C.J. delivered the judgment of the Court. We think that the judgment of the Court below should be affirmed. The plaintiff was in the employ of the defendants to do the carpenter's work. The wrongdoers were porters in the employ of the defendants, and engaged in moving a carriage on a turn-table, and through their negligence in so doing, pulled down a ladder placed near to it and against a shed, upon which the plaintiff was standing at his work.

We think they were both engaged in a common employment. They were doing work in common, for the common object or purpose of managing the traffic of the railway. railway. The illustration put during the argument, of the painter being employed in painting the turn-table, is apt. The master would not in that case, I think, be liable. We approve of the language of Mr. Justice Blackburn, in delivering his judgment in the Court below, where he says, "There are many cases where the immediate object on which the one servant is employed is very dissimilar from that on which the other is employed, and yet the risk of injury from the negligence of the one is so much a natural and necessary consequence of the employment which the other accepts, that it must be included in the risks which are to be considered in his wages. I think that whenever the employment is such as necessarily to bring the person accepting it into contact with the traffic of the line, risk of injury from the carelessness of those managing that traffic is one of the risks necessarily and naturally incident to such an employment and within the rule." The cases upon this subject are very numerous,

(14) 11 Exch. Rep. 832; s. c. 26 Law J. Rep. (N.S.) Exch. 188.