disposed to grant a new trial unless I see that the inquiry was pertinent to the duty which the jury had to discharge. The preceding case, which is condensed from the report in the Law Times, though not perhaps of much intrinsic importance, may be of use for future reference on the questions which must soon arise under the recent Internal Revenue Act. No doubt much practical inconvenience in the trial of cases will be occasioned by the provisions of that act, and it is well to anticipate them by a reference to some of the decisions under similar statutes in England. It is settled there that where an instrument, actually produced at Nisi Prius, appears not to have been duly stamped, it is not to be treated, for that reason, as non-existent, so as to let in secondary evidence of its contents. Alcock vs. Delay, 4 Ell. & Bl. 660. This proposition is sufficiently obvious. It is not, however, so easy to say how far such evidence is admissible, on a general allegation and proof of the existence and loss of an instrument affected by the stamp laws, or that it is in the possession of the other party, who has refused to produce it on call. There can be no doubt that if the general rule on the subject were applied without qualification, there would be a strong temptation on litigants to make an artificial loss of documents supply the lack of proper stamps. It is held, notwithstanding, that the presumption in the case of a lost instrument is, in the first instance, that it was duly stamped, and that it lies on the party objecting to secondary evidence of its contents on the contrary allegation, to prove the fact that it was not stamped; and the same doctrine applies with peculiar force to the case of an instrument in the possession of the party which he Rule refused. fails to produce. Creap vs. Andrson, 1 Stark. N. P. 34; Pooley vs. Goodwin, 4 Ad. & Ell. 94; Hart rs. Hart, 1 Hare 1; Closmadeuc vs. Carrel, 18 Comm. B. 44. If, however, it be shown that the instrument was unstamped at the time of its execution, or at some subsequent time, the presumption is rebutted, and it will then lie on the party offering the evidence to show that it was afterwards stamped within the period allowed by law. Crowthers vs. Solomons, 6 Comm. B. 758; Closmadeuc vs. Carrel, ut supra. This, however, need not be by direct proof, but may be rested on any reasonable presumption of fact. Thus in Closmadeuc vs. Carrel, ut supra, the proper stamp duty on a charter-party had been paid within the fourteen days allowed for the purpose by the 5 & 6 Vict. c. 79, s. 21, and the instrument left at the office of the distributor of stamps at C. for transmission by mail to London to be there stamped; but it could never be found afterwards. There was no direct evidence that it was ever in fact mailed; but the clerk at C. testified that he always sent off the documents left with him, by mail on the same day that he received them. It was held that this sufficiently raised the presumption that the charter-party had been duly stamped before its loss, as the different officials by whom the instrument should have been transmitted and stamped, must be taken to have done their duty. There is another class of cases on this subject which might, at first sight, seem not altogether consistent with those the result of which has just been stated. Thus in Slatterlie vs. Pooley, 6 Mees. & W. 664, which was an action evidence. There had been previous conflicting decisions on this subject (see 5 Month. Law Mag. 175), which were settled by this case; and it has been since followed in Pritchard vs. Bagshaw, 11 Com. Bench 456, and elsewhere. The general doctrine on the subject of admissions, in this respect, will be found stated in 1 Greenl. on Ev. 96. on a covenant on a composition deed, all, are primary and not secondary to indemnify the plaintiff against certain debts set forth in a schedule annexed to the deed, which schedule was unstamped, it was held that evidence of an admission by the defendant that a particular debt in respect to which the suit was brought, was included in the schedule, was admissible. This was, however, put on the ground that the admissions of a party as to the contents of an instrument, when competent at H. W. In the Exchequer Chamber.-Appeal from the Court of Exchequer. Feb. 7th, 1862. HOLMES vs. CLARKE.1 Where the fence put round certain mill machinery, required by statute to be fenced, had been broken, and the owner having notice of the defect was guilty of negligence in not using reasonable care to have his machinery properly secured, a servant who had entered into his employment when the machinery was fenced, and who continued in the service after knowledge that the fence was gone, in the reasonable expectation, induced by the expressions of the owner and his manager to him, that the defect would be repaired, without negligence on his own part, met with an injury by reason of the machinery being unfenced-Held, that he could maintain an action for the injury against his employer. An appeal was brought in this case, by the defendant, to review the decision of the Court of Exchequer, discharging a rule obtained by the defendant to enter a verdict for him, or a nonsuit, or for a new trial. The pleadings and facts are stated at length in the report below,2 but the following summary of them will explain the case. The plaintiff was an under overlooker, employed at weekly wages 131 L. T. Exch. 356. Decided in the Sittings after Hilary Term, coram CockBURN, C. J., WIGHTMAN, J., WILLES, J., CROMPTON, J., BYLES, J., and KEATING, J. 230 Law J. Rep. (N. s.) Exch. 135. by the defendant, a cotton-spinner at Manchester. It was the plaintiff's duty to oil the machinery in the defendant's cotton factory. The mill-gearing was fenced when the plaintiff entered the service by an iron guard, which had been broken about a year before the accident mentioned below, and had not been mended again, although the plaintiff had called the manager's attention to it, and he had promised it should be repaired, and the defendant himself had looked at it, and had spoken about having it mended. While engaged in oiling the machinery the plaintiff's arm was caught by the machine and torn off. The action was brought to recover compensation for the injury. The plea alleged that the plaintiff was a servant of the defendant, and knew that the mill-gearing was unfenced, and that the injury arose by reason of the plaintiff's own negligence. The jury negatived any negligence on the part of the plaintiff, and found a verdict for him, and that the injury was brought about by the want of proper caution on the part of the defendant. T. Jones, for the appellant, the defendant below.-The plaintiff is not entitled to recover. He engaged in the service of the defendant voluntarily, and having accepted the risks incidental to the employment cannot sue his master for the injury he has met with in his service. Seymour vs. Maddox, 16 Q. B. Rep. 326; S. C. 20 Law J. Rep. (N. S.) Q. B. 327. The conversation with the manager about the want of the fence does not alter the legal position of the parties. Dynen vs. Leach, 6 Hurl. & N. 349; 26 Law J. Rep. (N. S.) Exch. 221; Alsop vs. Yates, 2 Hurl. & N. 768; S. C. 27 Law J. Rep. (N. S.) Exch. 156. Had the plaintiff felt that he could not do the work safely for want of the fence he ought to have left the service and not continued in it. Skipp vs. The Eastern Counties Railway Company, 9 Exch. Rep. 223; S. C. 23 Law J. Rep. (N. S.) Exch. 23. The effect of the conversation. cannot amount to more than this, that the plaintiff contracted to remain in the service, and continued to incur the risk of the unfenced machinery until the fence should be replaced. The plaintiff, in fact, contributed to the injury himself, and therefore cannot His At recover. He knew of the danger, and yet incurred the risk. rashness may be called contributing negligence in one sense. any rate, it is negligence sufficient to bar the action, notwithstanding the finding of the jury that the plaintiff was not guilty of negligence. Caswell v. Worth, 5 El. & B. 849, S. C. 25 Law J. Rep. (N. S.) Q. B. 121, and Cowley vs. The Mayor &c., of Sunderland, 6 Hurl. & N. 565, S. C. 30 Law J. Rep. (N. S.) Exch. 127.The Factory Acts, which require masters in manufactories to fence machinery for the protection of women and children, impose no such duty in respect of men of full age. Coe vs. Platt, 6 Exch. Rep. 752, S. C. 20 Law J. Rep. (N. S.) Exch. 407, was decided before the statute 19 & 20 Vict. c. 38 was passed. Suppose in a colliery there had been some omission of a precaution ordered by statute for the benefit of apprentices, and a tremendous colliery accident had happened, and three hundred men killed, but no apprentice hurt, could it be said that the representatives of each of those men who had engaged to take the risk of accidents in consideration of their wages could sue the master because the statutable duty as to apprentices had not been performed? Paterson v. Wallace, 1 Macq. 748, and Barton Hill Coal Company vs. Reid, 3 Id. 288, do not apply. Bliss, for the respondent, the plaintiff below.-The action will lie. It is material that when the plaintiff entered the service the machinery was duly fenced. The contract, in effect, before the accident, was that the plaintiff would oil the machinery, and that the defendant would keep it properly fenced. The plaintiff complained to the manager, which is the same as complaining to the defendant. Senior vs. Ward, 28 Law J. Rep. (N. S.) Q. B. 139. He continued in the service under the expectation that it would be speedily repaired. This is very different from the case of a man. who originally engages to work at dangerous unfenced machinery. The plaintiff never engaged to take upon himself the risk of unfenced machinery. The plaintiff's knowledge of the danger cannot affect his liability unless he consented to incur the risk. Knowledge is not proof of negligence, only one ingredient in the proof. Clayards vs. , 12 Q. B. Rep. 439; Thompson vs. The North-Eastern Rail 17 way Company, 30 Law J. Rep. (N. S.) Q. B. 67; Roberts vs. Smith, 2 Hurl. & N. 213, S. C. 26 Law J. Rep. (N. S.) Exch. 319; Mellors vs. Shaw, 30 Law J. Rep. (N. S.) Q. B. 333; Ashworth vs. Stanwix, Ibid. 183; Priestly vs. Fowler, 3 Mee. & W. 1, S. C. 7 Law J. Rep. (N. S.) Exch. 42; Williams vs. Clough, 3 H. L. Cas. 258. A duty was imposed on the defendant to fence this machinery. In consequence of the defendant's neglect of this legal duty an injury has happened to the plaintiff. For that the defendant ought to be responsible. Though the main object of the Factory Acts was to protect women and children, the duty they impose on the manufacturer to put up a guard is general. The statute 19 & 20 Vict. c. 38, only modifies the application of the statute 7 & 8 Vict. c. 15, and does not affect the applicability of the cases decided on it. Coe vs. Platt and Caswell vs. Worth show that the same right of action is given to adults as to women and children if any injury arises from unfenced machinery. When a duty is imposed by statute, and an injury arises to another from a breach of that duty, the person injured is entitled to recover. Crouch vs. Steel, 3 El. & B. 402; S. C. 23 Law J. Rep. (N. S.) Q. B. 121. (He was stopped by the Court.) T. Jones replied. At the close of the argument The Court stated that judgment would be given for the plaintiff, but took time to consider how it should be expressed. Judgment was now delivered by Cur. adv. vult. COCKBURN, C. J.-In this case I am of opinion that the decision of the Court of Exchequer should be upheld; though not precisely on the grounds on which that decision appears to have proceeded. I think the question, whether any liability in the defendant arises under the statutes 7 & 8 Vict c. 15 and 19 & 20 Vict. c. 38, is open to considerable doubt, owing to the plaintiff being an adult. It appears to me, however, unnecessary to decide this question, being clearly of opinion that, independently of any statutory duty or obligation, there was negligence in the defendant in not |