(b) As regards the other question, what actions survive for an executor or administrator, we find it early said that at common law actions in contract do survive while actions in tort do not (e); but already in 1330 a statute, which was very liberally construed, had given the executor some actions which undoubtedly were the outcome of tort (f). On the other hand it has been held even of late years that (apart from all question as to real estate) an action for breach of contract does not necessarily survive for or against the personal representative; the cause of action given by a breach of promise to marry is not as a general rule one for which representatives can sue or be sued (g). But the present state of the law as to the survival of actions is discussed above (h). 3. Several discussions as to the line between contract and tort were occasioned by the rule that while joint contractors must be sued jointly the liability of joint tort-feasors is joint and several (i). The earliest authority draws the distinction between "praecipe quod reddat" and debt on the one hand, and "trespass et huiusmodi" on the other (k). But the antithesis of contract and tort crops up in the seventeenth century (1). A decision (m) of Lord Mansfield in 1770, that the objection to non-joinder of all joint contractors as defendants can only be taken by plea in abatement deprived this matter of much of its importance. Still the question whether there has been breach of a joint contract, or a tort for which several are liable severally as well as jointly, is of course a question which may still arise and be difficult to answer (n). Lastly we come to the statutory adoption of the theory that every personal action must be founded either upon contract or upon tort. The first statute which recognized this doctrine was seemingly the County Courts Act, 1846 (o). Here, in a section dealing with costs, the antithesis is " founded on contract," "founded on tort." The County Courts Act of 1850 (p) fell back on an enumeration of the forms of action, placing covenant, debt, detinue and assumpsit in vel per misericordiam, et per dampna laeso restituenda secundum qualitatem et quantitatem delicti, ita quod castigatio illa sit aliis in exemplum, et timorem praebeat delinquendi." (e) Le Mason v. Dixon (1627) W. Jones, 173. (f) Stat. 4 Edw. III. c. 7. De bonis asportatis in vita testatoris. (g) Chamberlain V. Williamson (1814) 2 M. & S. 408; Finlay v. Chirney, 20 Q. B. Div. 494, 57 L. J. Q. B. 247. (h) P. 59. (i) See notes to Cabell v. Vaughan, 1 Wms. Saund. 291. (k) Br. Abr. Responder, 54. (1) Boson v. Sandford, 3 Salk. 203; 1 Shower 101; Rich v. Pilkington, Carth. 171; Child v. Sands, Carth. 294; Bastard v. Hancock, Carth. 361. (m) Rice v. Shute, 5 Burr. 2611. (n) See remarks of Lindley L. J. Partnership, 5th ed. pp. 198-9. (0) 9 & 10 Vict. c. 95, s. 129. (P) 13 & 14 Vict. c. 61, s. 11. one class, and trespass, trover and case in another class. The Common Law Procedure Act, 1852 (q), assumes in its schedule of forms that actions are either "on contracts," or "for wrongs independent of contract; " but sect. 74 admits that "certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs; some very needless litigation might have been saved had a similar admission been made in other statutes. By the County Courts Act of 1856 (r), costs in a certain event were made to depend upon the question whether the action was "an action of contract." By the Common Law Procedure Act of 1860 (s), costs in a certain event were made to depend on the question whether the action was "for an alleged wrong." A section of the County Courts Act, 1867 (t), drew a distinction as to costs between actions "founded on contract," and actions "founded on tort." Lastly the County Courts Act of 1888 in several of its sections draws a distinction between "an action of contract" and "an action of tort" (u), while elsewhere (x) it contrasts an action "founded on contract" with one "founded on tort." The practical upshot, if any, of these antiquarian remarks is that the courts of the present day are very free to consider the classification of causes of action without paying much regard to an attempt to classify the now obsolete forms of action, an attempt which was never very important or very successful; an attempt which, as we may now think, was foredoomed to failure. (g) 15 & 16 Vict. c. 76. (r) 19 & 20 Vict. c. 108, s. 30. 23 & 24 Vict. c. 126, s. 34. (t) 30 & 31 Vict. c. 142, s. 5, Recent decisions are Bryant v. Herbert, 3 C. P. D. 189, 389, 47 L. J. C. P. 670; Pontifex v. Midland R. Co. 3 Q. B. D. 23; Fleming v. Manchester, &c. R. Co. 4 Q. B. Div. 81. (u) 51 & 52 Vict. c. 43, ss. 62, 65, 66. (x) 51 & 52 Vict. c. 43, s. 116. APPENDIX B. EMPLOYERS' LIABILITY ACT, 1880. (43 & 44 VICT. c. 42.) An Act to extend and regulate the Liability of Employers to Be it enacted by the Queen's most Excellent Majesty, by and with 1. Where after the commencement of this Act personal injury is Amendcaused to a workman (1.) By reason of any defect (a) in the condition of the ways (b), works, machinery, or plant (c) connected with or used in the business of the employer (d); or (2.) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to (a) This must be a defect showing some negligence of the employer; Walsh v. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586. (b) An object left sticking out over a way is not a defect in the condition of the way; McGiffin v. Palmer's Shipbuilding Co. (1882) 10 Q. B. D. 5, 52 L. J. Q. B. 25. "Defect in condition includes unfitness for safe use, whether from original fault of structure or want of repair; Heske v. Samuelson (1883) 12 Q. B. D. 30, 53 L. J. Q. B. 45; or insufficiency of any part of the plant for the particular purpose it is being used for; Cripps v. Judge (1884) 13 Q. B. Div. 583, 53 L. J. Q. B. 517. As to sufficiency of evidence on this point, Paley v. ment of 505 him (e) whilst in the exercise of such superintendence (ƒ); or (3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed (g); or (4.) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or byelaws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or (5.) By reason of the negligence of any person in the service of the employer who has the charge or control (h) of any signal, points, locomotive engine, or train upon a railway (i), the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death (k), shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work (1). (f) Osborne v. Jackson (1883) 11 Q. B. D. 619. (g) Orders or directions within the meaning of this sub-section need not be express or specific ; Millward v. Midland R. Co. (1884) 14 Q. B. D. 68, 54 L. J. Q. B. 202. (h) The duty of oiling and cleaning points is not "charge or control"; Gibbs v. G. W. R. Co. (1883-4) 11 Q. B. D. 22, 12 Q. B. Div. 208, 53 L. J. Q. B. 543. Any one having authority to set a line of carriages or trucks in motion, by whatever means, is in charge or control of a train; Cox v. G. W. R. Co. (1882) 9 Q. B. D. 106. (i) "Railway" has its natural sense, and is not confined to railways made or used by railway companies; Doughty v. Firbank (1883) 10 Q. B. D. 358, 52 L. J. Q. B. 480. (4) A workman can bind himself by contract with his employer not to claim compensation under the Act, and such contract is a bar to any claim under Lord Campbell's Act; Griffiths v. Dudley (1882) 9 Q. B. D. 357, 51 L. J. Q. B. 543. (1) This evidently means only that the defence of "common employment "shall not be available for the master; not that the facts and circumstances of the workman's employment are not to be considered, e. g. if there is a question of contributory negligence. Nor does it exclude the defence that the workman in fact knew and accepted the specific risk; Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340; but such defence is not admissible where the risk was created by breach of a statutory duty; Baddeley v. Earl Granville, 19 Q. B. D. 423, 56 L. J. Q. B. 501; and a workman's continuing to work with defective plant after he has complained of the defect to the employer or foreman, who has refused or neglected to amend ment of 2. A workman shall not be entitled under this Act to any right Excepof compensation or remedy against the employer in any of the tions to following cases; that is to say, (1.) Under sub-section one of section one, unless the defect law. therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition (m). (2.) Under sub-section four of section one, unless the injury resulted from some impropriety or defect in the rules, byelaws, or instructions therein mentioned; provided that where a rule or byelaw has been approved or has been accepted as a proper rule or byelaw by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade or any other department of the Government, under or by virtue of any Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective rule or byelaw. (3.) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence (n). Limit of sum re coverable as com 3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in the like pensation. employment and in the district in which the workman is employed at the time of the injury. 4. An action for the recovery under this Act of compensation for Limit of an injury shall not be maintainable unless notice (o) that injury has amend it, is not conclusive to show voluntary acceptance of the risk; Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7. (in) See Kiddle v. Lovett (1885) 16 Q. B. D. 605, 610. (n) This sub-section creates a new and special statutory defence, see Weblin v. Ballard (1886) 17 Q. B. D. 122, 125, 55 L. J. Q. B. 395. It does not enlarge by implication the right of action under s. 1: (0) This notice must be in writ- time for recovery of compensation. |