but for its illegality, would be within the scope of his ordinary authority, but which, being illegal, is barratrous, this will not amount, in point of law, to assent or knowledge on the part of his employer. For these reasons, it appears to us that the plaintiff in this action cannot be taken to have constructively, any more than he had actually, knowledge of the illegal act of the master, and that consequently, within the decision of Cunard v. Hyde, he is entitled to recover; and that our judgment, therefore, should be in his favour. I should add, that this judgment must be taken as that of my Brothers Blackburn, Mellor, and myself; my Brother Crompton, having been obliged to leave the Court before the argument was concluded, takes no part in the judgment.-Judgment for the plaintiff. COURT OF COMMON PLEAS. HILARY TERM. not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; the freighter finding mats, and the ship dunnage, both as customary, and being so loaded, shall therewith proceed to Calcutta, or so near thereunto as she may safely get, and deliver the same alongside any craft, floating depôt, or pier where she can lie afloat, as ordered by the consignee. Notice to be given to the agents of the vessel being ready to discharge (the act of God, the Queen's enemies, pirates, fire, and all and every other dangers and accidents of the seas rivers, and navigation, during the said voyage, being mutually exceped); the freight to be paid on unloading and right delivery of the cargo, at and after the rate of 21s. on the quantity delivered, in full of all port charges, pilotages, and Dover and Ramsgate dues, as customary; and such freight is to be paid, say onethird by freighter's acceptance at four months from the final sailing of the vessel from her last port in the United Kingdom, less cost of insurance, and the remainder on the right delivery of the cargo, agreeable [Before ERLE, C. J., WILLIAMS, WILLES, and KEAT- to bills of lading, in cash, at current rate of exchange ING, JJ.] M. chartered a vessel with a cargo of salt, therewith to proceed to Calcutta; the freight to be paid on unloading, "one-third by freighter's acceptance at four months from the final sailing of the vessel, remainder on the right delivery of the cargo, agreeable to bills of lading. The captain to apply to H. E. F. (the plaintiff) for cargo and custom-house business. F. proceeded to load the vessel, but before the whole was on board M. stopped | payment, and thereupon F. stopped the loading. The plaintiff presented bills of lading made out in his own name, which the owners of the ship (the defendants) refused to sign. M. presented none, and the ship sailed. On her arrival the plaintiff's agents tendered to the defendants' agents the mate's receipt, and offered to pay freight, but the defendants declined to deliver the salt, In trover for the conversion of the salt, the jury found that the plaintiff did not part with the control over the goods in putting them on board, and that the property did not pass to M.:-Held, that the sailing away with the goods was ample evidence of conversion, and that the conversion commenced from the time of sailing. The declaration was in trover, for the wrongful conversion of certain salt; and there were the usual money counts. The defendants pleaded-first, not guilty; secondly, that the goods were not the goods of the plaintiff; and, thirdly, never indebted. At the trial, before Blackburn, J., and a special jury, at the Lancashire Winter Assizes, the following facts appeared in evidence:-The plaintiff was a salt merchant carrying on business at Liverpool. The defendants were shipowners carrying on business at Liverpool, and were the owners of the ship Savoir Faire, hereinafter mentioned. In November, 1863, a Mr. W. N. De Mattos, a merchant of Leadenhall-street, London, entered into the following charterparty :: "London, Nov. 12, 1863, "It is this day mutually agreed between G. H. Fletcher & Co., owners of the good ship or vessel, called The Savoir Faire, A. 1, at Lloyd's, new iron ship of 1400 tons or thereabouts, now in the port of Liverpool, whereof Mickle is master, and W. N. De Mattos, of London, merchant, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall, with all possible dispatch, load in the usual and customary manner a full and complete cargo of salt, which the said freighter binds himself to ship, for bills on London at six months. The vessel to deliver as customary, and the cargo to be discharged at the average rate of no less than sixty tons a working day, weather permitting, or to pay demurrage, at the rate of 4d. per ton register O. M. per diem. All claims with the rule of Lloyd's The ship and her freight for average to be settled in London, in conformity are bound for this venture. The penalty for nonperformance of this agreement is to be 18007. "In the event of the ship putting into Table or Timon's Bay, the captain is to address himself to Messrs. Deare Brothers, & Co., subject to reply by Friday, the 31st instant, at noon, by telegraph. (Witness) "G. H. FLETCHER & Co. "W. N. DE MATTOS. "The captain to apply to Mr. H. E. Falk for cargo and custom-house business." above 100 tons of salt were on board, the plaintiff inThe plaintiff proceeded to load the ship. When formed the defendant that De Mattos, the charterer, had stopped payment, and the plaintiff consequently declined to proceed with the loading of the ship. The defendants thereupon wrote to De Mattos a letter, of which the following is a copy: "Liverpool, 9th December, 1863. Sir,-We write to inform you that Mr. Falk has stopped the loading of The Savoir Faire, on the ground, as he alleges, that you have stopped payment. We much regret that this should be so; but having made all arrangements for the vessel's proceeding to sea at the end of this week, we must send her; and we are compelled to hold you liable for all loss and injury which we must sustain, by reason of the ves sel's loading not being completed. "We are, Sir, your obedient servants, G. H. FLETCHER & Co." fendants therefore fitted up the ship themselves, No reply was received to this letter, and the de Before the ship sailed, the plaintiff presented bills of lading, made out in his own name, which the defendants refused to sign; and no bills of lading being presented by De Mattos, the ship sailed without any being given. On the 16th December, 1863, the plaintiff made a protest against the owners of The Savoir Faire for their refusal to sign the bills of lading. Upon the ship arriving in India, Messrs. R. G. Ghose & Co., the agents of the plaintiff, wrote to Mess Borrodaile & Co., the agents of the defendants, the following letter: "Messrs. John Borradaile & Co., agents for the said ship. Gentlemen,-As agents for and on behalf of Mr Hermann Eugene Falk, of Liverpool, the shipper per the said ship of 745 tons of stored salt, and 262 tons of butter salt, we hereby present to you the mate's receipts (eleven in number) for the said salt, and demand the delivery thereof, we being ready and willing, and hereby offering, to pay freight for the same at the rate of 218. per ton of 20 cwt. delivered. "To Captain Meikle, Master of the ship Savoir | The defendant sailed away with goods over which the Faire, and to plaintiff had lawful control, and the goods were thereby lost to him. This, I think, was a conversion of the goods. As to the question of time, I think the view that the conversion, under the circumstances, related back to the time when the goods were wrongfully taken from the plaintiff's control, was correct. WILLIAMS, J.-I am of the same opinion. The question turns upon the plaintiff's intention when he put the salt on board the vessel, and that was a pure question of fact for the jury; and I can see no reason for disturbing their verdict. It is a point in the case, that the plaintiff was the charterer's agent, and that he was also the vendor, so that the taking of the mate's receipt might properly be said not to be conclusive evidence that the plaintiff intended to retain a property in the goods. That was a matter, however, which it was fair to urge to the jury, and I have no doubt that it was pressed upon the jury by the defendant's counsel. "Your obedient servants, "Calenta, April 9, 1864." "Messrs. R. G. Ghose & Co., "Yours, faithfully, "JOHN BORRODAILE & Co." The learned judge directed the jury, that as the plaintiff had applied for the salt and for a bill of lading, the sailing with the salt and the refusal of the defendant to grant a bill of lading for it, was ample evidence of a conversion, if the right of possession in the goods at the time was in the plaintiff and not in De Mattos; that prima facie the shipping of the goods by the plaintiff and the obtaining of the mate's receipt, gave the plaintiff a right to the bill of lading and a control over the goods, and that unless the jury thought that the plaintiff's taking the mate's receipt in his own name was a mere accident, and that he really intended to place them out of his own control, the property remained in the plaintiff. The jury found their verdict for the plaintiff for 5821. Edward James, Q. C. (Baylis with him) now moved for a rule for a new trial, on the ground of misdirection, and on other grounds not now material, and contended that the property in the goods had passed to De Mattos when the ship sailed, and therefore, that 23 against the plaintiff there was no conversion. ERLE, C. J.-I am of opinion that there should be no rule. The plaintiff is really an unpaid vendor. He it was who supplied the salt, and he supplied it as gent to De Mattos, and puts it free on board. Still he was an unpaid vendor; and it was a question for the jury whether he intended to vest the property in De Mattos, by putting it on board the ship, or whether, by getting the mate's receipt in his own name, he ant to keep the control over the goods in himself. The jury having found that the property in the goods dd not pass to De Mattos, the control over them remained, therefore, in the plaintiff. Then, was there a conversion of these goods by the defendant in sailing away with them after they had been put on board? WILLES, J.-I am of the same opinion. The learned judge left the proper question to the jury when he directed them to consider whether, looking at all the circumstances of the case, the plaintiff' intended to pass the property in the goods to De Mattos when he put them on board; and, having regard to the dealings of the parties, I think the conclusion to which the jury arrived was the correct one. bills of lading to the consignee without the goods The practice of sending being paid for has occasionally produced hardship, as in Key v. Cotesworth (7 Exch. 595). But in another case, Turner v. The Trustees of the Liverpool Docks (6 Exch. 543), the course adopted was, to send the bills the bill till the goods were paid for. Here the pracas to an indifferent person, who had power to hold tice of the plaintiff was, to take the receipt in his own name, and, therefore, there is good ground for saying that he meant to have the control of the goods in himself. That the plaintiff put the goods on board as agent for De Mattos is true in a sense, but being the person who put the goods on board, he was also in the position of a vendor for the purpose of securing himself. (Feise v. Wray, 3 East, 93). As to the question of conversion, I agree with what has been said by my Lord on that point; and I concur also in holding that the time of conversion was when the goods were taken away. KEATING, J., concurred.-Rule refused. LONGMEAD U. MAPLES.-Jan. 18. Declaration for injury to a wall. Plea, that after the ac- Declaration, for that certain gardens, with the walls thereof, were respectively in the possession of certain persons respectively, as tenants thereof respectively to the plaintiff, the reversion thereof respectively then and still belonging to the plaintiff'; and the defendant injured the plaintiff's said reversion in the said walls and premises by wrongfully building and erecting certain other walls, and certain buildings and erections upon and against the said walls, wherein the plaintiff had such reversionary estate and interest as aforesaid, and keeping and continued the same so there erected and built. Plea, that the plaintiff ought not to be permitted to implead the defendant in respect of the causes of action alleged, because that after the accruing of the causes of action in the first count alleged, and after the passing of the Chancery Regulation Act, 1862, the plaintiff commenced his suit, and filed his bill in the High Court of Chancery against the defendant, and impleaded the defendant therein for the very same rights, claims, and causes of action as in the said count alleged, and such proceedings were thereupon had in the said suit; that before the commencement of this suit, the said Court of Chancery determined the said alleged causes of action in favour of the defendant, and gave judgment, and decreed in respect thereof in favour of the defendant; and the said judgment and decree still remain in force. Demurrer, and joinder in demurrer. And for a replication, the plaintiff says that he ought to be permitted to implead the defendant in respect of the causes of action in the said count alleged, because he says, that the said Court of Chancery dismissing the said bill of the plaintiff in the said plea mentioned, reserved to the plaintiff the right of proceeding at law for the causes of action in the said count alleged, and ordered the said bill to be dismissed, without prejudice to such right; and this the plaintiff is ready to verify; wherefore he prays judgment, that he ought to be permitted to implead the defendant in respect of the causes of action in the said count alleged. Demurrer, and joinder in demurrer. The plaintiff's points for argument on demurrers were First, that the Chancery Regulation Act, 1862, does not effect any legal remedies, but merely provides, that in respect of any equitable relief or remedy sought in the Court of Chancery, that Court shall determine any question of law or fact upon which the right to such equitable relief or remedy may depend. Secondly, that it is possible that the Court of Chancery may have determined in favour of the defendant on grounds which do not at all concern or negative the legal right of the plaintiff, or his right of action. Thirdly, that the determination in favour of the defendant may have been upon such grounds as are mentioned in the 4th section of the act, viz. that such matters have been improperly brought into equity, and that the same ought to have been left to the sole determination of a court of law. Fourthly, that it is not possible, consistently with the nature of the causes of action, and the respective jurisdictions of the Court of Chancery and a Court of common law, that the plaintiff should have impleaded the defendant in Chancery, for the very same rights, claims, and causes of action, as alleged in the declaration, or that the Court of Chancery should have determined such causes of action in favour of the defendant. Fifthly, that even if the defendant's pleas are primâ facie good, the replications demurred to are good, as virtually denying the defendant's pleas, and as shewing that the Court of Chancery did not so determine the causes of action in favour of the defendant as to prevent the plaintiff from maintaining the action in respect of those causes of action. as those submitted to the Court of Chancery for the adjudication of that Court at the instance of the plaintiff. By the Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42), extending the Chancery Amendment Act, 1858 (21 & 22 Vict. c. 27), that Court was not merely empowered, but absolutely bound to inquire into and determine those facts, and also every question of law incidental thereto, the same being questions of law and fact, in which the plaintiff's title to relief depended. The defendant's points in support of the plea areFirst, the declaration only raises such questions of law and fact as are shewn by the pleas to be the same The pleas shew that the said Court did in due course determine those matters of law and fact in the defendant's favour. The defendant will contend that the matter of law and fact attempted to be tried in this action having already been so determined by the Court of Chancery, the plaintiff is estopped from trying the same matter of law and fact over again in this action. Secondly, the defendant's points in support of the demurrer to the replication, are The plaintiff does not by his replication deny that the questions of law and fact attempted to be laid in this action have been already tried and determined by the Court of Chancery at his instance, nor does he allege that his bill was dismissed on any ground, than that the Court of Chancery determined those questions of law and fact in favour of the defendant, but merely shews, that although the Court determined those questions in favour of the defendant, yet the Court affected to reserve to the plaintiff the right to proceed at law. The defendant will contend that the Court of Chancery, having once determined the questions of law and fact, could not give any power or right to the plaintiff to try the same questions over again to this action. Lush Q.C. (Henry James with him), for the plaintiff. -The Chancery Regulation Acts make no difference. The plea is no answer to the action. It ought to have alleged that the specific points had been decided. It is therefore bad. The bill in equity may have been dismissed on other and different grounds than those for which this action is brought. The plaintiff is not estopped by the Chancery proceedings. The law of estoppel is discussed in The Duchess of Kingston's case (2 Smith's L. C. 593). But the replication is a complete answer to the plea, if it needs any answer. Rochfort Clarke, for the defendant.-The plea is good. The plea states that the plaintiff brought a suit in Chancery, and that the plaintiff's bill was dismissed. The Court of Chancery did decide the case on the facts. The plea says, that the proceedings were had, and that a decree was made. But the replication is bad, because it, in fact, admits, the facts alleged in the plea, but sets up new matter, viz. the reservation of a right to bring an action at commen law if the plaintiff thought fit. But the Court had no power to act in this manner. It was contrary to the provision of the Chancery Regulation Acts, 21 & 22 Vict. c. 27, and 25 & 26 Vict. c. 42. ERLE, C. J.-I am of opinion that the plea is good, and that the replication is also good. The declaration was for injury to a wall of the plaintiff's. The plea stated, that the plaintiff impleaded the defendant for the same causes of action in a suit in the Court of Chancery, and that the judgment was in favour of the defendant. The defendant has to shew a final judg ment in his favour. I am of opinion that the plea is a good defence, unless the replication is an answer. Now, the replication does, in effect, traverse the fact alleged in the plea, that there was a final judgment: for it states that the Court dismissed the bill, with leave to the plaintiff to proceed at law. It has been argued that the stats. 21 & 22 Vict. c. 27, and 25 & 25 Vict. c. 42, render a decision in Chancery finally con clusive at law; but I am of opinion that this is not always so. In Swire v. The Great Western Railway Company (33 L. J., Ch., 399), before the Lords Justices of Appeal, the Court, though it refused an injunction, directed an inquiry as to damages, though it was held that it is not bound to do so under Mr. Rolt's Act; and if the Court of Chancery be of opinion that a case can be more effectually disposed of in a court of law, it will dismiss the bill, without prejudice to the plaintiff's right to proceed at law. In Johnson v. Wyatt (33 L. J., Ch., 394) it was held, that even if an injunction be refused by a Court of equity, such Court may, under Sir Hugh Cairns' Act, direct an inquiry as to the damages, if it appear that the plaintiff has sustained damage. On the authority of these cases, and looking at the two statutes, I am of opinion that the replication is good in law. WILLIAMS, J.-I am of the same opinion. I think the ples a good plea, for the Court might have done as alleged in it. I also think the replication a good answer to the plea. It appears by the replication, that the allegation in the plea is not true, because the replication states that the Court expressly reserved to the plaintiff the right to proceed at law. It, in fact, negatives the truth of the allegation in the plea, that the Court of Chancery delivered a decree in the defendant's favour. WILLES, J.-I am also of opinion that the plea is a good answer to the declaration in point of law, and that it is, therefore, a good plea. If the same matter had been finally adjudicated upon in Chancery, the plaintiff would have lost his right to bring an action in this court, or in any other. Assuming the facts to be true as admitted by the demurrer, there was a court of competent jurisdiction, and it was incumbent on the Court in which the suit was to exercise their jurisdiction. At first, I was disposed to think the plea bad, because the matter for which the present action is brought might or might not have been in controversy; and it occurred to me, that the Court of Chancery might not have dismissed the bill on the merits, and have declined to go into the question, whether there was any right in the plaintiff or not. The Court might have given the go by to the question of damage; but the plea is, in fact, that the Court decided the causes of action; and as the Court had jurisdiction, the judgment would be final. This may be a question of evidence, if such question be admissible. As far as the plea goes, the plaintiff has had the question decided, and with that decision he must rest; but when we come to the replication, it states that the plaintiff ought to be allowed to proceed at law, because leave was expressly given him so to do if he thought fit. This is, in fact, a traverse of a final adjudication in Chancery. I think the replication is a good answer to the plea, and is, therefore, a good replication. KEATING, J.-I am of the same opinion. The whole strength of Mr. Clarke's argument was, that the Court of Chancery had no power, under the 24 & 25 Vict. c. 42, to do what the replication alleges; but a case has been referred to, which shews, that the Court had power to do that which the replication alleges was done.-Judgment for the defendant on the deer to the plea, and for the plaintiff on the demurrer to the replication. [Before ERLE, C.J., WILLIAMS and KEATING, JJ.] SWIRE v. LEACH.-Jan. 27. Trover for certain goods pledged with a pawnbroker. Plea, not guilty (by statute). At the trial, before Pigott, B., at Liverpool, it was proved that the plaintiff was a pawnbroker, and was tenant of a house and premises of the defendant, and that the defendant took the goods for which the action in question, for rent due and in arrear: that the goods were certain articles pledged with the plaintiff as a pawnbroker. The jury, under the direction of the learned judge, found a verdict for the plaintiff for 301., being their full value. Monk, Q. C., obtained a rule, calling on the plaintiff to shew why the verdict should not be set aside, and a verdict entered for the defendant, or a nonsuit, or why the damages should not be reduced. Saunders and Holker now shewed cause.-Privilege from distress belongs to all that class of goods, where something is to be done or wrought. Pledges left with a pawnbroker are, therefore, privileged from arrest. Whenever goods are manifestly not the property of the landlord, they are always privileged from distress. [They cited Simpson v. Hartopp (1 Smith's L. C. 315); Adams v. Grane (1 Cr. & M. 380); Gibson v. Ireson and Another (3 Q. B. 39); Brown v. Sherill (2 Ad. & El. 138); Wickenden v. Webster and Others (25 L. J., Q. B., 264); Joule v. Jackson (7 M. & W. 450).] Monk, Q. C., in support of the rule.-The only exception to the liability to distress is contained in the rule, "That things delivered to a public trader to be carried, wrought, worked up, or managed in the way of his trade or employ, are privileged from distress." Pledges left with a pawnbroker in pawn do not come within any of these exceptions. A pawnbroker is not a trader. Formerly, he was not within that term as used in the Bankrupt Acts. This Court will not extend the exceptions to the rule. After a year, the goods pawned become the property of the pawnbroker. [He cited Muspratt v. Gregory (1 M. & W. 633); Joule v. Jackson (7 M. & W. 450); Parsons v. Gingell (4 C. B. 545); and as to the damages, Johnson v. Stear (10 Jur., N. S., 99).] ERLE, C. J.—I am of opinion that this rule ought to be discharged. The action is in trover by a pawnbroker for the value of certain goods pledged with him in the course of his business. The goods were taken as distress for rent. The question, then, is, whether pledges left with a pawnbroker for loans in the course of his business are privileged from distress. I am of opinion that they are. There are certain articles which are exempt from distress, and attempts have frequently been made to lay down some fixed rule on the subject, but the result has been, that no fixed principle has been established. Each case must depend specifically on itself. I am of opinion, however, that pledges left with a pawnbroker fall within the rule of "things delivered to a person exercising a public trade to be dealt with in the way of his trade." Goods in the hands of a wharfinger have been held to be privileged; and I can see no distinction between goods left with a wharfinger and goods in pawn. It is the duty of a pawnbroker to exercise care in the custody of goods in pawn. We are then to say what damages the plaintiff is entitled to recover. It is contended that he is only entitled to the money he has advanced on the goods pawned. The case of Johnson v. Stear does not apply upon this point; because in this case the landlord is a wrongdoer. He had no colourable right. WILLIAMS, J.-I am of the same opinion. I think goods pledged with a pawnbroker are privileged, on the principle, that they are deposited with him to take care of in the way of his trade. It seems to me that it is governed by the same principle as in the case of goods deposited with a wharfinger. Upon the ques tion of damages, I think the defendant was ab initio | Summer Assizes, 1863, it was proved by the plaintiff a wrongdoer, and that the plaintiff is entitled to the that he was employed by the defendants to work in full value of the goods. The plaintiff was employed to work in a mine of the defendants. The defendants employed an underlooker, whose duty it was to see that the roof of the mine was propped as required when the mineral was withdrawn. The underlooker omitted to see that the roof was propped, and thereby a stone fell and injured the plaintiff :Held, that the underlooker was a fellow-servant of the plaintiff, and that as there was no evidence to shew that the defendants were negligent in selecting a proper underlooker, or in putting the mine in proper order, the defendants were not liable. Declaration, for that whereas the plaintiff was retained and employed by the defendants to work for them, and did during all the time in the count mentioned, work for them as their servant in an underground passage in a coal-mine of the defendants, which the defendants were possessed of, and occupied and managed during all the time in the count mentioned, which passage it was at all times in the count mentioned dangerous and unsafe for the plaintiff so to work in, on account of the roof of the said passage being liable and likely to give way, and fall down upon the plaintiff while he was so working in the said passage, unless reasonable and proper care, and reasonable and proper precautions, were taken by the defendants to prevent such roof from so giving way, and falling down upon the plaintiff while the plaintiff was so working in the said passage; of all which premises the defendants, at all times in this count mentioned, had notice and knowledge. Yet the defendants did not, while the plaintiff was so working, take reasonable or proper care, or reasonable or proper precautions, to prevent the roof of such passage from giving way and falling down on the plaintiff while he was working therein; and so carelessly and negligently conducted and managed their said mine in that behalf while the plaintiff was so working in the said passage, and while they knew he was so working therein, and took so little and such bad care of the said mine, and the roof of the said passage while the plaintiff was so working therein, and while they knew he was so working therein, that by reason of the premises merely, and without any fault of the plaintiff, the roof of the said passage did give way, and fall down upon the plaintiff while the plaintiff was so working in the said passage, and a large stone, forming portion of the said roof, and which fell therefrom, struck the plaintiff, and maimed and crippled him, whereby the plaintiff has been crippled and disabled, and prevented from earning his own livelihood by labour as he otherwise would have done. Pleas-first, not guilty; secondly, that the plaintiff was not engaged as a servant; thirdly, that the defendants had not notice or knowledge that the said passage was dangerous and unsafe to work in the manner and form as alleged. At the trial, before Blackburn, J., at the Liverpool their mine. That his duty was to couple and un- liers employed in the same mine, were called as wit- T. Jones, for the plaintiff.—The judge should have left the question to the jury. The distinction between this case and the cases which will be relied on by the other side, is, that the occupation of the plaintiff in this case was of a dangerous character. (Priestley V. Fowler, 3 M. & W. 1). [Byles, J., referred to Callaghan v. Piper (10 Jur. 879).] The employment here was dangerous; when that is the case, the law casts on the employer the duty of taking reasonable precautions to prevent danger. (Paterson v. Wallace, 1 Macq. 748; Brydon v. Stewart, 2 Macq. 30). [Erk, C. J.-We are clear that there was ample evidence to shew that the underlooker was guilty of negligence.] The distinction between the liability of the master for an unsafe mine, and for the negligence of a fellowservant, is pointed out in The Bartons Hill Coal Company v. Reid (3 Macq. 266). The cases shew that when an injury arises from that kind of negligence, which a master cannot divest himself of, viz. a want of proper precaution in keeping his property in a safe condition, there a liability attaches even when the accident is caused by the negligence of a fellow-servant. [Cromp ton, J.-Do you say this is a warranty?] No; I agree this is not such evidence as would amount to a warranty, as in Clarke v. Holmes (7 H. & Norm. 937). As to the state of the property, the servant is the same as the master. The distinction would be between ma nagement and materials. E. James, Q. C., and Crompton Hutton, for the defendants, were not heard. Cur. ado, vult. ERLE, C. J., now delivered the judgment of the Court. In this case the plaintiff, while working as a labourer in a mine, received damage by the fall of a stone from the roof. Beyond all doubt the underlooke was guilty of negligence in not propping up the roof: and this was the sole cause of the accident. There was no evidence that the defendants had been guilty of neglect or want of care either in the selection of |