Sect. X.-(Short title of Act, "Employers' Liability Act," 1880, shall continue in force until 31st December, 1887.)

Lord Campbell's Act.-By the statute 9 & 10 Vict. c. xciii. it is enacted that when the death of a person shall be caused by any wrongful act, neglect, or default, which, if death had not ensued, would have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, although the death shall have been caused under such circumstances as amount in law to felony. And (by sect. 2) that every such action shall be for the benefit of the wife, husband, parent, and child of the deceased person, and shall be brought by and in the name of his executor or administrator, and the damages recovered, after deducting certain costs, shall be divided amongst the before-mentioned relatives, in such shares as the jury, by their verdict, shall find and direct. But not more than one action shall (by sect. 3) be in respect of the same subject matter of complaint, and the action must be commenced within twelve calendar months after the

death of the deceased person. And (by sect. 4) the plaintiff must deliver, together with the declaration of his cause of action, full particulars of the persons on whose behalf the action is brought, and of the nature of the claim. By the Amendment Act 27 & 28 Vict. c. xcv. it is provided by sect. 1 that when no action is brought within six months by the executor then it may be brought by persons beneficially interested in the result of the action.

CHAPTER XVII.

MANSLAUGHTER.

INASMUCH as charges of manslaughter arising out of the deaths of persons employed in collieries occur from time to time, this work would be incomplete without a brief notice of the leading rules and cases of the criminal law upon this subject. Whoever wrongfully, but without malice aforethought, kills any other person, is guilty of manslaughter. This head of crime includes deaths caused voluntarily, but under extenuating circumstances, as well as deaths caused involuntarily but not merely by misadventure.

It is

to this latter class of deaths alone that this section will be confined. The general rule is that where death results from want of due caution on the part of a person, either in doing an act, or, secondly, from his neglecting to perform a duty which is cast upon him by the law, such person is guilty of manslaughter. The first branch of this rule applies, for instance, to a case where stones are thrown from a height into the street, without the intention of striking any person, but also without reasonable care, and a second branch applies to a case where a pointsman in charge of

railway points omits to do his duty and thereby causes the death of a passenger in a train.

In R. v. Haines (2 Car. & Kir. 368), it was the duty of the defendant, as ground bailiff of a mine, to put up air-headings where they were required. It was alleged by the prosecution that by reason of his omission in this respect a man was killed, and he was indicted for manslaughter. For the defence it was contested that death would not have ensued but for the negligence of other persons. The law was then laid down by Mr. Justice Maule, who told the jury— If they found that it was the prisoner's plain and ordinary duty to have caused an air-heading to have been made, and a man using reasonable diligence would have done it, and that by reason of his omission he was guilty of a want of ordinary and reasonable precaution, and that by reason of such omission deceased was killed, they should find him guilty of manslaughter. It is no defence in a case of manslaughter that the death was caused by the negligence of others as well as that of the prisoner; for if the death be caused partly by the negligence of the prisoner and partly by the negligence of others, the prisoner and all those others are guilty of manslaughter.

In the case of R. v. Hughes (7 Cox's C. C. 301), the prisoner was indicted for manslaughter. The death was occasioned by the falling of a truck full of bricks into the shaft of a mine where the deceased was at work. The truck fell in owing to the prisoner's neglect of duty in omitting to place a stage over the mouth of the shaft. It did not appear that the

prisoner was directing or driving the truck at the time. Mr. Baron Watson left it to the jury, whether the accident happened by negligence of the prisoner, and whether that negligence arose from an act of omission or commission. They found that the death arose from negligent omission on the part of the prisoner in not putting the stage on the mouth of the shaft. After consideration, the judgment of the Court of Criminal Appeal was delivered by Lord Campbell. He said: "We are of opinion that this conviction should be affirmed. It was the duty of the prisoner to place the stage on the mouth of the shaft. The death of the deceased was the direct consequence of the omission to perform this duty. If the prisoner of malice aforethought, and with the premeditated design of causing the death of the deceased, had omitted to place the stage, and the death had thereby been caused, the prisoner would have been guilty of murder. If the omission was not malicious, and arose from negligence only, it is a case of manslaughter. There is no authority for the position that without an act of commission there can be no manslaughter. the contrary the doctrine is well established, that what constitutes murder, being by design and of malice prepense, constitutes manslaughter when arising from culpable negligence."

On

The case of R. v. Bennett (8 Cox's C. C. 74) is a very important one on the subject of criminal negli gence. The prisoner had for years been accustomed to keep fireworks in a house in London for sale. Part of the process of manufacture of some of them was carried on in his house, contrary to the statute 9 & 10

Will. III. c. vii. By the supposed negligence of one of his servants an ignition of red fire was caused, which communicated to the other fireworks, and a rocket shot across the street, and set a house on fire, by which the death of a person was caused. The prisoner was out of the house at the time, and did not personally interfere in any way. The conviction was held wrong. The Lord Chief Justice said: "The keeping of the fireworks in the house caused the death only by the superaddition of the negligence of someone else. The keeping of the fireworks may be a nuisance, and if from that unlawful proceeding the death had ensued as a necessary and immediate consequence, the conviction might be upheld. But the keeping them did not alone cause the death, but that act of the defendant plus the act of somebody else did. The defendant therefore was not liable." In other words, it appeared that as the proximate cause of the death was the negligence, not of the defendant, but of the servant, and that servant's negligence was in no way connected with the keeping of the fireworks, no personal responsibility attached to the owner, although he might have been indicted for a nuisance.

In the case of R. v. Lowe (4 Cox's C. C. 449), the prisoner was charged with manslaughter. He had been employed to attend the steam-engine, by which the skip or basket was raised or let down the shaft with the workmen. When the men came up, it was the prisoner's duty to set the engine in motion to raise the skip until it reached about two feet above the mouth of the pit, and then to stop the engine, so as to allow a waggon to be moved over the mouth to