* (c) 2003 Michael Ashley Stein, Assistant Professor, College of William & Mary School of Law. The author is indebted for comments received, over various periods of time, from J.H. Baker, W.R. Cornish, Charles Donohue, John Duffy, Richard Epstein, George Fisher, T.P. Gallanis, John Goldberg, Robert Gordon, Douglas Hay, Steve Hedley, David Howarth, Rande Kostal, James Oldham, M.J. Prichard, Brian Simpson, Aviam Soifer, John Witt, and James Black, in addition to the feedback received when presenting this paper at Cambridge University and Harvard Law School workshops. The W.M. Tapp Studentship of Gonville & Caius College, which made the initial research possible, is very gratefully acknowledged. Additional funding was provided by a summer stipend from the National Endowment for the Humanities, and by a grant from the Mark DeWolfe Howe Fund of Harvard Law School. This Article is dedicated to Norman F. Cantor, whose kindness I acknowledge but cannot repay.
1 3 Murph. & H. 305 (Ex. 1837) The decision is reported by four different sources. The Murphy & Hurlstone version is the most detailed, offering a brief account of both the assize trial and the arguments presented to the Court of Exchequer. Accordingly, it will be utilised exclusively unless otherwise noted.
2 Working from the 1840 diaries of the philanthropic Earl of Shaftsbury, his biographer recounted that Lord Ashley sponsored two actions by injured employees against their masters. All that is known about the first is that the action settled out of court. The second involved a factory girl named Elizabeth Cottrell who was grievously injured when her dress was caught on an unfenced shaft. Before Rolfe, B. at the 1840 Liverpool Summer Assizes, the defendant factory owner Samuel Stocks conceded liability for �100, plus �600 in costs for the redoubtable advocate (and later Court of Common Pleas judge) Cresswell Cresswell. See Edwin Hodder, The Life And Work of the Seventh Earl of Shaftsbury, K.G. 301, 347 (1866); A.W. Brian Simpson, Leading Cases in the Common Law 128 (1995). Variant perceptions on the absence of such cases prior to 1837 are set forth infra in note 258.
3 A representative list includes formidable legal historians among its members. See, e.g., J.H. Baker, An Introduction to English Legal History 471 (3d ed. 1990) (1971) (“it was held in 1837 that an employee could not sue his master for the negligence of a fellow employee”); W.R. Cornish & G. de N. Clark, Law and Society in England 1750-1950, at 496–98 (1989); Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, 40 Yale L.J. 161, 162 (1930) (“In Priestley v. Fowler the famous or infamous doctrine of common employment was first laid down.”).
4 For instance, Friedman and Ladinsky’s appraisal that the opinion was “diffuse and unperceptive,” linked to “the onrush of the industrial revolution.” Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, in American Law and the Constitutional Order 269, 270 (Lawrence M. Friedman & Harry N. Scheiber eds., 1978).
5 See Simpson, supra note 2, at 100–34.
6 See Richard A. Epstein, The Historical Origins and Economic Structure of Workers’ Compensation Law, 16 Ga. L. Rev. 775, 777 (1982).
7Terence Ingman, A History of the Defense of Volenti Non Fit Injuria, 26 Jurid. Rev. 1, 8–9 (1981) [hereinafter Ingman, History]; Terence Ingman, The Rise and Fall of the Doctrine of Common Employment, 23 Jurid. Rev. 106, 108–09 (1978) [hereinafter Ingman, Rise and Fall].
8 See R.W. Kostal, Law and English Railway Capitalism 1825-1875, at 268 (1994).
9 Unsuccessful in the immediate sense that Charles Priestley’s injuries were uncompensated. In a later work, the author will illustrate how nineteenth century English appellate court judges laboured assiduously to extend this non-liability for personal injuries to their servants. At the same time, the narrow window of liability which did (rarely) prevail may be said to originate in Priestley.
10 3 Bing. (N.C.) 468, 132 Eng. Rep. 490 (C.P. 1837).
11 2 M. & W. 519, 150 Eng. Rep. 863 (Ex. 1837).
12 5 Ex. 343, 155 Eng. Rep. 150 (1850).
13 5 Ex. 354, 155 Eng. Rep. 155 (1850).
14 In the United States, where the defence is known as the fellow servant rule, its clearest statement was articulated by Shaw, C.J. in Farwell v. Boston & Worcester Railroad Corp., 45 Mass. 49 (1842), although the principle was first enunciated in Murray v. South Carolina Railroad, 26 S.C.L. (1 McMul.) 385 (1838).
15 Following Simpson’s lead, this section utilises the following newspaper accounts to supplement the pre-Court of Exchequer exegesis of the case: Boston, Louth & Spalding Herald, July 19, 1836; Doncaster, Nottingham & Lincoln Gazette, July 19, 1836; Gainsborough, Isle of Axholme, Louth & Lindsay Advertiser, July 19, 1836; Lincoln, Boston & Newark Tuesday’s Gazette, July 19, 1836; Lincoln, Rutland & Stamford Mercury, July 22, 1836; Lincolnshire Chron. & Gen. Advertiser, June 5, 1835; Lincolnshire Chron. & Gen. Advertiser, July 22, 1836; Northampton Mercury, July 23, 1836. Unless otherwise indicated, the pre-appellate account is drawn collectively from the above sources.
16 Two individuals surnamed Priestley had previously litigated related issues. Underhill v. Priestley (1781) reported a claim against one Thomas Priestley for negligently driving a loaded cart, while Priestley v. Watson, 3 C. & M. 691, 149 Eng. Rep. 938 (Ex. 1834), recounted the suit by a Joseph Priestley challenging Brotherton township’s Poor Law assessments against the Aire & Calder Navigation Company. The former opinion may be found in James Oldham, 2 The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century 1137 (1992). The latter case was determined in the Court of Exchequer one term before Lord Abinger was appointed Chief Baron.
17 None of the accounts make clear who loaded the wagon with the “peds” (i.e., hampers) of mutton.
18 Diverging from the other four accounts, Murphy & Hurlstone reported that the “plaintiff remonstrated, on account of the cart being overloaded, and too weak to bear the load, and it being dangerous to go by it.” Priestley, 3 Murph. & H. at 305. Although arguments before the Court of Exchequer would later make heavy weather over Priestley’s acquiescent riding in the van, the discrepancy over the complaint’s source is immaterial. Whether Priestley or Beeton, Priestley either was of the opinion, had confirmed his opinion, or was given notice of Beeton’s opinion, that the van was overloaded. Relying on the Murphy & Hurlstone report, Ingman’s account in Rise and Fall was rightly taken to task as “incorrect” by Simpson. Simpson, supra note 2, at 107 n.28; see Ingman, Rise and Fall, supra note 7. Kostal was likewise mistaken. See Kostal, supra note 8, at 260.
19 Simpson intimated that the cart might have been loaded by unidentified mutton suppliers. See Simpson, supra note 2, at 103.
20 This is demonstrated, among other cases, by Tomlinson v. Bentall, 5 B. & C. 738, 108 Eng. Rep. 274 (K.B. 1826), and Lamb v. Bunce, 4 M. & S. 274, 105 Eng. Rep. 836 (K.B. 1815).
21 A considerable amount, especially when compared to the annual �80 medical budget of the parish union that presented the charge to Priestley. See Simpson, supra note 2, at 126.
22 See id. at 127. Simpson ventured that “some discreet arrangement” might have been entered into by Brown Priestley, the innkeeper, and the surgeons. Id.
23 “The present action was brought to recover the amount of the expenses for which the father had been put in consequence of this lamentable occurrence.” Northampton Mercury, July 23, 1836.
24 In relating the events of trial, Kostal inadvertently identified the jurist as Parke, B. rather than Park, J., possibly because Bartrip and Burman identified the jurist as “Parke, J.” P.W.J. Bartrip & S.B. Burman, The Wounded Soldiers of Industry 104 (1983); Kostal, supra note 8, at 262, 262 n.45. The error is significant because Park, J. in both the Priestley assize case and the Court of Common Pleas case of Vaughan v. Menlove, 3 Bing. (N.C.) 468, 132 Eng. Rep. 490 (C.P. 1837), fostered master/servant liability. As will be seen below, Parke, B. took the opposite approach. See infra notes 115–116 and accompanying text.
25 See E. Foss, A Biographical Dictionary of the Judges of England 1066-1870, at 496–97 (1870) (describing Park, J.’s “only drawback” as “a certain irritability about trifles, which too frequently excited the jocularity of the bar”); 15 Dictionary of National Biography 216 (Oxford University Press CD-ROM, version 1.0, 1995) (“[a]s a judge, though not eminent, he was sound, fair, and sensible, a little irascible, but highly esteemed”). A popular yarn represented Park, J. as the illegitimate son of George III, to whom he bore a resemblance. See Michael Gilbert, The Oxford Book of Legal Anecdotes 234 (1986).
26 Coronet and Lieutenant in the Royal Horse Guards, and Tory M.P. for Leicester during the course of Priestley. See 7 Dictionary of National Biography, supra note 25, at 283. Simpson mistakenly reported Goulbourne’s legislative career as “M.P. for Ipswich.” Simpson, supra note 2, at 102 n.8. Although not egregious, the oversight is relevant. Had Goulbourne successfully contested representation for Ipswich in 1832, he would have been a colleague of Sir James Scarlett (later Abinger, C.B.), who was returned for Norwich in that same election. See 17 Dictionary of National Biography, supra note 25, at 890.
27 Afterward a county court judge. See Simpson, supra note 2, at 102 n.9.
28 Also the author of a legal text. See J. Adams, A Treatise on the Principles and Practice of the Action of Ejectment and the Resulting Action for Mesne Profits (2d ed. 1818).
29 A respected lecturer on jurisprudence, Amos would become the first Professor of Law at the University of London (later University College), then the Downing Professor at Cambridge University from 1849 to 1860. See 1 Dictionary of National Biography 366–67, supra note 25.
30 No evidence exists of how such expensive legal talent was retained, although Simpson surmised that a contingency fee may have been arranged for Priestley. Simpson, supra note 2, at 102. Kostal concurred, adding that “the number of lawyers in towns like Lincoln was on the rise in this period,” thereby “increasing the chance that one of their number would become interested in Priestley’s predicament.” Kostal, supra note 8, at 261 n.34. This begs the question of how Fowler, as a defendant unable to proceed under a contingency fee, could have afforded his counsel, and raises the conjecture that those costs contributed to his subsequent bankruptcy. See Priestley v. Fowler, 3 Murph. & H. 305, 305 (Ex. 1837); Lincolnshire Chron. & Gen. Advertiser, Jan. 24, 1837.
31 See Priestley, 3 Murph. & H. at 305.
32 Lincolnshire Chron. & Gen. Advertiser, July 22, 1836.
33 See id.
34 Id.
35 Lincoln, Boston & Newark Tuesday’s Gazette, July 19, 1836.
36 Lincolnshire Chron. & Gen. Advertiser, July 22, 1836.
37 See id.
38 Id.
39Id. Subtracting the medical expenses of �50, Priestley received �50 in damages. While no evidence exists as to Priestley’s yearly wages, it was probably not more than the few pounds earned annually by domestic servants, thus equating the damages to as many as ten years’ pay. See Ann Kussmaul, Servants in Husbandry in Early Modern England 35–39 (1981).
40 Priestley, 3 Murph. & H. at 305. In the Law Journal account, Adams moved “on the ground that the declaration did not allege that it was the duty of the plaintiff to go in the van.” See Priestley v. Fowler, 7 L.J. Ex. 43 (1837).
41 Priestley, 3 Murph. & H. at 305. The latter part of the motion is not addressed by other law reports.
42 In addition to Abinger, C.B., were Parke, Bolland, Alderson, and Gurney, B.B. See E. Foss, 9 The Judges of England: With Sketches of Their Lives 62 (1864).
43 At this point the four reports diverge in their treatment of counsel’s arguments. Murphy & Hurlstone and Meeson & Welby offer significantly similar and detailed accounts, the Law Journal an abbreviated version, and the Jurist none at all.
44 Bolstering the Law Journal report that plaintiff’s counsel showed cause at an earlier time. See Priestley, 7 L.J. Ex. at 43.
45 Priestley v. Fowler, 3 M. & W. 1, 2, 150 Eng. Rep. 1030, 1031 (1837).
46 Priestley, 3 Murph. & H. at 305.
47 Priestley, 3 M. & W. at 2, 150 Eng. Rep. at 1031.
48 Priestley, 3 Murph. & H. at 305–06.
49 Moreover,
a master, knowing a room to be infectious, puts a servant to sleep there, and the servant incurs a disease, the master would be clearly liable; but it would be otherwise if he had put him in a room where the windows were broken, and the place otherwise so obviously ruinous, as that he himself could actually see its condition; in the latter case you would hardly say that the master would be liable for an injury that resulted to the servant.
Id.
50 The reports are distorted on this point. In Meeson & Welsby and the Law Journal, Abinger, C.B. made this contractual analogy while in Murphy & Hurlstone it is raised by Serjeant Goulbourne in response to Abinger, C.B.’s query. See Priestley, 3 M. & W. at 3, 150 Eng. Rep. at 1031; Priestley, 7 L.J. Ex. at 43; Priestley, 3 Murph. & H. at 306.
51 Priestley, 3 Murph. & H. at 306. Meeson & Welby reported that Goulbourne further extended the coach/passenger comparison by positing whether recovery would be affected for a coach passenger who noticed that “the coachman was intoxicated or the horses unruly.” Parke, B. responded that under those circumstances the duty to carry the passenger safely would only extend as far as the conditions known to the passenger, i.e., that of a drunken driver with a rambunctious horse. Abinger, C.B. added that a “stage-coachman” who knowingly drove a recalcitrant horse would also be barred from recovery. Priestley, 3 M. & W. at 3, 150 Eng. Rep. at 1031.

52 See Priestley, 3 Murph. & H. at 306. Meeson & Welby offered a different version wherein Goulbourne admitted that “[i]t does not appear on the face of the declaration, that the plaintiff knew the van was overloaded, and it cannot be intended after verdict: on the other hand, it does not appear that the defendant knew it.” Priestley, 3 M. & W. at 3, 150 Eng. Rep. at 1031. Relying upon this report of the case, Haines castigated Goulbourne for sloppy lawyering. See B.W. Haines, English Labour Law and the Separation From Contract, 1 J. Legal Hist. 262, 284 (1980). Using the Murphy & Hurlstone version, Kostal agreed. See Kostal, supra note 8, at 262.

53 Priestley, 3 Murph. & H. at 305.
54 Id.
55 Because the action alleged was “in the nature of a contract,” it should have been brought in assumpsit. Instead, the plaintiff had sought relief in case, which as a tort required common-law liability to exist between master and servant. Id.
56 Id. at 305–07.
57 That Serjeant Adams raised this issue after the Court of Exchequer had already disposed of it during Serjeant Goulbourne’s appeal lends additional support to the Law Journal report that Goulbourne had spoken on a previous occasion. See Priestley, 7 L.J. Ex. at 43.
58 Id.
59 The ten month delay, according to Simpson, “suggests some difficulty in achieving unanimity.” Simpson, supra note 2, at 107; see also Lincoln, Rutland & Stamford Mercury, Jan. 20, 1837 (“[t]he Court would take time to look into the case, as it was a nice one, and involved some important consequences”).
60 Whose constituency had not been altered in the interval. Foss, supra note 42, at 62.
61 With one minor exception, the opinion is related verbatim in all the reported versions.
62 In so doing, Abinger, C.B. “was not evaluating evidence, but determining as a matter of law whether knowledge could be ‘intended’ after verdict.” Simpson, supra note 2, at 107 n.28. Kostal and Ingman nevertheless took Abinger, C.B. to task for ignoring evidence submitted at trial. See Kostal, supra note 8, at 263; Ingman, Rise and Fall, supra note 7, at 108–09.
63 Priestley, 3 Murph. & H. at 307.
64 Id. at 308.
65 Id.
66 In addition, Abinger, C.B. anticipated that
[t]he master would also be liable for the acts of the upholsterer for sending in a crazy bedstead, whereby the servant was made to fall down, while asleep, and injure himself; for the negligence of the cook in not properly cleansing the copper vessels used in the kitchen; of the butcher in supplying the family with meat of a quality injurious to health; of the builder for a defect in the foundation of the house, whereby it fell and injured both the master and servant in ruins.
Id.
67 Id.
68 Priestley, 3 Murph. & H. at 307. In the Law Journal report, Abinger, C.B. cited the irrelevant case of Levinson v. Kirk, 1 Lane 65, 145 Eng. Rep. 303 (Ex. 1610), a suit by a merchant against a servant for not paying customs duty on his consignment of goods. Priestley, 7 L.J. Ex. at 43.
69 See Priestley, 3 Murph. & H. at 308. Thus “the plaintiff must have known, as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely.” Id. Haines explained this passage by stating that
the reasoning of the court seems to be that the master was not liable because, had he got into the van instead of his servant he could not have brought an action, as it was possible for him to see the van was overloaded and therefore the servant could have seen it also, and both could have refused to ride.
Haines, supra note 52, at 282. More accurately, the Court of Exchequer meant that (1) even if Fowler did not agree with his judgment, Priestley did not have to ride in the van if he thought it overloaded, and (2) when Priestley (and of course, not Fowler) heard the axle crack near Peterborough, he should not have continued riding.
70 Priestley, 3 Murph. & H. at 308.
71 See generally Percy H. Winfield, Duty in Tortious Negligence, 34 Colum. L. Rev. 41 (1934) [hereinafter Winfield, Duty]; Percy H. Winfield, The History of Negligence in the Law of Tort, 42 L.Q. Rev. 184, 195 (1926) [hereinafter Winfield, History]; Percy H. Winfield, Law of Tort, 51 L.Q. Rev. 249 (1935); Percy H. Winfield, The Myth of Absolute Liability, 42 L.Q. Rev. 37 (1926) [hereinafter Winfield, Myth]; Percy H. Winfield, Nuisance as a Tort, 4 Cambridge L.J. 13 (1931); Percy H. Winfield & Arthur L. Goodhart, Trespass and Negligence, 49 L.Q. Rev. 359 (1933); see also Percy H. Winfield, Province of the Law of Tort (1931).
72 See generally Winfield, Myth, supra note 71; Winfield & Goodhart, supra note 71.
73 See generally Winfield, Duty, supra note 71.
74 “To fix dates is to invite instant criticism, but we are not far out if we select the period from about 1825 onwards as the most fruitful.” Winfield, History, supra note 71, at 195.
75 See id. at 185.
76 See id. at 195, 185; Winfield, Duty, supra note 71, at 41.
77 See Winfield, Duty, supra note 71, at 44–48.
78 See id.
79 See id. at 44–45.
80 See C.H.S. Fifoot, History and Sources of the Common Law: Tort and Contract 154–66 (1949) [hereinafter Fifoot, History and Sources]; C.H.S. Fifoot, Judge and Jurist in the Reign of Victoria 31–56 (1959) [hereinafter Fifoot, Judge and Jurist].
81 M.J. Prichard, Scott v. Shepherd (1773) and the Emergence of the Tort of Negligence (1976) [hereinafter Prichard, Scott v. Shepherd]; M.J. Prichard, Trespass, Case and the Rule in Williams v. Holland, 1964 Cambridge L.J. 234 [hereinafter Prichard, Trespass].
82 See Baker, supra note 3, at 465; J.H. Baker, Introduction to II The Reports of Sir John Spelman (J.H. Baker ed., 1977), in 94 Selden Soc’y 23, 224–30 (1977).
83 Winfield, History, supra note 71, at 185.
84 See Fifoot, History and Sources, supra note 80, at 164.
85 See Fifoot, Judge and Jurist, supra note 80, at 32. Curiously, Fifoot did not discuss running-down cases in his writings. Instead, Govett v. Radnidge, 3 East. 62, 102 Eng. Rep. 520 (K.B. 1802), a negligence action for carelessly loading a hogshead of treacle, is discussed in both works.
86 See Prichard, Trespass, supra note 81, at 235.
87 Id. at 241.
88 1 Vent. 295, 2 Lev. 172, 3 Keb. 650 (1676).
89 Prichard, Trespass, supra note 81, at 234–38. Pritchard’s “thin trickle” thesis is confirmed by the presence of a number of “negligence-between-strangers” cases at nisi prius before Lord Mansfield. See Oldham, supra note 16, at 1119–21.
90 Baker, supra note 3, at 457 (citing thirteenth century Plea Roll cases).
91 Hulle v. Orynge, Mich. 6 Edw. IV, fo. 7, pl. 18 (1466); Baker, supra note 3, at 457.
92 Baker, supra note 3, at 457.
93 Id. at 461–64; see Francis Buller, An Introduction to the Law Relative to Trials at Nisi Prius 35–37 (1768) (delineating the proper procedural method for framing pleadings in accident cases). The explanation may originate, as do many other insightful ones, with the venerable S.F.C. Milsom. See S.F.C. Milsom, Historical Foundations of the Common Law 283–313 (2d ed. 1981).
94 Baker, supra note 3, at 462.
95 See id. at 456.
96 Although cautioning that more evidence is necessary to support this view, Simpson is “inclined” towards the “hypothesis” that “what happened in the nineteenth century was not the substitution of new law for old law, but the creation of law where there had been none before.” A.W.B. Simpson, Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher, 13 J. Legal Stud. 209, 215 (1984). Simpson has subsequently hypothesised that the dearth of case law prior to the nineteenth century resulted from the standards of liability having been left to juries. Specifically, that defendants would plead the general issue (meaning, “not guilty”) and then give their stories in evidence. In this circumstance, there is virtually no information on what judges said to juries. Correspondence on file with author.
97 See Winfield, Duty, supra note 70, at 54, 51.
98 3 Bing. (N.C.) 468, 132 Eng. Rep. 490 (C.P. 1837).
99 2 M. & W. 519, 150 Eng. Rep. 863 (Ex. 1837).
100 This term was coined by Prichard. See Prichard, Scott v. Shepherd, supra note 81, at 30.
101 See Winfield, Duty, supra note 70, at 54. See generally C.G. Addison, Wrongs and Their Remedies, Being A Treatise on the Law of Torts 5 (1860); C. Collett, A Manual of the Law of Torts, and of the Measure of Damages 6–13 (2d ed. 1866).
102 3 Bing. at 468, 132 Eng. Rep. at 490.
103 The haystack or “hay-rick” was constructed on the defendant’s side of the boundary between the parties’ land, in close proximity to the plaintiff’s cottages. When the hay spontaneously ignited, the plaintiff’s buildings caught fire and were burned down. See id.
104 Vaughan, 3 Bing. at 471, 132 Eng. Rep. at 492. This direction was the first annunciation of the objective, or “reasonable man” standard in negligence actions. See Simpson, supra note 2, at 108. In the nisi prius report, Patteson, J.’s jury instructions are given as follows:
You will say whether the defendant has acted as a man of ordinary skill and prudence would have acted, or whether through his negligence and carelessness the plaintiff’s property has been consumed. . . . if you think that by his injudicious want of care the injury has been occasioned, he is liable in this action.
7 Car. & P. 525, 173 Eng. Rep. 232 (1836).
105 Vaughan, 3 Bing. at 468, 132 Eng. Rep. at 490–91.
106 Id.
107 Id.
108 2 M. & W. at 519, 150 Eng. Rep. at 863.
109 Id.
110 Langridge, 2 M. & W. at 521, 150 Eng. Rep. at 864.
111 Langridge, 2 M. & W. at 521–22, 150 Eng. Rep. at 864.
112 Langridge, 2 M. & W. at 522, 150 Eng. Rep. at 865.
113 In so arguing, counsel was presumably referring to Dixon v. Bell, 1 Stark. 287 (1816), wherein an action was sustained against a defendant who had entrusted his loaded gun to a servant who then accidentally shot plaintiff’s son. Langridge, 2 M. & W. at 524–25, 150 Eng. Rep. at 866.
114 Langridge, 2 M. & W. at 522, 526, 150 Eng. Rep. at 865.
115 Langridge, 2 M. & W. at 529, 532, 150 Eng. Rep. at 867–68.
116 Langridge, 2 M. & W. at 530, 150 Eng. Rep. at 868. The Exchequer Chamber affirmed “on the ground stated by Parke, B.” Langridge v. Levy, 4 M. & W. 337, 338–39, 150 Eng. Rep. 1458, 1459 (Ex. 1838).
117 See Simpson, supra note 2, at 123–27.
118 Id.
119 Other reasons are set out infra note 157.
120 It is instructive that in prefacing his arguments Goulbourne stated that “there is no precedent exactly in point,” while Abinger, C.B.’s opinion was absolute in insisting that “there is not precedent for the present action.” Priestley v. Fowler, 3 Murph. & H. 305, 306–07 (Ex. 1837).
121 See id. at 305–06.
122 Thus, he concluded that if brought in assumpsit the law would have implied a promise “co-extensive” to the violations of duty alleged under case in the declaration. Id. at 306.
123 Id. at 307.
124 See 3 Bing. at 474–76, 132 Eng. Rep. at 493.
125 Cf. Simpson, supra note 2, at 108 (referring to the concurrence as “odd”).
126 How frequently advocates relied upon word-of-mouth remains open to conjecture. It bears reminding, however, that the reports would not have been published until well after the Chief Baron had delivered his opinion in Priestley.
127 Priestley, Murph. & H. at 305.
128 Vaughan, 3 Bing. at 476, 132 Eng. Rep. at 493.
129 Priestley, 3 Murph. & H. at 308.
130 Vaughan, 3 Bing. at 475, 132 Eng. Rep. at 493.
131 2 Murph. & H. at 519, 150 Eng. Rep. at 867–68.
132 Priestley, 3 Murph. & H. at 306.
133 2 M. & W. at 523, 150 Eng. Rep. at 865.
134 Priestley, 3 Murph. & H. at 306.
135 2 M. & W. at 525, 150 Eng. Rep. at 866.
136 15 Dictionary of National Biography, supra note 25, at 226; see also P.S. Atiyah, The Rise and Fall of Freedom of Contract 369 (1979) (observing that Parke, B. plied “a dominating influence in the Court of Exchequer”).
137 The more notable being Quarman v. Burnett, 6 M. & W. 499, 151 Eng. Rep. 509 (Ex. 1840), and Joel v. Morrison, 6 Car. & P. 502, 172 Eng. Rep. 1338 (Ex. 1834).
138 3 Murph. & H. at 306.
139 2 M. & W. at 530, 150 Eng. Rep. at 866.
140 See 3 Murph. & H. at 307.
141 5 Ex. 343, 155 Eng. Rep. 150 (1850).
142 5 Ex. 354, 155 Eng. Rep. 155 (1850).
143 A. Birrell, Four Lectures on the Law of Employers’ Liability at Home and Abroad 26–27 (1897); see also A.H. Manchester, A Modern Legal History of England and Wales 1750-1950, at 288 (1980) (noting that it was Hutchinson that “really established the rule”).
144 Although the Supreme Judicial Court of Massachusetts, in Farwell v. Boston & Worcester R.R. Corp., 45 Mass. 49 (1842), would do so conclusively. The assertion by Kostal that the Assize case Armsworth v. South Eastern Ry., 11 Jur. 758 (1848), indirectly raised the issue is addressed below. See infra notes 254–257 and accompanying text.
145 Lord Campbell’s Act (Fatal Accidents Act), 1846, 9 & 10 Vict., c. 93.
146 Hutchinson, 5 Ex. at 343, 155 Eng. Rep. at 150.
147 Hutchinson, 5 Ex. at 346–47, 155 Eng. Rep. at 152.
148 Id.
149 Hutchinson, 5 Ex. at 348, 155 Eng. Rep. at 153.
150 Id.
151 The assize decision in Wigmore v. Jay was, regrettably, unreported. Parke, B.’s remark appears only in the Law Journal report. See 19 L.J. Ex. 296 (1850).
152 Hutchinson, 5 Ex. at 349, 155 Eng. Rep. at 153.
153 Id.
154 Hutchinson, 5 Ex. at 350, 155 Eng. Rep. at 154.
155 See Hutchinson, 5 Ex. at 349, 353, 155 Eng. Rep. at 154–55.
156 5 Ex. at 354, 155 Eng. Rep. at 155 (1850).
157 Hutchinson, 5 Ex. at 354, 356, 155 Eng. Rep. at 156.
158 Wigmore, 5 Ex. at 357, 155 Eng. Rep. at 156.
159 Id.
160 See Wigmore, 5 Ex. at 357–58, 155 Eng. Rep. at 156–57.
161 See Wigmore, 5 Ex. at 358, 155 Eng. Rep. at 157.
162 A.H. Ruegg, A Treatise Upon the Employers’ Liability Act, 1880, at 7 (1882).
163 3 Macq. 265, 300 (1858). Although the House of Lords delivered two separate opinions, only the first (which controlled the second’s resolution) is typically referenced.
164 Cornish & Clark, supra note 3, at 498. The decision would, however, meet with much reproach, especially from Scottish commentators who viewed it as a form of legal imperialism. Typical are the fulminations of A.D. Gibb. See A.D. Gibb, Law from over the Border: A Short Account of a Strange Jurisdiction 58–59, 99–100 (1950). The validity of the view from over the Tweed, although for reasons other than those traditionally given, will comprise a future article by this author.
165 Following the demise of Darby’s brief ministry. See 17 Dictionary of National Biography, supra note 25, at 160.
166 Sitting in the Court of Exchequer from 1839 until he was appointed a Commissioner of the Great Seal in June, 1850, about a month after Hutchinson. Id. at 159–60.
167 Lord Wensleydale of Walton was elevated to a peerage in tail male by patent on July 23, 1856, a month after oral argument in Reid, despite Lord Cranworth’s having assiduously promoted the government’s position that it was empowered to confer a lifetime peerage upon his erstwhile Court of Exchequer colleague. See 15 Dictionary of National Biography, supra note 25, at 226; Letters Patent Creating the Right Honourable Sir James Parke Knight, Baron Wensleydale (1856).
168 Thus, Cranworth, L.C.: “The principle of the law of England I take to have been ennunciated in the case of Hutchinson . . . .” Bartonshill, 3 Macq. at 276. Parenthetically, Lord Cranworth appended the entire Farwell opinion to his judgment in McGuire, thus raising the interesting question of whether the real villain in the development of common employment was not Abinger, C.B., but rather the redoubtable Lemuel Shaw. This seems plausible because the eight year gap between Farwell and Hutchinson was sufficient for knowledge of the former to have crossed the Atlantic. Such a scenario also raises the possibility that the “influence” which is normally thought to have proceeded in only one direction during this period, from England towards America, might in fact have also went the other way.
169 See Weems v. Mathieson, 4 Macq. 215 (1861); Brydon v. Stewart, 2 Macq. 30 (1855); Paterson v. Wallace & Co., 1 Macq. 748 (1854).
170 6 M. & W. 499, 151 Eng. Rep. at 509 (Ex. 1840).
171 6 Car. & P. 502, 172 Eng. Rep 1338 (Ex. 1834).
172 11 Ex. 257, 156 Eng. Rep. 826 (1855).
173 Metcalfe, 11 Ex. at 270, 156 Eng. Rep. at 832.
174 1 B. & S. 437, 442, 445, 121 Eng. Rep. 778, 780–81 (K.B. 1861).
175 Mellors, 1 B. & S. at 437, 439, 121 Eng. Rep. at 779.
176 Mellors, 1 B. & S. at 440, 442, 121 Eng. Rep. at 779–80. Plaintiff was represented by Messrs. Mainsty and Quain, defendants by Mr. T. Jones (of the Northern Circuit).
177 Mellors, 1 B. & S. at 443, 121 Eng. Rep. at 780. He expressed a similar view in Clarke v. Holmes, 7 H. & N. 937, 938, 946, 158 Eng. Rep. 751, 754–55 (Ex. 1862), a decision upholding liability for personal negligence in failing to fence dangerous machinery.
178 Mellors, 1 B. & S. at 446, 121 Eng. Rep. at 781.
179 As in Wright v. London & North Western Ry., 1 Q.B.D. 252, 257 (1876), or Ashworth v. Stanwix, 3 El. & El. 701, 121 Eng. Rep. 606, 607 (K.B. 1860). See, as well, the arguments made by counsel in Tarrant v. Webb, 18 C.B. 797, 139 Eng. Rep. 1585, 1586 (C.P. 1856).
180 11 Ex. 832, 156 Eng. Rep. 1069 (1856).
181 Wiggett, 11 Ex. at 838, 156 Eng. Rep. at 1072.
182 See W.C. Spens & R.T. Younger, The Law of Employers and Employed as Regards Reparation for Physical Injury 65 (1887). The authors quote the testimony of Mr. C.P. Ilbert of the Indian Legislature before the Select Committee on Employers’ Liability in July 1876 as: “I do not think that any distinct rule is laid down on the case. Priestley v. Fowler is cited as an authority for the rule for which it is not in reality an authority.” Id.
183 R.J. Browne, A Practical Treatise on Actions at Law 184 n.o (1843).
184 2 P. Fraser, A Treatise on the Laws of Scotland 426 (1846).
185 C.G. Addison, A Treatise on the Law of Contracts, and Rights and Liabilities ex Contractu 740 (1847).
186 C.J.B. Hertslet, The Law Relating to Master and Servant: Comprising Domestic and Menial Servants and Clerks, Husbandmen, and Persons Employed in the Different Manufactures 8–9 (1850).
187 M.M. Bigelow, Leading Cases on the Law of Torts 707 (1875).
188 C. Petersdorff, A Practical Compendium of the Law of Master and Servant 44 (2d ed. 1999) (1876). Perhaps not surprisingly for, as will be shown below, Petersdorff had represented the widow Armsworth.
189 J. Paterson, Notes on the Law of Master and Servant, With All the Authorities 56 (1885).
190 Sir W.H. Roberts & G.H. Wallace, The Duty and Liability of Employers as Well to the Public as to Servants and Workmen 136–38 (3d ed. 1885).
191 Sir F. Pollock, The Law of Torts 84 n.x (1887).
192 Sir H. Fraser, A Compendium of the Law of Torts 110 (1888).
193 T. Beven, Principles of the Law of Negligence 370–72 (1889) [hereinafter Beven, Principles]. Beven initially raised this point in an earlier treatise. See T. Beven, The Law of the Employers’ Liability for the Negligence of Servants Causing Injury to Fellow Servants 19–20 (1881) [hereinafter Beven, Employer’s Liability].
194Beven, Principles, supra note 193, at 370–71.
195 Id. at 372.
196 Id.
197 Id. at 375.
198 Id. at 356.
199 Beven, Principles, supra note 193, at 378.
200 See, e.g., Addison, supra note 101, at 248; Beven, Employers’ Liability, supra note 193, at 20–21; Beven, Principles, supra note 193, at 356, 378; M.M. Bigelow, Elements of the Law of Torts for the Use of Students 302 (1878); J. Paterson, A Compendium of English and Scottish Law 273 (1860); Paterson, supra note 189, at 49; Petersdorff, supra note 188, at 44 (also citing to Priestley).
201 See, e.g., Beven, Employers’ Liability, supra note 193. See generally W. Bowstead, The Law Relating to Workmen’s Compensation Under the Workmen’s Compensation Acts 1897 & 1900 (1901); A. Macdonald, Handybook of the Law Relative to Masters, Workmen, Servants and Apprentices, in All Trades and Occupations (1868); A. Parsons & T.A. Bertram, The Workmen’s Compensation Acts, 1897 and 1900 (1900); A. Robinson, Employers Liability Under the Workmen’s Compensation Act, 1897 and the Employers’ Liability Act, 1880 (1898).
202 This view was consistently held by Pollock, C.B. See, e.g., Waller v. S. E. Ry. Co., 2 H. & C. 102, 110–11, 159 Eng. Rep. 43, 46 (Ex. 1863) (referring to the decision where common employment was in “principle laid down for the first time”); Riley v. Baxendale, 6 H. & N. 445, 448, 158 Eng. Rep. 183, 184 (Ex. 1861) (The doctrine in Priestley “ought not to be trenched upon. Servants are often far better judges than their masters of the dangers incident to their employment, and whether their fellow servants are trustworthy persons.”); Vose v. London & Yorkshire Ry. Co., 27 L.J. Ex. 249, 2 H. & N. 728, 734, 157 Eng. Rep. 300, 303 (1858) (declaring that “[t]he law must have been the same long before it was enunciated in this Court in the case of Priestley”).
203 The author will delineate the larger story of how and why the doctrine of common employment gained its ascendancy in a future work.
204 Of whom the Exchequer Barons were a particularly warm audience. Examples of their rulings quashing the extension of the independent tort of negligence are: Riley, 158 Eng. Rep. at 183; Dynen v. Leach, 26 L.J. Ex. 221 (1857); Roberts v. Smith, 2 H. & N. 213, 157 Eng. Rep. 89 (Ex. 1857); Metcalfe, 11 Ex. at 257, 157 Eng. Rep. at 1367; Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402 (Ex. 1842).
205 Amongst those principles, which “owe[d] an obvious debt to the lingua franca of political economy,” Cornish and Clark enumerated that servants were familiar with the risks of their employment and that they were thus free not to encounter known dangers. Cornish & Clark, supra note 3, at 498.
206 This was certainly the understanding espoused by Brett, L.J. when giving testimony before the Select Committee on Employers’ Liability in July 1876. See Spens & Younger, supra note 182, at 66. His explanation, as reproduced by Spens and Younger, was that
Lord Abinger, who had been one of the greatest advocates ever known at the bar, had an advocate’s talent, which mainly consists in the invention of analogies, and there never was a more perfect master of that art than Lord Abinger, and he took it with him to the bench; and I think it may be suggested that the law as to the non-liability of masters with regard to fellow servants arose principally from the ingenuity of Lord Abinger in suggesting analogies in the case of Priestley v. Fowler.
Id.
207 “Priestley v. Fowler was one of those unsatisfactory cases in which, under the old system, the question did not arise upon what were the real facts, but upon how they were stated on the record.” Beven, Principles, supra note 193, at 370 n.3 (quoting Brett, L.J. in response to question 1922, giving evidence before the House of Commons Committee on Employers’ Liability, 1877).
208 For example, T.W.S. Firth reasoned that “the van was overloaded by the negligence of other servants of the master” and that Priestley attempted “their negligence [to] be imputed to the master, so as to make him liable.” T.W.S. Firth, On the Law Relating to the Liability of Employers for Injuries Suffered by Their Servants in the Course of Their Employment 18 (1890); see also C.Y.C. Dawbarn, Employers’ Liability to Their Servants At Common Law and Under the Employers’ Liability Act 1880 and the Workmen’s Compensation Acts 1897 and 1900, at 2 (1903) (describing the accident as occurring after the waggon had been “overloaded by the negligence of another fellow servant”). In contrast, Simpson suggested that mutton suppliers might have done the loading. See Simpson, supra note 2, at 103.
209 To be expected, perhaps, from a man described as having been “a strong churchman of moderate tendencies” and “a humane judge.” 1 Dictionary of National Biography, supra note 25, at 243.
210 18 Q.B.D. 685, 692 (1887).
211 1 L.R.C.P. 291, 296 (1865).

212 Compare, for example, the reasoning provided by Erle, C.J. with that of Willes, J. in Lovegrove v. London, Brighton & South Coast Railway Co., 16 C.B. (N.S.) 669, 688, 693, 143 Eng. Rep. 1289, 1297, 1299 (C.P. 1864).

213 Among the prominent waverers was J.W. Salmond. See J.W. Salmond, The Law of Torts: A Treatise on the English Law of Liability for Civil Injuries 92 (1907) (stating that the doctrine of common employment was initially applied in Priestley, but “first definitely formulated” in Hutchinson).
214 See, e.g., J.F. Clerk & W.H.B. Lindsell, The Law of Torts 57 (1889). This representation continued through many editions, the most recent of which was published in 2000.
215 E. Spike, The Law of Master and Servant, in Regard to Domestic Servants and Clerks 43 (1839).
By the relation of master and servant, no contract is implied, and therefore no duty created, on the part of the master, to make good to the servant any damage arising to him from any vice or imperfection (unknown to the master) existing in the article or thing used in his service, or from the mode of using the same; nor for the negligence of his other servants.
Id.
216 E. Spike, The Law of Master and Servant, in Regard to Clerks, Artizans, Domestic Servants, and Labourers in Husbandry (2d ed. 1855).
217 Thus, “a paid servant is bound to observe with care and diligence the interests of his master, and to exercise the same vigilance and attention as the master himself would have.” Id. at 22.
218 Id. at 50; see also id. at 50–52 (quoting the opinion at length).
219 9 Ex. 223, 156 Eng. Rep. 95 (1853).
220 Spike, supra note 216, at 52. All three issued from the Exchequer.
221 E. Spike, The Law of Master and Servant, in Regard to Clerks, Artizans, Domestic Servants, and Labourers in Husbandry (3d ed. 1872).
222 Id. at 60.
223 See Simpson, supra note 2, at 100–34. Simpson’s analysis seems to have been either inspired or anticipated by Kostal. See Kostal, supra note 8, at 260–61 (“[t]he very fact that a lawsuit was commenced indicates that Priestley had taken a dim view of the relief available to him under the recently reformed Poor Laws”); id. at 261 n.33 (“More research needs to be done to determine how Poor Law reform affected labourers and their families.”).
224 See Simpson, supra note 2, at 117.
225 (Poor Law Amendment Act), 1834, 4 & 5 Will. IV, c. 76.
226 See Simpson, supra note 2, at 123–27.
227 Namely, that as of 1837 case law (1) was settled that servants injured during the course of their service gained settlements in the parishes of their employment, and (2) had been unclear on the question of a master’s liability to provide medical assistance for his injured servants. The former is an accurate statement of the law prior to 1795, but fails to account for ensuing rulings made by Ellenborough, C.J.’s King’s Bench, which took the opposite position, denying settlements to incapacitated servants. See, e.g., R. v. Inhabitants of Sudbrooke, 4 East 356, 102 Eng. Rep. 867 (K.B. 1803). As to the latter, Simpson is correct that by the time of Queen Victoria’s ascension the law was settled that masters were not legally responsible for providing medical treatment to their ailing servants unless they themselves solicited or acquiesced in the care. The law was, however, also settled at an earlier date. See, for example, the unequivocal statement of J. Chitty. J. Chitty, A Practical Treatise on the Law of Contracts Not Under Seal 459 (2d ed. 1834); see also Fraser, supra note 184, at 423–25; Spike, supra note 221, at 53–57.
228 Epstein, supra note 6, at 777. See generally Roberts & Wallace, supra note 183, at 179–80.
229 Epstein, supra note 6, at 777.
230 Most prominently, Morton J. Horwitz, The Transformation of American Law 1780–1860 (1977).
231 A fact attested to by the inclusion of methods to allege and defend these claims in the younger Chitty’s pleading manual. See J. Chitty, Precedents in Pleading with Copious Notes on Practice, Pleading and Evidence 148–51, 351–56 (1836).
232 Utilising, among other provisions, the Regulation of Servants and Apprentices Act, 1746, 20 Geo. II, c. 19, which empowered magistrates to hear, determine, and remedy claims of refusal or non-payment of wages between masters and servants in husbandry hired for one year or longer at less than �10; or small craftsmen, labourers or artificers contracted for under �5. R. v. Inhabitants of Polesworth, 2 Barn. & Ald. 483, 106 Eng. Rep. 442 (K.B. 1819), and Lowther v. Radnor, 3 East 113, 103 Eng. Rep. 287 (K.B. 1806), are among the cases which demonstrate the statute’s frequent usage.
233 Although not with great success, due to damages only being recoverable when the character given was patently false, slanderous, and malicious. See, for example, Kelly v. Partington, 4 Barn. & Ad. 700, 110 Eng. Rep. 619 (K.B. 1833), which denied a suit by a shopwoman against her former master for libel in issuing an unflattering character, because actual malice had not been shown. Nevertheless, some plaintiffs did succeed. For instance, in Fountain v. Boodle, 3 Q.B. 5, 114 Eng. Rep. 408 (1842), the Queen’s Bench sustained a libel verdict against a master on the evidence that he had recommended the governess/plaintiff on two prior occasions.

234 As argued persuasively in Michael J. Klarman, The Judge Versus the Unions: the Development of British Labour Law, 1867-1913, 75 VA. L. REV. 1487 (1989).

235 See Bartrip & Burman, supra note 24, at 25–28; John M. Maguire, Poverty and Civil Litigation, 36 Harv. L. Rev. 361, 377 (1923); see also Kostal, supra note 8, at 261 (noting the rise in popularity of contingency arrangements during the Victorian period).
236 See Bartrip & Burman, supra note 24, at 25.
237 See generally Ingman, Rise and Fall, supra note 7.
238 Id. at 109.

239 See Terrence Ingman, The Origin and Development up to 1899 of the Employer’s Duty at Common Law to Take Reasonable Care for the Safety of his Employee (1972).

240 See Bartrip & Burman, supra note 24, at 104–05, 104 n.20.
241 See Wilkins v. Wells, 2 Car. & P. 231, 172 Eng. Rep. 104 (Ex. 1825); Winstone v. Linn, 1 B. & C. 460, 107 Eng. Rep. 171 (K.B. 1823).
242 Legislation also altered the status and treatment of seamen as distinct from that of servants. Thus, the ruling by Denman, C.J. in Kitchen v. Shaw, 6 Ad.& E. 729, 112 Eng. Rep. 280, 281–82 (K.B. 1837), that the Regulation of Apprentices Act, 1766, 6 Geo. 3, c. 25, which allowed a magistrate to jail certain servants for absenting themselves from service without permission, was not applicable to (domestic) servants.

243 See Limland v. Stephens, 3 Esp. 269, 170 Eng. Rep. 611 (K.B. 1801) (holding that master had no action against seaman for desertion where desertion was necessary to his well being); Woolf v. Clagett, 3 Esp. 257, 170 Eng. Rep. 607 (C.P. 1800); Watson v. Christie 2 Bos. & Pul. 224, 126 Eng. Rep. 1248 (C.P. 1800) (finding defendant captain liable for assault on plaintiff seaman).

244 4 M. & S. 274 (1815).
245 Id.
246 4 Car. & P. 581, 172 Eng. Rep. 834 (K.B. 1831).
247 Id.
248 See Bartrip & Burman, supra note 24, at 25; Ingman, supra note 239.
249 3 Esp. 202, 170 Eng. Rep. 588 (C.P. 1800).
250 Id. An analogous rejection of an unknown duty also occurred within the context of criminal negligence. Thus, the King’s Bench in In the Matter of Anon., Overseer of Anon, 3 Ad. & E. 552, 111 Eng. Rep. 524 (1835), declined to grant a criminal information against an overseer who refused to vaccinate the parish’s paupers for small-pox, even after one had died. Its reasoning was that although “these unfortunate occurrences would not have taken place” had the overseer acted otherwise, because there was “no law which prescribes that precautionary measures” had to be taken, the administrator was not answerable. See id.
251 See Ingman, History, supra note 7.
252 See Simpson, supra note 2, at 109.
253 Kostal, supra note 8, at 268, 263.
254 11 Jur. 758 (1848).
255 Lord Campbell’s Act (Fatal Accidents Act), 1846, 9 & 10 Vict., c. 93.
256 Id.
257 See Kostal, supra note 8, at 267.
258 Although so recognised by commentators for almost a century, Bartrip and Burman found this claim questionable but were unable to refute it, despite their plausible hypothesis that similar cases existed at the assize level. Bartrip & Burman, supra note 24, at 24–25. More than a century earlier, citing dicta in Gallagher v. Piper, 16 C.B.(N.S.) 677, 143 Eng. Rep. 1289 (C.P. 1864) (Willes, J.), and in Vose v. London & Yorkshire Rly. Co, 157 Eng. Rep. at 300 (Pollock, C.B.), Beven made a similar assertion. See Beven, Employers’ Liability, supra note 193, at 19. These judges might have had in mind Newby v. Wiltshire, 2 Esp. 739, 170 Eng. Rep. 515 (K.B. 1784), which addressed the related claim by a parish officer against a farmer for the medical costs occasioned by a casual injury to his servant under circumstances strikingly similar to those of Priestley. The catalogue of treatise writers who recognised Priestley’s novelty includes: Dawbarn, supra note 208, at 2; Roberts & Wallace, supra note 190, at 179–80; Salmond, supra note 213, at 91; E.R. Turner, A Treatise on the Employers’ Liability Act 1880, at 9 (1882). While testifying before the Select Committee on Employers’ Liability in July 1876, one witness responded as follows to Pollock, C.B.’s comment from Vose: “All I can say is, that there is no trace of it in the law books at any earlier date than this, and no reference appears to have been made to it by the counsel” for Fowler, “[y]et it is hardly possible that he should not have referred to such a rule if it existed.” Spens & Younger, supra note 182, at 66.
259 A stronger argument for Kostal to have made would have been the one set forth above, namely, that in giving House of Lords decisions on common employment, neither Parke nor Rolfe (as Law Peers) cited Priestley. Nonetheless, this assertion would also have failed for the reasons that follow below in text. See infra notes 260–265 and accompanying text.
260 “I am called on for the first time, to assist in the trial of a case arising under a statue passed last year, which has made a great change in the law of England.” Armsworth, 11 Jur. at 760.
261 Thus, in the second edition of his treatise, Spike noted in relation to Priestley: “This important judgment, every word of which may be considered deserving of attention in any case where it is sought to hold a master liable for an injury received by a person in his employ, has recently been questioned in actions under Lord Campbell’s Act.” Spike, supra note 216, at 52. It may also be inferred from the discussion in Hertslet. See Hertslet, supra note 186, at 9. It hardly seems coincidence that the cases mentioned, in which liability was firmly denied, issued from the Exchequer.
262 Priestley, 3 Murph. & H. at 307. Thus, “[w]ith this sort of action we are familiar; for every day persons bring actions against railway companies, coach proprietors and private individuals for accidents resulting from mismanagement or negligence of their servants.” Armsworth, 11 Jur. at 760.
263 See supra notes 204–208 and accompanying text.
264 Because Priestley can only be unreliable in failing to preclude vicarious liability in Armsworth if it created the defence of common employment. See Michael Lobban, The Common Law and English Jurisprudence 1760–1850, at 285–86 (1991).
265 Warning that in the future masters would be
liable to the servant, for the negligence of the chambermaid, in putting him into a damp bed, for that of the upholsterer for sending in a crazy bedstead, whereby the servant was made to fall down, while asleep, and injure himself for the negligence of the cook in not properly cleansing the copper vessels used in the kitchen; of the butcher in supplying the family with meat of a quality injurious to health; of the builder for a defect in the foundation of the house, whereby it fell and injured both the master and servant in ruins.
Priestley, 3 Murph. & H. at 308.
266 Lobban, supra note 264, at 285–86.