It has been held that a huntsman (n) and a head gardener (o) are menial servants, but that a husbandman (p) is not a menial servant. 43 & 44 Vict. c. 42, s. 8. Defini A potman in a public-house, whose duties, though manual, are substantially of a menial or domestic nature, is not a tions. workman (q). (3) otherwise engaged in manual labour. There is a difference of opinion as to whether the doctrine of ejusdem generis applies to this expression. "The doctrine of ejusdem generis does not apply to the words ' otherwise engaged in manual labour,' because, in the first place, there would have been no necessity for the express exception of domestic or menial servants, and, secondly, because all that was included in the words would have already been included in the word labourer.'" VaughanWilliams, J. (q). The doctrine of ejusdem generis does apply to the words. Day, J. (r), and Smith, J. (8). The expression used, it should be noted, is not manual work, but manual labour, for many occupations involve the former but not the latter, such as telegraph clerks, and all persons engaged in writing. Smith, J. (8). The test of whether an employee is engaged in manual labour, within the meaning of the Employers and Workmen Act, 1875, is—whether such labour is his real and substantial employment, or whether it is incidental and necessary to such employment. The appellant, a grocer's assistant, whose duty it was to serve customers in a shop, had also other duties involving manual labour, such as making up parcels for customers, carrying parcels from the shop to the cart at the door, and bringing up goods from the cellar to the shop. Held, that such occupation was incidental to his real and substantial employment as a salesman, and that he was not engaged in manual labour within the meaning of the Employers and Workmen Act, 1875 (t). An overlooker or superintendent was engaged half his time in supervision and the other half in manual labour. While engaged in supervision he was injured by the defective (n) 1864, Nicoll v. Greaves, 33 L. J., C. P. 259; 10 L. T. 531. (0) 1835, Nowlan v. Ablett, 2 C. M. & R. 54. (p) 1848, Lilley v. Elwin, 11 Q. B. 742. (q) 1893, Fearce v. Lansdowne, 62 L. J., Q. B. 441. (r) 1883, Morgan v. London General Omnibus Co., 12 Q. B. D. 201; 53 L. J., Q. B. 352. (s) 1887, Cook v. North Metropolitan Tramways Co., 18 Q. B. D 683; 56 L. J., Q. B. 309. (t) Bound v. Lawrence, [1892] 1 Q. B. 226; 61 L. J., M. C. 21. 43 & 44 machinery of his employer. Held, that he was a workman Vict. c. 42, within the Act (u). 8. 9. s. 8. Com mence ment of Act. 8. 10. (4) Seaman. A foreman on board a steam canal-barge is not a seaman (x). 9. This Act shall not come into operation until the first day of January one thousand eight hundred and eighty-one, which date is in this Act referred to as the commencement of this Act. 10. This Act may be cited as the Employers' Short title. Liability Act, 1880, and shall continue in force till the thirty-first day of December one thousand eight hundred and eighty-seven, and to the end of the then next session of Parliament, and no longer, unless Parliament shall otherwise determine (1), and all actions commenced under this Act before that period shall be continued as if the said Act had not expired. (1) Now in force under the Expiring Laws Continuance Act, 1897. 60 & 61 Vict. c. 54. (u) 1885, Leech v. Gartside, 1 T. L. R. 391. (x) 1884, Oakes v. Monkland Iron Co., 11 Sc. Sess. Cas., 4th Series, 579. COUNTY COURT RULES, 1889. ORDER XLIV. THE EMPLOYERS' LIABILITY ACT, 1880. Service of Summons. 1. A summons in an action brought under the provisions of the Employers' Liability Act, 1880, where it is to be served in the home district, should in order to ensure its service be delivered to the bailiff thirty-two clear days at least, and where it is to be served in a foreign district, thirty-five clear days before the returnday, but it shall in either case be served thirty clear days before the return-day thereof. 1885, Dunn v. Butler, 1 T. L. R. 476. The plaintiff sent the summons to the bailiff of the county court forty-two days before the hearing. The bailiff neglected to serve it until twenty-five days instead of thirty days before the hearing. The defendants appeared and cross-examined the plaintiff, but the county court judge non-suited the plaintiff, on the ground that the summons had been served too late. Held, that the non-suit must be set aside, as the defendants had waived the irregularity. Summonses when to be served. 43 & 44 Vict. c. 42. lars to be filed. 2. Particulars of demand shall be filed by the plaintiff Particu at the time of the entry of the plaint, whatever the amount claimed may be; and a copy thereof shall be forthwith sent to the judge. What pardemand ticulars of 3. The particulars of demand shall state in ordinary language the cause of the injury, and the date at which it was sustained, and the amount of compensation shall state. claimed, and where the action is brought by more than Rule 3. Order 44, one plaintiff, the amount of compensation claimed by each plaintiff, and where the injury of which the plaintiff complains shall have arisen by reason of the act or omission of any person in the service of the defendant, the particulars shall give the name and description of such person. Notice of demand for a jury. Qualification of assessors. How as sessors are to be applied for. Form 128. Jury. 4. Notice of a demand for a jury shall be given in writing to the registrar of the court fifteen clear days at least before the return-day, and the summonses to the intended jurors shall be delivered to the bailiff forthwith. 1886, R. v. Registrar of County Court at Leeds, 16 Q. B. D. 691; 55 L. J., Q. B. 365. The Notice under Order XXXIX. r. 4, of the County Court Rules, 1875 (which is similar to Ord. XLIV. r. 4, of the County Court Rules, 1889), must be given fifteen clear days before the day originally fixed for the return of the summons and not before a day to which the hearing has been adjourned. Assessors. 5. Any person who shall, as hereinafter provided, be appointed by the judge to act as an assessor in the action, shall be qualified so to act. 6. Where no demand for a jury shall have been made, a party who desires assessors to be appointed shall, ten clear days at least before the return-day, file an application according to the form in the appendix stating the number of assessors he proposes to be appointed, and the names, addresses, and occupations of the persons who may have expressed their willingness in writing to act as assessors. If the applicant has obtained the consent of the other party to the persons named being appointed, he shall file such consent with his application. Rule 7. 7. Where the application for the appointment of Order 44, assessors has been made by only one party to an action, the registrar shall forward a copy of the application so made to the other party, who may then either file an application for assessors, or file objections to one or more of the persons proposed. be Where application made by one party to be forwarded to Where both par ties pro 8. Where separate applications are filed by the the other. parties, no objection to the persons proposed shall made by either party, but the judge may appoint from the persons named in each application one or more pose assesassessors, provided that the same number of assessors objection be appointed from the names given in such applications to persons respectively. 9. The applications for the appointment of assessors, together with any objections made to the persons proposed, shall be forwarded by the registrar to the judge. 10. Where the judge shall grant the application for the appointment of assessors, he shall appoint such of the persons proposed for assessors as he may think fit, subject to the provisions contained in this order. 11. In any action where no demand for a jury has been made, and an application for the appointment of assessors has been filed, the judge may, either before or at the return-day, nominate one or more additional persons to act as assessor or assessors in the action. Where no application for assessors has been made, the judge may, if he think fit, appoint any one or more persons to act as assessors in the action before or at the returnday. 12. If at the time and place appointed for the trial all or any of the assessors appointed shall not attend, the judge may either proceed to try the action with the assistance of such of the assessors, if any, as shall attend, or he may adjourn the trial generally, or upon any terms which he may think fit, or he may appoint any person who may be available and who is willing to R. E sors, no proposed. Applicaforwarded to judge. If judge grant application he may appoint any of the tion to be persons proposed. Judge, whether applica tion has or has not been made. may ap point assessors. Where assessors fail to attend. |